{ "id": 2954144, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERCY NELSON, Appellant", "name_abbreviation": "People v. Nelson", "decision_date": "1974-09-17", "docket_number": "No. 45229", "first_page": "61", "last_page": "69", "citations": [ { "type": "official", "cite": "58 Ill. 2d 61" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "48 Ill.2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907962 ], "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0300-01" ] }, { "cite": "51 Ill.2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391361 ], "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0039-01" ] }, { "cite": "51 Ill.2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391261 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0514-01" ] }, { "cite": "398 Ill. 468", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460625 ], "pin_cites": [ { "page": "472-473" } ], "opinion_index": 0, "case_paths": [ "/ill/398/0468-01" ] }, { "cite": "412 Ill. 565", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664575 ], "opinion_index": 0, "case_paths": [ "/ill/412/0565-01" ] }, { "cite": "410 Ill. 410", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311612 ], "opinion_index": 0, "case_paths": [ "/ill/410/0410-01" ] }, { "cite": "24 Ill.2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802161 ], "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0350-01" ] }, { "cite": "57 Ill.2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406571 ], "weight": 2, "pin_cites": [ { "page": "231" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0228-01" ] }, { "cite": "41 Ill.2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2852365 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0329-01" ] }, { "cite": "45 Ill.2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897125 ], "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0001-01" ] }, { "cite": "33 Ill.2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884726 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0048-01" ] } ], "analysis": { "cardinality": 597, "char_count": 13831, "ocr_confidence": 0.825, "pagerank": { "raw": 2.0605044163006173e-07, "percentile": 0.7564877334547304 }, "sha256": "f58d7b944c94b1f46e27561925fe77f1ece4ab136ccd48ce3666c4ab0fae7af2", "simhash": "1:8e34a1a67471e8ff", "word_count": 2247 }, "last_updated": "2023-07-14T20:55:53.437074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERCY NELSON, Appellant." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nFollowing a bench trial in the circuit court of Cook County in February, 1964, defendant, Percy Nelson, was convicted of murder. He was sentenced to a term of 50 to 80 years in the penitentiary, and his conviction was affirmed on direct appeal. (33 Ill.2d 48.) Thereafter, defendant filed a petition seeking relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1965, ch. 38, par. 122 \u2014 1 et seq.), but it was dismissed without an evidentiary hearing. On appeal we noted the serious nature of defendant\u2019s contention that the trial judge made a private investigation during the trial, and we directed that an evidentiary hearing be conducted if a sufficient petition was presented. (45 Ill.2d 1, 3.) Additional affidavits were submitted and an evidentiary hearing commenced in June, 1971, before a judge other than the one who presided at defendant\u2019s trial as directed by our order remanding the cause. Relief was denied and an appeal was permitted to be taken directly to this court. 50 Ill.2d R. 302(b).\nDefendant\u2019s conviction was primarily based upon the testimony of Harold Newell, who testified the first day of trial that he and the victim stopped at the former\u2019s house where the defendant was waiting. There Newell got out of the victim\u2019s car, defendant entered it and forced the victim to drive away at gunpoint. The victim\u2019s body, containing five bullet wounds, was later discovered in the car. Newell was thoroughly cross-examined by the defense counsel and contradicted prior statements he had made to the police. At this juncture Newell left the stand, and it appeared that neither side had any further questions of the witness.\nThe following morning, however, Newell was recalled and contradicted his prior testimony. He testified that he, rather than the defendant, kiUed the victim, but that it was done at the instigation of the defendant, who had promised him $500. Defense counsel again conducted a thorough cross-examination of the witness.\nThe issue presented in defendant\u2019s post-conviction petition was whether the trial judge, at any time, engaged in a private investigation outside the presence of the defendant or his counsel in violation of defendant\u2019s right to due process of law. The defendant maintains that prior to Newell\u2019s second appearance two conferences were held in the judge\u2019s chambers at which neither he nor his counsel was present. Defendant specifically alleges that the first occurred between the trial judge and the assistant State\u2019s Attorney, Samuel Banks, at which time the trial judge was informed of Newell\u2019s confession. He asserts that the second conference was among the trial judge, Banks, Newell, and the public defender who represented Newell.\nAt the evidentiary hearing four witnesses testified as to direct knowledge of a meeting in the judge\u2019s chambers on the morning that Newell recanted his testimony. Banks, who prosecuted the case, said that he had received a letter which had been written by Newell. The substance of the letter contradicted Newell\u2019s prior testimony. However, Banks did not remember its actual contents, but believed it may have contained a confession to the murder. He further testified that he informed the trial judge of the matter in a meeting before court convened. Defense counsel was present and Banks thought that Newell may have been in the anteroom near the judge\u2019s chambers before he was recalled to testify.\nThe trial judge testified that he did not think he saw the letter until after it was introduced into evidence, but that he was informed of the situation prior thereto, although he could not recall who notified him. He then summoned the public defender to consult with Newell. He further testified that he told defense counsel of the situation in the presence of the assistant State\u2019s Attorney. At this meeting the trial judge said that he indicated that defense counsel might consider proffering a motion for a mistrial, but the suggestion was rejected. He denied that Newell was ever in his chambers.\nDefendant\u2019s trial counsel testified that he believed a meeting was taking place in chambers but that he was not present at the meeting. He said that he had an \u201cimpression\u201d Newell would recant, but he did not know in what respect the testimony would be changed until Newell testified. Counsel was unable to recall exactly the events occurring at the trial due to the time which had elapsed.\nAn examination of the trial record discloses that defense counsel interposed a general objection prior to Newell\u2019s testimony claiming that the proceeding was \u201cunusual.\u201d The trial judge questioned the reason for such an objection, and said \u201cThe State is going to recall this man to the stand. You have been apprised of what his testimony may be. Now, if you want to make an objection, you may specifically say why you object to this particular proceeding.\u201d Counsel did not dispute that he had been made aware of the matters of which the trial judge spoke. Thereafter, no basis for an objection was stated. Counsel further testified that he remembered the trial judge asking if he might consider a motion for a mistrial, although he could not remember when this occurred.\nDefendant testified that his counsel informed him that a meeting was held in the judge\u2019s chambers but that neither he nor his counsel was permitted to attend. Defendant admitted that prior to Newell\u2019s testimony his counsel did apprise him of the fact that Newell had confessed to the murder.\nDue to various continuances Newell was not called as a witness at the evidentiary hearing until February, 1972. Before his substantive testimony at this hearing Newell expressed hostility toward both the State and the defendant. He was angered by the sentence he had received for his part in the murder, which was similar to that imposed upon the defendant. During his subsequent testimony he expressed the view that his confession had been obtained by a prosecutorial \u201cthreat,\u201d and he attempted to interject matters pertaining to his confession which had been previously resolved when this court denied his petition for post-conviction relief. People v. Newell, 41 Ill.2d 329.\nNewell testified that on the second day of trial, the day he delivered his letter, a recess was called after he began to testify. He was taken into the judge\u2019s chambers for a meeting where he met the public defender for the first time, but he could not recall what was said. He did not think defense counsel was present. An examination of the trial transcript discloses that no recess occurred during Newell\u2019s testimony on the second day of trial. Moreover, the transcript indicates a colloquy between the public defender and the trial judge immediately before Newell testified. The public defender informed the court that he had spoken to Newell for more than an hour concerning his letter.\nNewell\u2019s testimony was in conflict with the testimony of Officer Renfroe, who, along with Officer Wiley, had custody of Newell the entire morning in question. Renfroe testified that he could not recall Newell leaving his presence or attending any meeting conducted in the judge\u2019s chambers. Additionally, he testified he had no direct knowledge of a conference held in chambers.\nWiley stated that he was uncertain as to the events of that morning. He related that after he delivered Newell\u2019s letter to Banks, he and Renfroe were then called into the anteroom near the judge\u2019s chambers. Wiley could only recall that he, Renfroe, and Banks were present at this time, although he did see defense counsel in the judge\u2019s chambers prior to Newell\u2019s testimony, but he did not know the reason for defense counsel\u2019s presence. Wiley admitted that he had previously told defendant\u2019s present counsel that there was a conference in chambers among the trial judge, Banks, Newell and himself at which defendant and his counsel were not present. However, when he testified he could only vaguely recall going into the chambers, and he did not remember who may have been present or any matter which may have been discussed.\nJuanita Taylor, Newell\u2019s sister, testified that Wiley told her and Renfroe that Newell had confessed to the murder in the judge\u2019s chambers. This conversation purportedly took place before court had convened on the second day of trial. Defendant\u2019s wife, however, testified that she saw Newell, the trial judge, and Banks enter the judge\u2019s chambers about noontime during a recess after Newell began his testimony.\nIt has been repeatedly held that a trial judge is limited to the record made during the course of the trial. (People v. Harris, 57 Ill.2d 228, 231.) Any deliberations which are based upon a private investigation or upon private knowledge of the trial judge, untested by cross-examination or the rules of evidence, constitute a denial of due process of law. People v. Harris, 57 Ill.2d 228, 231; People v. Wallenberg, 24 Ill.2d 350, 354, and cases cited therein.\nDefendant principally relies on People v. Rivers, 410 Ill. 410, in support of his position that Banks\u2019s actions in initially informing the judge of Newell\u2019s letter constituted a prohibited private investigation. Rivers was a bench trial of four defendants for murder. Following the presentation of testimony, the trial judge expressed the possibility that three defendants might be convicted of a lesser offense. The case was continued for over two months. Upon reconvening, the trial judge displayed a markedly changed attitude. Without ordering the case to be reopened for further evidence, he questioned the defendants\u2019 fathers in regard to whether the guns linked to the killing were registered. He spoke of the \u201c \u2018cold-blooded, premeditated\u2019 \u201d nature of the killing, and referred to the growing accounts of \u201c \u2018atrocious killings by juveniles,\u2019 \u201d and to the large number of unlicensed guns \u201c \u2018exposed to potential murderers and youngsters. \u2019 \u201d There, these remarks, both in content and attitude, indicated that there had been a private investigation by the trial judge.\nDefendant further argues that People v. Thunberg, 412 Ill. 565, is similar to the present case. In Thunberg, the judge, in a bench trial of multiple defendants charged with rape, read the confession of one defendant which had not been offered in evidence, or examined by defense counsel. He also interviewed the prosecutrix and her parents outside the presence of defendant and his counsel.\nRivers, Thunberg and other cases relied upon by defendant, which hold that a private investigation is violative of due process, are premised upon the lack of confrontation of adverse witnesses by the defendant, or his counsel, and the resulting consideration by the trier of fact of evidence untested by cross-examination or the rules of evidence. (See generally People v. Cooper, 398 Ill. 468, 472-473.) The cases cited are clearly distinguishable from the present case where an assistant State\u2019s Attorney merely informed the trial judge of the receipt of Newell\u2019s letter and its contents. There is no indication in this instance that any evidence was considered which was not produced at trial. Newell\u2019s letter was offered in evidence, and Newell was thoroughly cross-examined by defense counsel. While it may have been the better course to produce the letter initially in the presence of defendant and his counsel, we cannot say that the actions of the trial judge and the assistant State\u2019s Attorney in this regard were reversible error.\nBased upon the testimony of the witnesses, the post-conviction-hearing judge found that the trial judge neither heard any evidence, conducted any private inquiries or investigations, nor considered any evidence or information outside the presence of the defendant or his counsel. This finding was based upon the evaluation of the witnesses\u2019 credibility, and the determination will be sustained unless it can fairly be said that it was manifestly erroneous. People v. Bracey, 51 Ill.2d 514, 517; People v. Thomas, 51 Ill.2d 39, 41; People v. Rose, 48 Ill.2d 300, 303.\nBanks and the trial judge agreed that defense counsel was present at the meeting where Banks informed the parties of the new evidence justifying recall of Newell. Defense counsel\u2019s recollection that he was not in chambers during the conference must be viewed in light of the fact that he did not dispute being aware of the substance of Newell\u2019s testimony when the trial judge told counsel that he had been apprised as to the possible nature of that testimony. Additionally, the defendant admitted that his counsel informed him of Newell\u2019s confession prior to the time Newell was recalled. Newell\u2019s testimony as to his presence at a conference in chambers was not supported by the testimony of Officer Renfroe, who could not recall such a meeting. The conflicting recollections of Officer Wiley must be viewed in light of the fact that he was attempting to recall events which had occurred eight years previous to his testimony. It is also sufficient to note that inconsistencies are evident in the testimony of Newell\u2019s sister and the defendant\u2019s wife. From the evidence presented, the determination as to the credibility of the witnesses was not improper.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMR. JUSTICE WARD took no part in the consideration or decision of this case.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" } ], "attorneys": [ "Thomas J. McGrath, Ltd., of Homewood, for appellant.", "William J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel, Assistant Attorney General, and Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 45229.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERCY NELSON, Appellant.\nOpinion filed September 17, 1974.\nWARD, J., took no part.\nThomas J. McGrath, Ltd., of Homewood, for appellant.\nWilliam J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel, Assistant Attorney General, and Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0061-01", "first_page_order": 69, "last_page_order": 77 }