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09/18/95 PEOPLE STATE ILLINOIS v. LAWRENCE NYBERG

September 18, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LAWRENCE NYBERG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Joseph J. Urso, Judge Presiding.

Rehearing Denied October 26, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Campbell delivered the opinion of the court: Braden, J., concurs. Wolfson, specially concurs.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a jury trial, defendant, Lawrence Nyberg, was convicted of first degree murder and concealment of a homicide, and sentenced to a 70-year extended term of imprisonment for the murder, and five years imprisonment for the concealment, the sentences to run consecutively. On appeal, defendant contends that: (1) he was not proved guilty of murder beyond a reasonable doubt; (2) the trial court erred in precluding admission of portions of his tape-recorded statement at trial; (3) the trial court improperly failed to limit the cross-examination of his character witness; (4) the trial court improperly allowed the jury to view certain photographs of the crime scene; and (5) his sentence is excessive. For the following reasons, we affirm.

The record reveals the following relevant facts. On May 14, 1991, police discovered the badly decomposed body of Christian Schlotterbeck (Chris), in his apartment located at 1117 North Dearborn, Chicago. On February 11, 1992, agents of the Federal Bureau of Investigation (FBI) arrested defendant in New York City. Defendant's trial commenced in November 1993.

Prior to trial, the State moved in limine to bar admission on hearsay grounds of the contents of a tape-recording made by the defendant. The trial court granted the State's motion but allowed counsel to make reference to the fact that a tape was made. The trial court initially reserved its ruling as to whether the tape was hearsay, and after an offer of proof by defendant during trial, ruled the contents of the tape to be both hearsay and self-serving.

At trial, Chris' brother, Donald Schlotterbeck, testified on behalf of the State that he met defendant about 13 years prior to trial. Donald lived in the same apartment building as Chris.

In 1991, Chris developed some swelling in his feet and legs and had difficulty walking. Chris also had high blood pressure and tended to stay in his apartment.

On Sunday, May 5, 1991, Donald and his family entertained Chris and defendant for breakfast at Donald's apartment. Chris avoided talking to the defendant.

On May 7, 1991, Donald received a telephone call from defendant. Defendant stated that he was calling from the airport and that he and Chris were going "to the coast," that Chris was paying for the trip, and that they would be back in one week. Defendant stated that they had to catch a plane in five minutes and that Chris did not have time to talk to Donald.

On Thursday, May 16, 1991, Donald received a letter from defendant, dated May 8, 1991, lacking any return address, and postmarked from Washington, D.C. Donald read the letter into the record. Therein, defendant admitted that he had the only other keys to Chris' apartment and admitted that he moved Chris' body into the bathroom and taped the door shut. Defendant stated: "I would not hurt your brother." Defendant further stated, "In my life I have never had a gun. I hate guns and all types of violence. I would never hurt anyone let alone -- hurt anyone let alone your brother;" and "I never in my life have ever touched a gun much less shot anyone." Defendant wrote that his plan was to return to Chicago to turn himself in to the police.

Cook County Medical Examiner Nancy Jones testified that she performed an autopsy on Chris on May 15, 1991. Chris' body was in an advanced stage of decomposition, showing the presence of numerous maggots over the surface of the body and also within the body's orifices. An external examination revealed the presence of several blunt trauma injuries predominantly on the left side of Chris' head. Jones opined that Chris was struck by a hammer at least 15 times.

Next, Chicago Police Detective Lawrence Aikin testified that on May 14, 1991, he and Detective Kenneth Webb investigated Chris' apartment. The detectives were initially unable to enter the apartment because a key was broken off in the lock, and they gained entry only after the building janitor removed the lock.

Upon entry, Detective Aikin saw furniture in disarray, and various items strewn about the floor, including a bottle of cleaning fluid. A large blood-stain appeared in the middle of the floor, along with a pair of pants and a pair of shoes with socks stuck in them. The adjacent couch had no seat cushions, and blood was splattered on the wall. Dark brown drag marks appeared on the carpeting leading to the kitchen.

The temperature in the apartment was extremely warm and humid; over 80 degrees. An extremely strong odor of decomposing flesh wafted from near the kitchen area. Upon entering the kitchen, the detectives found the couch cushions; the seat cushion covers had been removed. The detectives also saw a small garbage can containing bloody rags and bottles. The detectives noticed a 1991 calendar on the wall of the kitchen, showing the month of May. The calendar showed dates crossed off through May 6, 1991. A Chicago Tribune dated May 7, 1991, lay on the kitchen table.

The adjacent bathroom door was closed, a chair was propped up against it, and all four sides of the doorway had been sealed with duct tape. Clothed in a surgical gown with a gas mask, gloves and boots, Officer Pribek of the mobile crime lab photographed the apartment and searched the premises for evidence. Officer Pribek removed the duct tape surrounding the bathroom doorway, and the police entered the bathroom. Police observed Chris' body on the floor, stretched out in a partial sitting position, his head wedged between the edge of the door frame and the bathtub. Chris' face was black and blue in color, and there were large wounds to his head. His body was bloated and discolored about the stomach, limbs and extremities, and was completely covered with maggots. Chris was clothed in a shirt and a pair of boxer shorts. His shirt was pulled up, partially covering the lower part of his face and shoulders, but because of the seepage of bodily fluids, police were unable to determine the color of the shirt.

Police personnel attempted to remove the body, but were unable to do so because the bodily fluids had caused it to adhere to the floor. Chicago fire department personnel used shovels to pry the remains off of the floor.

After police removed the body, Donald Schlotterbeck attempted to locate Chris' State identification card and ATM card, to no avail. Police, however, ascertained Chris' checking account number and money market fund number.

On May 16, 1991, the police received records from the First National Bank of Chicago (Bank) showing ATM cash withdrawals from Chris' account and transfers of money from Chris' money market account to Chris' checking account. Police met with the Bank operations manager and viewed a videotape of a person making withdrawals from an ATM machine on May 7, 1991, and May 8, 1991.

On that same day, police obtained photographs of the defendant from Donald. Police compared copies of thermoprints, still photographs from the videotape, to the photographs obtained from Donald. Donald examined the thermoprints and identified defendant as the person making withdrawals from the ATM machine. Police also obtained an audio cassette recording from the Bank, and Donald confirmed that the recorded voice was that of defendant.

In July 1991, Detective Aikin received a facsimile transmission (fax) from attorney John Marshall in Plainview, New York, followed by an original letter. The envelope containing the letter also contained the cover sheet from the fax and the envelope in which the original letter was mailed to Marshall. The envelope was postmarked July 15, 1991, Oakland, California. The letter was addressed to Marshall, dated July 13, 1991, and signed "Larry."

On July 28, 1991, police received a another letter regarding their investigation. The letter was postmarked July, 16, 1991, San Francisco, California. Police also received a post card postmarked August 21, 1991, San Francisco, California.

On February 20, 1992, FBI Agent Ron Brannom contacted Detective Aikin, and the Chicago Police began extradition proceedings to return defendant to Illinois. On March 31, 1992, Detective Aikin took defendant into custody in New York, and returned him to Chicago.

FBI agent Brenda Heck testified that on February 20, 1992, she arrested the defendant at his place of employment, a restaurant in Manhattan.

At the FBI office, defendant agreed to make a statement. Defendant initially stated that he did not know Chris, then admitted that they were friends for many years in New York and Chicago. Defendant then stated that he found Chris dead in his apartment, and he described in great detail how he concealed Chris' body in the bathroom. Defendant further explained that he withdrew money from Chris' Bank account, and left Chicago, travelling to many States, and eventually settling in New York. Defendant denied having any involvement in Chris' death. Defendant told Heck about a tape-recording he made two days after finding Chris and stated that he sent the tape to attorney John Marshall. Defendant stated that he thought Chris shot himself.

Heck typed defendant's statement and reviewed it with defendant. Defendant refused to sign the typed statement, based on the advice of an attorney. During the time Heck spent with defendant, he appeared calm, quiet, and unemotional. Defendant did not cry or become upset in Heck's presence.

Following Heck's testimony, the trial court admitted all of the State's exhibits into evidence, reserving its decision regarding whether certain photographs would be published later to the jury.

Defendant then testified on his own behalf that he is 47 years old. In 1976, he met Chris when they were both employed at a catering company in Brooklyn, New York. The two men began socializing in their spare time. Defendant and Chris had keys to each other's apartments. Defendant described his relationship with Chris as "family to each other" and stated that they "were like brothers."

In 1987, Chris seriously injured his shoulder in a slip-and-fall accident. In July 1987, Chris returned to work and reinjured his shoulder when he slipped on a wet floor. Chris lost mobility in his left arm and did not work again. For the next three years, defendant housed and supported Chris in his studio apartment, lending Chris money as needed. In September 1990, Chris owed defendant approximately $5,200.

Defendant referred Chris to attorney John Marshall, to pursue a personal injury action. The case eventually settled for approximately $72,000. Chris repaid defendant $5,200 out of his settlement money. Chris also gave defendant an additional $7,000.

In September 1990, defendant and Chris moved to Chicago. Defendant obtained an apartment at 14 West Elm, and Chris obtained a furnished studio apartment at 1117 North Dearborn. Chris leased both apartments in his name.

During the time they lived in Chicago, defendant saw Chris daily for breakfast. Defendant and Chris also had dinner together four or five times a week and attended social functions with Chris' family. Defendant and Chris had keys to each other's apartments.

Chris' brother, Donald, moved to Chicago in February 1991. Donald had keys to Chris' apartment for a month and a half.

On Sunday, May 5, 1991, defendant had breakfast with Chris, at Donald's apartment. At that time, Chris was suffering from severely swollen legs and had difficulty breathing. Defendant denied that he and Chris were not speaking to each other.

Since his accident in 1987, Chris' mobility had decreased. In February or March 1991, defendant accompanied Chris to a health clinic and a doctor told Chris that if he did not take "real good" care of himself, he might only have five or six good years left. After this clinic visit, Chris' demeanor changed.

On May 7, 1991, Chris was to be at defendant's apartment for dinner at 7 p.m. At 7 p.m., when Chris failed to show up, defendant telephoned Chris several times and got no answer. ...


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