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People v. Nelson

OPINION FILED JANUARY 24, 1985.

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

v.

THOMAS NELSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

The defendant, Thomas Nelson, was charged by information with two counts of murder and one count of armed violence. The charges stemmed from the March 22, 1983, stabbing death of his estranged wife, Tina Nelson. After a jury trial in the circuit court of Lake County, the defendant was found guilty of murder and armed violence and not guilty of voluntary manslaughter. The defendant was sentenced to 50 years' imprisonment on the murder conviction and was not sentenced on the armed violence conviction.

The defendant raises three issues on appeal: (1) whether it was error not to instruct the jury on voluntary manslaughter/unreasonable belief of justification, (2) whether the court erred in finding that the murder was accompanied by brutal and heinous conduct indicative of wanton cruelty and imposing a 50-year extended-term sentence, and (3) whether the murder and armed-violence convictions were carved from the same physical act, thereby requiring that the armed-violence conviction be vacated. We find the defendant's arguments to be without merit and, therefore, affirm.

On the morning of March 22, 1983, the defendant drove Mrs. Nelson and two of her co-employees to work at the Baxter-Travenol complex in Deerfield. While the Nelsons were separated at this time, the defendant agreed to drive the three women to work because Mrs. Nelson's car would not start. That afternoon the defendant visited a friend, Penny Nichols, at her apartment. Mrs. Nelson telephoned him there at approximately 2 p.m. and asked if he had her car and what he was doing there. An argument ensued during which Mrs. Nelson demanded that he bring her car to her at work.

The defendant then drove to Baxter-Travenol, arriving about 3:15 p.m. The defendant told the receptionist that Mrs. Nelson's child was ill and in the hospital. The defendant knew the child was fine, but testified that he used this story because Mrs. Nelson had told him he would have to give some excuse to see her. The defendant also stated that he told Mrs. Nelson the story he had used and she agreed to go along with it. Judy Welsh, Mrs. Nelson's supervisor, and Cora McClelland, however, testified that Mrs. Nelson became hysterical and cried upon being told about her child.

The defendant and his estranged wife then left the building and walked to the car. The defendant testified that after they were both inside the car, Mrs. Nelson started an argument about her car and Penny Nichols and became hysterical. He tried to leave but she drew a knife from her purse, threatened him, and tried to stab him. A two-to three-minute struggle ensued during which he got his right arm around her and she got the passenger door open and her right foot outside the car. The defendant testified that she continued trying to stab him until he was able to force her hand open and get the knife. She then ran from the car to the building.

The State's evidence, however, showed that the defendant was not acting in self-defense. Cora McClelland testified that as she walked outside and asked the Nelsons if she could help, Mrs. Nelson got out of the car and called out that the defendant had a knife and had lied about the baby being ill. Mrs. Nelson then tried to break free from the defendant but he grabbed her by the neck and stabbed her in the face. Mrs. Nelson was then able to break free and run to the building.

Mary Pieja, a food service worker, testified that she was driving in the parking lot at the time and saw a man pick a woman up from the ground and push her against a car. The two people struggled and the man appeared to be stabbing the woman, although she never saw a knife.

Donna Waski and Debra Lo testified that they were parking their car at the time of the incident and saw two people inside a car who appeared to be struggling. The car's passenger side door was open and the woman's feet were outside the car. As Waski got out of her car she saw that the man was holding the woman around the waist and appeared to be punching her. The woman then got out of the car and fell to her knees. Waski ran into the building, and, as she looked back, she saw the woman, bleeding from a facial wound, run from the car to the building. Debra Lo described the man as "pummeling" the woman's chest and face.

Dr. Helen Young testified as to the autopsy she performed, and that decedent had been stabbed nine times, resulting in a total of 12 stab wounds. The cause of death was internal hemorrhaging and collapsed lungs from the chest wounds.

• 1 The defendant's first argument on appeal is that the court erred in failing to instruct the jury, sua sponte, on voluntary manslaughter based on an unreasonable belief of justification. The proper instruction, if given, would have been Illinois Pattern Jury Instructions (IPI), Criminal, No. 7.05 (2d ed. 1981), which states:

"A person commits the crime of voluntary manslaughter when he kills an individual if, in performing the acts which cause the death,

he intends to kill or do great bodily harm to that ...


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