A man convicted of murdering a well-respected Indigenous man in downtown Midland in 2012 will be staying in prison.
Jessy Herlichka, 34, had his appeal denied by Ontario Appeal Court Justice Michal Fairburn for kicking and beating 59-year-old Andrew Mixemong to death on July 6, 2012.
“The appellant’s trial involved one issue – did the Crown prove beyond a reasonable doubt that he had the intention for murder?” Fairburn wrote in her 49-page decision released recently.
“I am satisfied that the jury understood how to approach that issue. I am also satisfied that there is no reversible error demonstrated on appeal.”
In 2015, Justice Alfred Stong handed Herlichka a mandatory life sentence of 25 years, with no chance of parole for 10 years. His co-accused in the brazen attack, Paul McClung, was found guilty of manslaughter and received a 10-year sentence with the parole board determining parole eligibility.
Mixemong was beaten in the alley behind King Street eatery Dino’s Fresh Food Deli where he had arrived to pick up his wife, Lorraine Ashkanese, from work. Mixemong, who died in hospital with organ damage, a broken jaw and broken facial bones and ribs was a popular figure in both Midland and Beausoleil First Nation.
In the appeal, Herlichka’s three-person legal team argued that Stong erred in three respects: “gave flawed instructions (to the jury) on the defence of intoxication; refused to qualify a proposed defence expert in a specific area of expertise; and provided an inadequate curative instruction after a Crown witness suggested that the appellant murdered Mr. Mixemong.”
During the trial, Herlichka “ran a straight intoxication” defence.
"The appellant and Mr. McClung were tried together before a jury on the charge of second-degree murder. As the appellant pled guilty to manslaughter on the first day of trial, the jury had only one issue to focus upon in relation to the case against him: Did the appellant have the requisite state of mind for murder?
“There was no dispute at trial that he was intoxicated at the time. Rather, the dispute was over the degree of his intoxication and the effect that it had on his state of mind. The appellant maintained that he was so intoxicated by alcohol and drugs that there was a reasonable doubt as to whether he formed the state of mind for murder.”
In the lead-up to the attack, Herlichka said he had consumed about 12 beers, large parts of a total of 100 ounces of vodka, two Percocets and four OxyNeo tablets.
“Importantly, both the Crown and defence experts testified that it was unlikely that the appellant could have consumed as much alcohol as he and his then girlfriend suggested at trial because, if he had, he would have been, at best, unconscious, and more likely dead.”
As for the judge’s instructions to the jury that it was up to them to decide the effect of intoxication on the appellant’s “ability” to form the intention for murder, “the appelant maintains that this instruction incorrectly focused the jury on whether the appellant had the capacity to form the intention for murder, rather than whether he actually formed that intention.”
But Fairburn didn’t buy it.
“This case is unlike more typical murder cases involving the defence of intoxication, where the victim is injured by a simple push to the sidewalk, resulting in a strike to his or her head, or single kick to the head,” Fairburn wrote.
“In those cases, even in the absence of intoxication, foreseeability of likely death is a trickier subject for a jury’s consideration. That was not this case. Like a bullet to the head at close range, the blistering, vicious and unrelenting nature of the attack on Mr. Mixemong had the unmistakable markings of death.”
Fairburn also turned to case law that backed up her decision along with the trial judge’s original instructions.
“I am satisfied that this jury was well equipped to properly deliberate on whether the appellant had the state of mind for murder.”
Fairburn pointed out that Herlichka’s lawyer didn’t object to the instructions after they were given.
She added: “Indeed, trial counsel expressed satisfaction with the instruction, thanking the trial judge for having given it.”
A traditional native burial service was held on Christian Island for Mixemong, who was affectionately known as "Fudd," a moniker related to Mixemong's physical stature that some say resembled Elmer Fudd and his always sunny and optimistic disposition.
"We're just devastated," his brother Wayne Mixemong said as he greeted a stream of well-wishers outside Dino’s the day after the murder. "It's just so senseless."
