APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
546 N.E.2d 52, 190 Ill. App. 3d 818, 137 Ill. Dec. 428 1989.IL.1664
Appeal from the Circuit Court of Winnebago County; the Hon. David A. Englund, Judge, presiding.
JUSTICE McLAREN delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN
Defendant, Jamie Rixie, appeals from his conviction of felony murder and the subsequent sentence imposed. Rixie was found guilty after a jury trial, and the court sentenced him to an extended term of 60 years' imprisonment.
Rixie, along with Victor Ganus, was charged by indictment with one count of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1)) and one count of felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3)). These charges stem from the armed robbery and murder of Richard Misslich on May 1, 1985. On October 24, 1985, the court granted a motion for severance, and Rixie was tried separately.
Prior to trial, Rixie filed a motion to quash the search warrant and suppress evidence seized pursuant thereto. Several officers of the Rockford police department testified at the hearing on the motion. The officers executed a search warrant for the defendant's home at 2716 Bildahl Street in Rockford, on May 2, 1985. Detective Erickson stated that he was instructed to find anything with blood on it, or that could be used as a weapon. Officer Anderson testified that the warrant authorized a search for blood, fibers, hairs, and weapons. Discretion was used in determining what items to seize according to Anderson. The items seized included: a footstool; a brown-flowered drape; a piece of gauze cloth; a gray jacket; an upholstery button; two newspapers; a pair of brown and black shower shoes; a piece of wooden board; a broken window shade; a Phillips screw-driver; pieces of a broken bottle; a butcher knife; an empty Clorox bleach bottle; and a pillow. The court did not allow the motion to quash but did suppress the brown-flowered curtain that was seized.
The defendant also filed a motion in limine seeking to exclude evidence of his prior conviction of robbery. The court denied this motion. Defendant also presented a motion in limine seeking to prevent the testimony of Terry Delemeter insofar as his testimony referred to Rixie placing a knife to Delemeter's throat in order to collect a long-standing debt. The court granted this motion and held that the State was precluded from eliciting testimony regarding threats directed at an individual in an unrelated matter.
The case proceeded to trial on June 27, 1986. Detective Rinehart testified that he went to Levings Lake on the morning of May 1, 1985, and found the body of Misslich. He removed certain items from the area around the body, including: socks, a shirt, a strip of cloth, a drape and a pair of shoes. Dr. William Rouse, a forensic pathologist, testified that when Misslich's body was discovered, his upper body was unclothed and there were numerous stab wounds and lacerations to his upper body, including his head, face and neck. A bite mark was also discovered on one of Misslich's arms. Dr. Rouse also found marks on either side of the mouth and on both wrists which indicated that there had been some type of ligature or binding in those areas. The configuration of the stab wounds supported the theory that they had occurred in rapid succession. Additionally, some of the wounds could have been caused by a screwdriver, although it was more probable that they were caused by some type of knife.
Mrs. Wanda Ganus, Victor's mother, testified that she saw Rixie on the morning of May 1, 1985, with her son. She testified that Victor told her he and Rixie had killed a man the night before. Victor stated that both he and Rixie were drunk and on drugs, and they stabbed a man at least 25 times each. Wanda stated that she asked Rixie if this was true, and he responded that it was. After hearing reports of a killing on the 5 o'clock and 10 o'clock news that night, Wanda Ganus notified the police. She also testified that there was blood on Rixie's head when he was at her house on May 1, and she knew that he had been stabbed.
On cross-examination, Mrs. Ganus testified that she had given a statement to Rockford police on May 2, 1985. She admitted that there was nothing in her earlier statement which indicated that Jamie Rixie had acknowledged the truth of Victor's statements. Mrs. Ganus further testified that she had twice pleaded guilty to misdemeanor theft charges: in September 1982 and again in August 1986.
Bruce Williams testified that he lived in a duplex adjoining Jamie Rixie's apartment on May 1, 1985. Williams testified that at 12:15 a.m. there was a loud "bang" on the wall. At 2:15 a.m., he was awakened and heard a yell that was muffled. He went back to sleep. Later that day, he saw Rixie and another male packing items into a car.
Rose Frickson, Williams' roommate, also testified. She stated that she heard Rixie say, "Let's go kick his ass" at about 2 a.m. on May 1, 1985. Frickson next heard a loud, then muffled, yell. She testified that she was able to hear the conversation in the next apartment because the walls were thin. On cross-examination, Frickson stated that she did not mention overhearing this conversation when questioned by police on May 2.
FBI agent Timothy Rembijas testified that he arrested Rixie on May 14, 1985, in Brookport, Illinois. Rembijas stated that Rixie was read his Miranda warnings after being placed in the agent's car, and he understood them. Upon arrival at the Massac County sheriff's department, Rixie indicated that he wanted to tell the officers what had occurred, and he signed a waiver of rights form.
According to Rembijas, Rixie then described the events of May 1, 1985. Four men were at Rixie's apartment drinking beer for several hours. One of the men wished to go home. They all got into a car and started driving toward the man's house when Victor Ganus stated that he wanted to go to a bookstore. They dropped him off, and he told them to wait. When he did not return right away, Rixie went inside to look for him. Unable to find Ganus, Rixie left the bookstore, but the others had driven away. Rixie waited a little while for Ganus and then hitched a ride home with an acquaintance who happened by. When Rixie returned home, Ganus was there with a middle-aged man whom Rixie did not know. Ganus pulled Rixie aside and suggested robbing this person. Ganus then jumped the man. The man retrieved a screwdriver from a nearby tool box and attacked Rixie with it. Rixie stated that he was stabbed twice in the head and once in the ear.
Together, Ganus and Rixie stopped the attack on Rixie, and Rixie admitted to stabbing at the man, possibly striking him once or twice in the chest. Rixie also stated that he bit the man on the wrist in defending himself. Rixie then became aware of blood running down the front of his face and went into the bathroom to tend to his wounds. After a few minutes in the bathroom, Rixie went back to the living room. The man was either unconscious or dead according to Rixie, and there was a great deal of blood everywhere. Ganus then suggested taking the man to a park. Ganus took the man's wallet. They cleaned the apartment and put the towels, clothes and screwdriver in a nearby dumpster.
After seeing a news report about the incident, Rixie became frightened and went to Brookport to stay with his grandparents. Rixie told the agents that there was no premeditated plan to pick up a homosexual and rob him.
On cross-examination, Rembijas stated that Rixie indicated the man was fully clothed and neither bound nor gagged at any time. Rembijas acknowledged that Rixie had a somewhat healed-over head wound and pointed out the scar in a photograph of Rixie taken May 14, 1985.
Detective Muenkel testified that he recovered a social security card, a wallet with identification for Richard Misslich, a brown throw rug, a screwdriver, a blue nylon jacket, some material, a pair of Nike tennis shoes, a red pullover shirt, a pillowcase, a bath towel, and a hand towel from a dumpster located about six blocks from Rixie's residence. The towels smelled of bleach, and the jacket, pillowcase, tennis shoes and hand towel appeared to have blood on them.
Terrence Delemeter, testifying for the State, stated that he had known Rixie for approximately two years. Delemeter testified that on May 1, 1985, he and Melanie Lundblade were with Darryl Birmingham driving around in Birmingham's car. The three stopped at a convenience store to buy some beer, and they saw Rixie and Ganus in the parking lot. Birmingham asked Ganus to purchase some beer for them, and he did so. The five of them then proceeded to Rixie's apartment, where they drank beer for about 1 1/2 hours. During that time, Delemeter testified that Ganus started talking about the fact that he needed money. It was during this Discussion that Ganus mentioned the idea to "rob a fag." On the way to the adult bookstore, Delemeter exited the car to meet his girlfriend.
On cross-examination, Delemeter stated that he was detained for questioning on this matter due to outstanding arrest warrants. He had previously been convicted of burglary and forgery. Delemeter further testified that he was awaiting treatment for drug addiction. Delemeter also testified that a detective told him he would sit in jail for the warrants unless he agreed to discuss Rixie and Ganus and, if he cooperated, he would be given a recognizance bond. He stated that Ganus was acting wild and talking about how he was going to end up back in the penitentiary. It was Ganus who brought up the subject of money and initiated the idea of committing a robbery. Delemeter also stated that when Rixie drank he would talk tough, but that no one ever took him seriously. Delemeter further testified that he was not afraid of Rixie. While Ganus was discussing the possibility of being dropped off at a "fag" bar, Rixie wanted to find out if there was a party at another acquaintance's house. Delemeter also testified about an incident that occurred earlier in the evening. Rixie approached Delemeter at the convenience store, put a pocket knife near his neck, and demanded repayment of a $5 debt. Ganus intervened, and Rixie stated that he was not serious. Immediately thereafter they all went to Rixie's apartment to drink.
Following Delemeter's testimony, and outside the presence of the jury, defense counsel asserted that the Rockford police officers had been instructed not to speak with Rixie's attorneys prior to testifying. A hearing was held after which the court found that there was "a sufficient showing somebody believes from the police department that they are not to talk or an official order from somebody not to talk to defense attorneys." The court further acknowledged that there was such an impression on the part of the officers, "[w]hether it came from misunderstanding or otherwise." The defense motion for a mistrial based upon this situation was denied. The State was ordered to rectify this situation.
Darryl Birmingham's testimony substantially corroborated that of Delemeter. He stated that Rixie told him that he had to go to the penitentiary at the end of May and he might as well make a life out of it. Birmingham further stated that after Delemeter exited the car, he, Lundblade, Ganus and Rixie proceeded to the adult bookstore on Seventh Street. Ganus instructed Birmingham to follow him if Ganus got into another car with someone. Ganus then went inside the bookstore. When Rixie went into the ...