People v. Nelson

• Decision Date: 14 December 2007
• Docket Number: No. 1-06-3522.,1-06-3522.
• Citation: 880 N.E.2d 1096,377 Ill. App. 3d 1031
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Byron NELSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

880 N.E.2d 1096

377 Ill. App. 3d 1031

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Byron NELSON, Defendant-Appellee.

No. 1-06-3522.

Appellate Court of Illinois, First District, Sixth Division.

December 14, 2007.

Richard A. Devine, State's Attorney of Cook County, Chicago (James Fitzgerald, Marie Quinlivan Czech and Joseph D. Cook, Assistant State's Attorneys, of counsel), for Plaintiff-Appellant.

Frank J. Himel, for Defendant-Appellee.

Presiding Justice McBRIDE delivered the opinion of the court:

Defendant Byron Nelson was charged with six counts of first degree murder in the January 2002 death of Cornelius Buchanan. On July 30, 2006, following jury selection, the State asked the trial court to grant use immunity to codefendants Corey Hodges and Jerome Weathers. The trial court denied the State's motion and found that it could not compel Hodges and Weathers to testify against defendant because each had a fifth, amendment right against self-incrimination. The State proceeded to trial, but the jury was unable to reach a verdict and a mistrial was declared. After the mistrial, the State filed a notice of appeal and a certificate of substantial impairment in that the court's refusal to grant use immunity had the effect of suppressing evidence and substantially impaired its ability to prosecute the case against defendant.

On appeal, the State argues that the trial court failed to follow the plain, unambiguous and mandatory language of the use immunity statute (725 ILCS 5/106-2.5 (West 2006)) when it refused to grant the State's motion to issue use immunity to codefendants Hodges and Weathers.

The record discloses the following relevant facts. Defendant was charged by indictment No. 02 CR 3010 with multiple counts of first degree murder in the death of Cornelius Buchanan, which occurred on January 7, 2002, at 5022 South Carpenter in Chicago. Defendant was to be tried simultaneously before separate juries with codefendant Iran Thomas. On October 26, 2006, the trial court conducted jury selection for defendant's trial. On October 30, 2006, immediately prior to the start of the trial, the prosecutor called codefendants Hodges and Weathers to the witness stand outside the presence of the jury. Both men had given videotape statements that implicated themselves as well as defendant and Thomas. The State questioned Hodges first. Hodges admitted that he pled guilty to first degree murder in case No. 02 CR 3010 and was serving a 23-year sentence.

When the prosecutor asked Hodges about his involvement in the January 2002 shooting, Hodges invoked the fifth amendment. The trial court asked Hodges "if [he] were asked additional questions relating to the circumstances of the offense, would [he] take the Fifth, plead the Fifth Amendment on all those subsequent questions?" Hodges replied that he would. In response, the State filed a motion asking the court to grant use immunity to Hodges. Hodges' attorney objected and stated that Hodges' case was up on appeal to withdraw his guilty plea based on ineffective assistance of counsel. After hearing argument from both sides, the trial court denied the State's motion for use immunity and concluded:

"[Hodges] does in fact have a Fifth Amendment right in light of the fact that his case, he does—he is appealing his conviction, even though it was pursuant to a plea, and he could ultimately wind up back in square one, and I don't think the use immunity offered by the State is applicable here, and I don't think I can compel him to testify."

Next, the State called codefendant Weathers to the stand. Weathers admitted that he was serving a 75-year sentence for first degree murder in case No. 02 CR 3010. When the State asked Weathers about the circumstances of the January 2002 shooting, Weathers took the fifth amendment. The court asked Weathers if he would take the fifth amendment on additional questions relating to the circumstances surrounding this incident, and Weathers indicated that he would "take the Fifth all the way." The State then requested the trial court to grant use immunity to Weathers. The court denied the State's request for use immunity and noted that, "Weathers' situation is a little bit different than Hodges[']. In reality, my view is that his position is stronger. He contested his guilt throughout a trial, was convicted, and ultimately sentenced, and his case is up on appeal."

In response to the trial court's ruling, the State nol-prossed the charges against codefendant Thomas. Following the trial court's denial of the State's motions for use immunity, defendant's trial began. The following evidence was admitted at trial.

Officers Aaron Cunningham and Eric Majcen of the Chicago police department were on duty from 3 to 11 p.m. on January 7, 2002. Officer Majcen was driving while Officer Cunningham was in the passenger seat. At approximately 6:45 p.m., the officers were patrolling the 9th district because of an ongoing gang conflict between the Black Peace Stones and the Gangster Disciples. They were driving northbound on Peoria at 50th Place when they saw "a group of black males dressed in black" running from the alley at 50th Place across the street in front of the officers' marked squad car. The men continued to run into the alley on the other side of Peoria.

Officer Cunningham testified that the area was lit by street lights and the men passed in front of the headlights of the car. He said he was able to see their faces as they ran past. The officers then "activated emergency equipment and began pursuit" of the men into the alley, located near 842 West 50th Place. The men continued to run through the alley until they reached a fence and began to climb it. One of the men fell, but he got up and made it over the fence. Both officers identified the man that fell as codefendant Hodges. Officer Cunningham got out of the car and was able to apprehend one of the men, identified as codefendant Weathers. As Weathers was climbing the fence, his pants were torn and an Ithaca .45-caliber handgun fell out of his pocket. Officer Cunningham took Weathers into custody and recovered the firearm.

A short time later, the officers received word that a possible suspect had been detained one to two blocks away by two other officers. Officers Cunningham and Majcen identified that individual, now known as Hodges, as one of the men they saw running through the alley. Officers Cunningham and Majcen then returned to the area around the fence in the alley to search for other weapons. A Glock 9-millimeter Luger semiautomatic pistol was found on the garage roof adjacent to the yard with the fence. A High Point 9-millimeter handgun was recovered next to a vehicle parked in the yard. A Glock .45-caliber semiautomatic pistol was found at the base of the fence on the alley side where Corey Hodges had fallen to the ground. A few days, later, Officer Cunningham helped locate a Jennings 9-millimeter semiautomatic pistol in the yard adjacent to where Weathers was apprehended.

Sergeant Mike Jetel testified that on January 7, 2002, he and his partners, Officers Jack Ryan and Dave Trinidad, were called to the area of 831 West 50th Place to perform a well-being check. Sergeant Jetel described a well-being check as "a call to just check on a citizen that a third party is concerned about."

Sergeant Jetel stated that the address for the well-being check is about a quarter of a block away from 842 West 50th Place. When he received the call for the wellbeing check, Sergeant Jetel was aware of a shooting that had occurred at 5022 South Carpenter, which was "at the most" two blocks away from 831 West 50th Place.

Sergeant Jetel also knew that codefendants Hodges and Weathers had been taken into custody.

The third party who called in the wellbeing check had been on the phone with her mother when she heard gunshots in the background at her mother's end. Sergeant Jetel went to the address and spoke with the elderly woman, Miss Mitchell. Miss Mitchell indicated that she was "okay" and allowed the officers to enter her residence. The officers looked around and discovered four individuals on the first floor. Sergeant Jetel testified that those individuals were defendant, Iran Thomas, Terry Thomas and Alvin Kendrick. Sergeant Jetel stated that he noticed defendant was sweating profusely, even though it was "pretty cold" outside that day. He said that none of the other individuals were sweating profusely. Sergeant Jetel brought the men out of the house for a "showup" with Officers Cunningham and Majcen.

Officer Cunningham identified defendant as one of the men he pursued down the alley and he did not identify any of the other individuals. Later, Officer Majcen also identified defendant as one of the men he saw running earlier and did not identify any of the others. The State admitted evidence that a gunshot residue kit had been administered on defendant, and the results indicated that "he discharged a firearm with his left hand or came in contact with a primer gunshot residue related item or was in the environment of a discharged firearm."

Officer John Paulson testified that he is a forensic investigator with the Chicago police department. On January 7, 2002, Officer Paulson responded to the scene of a shooting at the 5000 block of South Carpenter. By the time Officer Paulson had arrived, the victim, Cornelius Buchanan, had been removed. Officer Paulson began to process the scene to recover fired bullets and cartridge cases. Officer Paulson stated that the spread of cartridge cases went across the center of the street near 5022 and 5023 South Carpenter. He also found several fired bullets and bullet fragments inside the victim's car. Officer Paulson also assisted Officers Cunningham and Majcen in the recovery of firearms from the alley at 842 West 50th Place.

Kurt Murray testified that he is a forensic scientist specializing in toolmark and firearm examination with the Illinois State...