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People v. Nielson

June 17, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
NIELS NIELSON, APPELLANT



The opinion of the court was delivered by: Justice Rathje

-Agenda 8-March 1999.

Defendant, Niels Nielson, was charged by indictment with six counts of first degree murder (720 ILCS 5/9-1(a) (1), (a)(2) (West 1996)) and two counts of concealing a homicidal death (720 ILCS 5/9-3.1(a) (West 1996)). A jury convicted defendant of two of the first degree murder counts and both concealment counts. The same jury sentenced defendant to death, and the circuit court of Wayne County imposed two extended 10-year prison terms for the concealment convictions. Defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

On appeal, defendant argues that (1) the trial court erred in denying his motions to suppress evidence and to suppress statements; (2) the trial court erred in holding the capital sentencing hearing in defendant's absence; (3) the trial court erred in admitting irrelevant and prejudicial evidence during the second phase of defendant's capital sentencing hearing; (4) the State made improper arguments during the second phase of defendant's capital sentencing hearing; (5) one of the capital sentencing jury instructions is confusing; (6) the trial court erred in imposing extended-term prison sentences for the concealment convictions; and (7) the Illinois death penalty statute is unconstitutional. We will address each of these arguments, and the facts relating to them, in turn.

BACKGROUND

Because defendant does not challenge the sufficiency of the evidence, we need not set forth a detailed account of the facts.

Defendant was convicted of murdering his ex-wife, Sue Marshel, and her daughter, Melinda Marshel. Sue and Melinda disappeared on July 4, 1995.

The next evening, in a pond in Wayne County, Sue's car was found partially submerged with a furring strip wedged between the driver's seat and the accelerator. On July 8, 1995, approximately three-quarters of a mile from where the car was found, the police discovered a duffle bag containing the charred remains of two persons, one of whom had died from at least two gunshot wounds to the head and one of whom had died from at least three gunshot wounds to the head. A .32-caliber bullet was found in one of the charred bodies, and a .32-caliber casing was found in the duffle bag. Dental records confirmed that the charred remains were those of Sue and Melinda Marshel.

While searching the trailer in which defendant lived with his mother and stepfather, Joyce and George Lathrop, the police found the gun that fired the bullet found in the body. Outside the trailer, the police found a furring strip matching the one that was wedged against the accelerator of Sue's submerged car. In a burn pile located approximately 150 feet from the trailer, the police found human hair, blood, and bone fragments, as well as personal property belonging to Sue and Melinda Marshel.

In interviews with the police, defendant initially denied any knowledge of Sue and Melinda's whereabouts. After the bodies were found, defendant admitted to helping conceal the murders and burn the bodies but denied any participation in the actual murders.

The trial court denied defendant's motions to suppress the evidence found in the burn pile and the statements given to the police. Following a jury trial, defendant was convicted of both murders and sentenced to death.

MOTION TO SUPPRESS EVIDENCE

Defendant first argues that the trial court erred in denying his motion to suppress the evidence discovered in the burn pile.

Background

Defendant moved "to suppress the fruits of any search or seizure from an alleged burn pile located approximately 150 feet North of the residence of George Lathrup [sic], or any outbuildings, land outside the house of George Lathrup [sic]." In the motion, defendant alleged that, on July 6, 1995, the police arrived at George Lathrop's trailer, located at RR 1, Box 170, in Wayne County. The police asked George to sign a consent to search form authorizing a search of the "House," and George agreed.

After completing the search of the house, and without obtaining George's consent, the police began searching the property surrounding the house, "including an area that was 150 feet or more from the house, itself, designated as a burn pile or burn barrel." Although the police identified certain items of interest in the burn pile, they did not seize those items. Instead, they left George's property and returned two days later with a warrant to search the burn pile. Defendant asked the trial court to suppress the evidence seized from the burn pile, arguing that (1) the initial search of the burn pile exceeded the scope of George's written consent, and (2) the subsequent warrant was issued on the basis of information obtained during the initial unauthorized search.

At the hearing on defendant's motion, defendant's mother, Joyce Lathrop, testified that the family's trailer sat on approximately 20 acres of land. The Lathrops maintain three or four acres immediately surrounding the trailer for residential purposes and lease the remainder to the Neffs, a family of sharecroppers, for cultivation. "Cattle fencing," brush, and trees line the northern boundary of the Lathrops' property. The burn pile sits along this boundary line, approximately 150 to 175 feet from the trailer, and is surrounded by an overgrowth of tall weeds. Joyce described the area surrounding the burn pile as "really a mess this year." The burn pile is visible from both a dirt lane used by the Neffs to gain access to the Lathrops' farm fields and the northern boundary line, where Joyce has seen hunters walking "several times." The Lathrops do not post a "No Trespassing" sign on their property and require neither the Neffs nor the hunters to obtain permission before entering their property.

George Lathrop testified that the burn pile sits "at least" 120 feet from the trailer. When asked why he did not place the burn pile closer to the trailer, George responded that the burn pile is both a fire hazard and a sanitation problem.

Hazel Neff testified that she, her husband, and her son farm the Lathrops' land. The Neffs access the Lathrops' farmland via a dirt lane that runs along the southern boundary of the Lathrops' yard, and they are free to "just come and go as [they] please."

Merril Neff testified that he and his family do not have to ask permission to enter the Lathrops' property, but instead may go there when they need to, "no problem." Merril testified that, on the afternoon of July 6, 1995, he was riding his tractor in the Lathrops' field when he noticed a garbage fire burning in the vicinity of the Lathrops' burn pile.

Terry Neff testified that, on the afternoon of July 6, 1995, he was traveling to the Lathrops' property to help his father with the farming. Approximately 100 yards from the Lathrops' property, he noticed smoke rising from the vicinity of the Lathrops' burn pile. The smoke was "bigger than a trash fire smoke," "dark black," and rising in a column "four or five foot [sic] across."

Donald Atwood, Jr., a Wayne County sheriff's deputy, testified that, on July 9, 1995, he and another deputy flew over the Lathrops' property in a helicopter at an altitude of 100 feet. The Lathrops' burn pile clearly was visible as such from the air, and Deputy Atwood estimated that the burn pile sat 175 feet from the Lathrops' trailer.

In addition to the testimony described above, both defendant and the State elicited testimony and called witnesses in relation to the police officers' conduct during the July 6, 1995, search of the Lathrops' property, George Lathrop's participation in that search, and the scope of George Lathrop's consent to search.

At the close of the testimony, defendant argued that the police exceeded the scope of George Lathrop's written consent by searching outside the house, that the burn pile sits within the trailer's curtilage, and that defendant, who had been living with the Lathrops' for several months, had standing to challenge the validity of the search. In response, the State argued that the burn pile sits outside the trailer's curtilage and therefore was not protected by the fourth amendment and that defendant lacked standing to challenge the search because he had no reasonable expectation of privacy in the burn pile's existence. In addition, the State argued that George Lathrop implicitly consented to the search of the burn pile.

In a written order, the trial court denied defendant's motion to suppress on the ground that George Lathrop had consented orally to the search of the burn pile.

Analysis

On appeal, defendant contends that the trial court erred in concluding that George Lathrop consented to a search of the Lathrops' burn pile. We need not evaluate the scope of George Lathrop's consent, however, because we agree with the State that the Lathrops' burn pile undoubtedly sits outside the trailer's curtilage.

As an initial matter, defendant argues that the State has defaulted the curtilage argument because, although the State raised the argument in its written response to defendant's motion, called witnesses and elicited testimony in support of the argument at the evidentiary hearing, and devoted almost its entire closing to the argument, it failed to request a specific ruling on the argument after the trial court denied defendant's motion on another basis. Defendant's argument is wholly without merit, as it is well settled that the appellee may raise any argument that supports the trial court's judgment, even if the argument was not directly ruled upon by the trial court. People v. Monroe, 118 Ill. 2d 298, 300 (1987).

We now turn to the merits. The fourth amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442 (1960) (fourth amendment is applicable to state officials through the fourteenth amendment). Similarly, article I, section 6, of the Illinois Constitution of 1970 provides that the "people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches [and] seizures." Ill. Const. 1970, art. I, §6. Here, defendant explicitly invokes only the fourth amendment in support of his position, and he in no way suggests that the Illinois Constitution offers him greater protection. We therefore confine our analysis to fourth amendment jurisprudence.

The fourth amendment's protection against unreasonable searches and seizures extends not only to a person's home but also to the area immediately adjacent to the home, commonly referred to as the curtilage. Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 225, 104 S. Ct. 1735, 1742 (1984). Conversely, no reasonable expectation of privacy attaches to the land sitting outside of the home's curtilage, commonly referred to as "open fields." Oliver, 466 U.S. at 180, 80 L. Ed. 2d at 225, 104 S. Ct. at 1742. Thus, unlike the home's curtilage, open fields are not protected by the fourth amendment against unreasonable searches and seizures. Oliver, 466 U.S. at 180-81, 80 L. Ed. 2d at 225-26, 104 S. Ct. at 1742.

In determining whether a particular area falls within a home's curtilage, we must ask whether the area harbors the intimate activities commonly associated with the sanctity of a man's home and the privacies of life. United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed. 2d 326, 334, 107 S. Ct. 1134, 1139 (1987). The extent of the curtilage is determined by factors "that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." Dunn, 480 U.S. at 300, 94 L. Ed. 2d at 334, 107 S. Ct. at 1139. These factors include (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-35, 107 S. ...


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