People v. Nelson

571 N.E.2d 879, 206 Ill. App. 3d 956, 156 Ill. Dec. 899, 1991 Ill. App. LEXIS 604
Appellate Court of Illinois·Decided April 12, 1991·No. 1-89-0694·Published·Cited by 13 cases

Opinion

PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial the defendant, James Nelson, was convicted of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) and sentenced to natural life imprisonment. On appeal he contends (1) that the trial court erred in finding that his conduct was exceptionally brutal or heinous as defined under section 5—8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b)); (2) that the trial court abused its discretion in sentencing him to natural life imprisonment; and (3) that he was denied his right to an impartial judge at his post-trial motion and sentencing hearings.

On December 15, 1986, 16-year-old Nathaniel Perry was staying at his mother’s apartment at 6215 South Wabash in Chicago, Illinois, while she was away. About 12:30 p.m. Robert Perry, Michael Ruth, Kenneth Brewer and Steven Perkins, other teenagers, were also present. Nathaniel’s mother was married to defendant, but she testified that she had been separated from the defendant for about three weeks before the incident, although he still had a key to the apartment.

Robert Perry, the brother of Nathaniel, testified that he left the apartment about 12:45 p.m. to go to the store. He returned 30 minutes later. Michael Ruth and Steven Perkins testified that at about 1 p.m. someone banged on the apartment door. Nathaniel looked out the peephole and announced that the defendant, who was his stepfather, was at the door with a gun and that everyone should hide. Kenneth Brewer was playing music in a bedroom at this time. Michael Ruth stated that he went into another bedroom and heard someone enter the apartment. From his hiding place under the bed Ruth saw feet, legs and a gun go past the bedroom. Michael Ruth then heard the defendant say, “Come out from there,” and ask where his car was. Ruth heard Nathaniel reply, “I don’t know nothing about your car.” The defendant then accused Nathaniel of stealing the car. The defendant told Nathaniel to find out who stole the car. Nathaniel stated that he did not know. Michael Ruth testified that he heard defendant say, “I am fixing to blow your brains out.” After hearing a gunshot, Ruth ran out of the apartment and called the police. Ruth stated that the music was turned off before defendant entered the apartment.

Steven Perkins testified that he ran into the bedroom where Kenneth Brewer had been playing records. Perkins saw Nathaniel Perry run into the bedroom of his sister, Patrice Perry. Perkins and Brewer hid in the closet and closed the bedroom door because the closet did not have a door. Both Perkins and Brewer testified that when the door to the bedroom was opened, they saw defendant with a gun in his hand.

Kenneth Brewer heard defendant say, “Where are you?” and then accuse Nathaniel Perry of stealing defendant’s car. Brewer testified that defendant said “Why are you talking this way? You know I am going to blow your head off.” Brewer heard Nathaniel respond, “If that’s what is going to happen, its going to happen.” Steven Perkins testified that he heard the same conversation and saw defendant and Nathaniel facing each other. Brewer heard a shot and glass breaking, while Perkins saw defendant point the gun at Nathaniel’s face and shoot him. Perkins testified that at the time he was shot, Nathaniel’s hands were at his side and he never made a quick movement. Perkins saw defendant kick Nathaniel’s feet after shooting him.

Kenneth Brewer testified that once he heard defendant leave the apartment, he locked the door and watched defendant through the kitchen window as defendant entered apartment 907. Brewer further testified that defendant was “smiling, laughing like it was a joke” when the police took defendant out of the apartment building. Brewer yelled at defendant, and defendant threatened Brewer by saying that if defendant had caught Brewer, Brewer would be dead, too.

Robert Perry testified that when he returned to the apartment from the store, he found Nathaniel shot through the eye and lying on the bedroom floor. Robert Perry also testified that several days before the shooting he informed defendant- that Nathaniel would be staying at the apartment while his mother was out of town.

Chicago police sergeant John Kelly testified that he investigated the shooting and saw Nathaniel Perry’s body, which appeared to have sustained a shot in the eye. Kelly testified that he was informed that defendant shot Perry and was in apartment 907. When Sergeant Kelly went to the apartment, he found defendant sitting on a kitchen chair underneath which was a pistol. Kelly advised defendant of his Miranda rights, and defendant responded by saying, “Is that sucker still alive, is he dead yet?” Kelly further testified that defendant said, “I don’t want to go through this business for nothing. I did society a favor by killing him and getting him off the block.” Kelly also testified that defendant appeared to have been drinking.

Officer John Blackman accompanied Kelly to apartment 907, and he testified that he found defendant sitting on a kitchen chair. Blackman recovered a five-shot, .38 caliber gun from underneath the defendant’s chair. The gun had four live rounds and one empty chamber. After defendant was advised of his rights, Blackman heard defendant say, “I know all of that shit; business is business; hell, I done the community a favor by killing him.”

Officer Charles Cleveland testified that he searched defendant in the interview room at the police station. During the search an expended shell case fell from the defendant’s pants, and defendant put the casing into his mouth and attempted to swallow it. Officer Cleveland, however, was able to recover the casing from defendant’s mouth.

The State and the defendant stipulated that Dr. Korpics pronounced Nathaniel Perry dead at 1:56 p.m. on December 15, 1986. The parties also stipulated that Dr. Awn did the post-mortem examination of Perry and the medical examiner’s report indicated that the cause of Perry’s death was a gunshot wound to the face, lacerating the brain. It was also stipulated that Richard Chenow, a firearms examiner for the Chicago police department, examined the bullet removed from Nathaniel Perry’s body and found that it was not suitable for comparison.

After the trial court denied defendant’s motion for a directed finding, defendant testified. Defendant stated that he was 37 years old, graduated from high school, worked as an accounting clerk for three years, then did a four-year boilermaker apprenticeship to qualify for his present occupation as a boilermaker. Defendant testified that he lost an eye in 1975 as a result of being struck by a pipe. Defendant testified that he married Teresa Perry in August 1984 and had disagreements with her son, Nathaniel Perry.

Defendant testified that on December 15, 1986, he had three or four shots of whiskey and a beer with friends and then went home. Defendant stated that he was not intoxicated. Defendant denied knocking on the door of the apartment because he lived there and had a key. Defendant testified that his purpose in going to the apartment was to see if Robert Perry went to school that day. Defendant admitted that he had a gun, but maintained that it was in his pocket.

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People v. Nelson, 571 N.E.2d 879, 206 Ill. App. 3d 956, 156 Ill. Dec. 899, 1991 Ill. App. LEXIS 604 (Ill. Ct. App. 1991).

571 N.E.2d 879 (People v. Nelson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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