People v. Nuccio

• Decision Date: 26 November 1969
• Docket Number: No. 41975,41975
• Citation: 253 N.E.2d 353,43 Ill.2d 375
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Richard NUCCIO, Appellant.
• Court: Illinois Supreme Court

Page 353

253 N.E.2d 353

43 Ill.2d 375

The PEOPLE of the State of Illinois, Appellee, v. Richard NUCCIO, Appellant.

No. 41975.

Supreme Court of Illinois.

Nov. 26, 1969.

Julius Lucius Echeles, Jo-Anne F. Wolfson and Michael M. Kachigian, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (Elmer C. Kissane, Thomas Tully and James Kavanaugh, Asst. State's Attys., of counsel) for the People.

UNDERWOOD, Chief Justice.

Defendant, Richard Nuccio, was found guilty of murder at the conclusion of a bench trial in the circuit court of Cook County and sentenced to 14--15 years imprisonment. He appeals directly here contending he was deprived of his constitutional right to confront the witnesses against him; that 'the evidence did not justify the verdict'; that the court used a constitutionally impermissible standard in making its decision; and that improper prosecutorial questioning of defendant and his witnesses deprived him of a fair trial.

The testimony is voluminous and conflicting, with few matters undisputed. It is clear, however, that the event in question occurred on the night of June 4, 1968, in an alley near a large parking area opposite Wrigley Field in Chicago. This parking area was bounded on the north by Patterson Avenue, on the east by Clark Street, on the south by Addison Street, and on the west by an alley running diagonally north and south between Patterson Avenue and Addison Street. Near its mid-point this alley was intersected by an east-west alley, and the intersection of these two alleys was lighted by an overhead light attached to a pole. The Franksville Restaurant was located at the southwest corner of this parking area, and a Tastee-Freez Ice Cream stand was at the northeast end surrounded by parking area. Driveways led into the area from Patterson Avenue and from Clark and Addison Streets.

Ben Citron, owner of the Franksville Restaurant, called the police station on June 4 about 9:30 P.M. to report a 'disturbance'. Defendant Nuccio, then a Chicago police officer, was on duty with Patrolman Rothmund, and the two officers responded to the call in a marked squad car. Officers Hyatt and Sand arrived at the scene in an unmarked police car. This area had apparently been visited by decedent and a group of his friends with some degree of frequency. There had been prior disturbances involving police calls and arrests, and some members of the group, including decedent, had been ordered by the court to stay away from the property.

After Officers Nuccio and Rothmund parked their car in the parking area, the former went to a group of young people near the Tastee-Freez and the latter went to the Franksville area where he saw and talked to Ben Citron. Citron pointed to one Steve Austill walking towards Clark Street away form the restaurant and said, 'There's one', or 'there goes one of them'. Then Citron pointed to Ronald Nelson, the 19-year-old decedent, who was sitting at a table on the patio outside the restaurant and said, 'There's another one that shouldn't be here'. Citron testified that he had seen Nelson sitting at the table playing with a knife. While Nelson had had no contact with Citron that evening, Citron was 'scared' when he saw Nelson in possession of the knife and called the police because on a previous occasion Nelson had come into his store, created a disturbance and hit him. Officer Rothmund testified that he saw Nelson playing with a pocket knife while Nelson was sitting at the table and immediately before he jumped up and ran. Trena Ciabay, a 16-year-old high school senior, testified that she was present that evening and had been sitting at one of the tables with Nelson for about three minutes before the police arrived. She did not see anything in his hands nor did she see anything on the table. Leonard Noe, another State witness, also testified that he could see Nelson at the table and saw no knife.

After Citron pointed to Nelson and when Officer Rothmund turned toward him, Nelson got up and ran. Citron went back into his place of business. Officer Rothmund testified that he shouted to the other police officer to 'grab that man and watch out, he has a knife' (or something similar), and then ran over to where Steve Austill was sitting on an 'ad' bench at the corner of Clark and Addison at the southwest tip of the parking area and began to place Austill under arrest.

Officer Nuccio was searching one of the group, John Ahrens, for weapons when he heard Rothmund call from the area of the restaurant, 'Stop him and watch out, he's got a knife'. Both Officers Hyatt and Sand, the plain clothesmen who arrived in the second car, testified that they heard Rothmund yell, 'Look out, he's got a knife'.

John Ahrens testified that he heard a shout, 'Stop him'. Six other young persons, who were gathered near the Tastee-Freez and were near the defendant and Ahrens, testified that they heard a shout, 'Stop him', or 'Get him' coming from the area of the Franksville Restaurant. Only two of them were specifically asked whether they also heard 'watch out, he's got a knife' and both of those asked responded they had not.

After hearing the shouted command, Officer Nuccio looked in the direction of the Franksville Restaurant and saw Nelson running in a northwesterly direction toward the juncture of the east-west and north-south alleys.

The testimony is again conflicting as to the defendant's subsequent conduct, although all the witnesses agreed that the defendant immediately ceased searching Ahrens and began to run toward Nelson.

Officer Hyatt had alighted from the unmarked police car he arrived in and was in the area of the parking lot between Franksville and the Tastee-Freez, walking toward the latter, when he heard Officer Rothmund yell. He turned and saw Nelson running from Franksville. He started running toward Nelson, first running somewhat southwesterly and then as Nelson ran northwest he followed him in this direction. As he was running toward the 'T' in the alleys, he saw the defendant at a point 15--30 feet east of the 'T' and running toward the east-west alley. Nelson was already in the east-west alley and running west on the north side. Officer Hyatt testified that as he and the defendant were entering the alley, he saw something that flashed in Nelson's hand and he presumed it to be a knife. As Nelson was running he looked over his right shoulder and twisted his shoulder to the right. At that time Officer Hyatt screamed, 'Look out, he is going to throw the knife'. The defendant fell to his knees and fired a shot. Nelson fell forward to the ground.

Officer Hyatt testified that he never drew his gun at any time, and that defendant pulled his out as he was dropping to the ground; that at the time defendant fired the knife was in the air. Officer Hyatt also testified he was slightly behind and to the left of defendant, and estimated that the decedent was approximately 20--25 feet ahead of defendant at the time of the shot. An opened knife, identified by this officer as the one Nelson had, was found in the alley.

Defendant testified that he saw Officer Hyatt trying to apprehend Nelson and defendant started running westerly toward the alley to cut Nelson off at the entrance to the alley; when Nelson reached the entrance to the alley, the defendant hollered at him to stop, but Nelson turned into the east-west alley and headed west. When Nelson was 40 feet into the alley, and the officers were 20 feet behind him, defendant saw Nelson look back at him, raise his right arm with a knife in his hand and heard Officer Hyatt scream, 'Watch out, he's going to throw the knife'. Defendant testified, 'I dove to the ground and fired, it all happened instantly.'

The State's witnesses gave a somewhat different description of the events and differed entirely from the police officers as to the presence of a knife. John Ahrens, whom the defendant had been searching when the shout was heard, testified that the defendant had taken only a few steps when he began to draw his gun. Edward Ryan and Jose Rodriguez, other young men who were near the Tastee-Freez and the spot where the defendant was searching Ahrens, gave similar testimony. Linda Young, who was sitting in a car parked southwest of the Tastee-Freez, testified defendant pulled his gun as he was running. Noel Kitchen, also standing in this area, testified that the defendant drew his gun right before he got to the alley.

Ahrens and Leonard Noe, another young man who was sitting at one of the tables outside Franksville, testified the defendant stopped about 15 feet east of the alley light located at the entrance to the east-west alley, aimed and fired a shot at Nelson. Jose Rodriquez estimated this distance at 30 feet; Edward Ryan at about 20 feet. The estimates given by the State's witnesses of the distrance between the defendant and Nelson when the shot was fired ranged from 70 to 90 feet. None of the State's witnesses testified to having seen a knife or object in the hand of Nelson as he ran. Although some of the State's witnesses saw Nelson look over his shoulder or at least turn his head as he entered the east- west alley, none of them saw him turn or look back as he was running west down the alley.

The trial judge accepted the State's version of the distance between defendant and decedent at the time the shot was fired and found that distance to be 70--90 feet. The defendant's claim that the proof does not establish guilt beyond a reasonable doubt is, therefore, not sustainable for the testimony of the State's witnesses, if believed by the trier of fact, is sufficient to justify the verdict. Ill.Rev.Stat. 1967, ch. 38, par. 7--5.

The argument that defendant was deprived of the opportunity to confront the witnesses against him is interwoven with the argument that improper prosecutorial questioning of defendant and his witnesses deprived him of a fair trial. Both arguments...