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People v. Nunez

OPINION FILED JUNE 15, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARCO NUNEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Lawrence Genesen, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and sentenced to 14 years' imprisonment. He appeals and argues: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in admitting collateral impeachment testimony; (3) the trial court erred in denying his post-trial motion based on new evidence; (4) the prosecutor injected improper comment; and (5) the trial court imposed an excessive sentence. We affirm.

At about 11 p.m. on May 1, 1981, Pedro Mendosa finished his shift as a restaurant cook and went to a nearby restaurant for coffee and conversation with friends. Mendosa left this restaurant at about 2 a.m., caught a bus, stopped at another restaurant for more coffee, and then left to go home. As he was walking, defendant approached from behind, then stood in front of him and asked for a cigarette. When Mendosa replied that he had none, defendant placed a knife on Mendosa's chest, demanded his money, and took Mendosa's knife and wallet.

Mendosa testified further that he had received his weekly wages that day, $240 consisting of one $100 bill, one $50 bill, eight tens, one five and five singles. In addition to the money, defendant took Mendosa's yellow knife, which Mendosa said he used to "open potatoes and onions." Defendant threatened to kill Mendosa if he said anything, then crossed the street to join a shorter man standing in front of a King Castle restaurant.

Mendosa immediately entered a restaurant where he saw Ronald Swick, whom he knew to be a police officer. After he explained what had happened, Mendosa and Swick went outside where, according to Mendosa, he pointed out defendant.

On cross-examination, Mendosa admitted that he did not remember the type of clothing that the robber wore, nor did he notice whether the robber had any scars on his face. He stated that the robbery took only about a minute and that he looked the robber up and down while the wallet and knife were extracted from his pockets. Mendosa lost sight of the robber when he went into the restaurant, but added that he and Swick "came out right away." After defendant was apprehended, Mendosa was taken to the police station but did not view defendant in a lineup.

Office Swick then testified to events leading up to defendant's arrest, substantially corroborating Mendosa's testimony. He said that while he was in a restaurant, Mendosa reported that he had just been robbed, and that the perpetrators were outside. Swick followed Mendosa outside, where Mendosa pointed to two men across the street and said they had robbed him. Mendosa also specified defendant as the one who had threatened him and taken his money. Swick recalled that defendant was approximately seven inches taller than the other man. Swick entered the restaurant, called the police and then joined Mendosa outside.

When Swick and Mendosa approached the two men, they walked away rapidly, then broke into a run. Swick pursued them into a parking lot and saw them attempt to jump over a fence; defendant's attempt was unsuccessful. Defendant then turned to exit the lot in Swick's direction. Swick identified himself as a police officer and told defendant that he was under arrest. Defendant said that he did not believe Swick, and continued his approach with a pocket knife in his right hand. Swick further testified that he disarmed defendant and took a yellow knife from him. At the police station, Swick recovered $240 from defendant's pocket in the same denominations as Mendosa had testified were stolen from him.

Louis Rodriguez testified on behalf of the defendant and stated that on the night of the incident, from about 9 p.m. until after midnight, he was at defendant's apartment with defendant and his family. Shortly after midnight, Rodriguez accompanied defendant and two other friends to a poolroom. About half an hour later, Rodriguez and defendant left to continue drinking at a bar. Rodriguez ordered beer there while defendant went next door to King Castle for food. Rodriguez stated that he remained in the bar until 2 a.m., and did not learn that defendant had been arrested until the next day.

Defendant testified to the same events as Rodriguez and added that after he placed his order at King Castle, he went to the washroom and found that it was out of order. He went outside to a parking lot to relieve himself and while there, he saw two people running toward a nearby fence. As he walked away, a person wearing street clothes grabbed his arm and put a gun to his head. According to defendant, this person never identified himself as a police officer.

Defendant further testified that he was employed at the Brach Candy Company and that he had close to $300 that night because he had received his paycheck and because rent and utility bills were due. On cross-examination he said that he received and cashed his paycheck of about $250 on the day of the incident, and took all of his money, about $300, with him that night. He also said that he pulled his knife out of his pocket because Swick had a gun.

The parties stipulated that if called to testify, the court reporter would say that Mendosa's preliminary hearing testimony recounted that the assailant wore a hat and a turned-up jacket, although at trial Mendosa could not recall how his assailant was dressed. The State recalled Swick who stated that the $240 had been inventoried.

Over defendant's objection, the State called Robert Malone, payroll manager at Brach's, in rebuttal. Malone testified that defendant worked for the company on April 29 and 30, 1981, and that defendant was paid for those two days on Friday, May 8, in accordance with payroll procedure. The State then rested its case. Following deliberations, the jury returned a verdict of guilty.

Defendant presented a post-trial motion for a new trial based on newly discovered evidence. The new evidence showed that defendant had been working for Oakwood Cemetery and was paid $96.67 on April 23 and $39.21 on April 30. The State argued that the cemetery had indicated defendant was paid for the week of April 30, but after May 1, the date of the incident. The trial court denied defendant's motion. This appeal followed.

OPINION

• 1 Defendant first contends that he was not proved guilty beyond a reasonable doubt. He argues that Mendosa's identification was conflicting and uncertain, and therefore insufficient to support defendant's conviction. He posits that Mendosa pointed out the first person ...


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