People v. Nelson

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People v. Nelson

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-3522 NRel

Case Date: 12/14/2007

Preview:Sixth Division December 14, 2007

No. 1-06-3522 THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellant, v. BYRON NELSON, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

02 CR 3010

Honorable Kenneth Wadas, Judge Presiding

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

1-06-3522 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

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