People v. Weinger

• Decision Date: 27 October 1981
• Docket Number: No. 80-1936,80-1936
• Citation: 428 N.E.2d 924,101 Ill.App.3d 857,57 Ill.Dec. 244
• Parties: , 57 Ill.Dec. 244 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mitchell J. WEINGER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 924

428 N.E.2d 924

101 Ill.App.3d 857, 57 Ill.Dec. 244

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mitchell J. WEINGER, Defendant-Appellant.

No. 80-1936.

Appellate Court of Illinois, First District, Second Division.

Oct. 27, 1981.

Donald Page Moore and Sherman C. Magidson, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Marcia B. Orr and Kevin Sweeney, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant, Mitchell Weinger, was charged in a four count indictment with the murders of Mark Demetrius and Marigray Jobes. (Ill.Rev.Stat.1975, ch. 38, par. 9-1.) In a jury trial defendant was found guilty of both murders and, after a hearing in aggravation and mitigation, was sentenced to serve concurrent terms of 30 to 40 years in the Illinois Department of Corrections.

On appeal defendant contends: that prosecutorial misconduct deprived defendant of a fair trial; that the trial court erred in admitting evidence of prior consistent statements of the State's principal witness; that the trial court erred in excluding defense counsel from direct participation in the examination of potential jurors; and that this court should reconsider its prior decision in People v. Weinger (1st Dist. 1978), 63 Ill.App.3d 171, 19 Ill.Dec. 938, 379 N.E.2d 810, which upheld the validity of a search warrant issued in this cause. For the reasons which follow, we reverse defendant's convictions and remand the cause for a new trial.

Shortly after 11:30 p. m. on Monday, March 1, 1976, Mark Demetrius and his girlfriend, Marigray Jobes, were stabbed to death in Marigray's apartment at 2970 North Sheridan Road in Chicago. The State's principal witness was Cedric Sberna.

Sberna testified that he knew both victims and that he had been a "close" friend of Mark for about six weeks before the murders. On Tuesday, February 24, 1976, Sberna loaned Mark $3,000 in cash and told him that he "needed it back within 30 days." Sberna stated that he did not know what Mark intended to do with the money. On Sunday morning, February 29, Sberna, Mark and Mark's girlfriend, Marigray Jobes, went to brunch together. Early that afternoon, William P. Wright, Jr., a professional pilot, met Mark, Marigray and defendant at the Palwaukee airport.

Wright testified that he flew the threesome to the Playboy Club in Lake Geneva, Wisconsin. Mark met for a few minutes with an "older man" with whom he appeared to be having an argument near one of the hangars. Mark was carrying a 9 mm pistol at the time. Wright, Marigray and defendant remained in the plane and talked while they waited for Mark. When Mark returned, all four flew back to Palwaukee. Late Sunday night Wright and a friend, Carlo Nelson, visited Mark at Marigray's apartment. Wright and Nelson arrived sometime between 10:30 and 11 p. m. and stayed for two and one-half hours. The only persons present in the apartment were Wright, Nelson, Mark and Marigray.

Sberna testified that at approximately 10 p. m. on Monday, March 1, 1976, he telephoned Mark at Marigray's apartment. He then drove the 30 miles from his home in Lake Forest to Marigray's apartment on North Sheridan Road. Mark's sister, Cynthia Demetrius, testified that Mark called her at 11 p. m. and mentioned that he had spoken with Sberna on the telephone. Mark told Cynthia that he (Mark) was "high."

Sberna testified that he arrived at Marigray's apartment at 11 p. m. Mark appeared to be intoxicated but was "in a good mood." On the table in the apartment were a bag of cocaine, a small cylindrical glass vial, a large mirror, a large bowl of water and a cocked 9 mm pistol which Sberna had, on other occasions, seen in Mark's possession. Mark instructed Sberna to throw the cocaine into the water in the event the police raided the apartment. Sberna knew that Mark used and dealt in cocaine and that Marigray assisted him.

A conversation ensued during which Sberna advised Mark to "calm down" and stop "acting crazy." According to Sberna, Mark had been using "quite a bit" of cocaine and was "out of control" "flying around throwing parties, wasting money." Mark admitted that he had been wasting a lot of money (which Sberna believed was the money he had recently loaned him) but assured Sberna that he would be able to pay back immediately at least part of the amount he owed him by selling some cocaine. Mark told Sberna that he knew someone who would pay $125 per gram of cocaine which was substantially more than its street value. Mark made a telephone call which he told Sberna was for the purpose of arranging a drug sale. After the call, Mark removed the bag of cocaine from the table and prepared two smaller glassine bags of cocaine. He then gave the larger bag to Sberna and asked him to hold it for him and keep it away from him. As collateral for Sberna's loan of February 24, Mark also handed him his wristwatch which was made from a $20 gold piece. Mark's sister, Barbara Demetrius, testified that Mark called her at approximately 11:30 p. m. and sounded as if he was "high" on drugs.

At 11:30 p. m., which was 20 minutes after Mark had made his call to arrange a drug sale, defendant arrived at Marigray's apartment. Sberna testified that defendant was wearing an Antarctic parka with a hood and fur trim, and brown gloves. Defendant did not remove his parka while he was in the apartment. Mark informed defendant that the cocaine on the table was the same cocaine that defendant had tried before and invited him to test it. Defendant, however, picked up Mark's pistol and waved it in the air but Mark took it away from him and put it on a shelf next to the table in the apartment. Defendant then tested a small sample of the cocaine by placing it in a vial filled with water and watching the resulting solution.

According to Sberna, he and Mark had an understanding that Mark would not engage in any drug deals in Sberna's presence. In keeping with that understanding, Mark took defendant into the bathroom. Sberna and Marigray remained in the living room and saw Mark come out once to get his wallet. Mark "seemed to be in a very good mood. He was skipping and hopping and smiling." He then returned to the bathroom. "Two seconds later," Sberna heard a "choking and gurgling" sound. Sberna and Marigray ran to the bathroom door. Sberna opened the door a crack, looked in and saw defendant standing by the door and Mark lying on the floor in a pool of blood. Sberna also saw what appeared to be a very large butcher knife in defendant's hand. Sberna backed away and yelled to Marigray to get Mark's pistol. Marigray handed the gun to Sberna who then told defendant to come out. Defendant said that they (defendant and Mark) had just "got into a little bit of an argument and that he'll be okay and they'll both be right out." Neither came out of the bathroom. Sberna ordered defendant to drop the knife and come out. Defendant said, "I won't come out unless you drop the gun." Sberna refused and repeated his order to defendant to drop his knife and leave the bathroom.

While Sberna was trying to make defendant leave the bathroom, Marigray was screaming, "Mitchell, Mitchell, get out of there, leave the apartment, let's take care of Marky. Get out of here." Sberna asked Marigray to call the police. She picked up the telephone but then set it down without dialing. Defendant told Sberna that he was a narcotics agent and that there were three more narcotics agents waiting outside. Upon hearing this, Sberna took the bag of cocaine Mark had given him and threw it to Marigray, expecting her to place the cocaine in the bowl of water. Instead, Marigray placed it under her leotards at her crotch. Sberna advised Marigray that he was going to leave the apartment and asked her to go with him. Marigray refused to leave and kept shouting at defendant, calling him "Mitchell." Sberna assured Marigray that he "would call her right back immediately."

Sberna left the apartment with the loaded gun and did not try to summon help from any of the nearby apartments or from passersby on Sheridan Road. Sberna walked to his car which was parked a half block away and drove to a nearby tavern. He called the apartment but received no answer. He did not call the police at that moment because he "thought the police were already there, being that he (defendant) was a narcotics agent." Sberna drove back to the area of the apartment to see if there was any activity. He drove up and down five streets in the neighborhood but saw no activity of any kind.

Sberna then drove downtown to the Ritz-Carlton Hotel at Water Tower Place where his girlfriend, Micky Carlyle, was employed as a cocktail waitress. He arrived at the hotel at 12:15 a. m. and parked his car. Sberna went up to "The Bar" on the twelfth floor where Carlyle worked, ordered a cognac and waited a couple of minutes until she appeared. Sberna related certain facts to Carlyle. Carlyle testified that Sberna was "extremely upset" and had told her that "Mark had been stabbed and he didn't know what to do." Both Carlyle and another waitress confirmed that there were no bloodstains on Sberna's clothes.

Carlyle suggested that Sberna talk with a friend of hers who attended medical school. She dialed the number and Sberna spoke with the student for a few minutes. Sberna then called the Chicago Police Department's emergency number, 911, at 12:30 a. m.

Sberna testified to the contents of the two minute call. The call was recorded and a tape of it was played to the jury. In the call, Sberna told the police that he had witnessed a murder or attempt murder by a man with an 11 inch knife. He said that he had seen his friend lying on the bathroom floor with blood all over and left because he was in fear for his life. Sberna did not tell the police that he had a fully loaded pistol with him at the time of the crime. Sberna said, "I don't even know what the hell is going on here, but...