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06/26/95 PEOPLE STATE ILLINOIS v. NATHAN RUTHERFORD

June 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NATHAN RUTHERFORD AND CLYDE RUTHERFORD, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE VINCENT BENTIVENGA, JUDGE PRESIDING.

As Corrected June 27, 1995. Rehearing Denied August 18, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Accepting an invitation to stay at the Rutherfords can prove fatal.

In late March 1991, 19-year-old Stanley Brown (Stan) and 16-year-old Steven Stahler (Stahler) were living in the Rutherford home at 4516 Christiana in Chicago. It was not unusual for 16-year-old Nathan Rutherford (Nathan) to invite friends to stay there at times. Nathan lived in the house with his mother and his father, Clyde Rutherford (Clyde).

In early May, Stan's mother filed a missing persons report on her son. A police investigation began. Police officers interviewed Stan's family and friends.

On June 2, 1991, police officers, with the aid of shovels and a backhoe, found Stan's corpse, buried in Hidden Hill in Schiller Woods. He had been beaten and then buried alive. His hands were bound in front of him with a nylon rope.

Clyde, Nathan, and Stahler were charged with Stan's murder and with concealment of his homicidal death.

Clyde was tried in February 1992. That trial ended in a hung jury. He was retried in January 1993, found guilty of both charges by a jury, and sentenced to 27 years' imprisonment.

Nathan was tried in April 1992, found guilty of both charges by a jury, and sentenced to 42 years.

Stahler pleaded guilty to the charges and was sentenced to 45 years.

We have consolidated the appeals of Clyde and Nathan.

We affirm their convictions.

EVIDENCE PRESENTED AT CLYDE'S TRIAL

The State presented Stan's mother, Pat Stille, as a life and death witness. The State also presented Rosalee Augustyn and Donna Dumelle, both sponsors of an Alateen group that Stan attended. These witnesses established that Stan failed to attend a group session scheduled for April 2, 1991, and that the contact phone number he gave at the last session he attended was the Rutherford's phone number.

The next witness was Steve Williams, owner of the Forest News Agency, which employed Clyde Rutherford. Williams established that Clyde was one of 15 employees who provided home delivery of the Sun-Times newspaper. Clyde's route encompassed the area from Belmont to Irving Park Road and from Harlem Avenue to Okedo and could be completed in 1 1/2 - 2 hours.

Papers were generally picked up around 1 a.m. each day and Clyde typically was the first person waiting in line to pick up papers. Also, Clyde was often accompanied by his son, Nathan, and some of Nathan's friends, when working the paper route.

The next witness was Lori Kellas, a past girl friend of Nathan's. She had known Nathan for about 1 1/2 years before March 1991. She met both Stahler and Stan in February 1991.

On the weekend of Lori's birthday, in March 1991, Clyde drove Nathan and Stan to Wisconsin to pick her up and drive her to Chicago. The next time Clyde drove Nathan to Wisconsin, on the weekend of April 18, 1991, Stan was not with them. Stahler was. When Clyde pulled up to her house, she walked out of her home to greet them. As she stood 10 to 15 feet from the truck, with Clyde's window open, Nathan presented her with a baseball bat, saying: "Stan's there." He then said that the brownish stains on the bat were Stan's blood.

On the following weekend, Clyde drove Nathan and Stahler to Wisconsin once again to pick up Lori and drive her back to Chicago. Lori stayed in Nathan's room and noticed a brown-colored glass cognac bottle on top of Nathan's television set. The bottle contained a brownish liquid and Nathan told Lori that the liquid was Stan's blood.

On Mother's Day weekend in May 1991, Lori saw Nathan again. When Clyde drove Nathan over to Lori's house to pick her up, Stahler and a girl named Barbara Campbell were already in the truck. They went to Nathan's grandmother's home in Salem, Wisconsin, and picked up Nathan's mother. As they were driving away from the grandmother's home, Nathan and Stahler started waving and hollering, "Bye, Stan." When Lori asked what they were doing, Nathan told her, "Stan's there," pointing to a swamp near the grandmother's home.

In Chicago, when Lori accompanied Nathan, Stahler, and Clyde on the paper route, she asked Clyde where Stan was. Clyde replied, "He's not here now. I really didn't care for him anyway."

On May 15, 1991, Lori told her friend, Lori Dunbar, about the bat and Nathan's comments. They decided to call the sheriff's office. The Kenosha County sheriff met with Lori. Lori turned over the bat to the sheriff's office.

Detective Larry LaPointe of the Kenosha County sheriff's office testified that the bat recovered from Lori Kellas was analyzed at their crime lab. Tests showed that the bat was stained with human blood. Based on Lori's information, the swamp areas near Nathan's grandmother's home were searched. A brown bottle containing a brownish liquid was recovered. The liquid in the bottle was later determined to be approximately 3 ounces of human blood.

LaPointe also testified that between May 20, and June 2, 1991, he was in contact with Detectives Mohan and Santopadre of the Chicago police department regarding the disappearance of Stan. On June 2, 1991, he was contacted by the Chicago police and told that Stan's body had been recovered.

Next, Dr. Stein, chief medical examiner for Cook County, testified that he was present on June 2, 1991, when a body was recovered from a makeshift grave located at Hidden Hill in the Schiller Woods Forest Preserve. The body was later positively identified through dental records as that of Stanley Brown. On June 3, 1991, an autopsy was performed on Stan's extremely decomposed body. It revealed that, although there was evidence of lacerations on both sides of Stan's head, there was no skull fracture. Stan died of asphyxiation. There was dirt and gravel in his mouth, esophagus, trachea, and lungs. He had been buried alive. It was also noted that Stan's hands had been bound with rope.

Detective Mohan of the Chicago police department testified that on June 1, 1991, at about 8 p.m., he and his partner went to 4516 N. Christiana where they arrested Clyde, Nathan, and Stahler. They were transported to Area 5 and interviewed regarding the whereabouts of Stanley Brown. Around 12 p.m. Mohan's partner, Detective Santopadre, took Stahler to Hidden Hill. An excavation of an area at Hidden Hill was begun. Using a backhoe it took 1 1/2 hours to uncover Stan's body.

Clyde refused to give a signed statement, but made oral statements to the police. He first said that he hadn't seen Stan for about two months. Around 10 p.m. on June 1, 1991, Detective Mohan had a second conversation with Clyde regarding the events leading to Stan's death. Clyde said that on April 1, 1991, he saw Stan coming down the stairs of his home, assisted by Nathan and Stahler. He knew that Stan had been beaten and could see that he was bleeding. Nathan and Stahler asked him for a ride to Schiller Woods. He agreed to take them and directed them to put Stan in the back of the truck. At Schiller Woods, Stahler and Stan walked off towards the woods. Stahler had a shovel and a car battery. Clyde stated that it was his understanding that Stahler intended to beat Stan some more in the woods. He and Nathan then left to do the paper route.

Stahler met up with them on the paper route sometime later, without Stan. Clyde stated that he asked where his shovel was. Then they drove to where Stahler left the shovel to recover it. Clyde said he asked Stahler about Stan. Stahler told him that Stan got scared and ran off.

Detective Mark Sanders testified that on June 2, 1991, he executed a search warrant on Clyde's residence and truck. Clyde had voluntarily consented to the search and accompanied Sanders to the residence for the search.

In the course of the search, pictures were taken of Clyde's truck. They recovered items from the back of the truck, including pieces of rope (similar to that used to bind Stan's hands); a shovel, a wooden handle, and a gray jacket.

Inside the house the search was confined to the upstairs, where Nathan's bedroom was located. Several photos were taken. Some photos showed the three beds in Nathan's room and the television set where Lori Kellas testified that the bottle containing Stan's blood had been displayed. Sanders also testified that other items were recovered and inventoried. They included: a piece of plywood and a piece of particle board, both of which were found behind a small bureau at the top of the stairs, both containing brownish stains; a guitar, on which the markings "S.D. 4-2-91" were written in a brownish substance; a metal baseball bat; a wooden bat with nails driven into it; a pair of blue jeans; and a Metallica T-shirt.

Assistant State's Attorney Matthew Mahoney testified that he spoke with Clyde at 11:50 a.m. on June 2, 1991, at Area 5 headquarters. Clyde repeated essentially the same statement that he had given Detective Mohan the night before, with one exception. Clyde said that he knew that Stan had been beaten due to the fact that he had destroyed a misprinted $5 bill. Clyde refused to provide a signed statement or give his statement before a court reporter.

On cross-examination Mahoney admitted that he obtained a 22-page court-reported statement from Stahler, but did not reveal the substance of that statement.

The last witnesses for the State were John Van Altina and Pamela Fish. Van Altina testified that he had been working at a cemetery for 40 years and was foreman for the last 15 years. At this cemetery they always dig the graves by hand. Van Altina testified that he had gone to Schiller Woods to determine the soil conditions at Hidden Hill and, based upon his observations and experience, he estimated that it would have taken one person at least two hours to dig a grave the same size as the one in which Stan was buried. In addition, it would have taken between 45 minutes and 1 1/2 hours to refill the hole to cover the grave.

On cross-examination, Van Altina agreed that it would take less time to dig a grave of smaller dimensions. He estimated that a grave the size of 5 feet long, 1 1/2 feet wide and 3 feet deep would take one person about an hour to dig and 30-45 minutes to refill.

Pamela Fish, a criminalist in serology for the Chicago police department testified that her tests revealed that human blood was present on the plywood board, the baseball bat, and in the brown glass bottle. Also, the phrase "S.D. 4-2-91" was written on the guitar in blood. She was unable to determine the blood type because it had been absorbed by the porous, wooden surfaces, and the blood in the bottle had degraded due to exposure.

The defense recalled, as its only witnesses, Detectives Mohan and Santopadre. Counsel showed Detective Mohan some pictures of the parking lot at Schiller Woods to establish that there are small cement pillars ringing the field to prevent the public from driving out onto the field. Counsel asked Santopadre about his trip to Hidden Hill with Stahler. Santopadre testified that Stahler marked an area on Hidden Hill with his foot. After these witnesses, the defense rested.

EVIDENCE PRESENTED AT NATHAN'S TRIAL

Shortly after his arrest, Nathan signed a six-page written statement. It set out his role in the events leading up to and following Stan's burial. The evidence presented at Nathan's trial was nearly identical to the evidence at Clyde's trial, except that Nathan's statement was used. Neither Clyde's oral statement nor Stahler's 22-page court reported statement was offered at Nathan's trial.

In summary, Nathan's statement was:

Late in March 1991, Nathan discovered that a misprinted $5 bill he owned, valued at $600, was missing. Nathan learned that Stan had taken the bill and confronted him about it. Stan admitted taking the bill after Nathan kicked Stan in the nose, breaking it, and punched him several times. Stan agreed to return the bill.

Later, Stan showed Nathan the bill he had taken and Nathan realized that the bill had been dyed with ink and that its value was ruined. He became very angry. A day or two later, at the Rutherford home, Stan threw a beer bottle at Nathan as Nathan was entering his bedroom. Nathan took the beer bottle and hit Stan on the side of the head with it, causing a deep cut that bled profusely. Nathan continued to beat Stan with his fists, kick him, and throw objects at him.

Stahler was also present and joined in beating Stan. He used the wooden handle from a toilet plunger. Stahler and Nathan beat Stan for ten minutes or more. When they finished, Stan was "very out of it." As Stan sat leaning against a wall of Nathan's room, Stahler collected blood from the cut on Stan's head into a bottle. Nathan took a baseball bat and rolled it in Stan's blood as a souvenir of the incident.

After the beating, Stan was "kicked" into the shower and told to wash off. Nathan and Stahler discussed getting rid of Stan. Nathan thought Stan was going to die and didn't want a dead body around the house. They decided that the best alternative was to bury him in the woods. At about 11 p.m., when it was time to leave to deliver papers on Clyde's paper route, Stan was taken downstairs, assisted by both Nathan and Stahler, and placed in the back of Clyde's truck.

Clyde allowed Stan to be placed in his truck and agreed to drive them to Schiller Woods Forest Preserve. At the forest preserve Nathan and Stahler helped Stan out of the truck and sat him on the ground. Stan and Stahler walked off towards the woods with Stahler carrying an ax handle and a shovel. Stan was forced to carry a battery. The battery was taken because Stahler intended to pour battery acid on Stan's body.

Nathan and Clyde drove off to deliver papers. Stahler met up with them along the paper route 1 1/2 hours later. Stahler told Nathan that he buried Stan in Hidden Hill. Clyde drove them to an alley where Stahler had hidden the ax handle and shovel so they could retrieve these items.

Nathan also admitted taking the bloodied bat to Wisconsin and giving it to a girl friend. He took the bottle of blood to Wisconsin, where he threw it in a swamp near his grandmother's house.

In addition to Nathan's statement, the State presented the same witnesses who testified at Clyde's trial, with the exception of Steve Williams, Clyde's employer, and John Van Altina, the cemetery foreman. (Nancy Jones, an assistant medical examiner, testified in place of Dr. Stein, who was ill.)

The only defense witness was Nathan's mother. She said she had ten other children, and that her other sons, who had lived in the house before March 1991, had contributed to ...


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