People v. Weinke
| Decision Date | 30 September 2021 |
| Docket Number | 1-18-0270 |
| Citation | 2021 IL App (1st) 180270,193 N.E.3d 209,456 Ill.Dec. 241 |
| Parties | The PEOPLE for the State of Illinois, Plaintiff-Appellee, v. Wayne WEINKE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jed Stone, of Stone and Associates, of Waukegan, and Andrea D. Lyon, of Lyon Law, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.
¶ 1 The trial court found Wayne Weinke guilty of first degree murder for the death of his mother, Gloria Weinke, and sentenced him to 40 years imprisonment. We reversed and remanded for a new trial because the trial court erred when it granted the State's request to take Gloria's emergency evidence deposition without satisfying Illinois Supreme Court Rule 414 (eff. Oct. 1, 1971). See People v. Weinke , 2016 IL App (1st) 141196, ¶¶ 3, 72, 401 Ill.Dec. 546, 50 N.E.3d 688. The court further erred when it ruled the deposition admissible at trial. Id. ¶¶ 3, 56. Before his second trial began, Weinke moved to dismiss his indictment on double jeopardy grounds. The trial court denied his motion.
¶ 2 Weinke now seeks interlocutory review (see Ill. S. Ct. R. 604(f) (eff. July 1, 2017)) and argues we should bar his retrial, relying on principles of double jeopardy. Weinke would have us either extend or depart from the federal double jeopardy standard, which only bars retrial when the State goads the defense into moving for a mistrial. Oregon v. Kennedy , 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Weinke advocates adopting a broader retrial prohibition beyond the mistrial context when a prosecutor deliberately commits misconduct to avoid anticipated acquittal. United States v. Wallach , 979 F.2d 912, 916 (2d Cir. 1992). The State argues against departing from Kennedy and contends that even if Illinois adopted Wallach ’s proposed standard, Weinke's retrial would not offend double jeopardy principles.
¶ 3 We affirm the trial court's denial of Weinke's motion to dismiss on double jeopardy grounds. Kennedy and the Illinois cases applying it do not bar retrial after a successful appeal based on trial error, even where the appeal focuses on prosecutorial misconduct. Besides, the evidence fails to demonstrate that the prosecutor intended to goad either a mistrial or a successful appeal. Double jeopardy does not bar Weinke's retrial.
¶ 5 Our decision in Weinke's first appeal recounts the essential facts. Weinke , 2016 IL App (1st) 141196, ¶¶ 6-28, 401 Ill.Dec. 546, 50 N.E.3d 688. We relate only the procedural history and the facts necessary to address the issue before us.
¶ 6 In July 2006, a security guard for the residential retirement community where Gloria Weinke lived found her at the bottom of her unit's basement stairs. She told police and paramedics that her son, Weinke, had pushed her over the first-floor railing, causing her fall and injuries. At Weinke's bond hearing, a prosecutor asked to preserve Gloria's testimony by video deposition. The State described Gloria's multiple injuries as "critical" and stated it was "unclear" whether she would survive. Weinke's counsel objected, and the court held the case to the next day.
¶ 7 The following morning, the State formally moved to take Gloria's video deposition that afternoon based on the "substantial possibility" she would be unavailable for trial. The State provided no details or documentation.
¶ 8 In court, the State said Gloria would have surgery in two days to repair her fractured pelvis
, and the surgery was not scheduled sooner only because she had other extensive injuries that needed to stabilize first. The State provided no evidence of Gloria's condition. Weinke's counsel objected. He did not have Gloria's medical records or history and did not know whether she was receiving medication that might affect her ability to testify, so he could not effectively cross-examine her.
¶ 9 After hearing arguments, the motion judge granted the State's request for an emergency evidence deposition based on Gloria's age, injuries, and history of cancer
. The court scheduled the deposition for 2:00 p.m. that same day. Weinke's counsel objected and requested postponement to prepare. The State insisted on deposing Gloria before her impending surgery. Again, the court asked whether Gloria's condition was so critical that she might not survive the next two days, and the State answered,
¶ 10 The court denied postponement based on the State's representation of Gloria's precarious condition. The court ordered the State to tender discovery immediately, and they gave Weinke's counsel photographs of Gloria's home and other documents two hours before the deposition.
¶ 11 In the video deposition taken from her hospital bed, Gloria described, among other details, the family quarrel over her and her late husband's estate plan. The couple's two sons, Kenneth and Weinke, had objected to a recent change in the estate plan favoring their sister, Gail, over them. Gloria said her son, Weinke, had unexpectedly come to her home early one morning to talk. After Gloria referenced the disagreement over the inheritance, Weinke suddenly picked her up and threw her over the railing into the basement. She described Weinke turning the light on, looking down at her, ignoring her pleas to press the emergency call button on the wall, turning off the light, and leaving her there. A guard found her hours later.
¶ 12 Weinke's counsel cross-examined Gloria about her cancer
, conversations with Weinke, role in the family business, and estate arrangements.
¶ 13 Gloria died three months later. Before Weinke's trial, the State moved to admit Gloria's deposition into evidence under section 10.4 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115-10.4 (West 2006) ). Weinke objected, arguing the State failed to comply with Rule 414 to obtain the emergency deposition, depriving defense counsel of adequate opportunity to cross-examine Gloria. Weinke also alleged that, to persuade the court to grant its request, the State had lied about both the severity of Gloria's condition and prosecutors’ communication with her doctors. See Weinke , 2016 IL App (1st) 141196, ¶¶ 20-23, 401 Ill.Dec. 546, 50 N.E.3d 688 ().
¶ 14 Weinke's counsel sought an evidentiary hearing to determine whether, to obtain the deposition, the State had provided accurate and honest information. The trial court denied the request. After arguments on the motion in limine , the court ruled the deposition admissible. The court found the State had complied with Illinois Supreme Court rules but did not address the issue of the State's allegedly false statements. Even if the State had lied, the court said, the undisputed facts of Gloria's age, cancer diagnosis
, and impending surgery justified the deposition.
¶ 15 The State presented Gloria's deposition at Weinke's bench trial. The court found Weinke guilty of first degree murder, finding Gloria's video deposition persuasive along with the State's other evidence. Weinke received a 40-year prison sentence.
¶ 16 Weinke appealed his conviction and sentence, challenging the Rule 414 emergency deposition ruling and admission. We held the State did not meet its Rule 414 burden to provide evidence that the deposition was "necessary" due to a "substantial possibility" the witness will be unavailable at trial. Id. ¶ 40. We found "[t]he State's written motion requesting Gloria's deposition was perfunctory, cursory, and without any supporting documentation." Id. ¶ 41. We also held the trial court's admission of the improperly obtained deposition violated Weinke's constitutional right to confront witnesses against him. Id. ¶ 56. We reversed and remanded for a new trial. Id. ¶ 72.
¶ 17 Weinke then moved to dismiss his indictment on double jeopardy grounds, based on the prosecutorial misconduct that led to his conviction's reversal. Weinke argued the United States and Illinois Constitutions bar retrial "where an appellate court has made a finding of fact that the State's attorney deliberately misled the Court." Weinke acknowledged this would be the first time an Illinois court extended the double jeopardy bar to retrial under such circumstances. The State argued jeopardy had not attached when it sought the emergency deposition, so any misconduct failed to trigger the Kennedy bar to retrial. The trial court denied Weinke's motion to dismiss, agreeing with the State that jeopardy had not attached when the prosecutorial misconduct took place.
¶ 19 Weinke argues both the United States and Illinois Constitutions’ double jeopardy clauses should bar his retrial after we reversed his conviction for prosecutorial misconduct. He concedes Illinois follows federal double jeopardy principles, which bars retrial only when the State goads the defense into moving for a mistrial. See People v. Griffith , 404 Ill. App. 3d 1072, 1080, 344 Ill.Dec. 417, 936 N.E.2d 1174 (2010) (). But Weinke never moved for a mistrial. Acknowledging the difference between mistrials and appellate reversals, he proposes expanding the interpretation of Illinois's constitution to prohibit retrial under double jeopardy principles when the State commits any misconduct to avoid acquittal without a mistrial. See Wallach , 979 F.2d at 916. The State contends the trial court correctly found jeopardy had not attached when prosecutorial misconduct—if any—happened. The State also denies Kennedy applies because the State never intended to...
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