People v. Markiewicz

• Decision Date: 22 June 1993
• Docket Number: No. 2-91-0499,2-91-0499
• Citation: 246 Ill.App.3d 31,615 N.E.2d 869
• Parties: , 186 Ill.Dec. 65 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John L. MARKIEWICZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 869

615 N.E.2d 869

246 Ill.App.3d 31, 186 Ill.Dec. 65

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John L. MARKIEWICZ, Defendant-Appellant.

No. 2-91-0499.

Appellate Court of Illinois Second District.

June 22, 1993.

G. Joseph Weller, Deputy Defender (on brief), Kim M. DeWitt (argued and on brief), Office of the State Appellate Defender, Elgin, for defendant-appellant.

David R. Akemann (on brief), Kane County State's Atty., Geneva, William L. Browers, Deputy Director (on brief), State's Attorneys Appellate Prosecutor, Lawrence M. Bauer (argued and on brief) Justice McLAREN delivered the opinion of the court:

[186 Ill.Dec. 69] State's Attorney Appellate Prosecutor, Elgin, for plaintiff-appellee.

Following a jury trial in January 1991, defendant, John Markiewicz, was found guilty of first degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1). Defendant was found to be eligible for the death penalty (Ill.Rev.Stat.1987, ch. 38, par. 9-1(b)(8)), but was sentenced to a term of natural-life imprisonment. Defendant raises the following issues on appeal: (1) whether evidence of other crimes was properly admitted; (2) whether trial counsel was ineffective; (3) whether defendant was entitled to a hearing on his allegations of ineffective assistance of counsel; (4) whether the State's comments during closing argument deprived defendant of a fair trial; and (5) whether the court abused its discretion in sentencing. For the following reasons, we affirm in part, reverse in part, and remand.

Defendant was charged with three counts of first degree murder (Ill.Rev.Stat.1987, ch. 38, pars. 9-1(a)(1), (a)(2)) arising from the death of the victim, Debra Shelton. Shelton was last seen alive on March 30, 1988. On April 27, 1989, her decomposed body was discovered buried on the banks of the Fox River in a 55-gallon drum. An autopsy conducted by Dr. Lawrence Blum found the cause of death to be acute cocaine overdose. At trial, the State argued that defendant repeatedly injected the victim with cocaine until she died to prevent her from revealing information about the abduction, kidnapping, aggravated battery, and murder of Frank Mahlendorf.

Ray Katzensky testified for the State in exchange for immunity from prosecution for his involvement in the kidnapping and aggravated battery of Frank Mahlendorf and Shelton's murder and its concealment. Paul Schmitz testified for the State in exchange for immunity from prosecution for his involvement in Shelton's murder and its concealment. Schmitz and Katzensky both testified that on March 23, 1988, they accompanied defendant to the home of Frank Mahlendorf to collect money owed for narcotics. When Mahlendorf opened the door, defendant forced him into Katzensky's automobile. Defendant informed Mahlendorf that he wanted money owed for drugs and repeatedly struck him. When Mahlendorf responded that he did not have the money, defendant drove to Schmitz' home in South Elgin, Illinois. Defendant forced Mahlendorf into the garage and repeatedly slapped, beat, and kicked him, eventually breaking his nose. Katzensky and defendant tied Mahlendorf's hands to his feet and threw him into the trunk of Katzensky's automobile. Schmitz, Shelton, and defendant drove Katzensky's automobile to Wisconsin. They dropped Shelton off on a gravel road and proceeded to Devil's Lake. Defendant took Mahlendorf out of the trunk, dragged him into a culvert, and shot him. Defendant handed the gun to Schmitz and Schmitz shot Mahlendorf. Mahlendorf's body was left in the ditch. Schmitz, Shelton, and defendant drove to Iowa for a few days, stopping to throw the gun in the Mississippi River. Schmitz was eventually convicted of Mahlendorf's murder and is presently serving a double life term of imprisonment for that crime. The charges against defendant for Mahlendorf's murder were dropped.

Schmitz testified that defendant told him Shelton needed to be killed because she knew about Mahlendorf's murder. On March 30, 1988, a farewell party was held for Shelton at Katzensky's apartment. Shelton was planning to leave for Tennessee the next day to live with her father. At the party, Shelton drank some champagne which was dosed with LSD by defendant. Later that evening, Shelton accompanied defendant to Schmitz' home. Defendant filled three syringes of cocaine. Defendant and Shelton entered the garage at Schmitz' residence and defendant began to inject cocaine into Shelton's body. After a time, defendant informed Schmitz that Shelton was having a seizure. Schmitz observed that Shelton was shaking, groaning, and had urinated on herself. Shelton was shaking so severely that Schmitz had to hold her down while defendant sat on Shelton's chest and attempted to inject her arm Three days after Shelton's death, Katzensky, Schmitz and defendant placed her body into a 55-gallon drum. Katzensky and defendant drove to McHenry County and rolled the drum into the Fox River. Approximately one month later, defendant told Katzensky that they were going to have to bury the drum. Defendant and Katzensky rented a boat and bumped into the drum while searching for it on the Fox River. They towed the drum to the bank of the river, rolled the drum into a hole they dug, and covered it. Katzensky returned the next day with concrete and finished burying the drum.

[186 Ill.Dec. 70] with another syringe filled with cocaine. [246 Ill.App.3d 37] After five or six unsuccessful attempts, defendant injected Shelton's leg with the syringe. When Schmitz returned to the garage, Shelton was dead. Schmitz wrapped her body in a blanket and locked it in a room in the garage.

On April 27, 1989, Katzensky led the police to the spot where he buried the drum containing Shelton's body. An autopsy performed by Dr. Lawrence Blum and a toxicological analysis revealed a small amount of cocaine and a larger amount of benzoyl ecogonine, the chemical breakdown product of cocaine, in the gastric contents of Shelton's body. Blum found no signs of blunt trauma, stabbing, gunshot wound, disease, or heart problems. Blum found the fact that traces of cocaine remained in Shelton's body significant because the drug breaks down easily in the body. Based on this, Blum opined that Shelton died of an acute cocaine overdose.

Following a jury trial in January 1991, defendant was found guilty of first degree murder. (Ill.Rev.Stat.1987, ch. 38, par. 9-1.) Defendant was found to be eligible for the death penalty on the basis that he murdered Shelton to prevent her from testifying or otherwise assisting the State in prosecuting him for the Mahlendorf murder. (Ill.Rev.Stat.1987, ch. 38, par. 9-1(b)(8).) However, the jury found the existence of mitigating factors sufficient to preclude a death sentence. Ill.Rev.Stat.1987, ch. 38, par. 9-1(c).

At the sentencing hearing, 10 witnesses testified as to defendant's childhood and his activities during incarceration. The court stated that it heard all the testimony and considered the presentence report and letters presented. However, the court determined that none of the evidence presented in mitigation could be considered "under any of the factors in mitigation listed by the statute." Defendant was sentenced to a term of natural life in prison without parole.

Defendant's attorneys filed a post-trial motion for a new trial alleging various errors. Defendant later filed two pro se post-trial motions alleging ineffective assistance of counsel. Defendant's trial attorneys, John Paul Carroll and M. Lee Witte, were granted leave to withdraw as attorneys for defendant because of a conflict of interest created by defendant's pro se post-trial motion alleging ineffective assistance of counsel. Defendant's post-trial motions for a new trial were denied after a hearing, and this appeal followed.

EVIDENCE OF OTHER CRIMES

Defendant first contends that he was denied a fair trial by the admission of evidence of other crimes, including drug trafficking, drug abuse, possession of weapons, murder, and solicitation. Evidence of crimes, wrongs, or acts for which a defendant is not on trial is inadmissible for the purpose of establishing his propensity to commit crime. (People v. Lucas (1992), 151 Ill.2d 461, 485, 177 Ill.Dec. 390, 603 N.E.2d 460.) This type of evidence is prejudicial because a jury may convict the defendant because it believes he is a bad person and deserves punishment. (People v. Thingvold (1991), 145 Ill.2d 441, 452, 164 Ill.Dec. 877, 584 N.E.2d 89.) However, evidence of other crimes may be admitted when relevant to show motive, intent, mistake, absence of mistake, identity, common design, or modus operandi (Lucas, 151 Ill.2d at 486, 177 Ill.Dec. 390, 603 N.E.2d 460), if the probative value of the evidence outweighs the risk of unfair prejudice (People v. Maxwell (1992), 148 Ill.2d 116, 130, 170 Ill.Dec. 280, 592 N.E.2d 960). Our supreme court has gone so far as to hold Before such evidence is admitted, the State must first show that crime or misconduct occurred and that the defendant committed the offense or participated in its commission. (Lucas, 151 Ill.2d at 486, 177 Ill.Dec. 390, 603 N.E.2d 460; Thingvold, 145 Ill.2d at 455, 164 Ill.Dec. 877, 584 N.E.2d 89.) The degree of proof necessary to show that the defendant participated in the commission of the crime need not be beyond a reasonable doubt, but must be more than a mere suspicion. (Thingvold, 145 Ill.2d at 456, 164 Ill.Dec. 877, 584 N.E.2d 89.) When such evidence is offered, the trial court must establish the purpose for which the evidence is offered and weigh the relevance of the evidence against its prejudicial impact. (Thingvold, 145 Ill.2d at 452, 164 Ill.Dec. 877, 584 N.E.2d 89.) The admissibility of such evidence is a matter within the sound discretion of the trial court which will not be reversed on review absent an abuse of that discretion. (People v. Illgen (1991), 145 Ill.2d 353, 364, 164 Ill.Dec. 599, 583 N.E.2d 515.) An abuse of discretion will be found ...