People v. Nitz

• Decision Date: 28 March 1991
• Docket Number: No. 67911,67911
• Parties: , 157 Ill.Dec. 431 The PEOPLE of the State of Illinois, Appellee, v. Richard NITZ, Appellant.
• Court: Illinois Supreme Court

Page 895

572 N.E.2d 895

143 Ill.2d 82, 157 Ill.Dec. 431

The PEOPLE of the State of Illinois, Appellee, v. Richard NITZ, Appellant.

No. 67911.

Supreme Court of Illinois.

March 28, 1991.

Rehearing Denied June 3, 1991.

Charles M. Schiedel, Deputy Defender, of the Office of the State Appellate Defender, Springfield, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and Douglas K. Smith, Asst. Attys. Gen., of counsel), for the People.

Justice CLARK delivered the opinion of the court:

In the early morning hours of April 10, 1988, a group of young men and women camping in a rural area of southern Illinois known as Rocky Comfort discovered an abandoned car with a burned interior. While the campers were vandalizing the car, the trunk popped open and the headless body of a white male fell to the ground. The campers immediately notified the police, who positively identified the body as Michael Miley, and the abandoned car as Miley's.

Subsequently, on May 6, 1988, defendant, Richard Nitz, was arrested for the murder of Miley pursuant to an information filed by the Williamson County State's Attorney. On May 9, 1988, Rita Nitz, defendant's wife, was also arrested for the murder of Miley based on a separate information. The Williamson County grand jury subsequently returned a 12-count indictment against defendant and Rita Nitz, which replaced the previously filed informations. Counts I, II, and III charged defendant with first degree murder (Ill.Rev.Stat.1987, ch. 38, pars. 9-1(a)(1), (a)(2)); count IV charged defendant with unlawful use of weapons by a felon (Ill.Rev.Stat.1987, ch. 38, par. 24-1.1); counts IX and X charged defendant with two counts of felony murder in that defendant caused the death of Michael Miley while committing forcible felonies, aggravated kidnapping and robbery (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(3)). On Rita Nitz's motion, defendant's and Rita Nitz's trials were severed.

At the close of evidence, defendant and the State filed a joint motion to dismiss count IV, the charge of unlawful use of weapons by a felon. Thereafter, following closing arguments of counsel, the jury found defendant guilty of the murder of Michael Miley. Defendant's motion for a new trial and motion in arrest of judgment were denied. Defendant waived his right to a jury for the sentencing phase of the proceedings.

During the first phase of the sentencing hearing, the trial court found defendant eligible for the death penalty because he was at least 18 years of age at the time of the murder, and because defendant committed first degree murder while committing the offenses of aggravated kidnapping and robbery. (Ill.Rev.Stat.1987, ch. 38, par. 9-1.) At the second stage of the sentencing hearing, the court found no mitigating factors sufficient to preclude imposition of the death penalty. Consequently, the trial court sentenced defendant to death. The sentence was stayed (107 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); Ill.Rev.Stat.1987, ch. 38, par. 9-1(i); 107 Ill.2d Rules 603, 605).

While his conviction was awaiting review by this court, defendant filed a post-sentencing motion (Ill.Rev.Stat.1987, ch. 110, par. 2-1401 et seq.) in the circuit court, attacking his sentencing hearing. This court remanded the cause to the circuit court for disposition of the motion. Following an evidentiary hearing, the circuit court denied defendant's post-sentencing motion.

Defendant argues on appeal that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) defendant was denied a fair trial and due process of law by the State's use of defendant's post-arrest silence in the State's case in chief, on cross-examination of defendant and during closing argument; (3) defendant was denied effective assistance of counsel; (4) defendant was denied his right to an impartial jury when the trial court refused to voir dire prospective jurors as to bias against defendants with prior convictions and bias in favor of homosexuals; (5) defendant was denied a fair trial by the State's use of evidence that defendant hated homosexuals, that the deceased had been harassed when there was no evidence defendant was involved in the harassment, and by the introduction of a bat, knife and shovel where no evidence connected these items to any offense; (6) the State failed to prove the existence of an aggravating factor where the evidence did not establish beyond a reasonable doubt that a murder occurred in the course of another felony; (7) the trial court committed plain error by improperly considering the jury's verdicts convicting defendant of the uncharged and nonexistent offenses of " 'first degree murder while committing' robbery and aggravated kidnapping"; (8) the trial court erred in denying defendant's post-sentencing relief; (9) the trial court erred in failing to appoint new counsel to represent defendant on his post-trial allegations of ineffective assistance of counsel; (10) the Illinois death penalty statute violates due process for failing to require that the State prove beyond a reasonable doubt that there are no mitigating factors sufficient to preclude imposition of the death penalty; (11) the Illinois death penalty is unconstitutional because after a defendant is found eligible for the death penalty, it places the burden on the defendant to prove that death should not be imposed; and (12) the Illinois death penalty statute is unconstitutional because it does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences.

The facts adduced at trial will be presented as each issue is dealt with serially. The first issue defendant raises on appeal is that the State did not prove him guilty beyond a reasonable doubt.

Initially, we note that "[a] criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant's guilt." (People v. Jimerson (1989), 127 Ill.2d 12, 43, 129 Ill.Dec. 124, 535 N.E.2d 889; People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) It is not the function of this court to retry a defendant when considering a challenge to the sufficiency of the evidence. (Jimerson, 127 Ill.2d at 43, 129 Ill.Dec. 124, 535 N.E.2d 889.) Rather, determinations of the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact. (Jimerson, 127 Ill.2d at 43, 129 Ill.Dec. 124, 535 N.E.2d 889.) On review:

" 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' * * * '[O]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' (Emphasis in original.)" Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

Given the aforementioned principles, we believe that the State presented sufficient evidence to support the jury's verdicts. Prior to detailing the evidence connecting defendant to Miley's homicide, however, we will present background information regarding Miley and defendant which we believe assists in understanding this case.

Testimony at trial revealed that at the time of his death, Michael Miley, the victim, was 23 years old, and lived in Murphysboro, Illinois. The victim was a member of the homosexual community in and around Carbondale, Illinois. As such, the victim occasionally visited two places where homosexuals frequently gathered. The first such place was the Two Hearts Bar in Carbondale, and the second place was the Crab Orchard Lake area east of Carbondale. The Crab Orchard Lake area consisted of a dam known as the "spillway" and four adjacent parking lots. Testimony at trial revealed that defendant, on the other hand, severely disliked homosexuals, which often caused him to harass and verbally assault the homosexuals gathering at Crab Orchard Lake.

Much of the testimony at trial connecting defendant to the victim's homicide concerned the night of April 6, 1988, the last night the victim was seen alive. Two State witnesses, Robby Buttry and Edwin Pierson, stated that they saw the victim at Crab Orchard Lake between 9:30 p.m. and 10 p.m. Buttry stated that he and the victim talked for approximately 30 minutes, and then Buttry went home. Precisely where the victim went and what he did after meeting Buttry and Pierson at the lake is unknown.

Betty Boyer, a friend of the Nitzes, testified that on April 6, she baby-sat for Rita Nitz's son. She stated that she arrived at defendant's trailer on Pear Lane in Carbondale at approximately 6 p.m. Defendant's trailer was roughly one mile from the Crab Orchard Lake area. According to Boyer, defendant and Rita left in Rita's Plymouth Barracuda at approximately 7 p.m., but returned shortly thereafter. When they returned at approximately 7:30 p.m., Boyer saw Rita retrieve a gun from their trailer which she then handed to defendant in the car. Boyer stated that sometime later, between approximately 9:30 p.m. and 10 p.m., defendant and Rita returned home. Seconds later, another vehicle pulled up in front of defendant's trailer. A young, white male exited the car and approached defendant, who was standing outside the trailer. As Boyer watched through a window in the trailer, defendant shouted obscenities at the stranger in the driveway. Specifically, defendant yelled, "You * * * faggot * * * get off my driveway or I am going to kill you." Defendant...