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03/30/95 PEOPLE STATE ILLINOIS v. JEFFREY D.

March 30, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JEFFREY D. RISSLEY, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendant, Jeffrey Rissley, pleaded guilty in the circuit court of Bureau County to the aggravated kidnapping and first degree murder of six-year-old Kahla Lansing. At a separate sentencing hearing, a jury found that the defendant was eligible for the death penalty based on two statutory aggravating factors. A jury found that defendant was eligible for the death penalty because the murder was committed in the course of an aggravated kidnapping. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6).) The jury also found that defendant was eligible for the death penalty because the "murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty." (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(7).) The jury then concluded that there were no mitigating circumstances sufficient to preclude the imposition of the death penalty and the trial judge sentenced the defendant to death. The trial judge also sentenced the defendant to a 15-year prison term for his conviction on the charge of aggravated kidnapping. (See Ill. Rev. Stat. 1991, ch. 38, par. 10-2.) The defendant's death sentence has been stayed pending direct review by this court. (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).) We affirm.

I. Defendant's Arrest and Confession

A review of the record reveals the following facts. On September 28, 1991, six-year-old Kahla Lansing was roller-skating with friends in her neighborhood. At 6:45 p.m., Kahla's mother was unable to locate Kahla in the neighborhood and called police. A witness reported seeing Kahla talking to a man in a red Ford Ranger pickup truck at approximately 6:30 p.m. The man was described as a white male in his mid-thirties, with medium length brown hair.

As a result of an unrelated investigation by officials in Knox County, the defendant was charged with aggravated criminal sexual assault of a 10-year-old that occurred there on September 27, 1991. Bureau County authorities investigating the disappearance of Kahla Lansing identified defendant as a suspect in that crime based on information obtained from the Knox County investigation. Specifically, Bureau County authorities learned that the defendant left Knox County on September 28, 1991, for Berrien County, Michigan. Defendant drove in an easterly direction on Route 6, which leads to Bureau County. Defendant's general appearance and the red Ford Ranger pickup truck he was driving matched the description of the person the witness had seen Kahla talking to prior to her disappearance.

As a result of the charges against defendant in Knox County, law enforcement authorities in Berrien County, Michigan, were contacted and asked to arrest the defendant, if he could be found there. On October 10, 1991, Berrien County officers arrested the defendant. While in Michigan, the defendant was interrogated by two sets of law enforcement officers concerning the disappearance of Kahla Lansing. Defendant was advised of his Miranda warnings, both orally and in writing. Defendant acknowledged he understood those rights and agreed to waive those rights and talk to authorities.

The first set of officers to interrogate defendant consisted of officers from Berrien County and from the Federal Bureau of Investigation. The second set consisted of officers from Illinois. During each interrogation, defendant provided the police with details concerning the abduction of Kahla Lansing. Defendant told the officers that he was traveling from Illinois to Michigan in his red Ford pickup on September 28, 1991. While en route, defendant detoured into Spring Valley, Illinois, arriving in that area in the late afternoon. Defendant further told the officers that he was an active pedophile and at that time he "hurt inside" and was seeking a child as a means of relief. The defendant then described encountering Kahla Lansing, who was roller-skating in a residential area.

The defendant stated that he observed Kahla while driving around in his truck. Defendant stopped the vehicle and engaged Kahla in conversation. Kahla entered defendant's vehicle, agreeing to accompany defendant to a convenience store for the purpose of purchasing soft drinks. Defendant and Kahla visited a nearby convenience store and purchased two soft drinks and a candy bar. Defendant and Kahla then left the store and together drove aimlessly around Illinois.

Defendant stated that after several hours of travel, he eventually encountered an abandoned farm located near Clinton, Iowa. The farm was located at the end of a dirt road and consisted of several buildings. Defendant secreted the truck in a pig coop building and then entered the barn. In the barn, defendant secured some mattresses from the bed of an old truck and also found some blankets. Defendant and Kahla slept there that night. At approximately dawn, defendant stated, he performed anal intercourse upon Kahla and then both defendant and Kahla went back to sleep.

Defendant and Kahla awoke in the barn to the sound of gunshots. Defendant stated that both he and the child were afraid because some of the gunshots were very close. Defendant further stated that Kahla was becoming hysterical and was repeatedly stating that they should leave. The defendant told the officers that he was afraid that he might be discovered and began losing control. Defendant then described how he obtained an electric cord from inside the barn and, with Kahla standing face to face with him, twisted the cord around the back of her neck. Defendant stated that Kahla's face turned red, she became limp, and he allowed her to fall to the ground. Defendant further stated that at this time he checked Kahla's heartbeat and determined that it was still beating. Defendant then said he left Kahla with the cord knotted around her neck and exited the barn to determine where the shooting was coming from.

Once outside the barn, defendant could not determine from which direction the sound of the gunfire originated. Defendant stated that, finding nobody around, he intended to go back and untie the cord from around Kahla's neck. However, defendant then again checked Kahla's heartbeat and determined she was dead. Defendant stated he then lifted Kahla on his shoulders and placed her in the upper loft. Defendant then reentered his vehicle and left the farm. Defendant drove to Michigan, where he remained until his arrest.

During the course of his interviews, defendant drew a map of the farm where Kahla's body could be found. Defendant also described Kahla's clothing as a multicolored sweater, dark green with a black base, blue jeans and roller skates. Defendant stated that he left Kahla fully clothed except for her roller skates. A search was conducted in the area identified by defendant that resulted in the discovery of Kahla's body. Kahla was found fully clothed except for her roller skates in the second floor of a barn with a white electrical cord wrapped tightly around her neck. The cord matched an electric blanket that was found at the scene. Also observed in the barn was a truck, an old mattress and a blue bed sheet.

On October 11, the Iowa State Medical Examiner, Dr. Thomas Bennet, performed an autopsy on Kahla. Dr. Bennet determined the cause of death to be ligature strangulation from the electrical cord. Dr. Bennet also found injuries to the anal and vaginal areas. Forensic scientist Jennie Hahn determined that seminal material found on Kahla's undergarments and on a bedspread at the barn could have come from defendant.

On October 22, 1991, the Bureau County State's Attorney filed a two-count indictment against defendant. The first count charged defendant with aggravated kidnapping. (Ill. Rev. Stat. 1991, ch. 38, pars. 10-2(a)(1), (a)(2).) The second count charged defendant with first degree murder, in that the death of Kahla Lansing occurred during the commission of a kidnapping. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(3).) The indictment also indicated that the State intended to seek the death penalty pursuant to two statutory aggravating factors. (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(b)(6), (b)(7).) On March 2, 1992, the indictment was amended to allege that the kidnapping that began in Bureau County, Illinois, continued until the death of Kahla in Iowa. Defendant argues that this amendment also added counts of intentional and knowing murder. The State disputes this characterization.

II. Defendant's Guilty Plea

On June 11, 1992, defendant withdrew his plea of not guilty and entered a plea of guilty to the charges contained in the amended indictment. At that hearing, the State's Attorney read the amended indictment and recounted a factual basis for defendant's plea into the record. In addition, the trial judge admonished the defendant concerning the possible penalties, including the possibility of the death penalty. The trial judge accepted defendant's plea of guilty on both charges.

III. Motion to Withdraw the Guilty Plea

On June 22, 1992, defendant moved to withdraw his guilty plea on grounds that it was not knowingly or intelligently entered. Defendant argued that his counsel was ineffective for failing to properly advise him concerning the consequences of pleading guilty. Specifically, defendant argued that he was not advised by his attorney that he could waive a jury trial and have his case tried to a judge. In addition, defendant argued that he was not advised that by entering a guilty plea he was waiving the issue of whether Illinois courts had jurisdiction over the murder charge.

A hearing was held on the motion to withdraw the defendant's guilty plea. The defense called Andrea Lyon, an experienced death penalty defense attorney, as its only witness. Lyon testified that she had discussed defendant's case with one of defendant's attorneys. Lyon further testified that she was surprised to learn during this conversation that defendant had pleaded guilty without negotiation and without defense counsel's conducting an extensive investigation into mitigating circumstances. The State objected to Lyon's testimony. The State argued that Lyon's testimony was not relevant to whether defendant's plea was knowingly entered. The court sustained the State's objection.

The State called two witnesses at the hearing. The State first called James Reed, a deputy jailor with the Bureau County sheriffs department. Reed testified that he was summoned to defendant's cell block by defendant on June 20, 1992, for the purpose of getting cigarettes. Reed testified that at that time defendant told him that he did not want to withdraw his plea. The prosecution also called Troy Ren, the Bureau County adult probation officer. Ren testified that he spoke with defendant on June 23, 1992, and defendant told him that he pleaded guilty in order to avoid trial.

After further argument from counsel, the trial court denied defendant's motion to withdraw his guilty plea. The trial judge noted that he had admonished defendant regarding the consequences of entering the guilty plea, including that defendant was waiving the right to have his guilt determined by the court. The trial judge also stated his belief that defendant had not waived his right to challenge whether there was subject matter jurisdiction over the murder charge in Illinois. Given the broad factual basis for the charges against defendant, the court found that defense counsel's representation did not fall below professional norms and that defendant suffered no prejudice. For these reasons, the judge ruled that defendant's counsel was not ineffective and defendant's plea of guilty was knowingly entered.

IV. Capital Sentencing Hearing

The defendant having been convicted on the basis of the guilty plea, the case then proceeded to jury selection for the capital sentencing hearing. After a hearing concerning pretrial publicity in Bureau County, the trial court determined that a fair and impartial jury could not be selected there. The jury was therefore selected from a pool of potential jurors in nearby Grundy County. Additional facts concerning the jury selection will be provided as necessary to address defendant's challenges.

After the jury was empaneled, the case proceeded to the eligibility phase of the bifurcated capital sentencing hearing. The State alleged that defendant was eligible for the death penalty based on two statutory aggravating factors. First, the State alleged that defendant was eligible for the death penalty on grounds that the defendant committed the murder in the course of an aggravated kidnapping. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6).) Second, the State alleged that defendant was eligible for the death penalty because the victim was less than 12 years of age and the death resulted from "exceptionally brutal or heinous behavior indicative of wanton cruelty." (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(7).) The parties agreed to stipulate to defendant's conviction on the charges contained in the amended indictment.

The jury heard testimony from a variety of witnesses. Among these was Susan Ballerin, Kahla's mother, who identified Kahla's birth certificate dated May 17, 1985. Ballerin also testified that she identified Kahla's body after it was recovered from Iowa. FBI agent Stanley Lapekas also testified. Lapekas testified to locating defendant in Michigan and to defendant's first confession. Spring Valley Police Chief Doug Bernabei testified about his investigation into Kahla's disappearance and defendant's second confession. Harold Brignadello, from the Illinois State Police Department of Criminal Investigations, identified various photographs taken at the barn where Kahla's body was recovered. Carl Bessman, a criminologist at the Iowa Department of Criminal Investigations, identified certain photographs taken at the barn, as well as certain items found there.

The defense objected to the introduction into evidence of six crime scene and autopsy room photographs. These photographs depicted Kahla as she appeared the day she was found, some 13 days after her death. For this reason, photographs of the victim's face showed evidence of decomposition and insect infestation. A hearing was held outside the presence of the jury regarding the admissibility of these photographs.

At the hearing, the defense argued that these photographs were not relevant and that any probative value was outweighed by the prejudice to the defendant. The defense also argued that several of the photographs were cumulative. The prosecution argued that the photographs showed the results of defendant's conduct, including the ligature marks around the victim's neck and the results of secreting the victim's body. The court, relying on People v. Simms (1991), 143 Ill. 2d 154, 157 Ill. Dec. 483, 572 N.E.2d 947, found that the photographs were relevant to prove the defendant's intent under section 9-1(b)(6) of the Criminal Code of 1961. The court also found that the pictures were relevant evidence as to whether defendant's conduct was exceptionally brutal or heinous within the meaning of section 9-1(b)(7). The court therefore denied the defendant's motion and the photographs were published to the jury.

Dr. Thomas Bennett, the Iowa State Medical Examiner, conducted the autopsy on the victim. Dr. Bennett testified that the victim died from ligature strangulation. Dr. Bennet further testified that the victim was conscious for approximately 15 seconds and experienced "severe pain" during the strangulation. Dr. Bennet also testified that the victim suffered pain due to vaginal and anal tearing from the forcible sexual penetration. Autopsy photographs depicting the injuries to the victim's vagina and anus were admitted over defense counsel's objection. On cross-examination, Dr. Bennet described the decomposition process that had taken place on the victim's body.

Jennie Hahn, a forensic scientist with the Illinois State Police, testified about certain tests she conducted. Hahn testified that seminal fluid found on the bedspread from the crime scene was consistent with defendant's blood type. Hahn further testified that seminal material was found on the victim's underpants and on the rectal swab taken from the victim as part of the rape kit. However, testing on these items failed to reveal the blood type.

At the close of the prosecution's case at the eligibility phase of defendant's capital sentencing hearing, defendant moved for a directed verdict in relation to both statutory aggravating factors. First, defendant argued that he suffered an impermissible "double enhancement" under section 9-1(b)(6). In support, defendant argued that the offense of aggravated kidnapping was used both as the predicate felony for felony murder and as the basis for eligibility under the statutory aggravating factor of murder in the course of an aggravated felony. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)(c).) Second, defendant argued that the State had failed to prove as a matter of law that defendant's behavior was exceptionally brutal or heinous within the meaning of section 9-1(b)(7). The trial judge denied the motion for a directed verdict as to both statutory aggravating factors.

After the denial of defendant's motion for a directed verdict, the case went to the jury for a determination as to whether the prosecution had proved the existence of either statutory aggravating factor. During its deliberations, the jury sent a note to the trial judge asking for the legal definition of "heinous" and "wanton cruelty." Based on the definition of the word "heinous" in People v. La Pointe (1981), 88 Ill. 2d 482, 59 Ill. Dec. 59, 431 N.E.2d 344, the trial court sent an instruction to the jury that defined heinous as "hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal." Because no decision had previously defined the term "wanton cruelty," the parties and the court agreed not to define that term for the jury. Subsequently, the jury returned verdicts finding the defendant eligible for the death penalty under both section 9-1(b)(6) and section 9-1(b)(7).

The defendant's capital sentencing hearing then proceeded to the second phase. The second phase began with the prosecution calling several minor witnesses in aggravation. The prosecution first called 11-year-old S.A. and questioned her about her encounter with the defendant on September 28, 1991. S.A. testified that she was walking to a convenience store with her sister when defendant pulled his truck over and asked for directions. S.A. also testified that defendant attempted to lure her into his truck by offering her a ride to a convenience store. S.A. and her sister declined defendant's invitation and ran home.

The prosecution then called A.W., a 12-year-old girl. A.W. testified that she met defendant when he stayed overnight in her house as a guest. The following morning, defendant was to drive A.W. to school in his truck. Instead, A.W. testified, defendant drove her out of town to a cornfield. A.W. testified that, at the cornfield, defendant retrieved a rope and tied A.W.'s hands together and secured the rope to the rear-view mirror. A.W. further testified that defendant then performed oral sex on her, licked her breasts, rubbed his penis on her vagina and performed anal intercourse upon her.

The prosecution also called V.S., a 13-year-old girl. V.S. testified that she went camping with the defendant and two other minors, including her brother. While on this trip, V.S. testified, the van they were traveling in became stuck in an orchard. V.S. testified that when her brother and the other minors went to seek help, defendant trapped her in the van and began slapping her in the face and sides. V.S. testified that defendant then performed anal intercourse upon her.

The prosecution also called as witnesses three children who had stayed at the residence of defendant's grandmother. T.S., a 12-year-old boy, testified that after watching television with defendant, they both retired to the defendant's bedroom. T.S. testified that defendant then started pulling on his penis until ordered to stop. D.H., a 10-year-old boy, also testified that he was attacked at the residence of defendant's grandmother. D.H. testified that defendant grabbed him and attempted to remove his clothing, but he managed to break free. J.S., an 11-year-old girl, testified that she awoke in the night while staying at that residence and found that defendant had removed her underwear and was performing oral sex upon her.

Bureau County Police Chief Doug Bernabei testified concerning defendant's previous convictions in Texas. First, Bernabei testified from a police report that indicated defendant performed oral sex on, and masturbated, a 12-year-old boy in 1983. The prosecution then identified a certified copy of the court record indicating that the defendant had pleaded guilty to aggravated sexual abuse in relation to that occurrence and was sentenced to 10 years' shock probation. Second, Chief Bernabei testified from a police report that indicated defendant had molested a seven-year-old girl on numerous occasions while he stayed at her home. The prosecution then identified a certified ...


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