Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified January 12, 1966.
Irwinna Weinstein and Richard Mattox were indicted for the murder of Harvey Weinstein, husband of Irwinna. She was granted a severance. Mrs. Weinstein appeals from a judgment entered on a verdict finding her guilty of murder and sentencing her to a term in the State Reformatory for Women of from 20 to 30 years. The defendant's theory for reversal is that she was buried under an avalanche of State-induced prejudice which deprived her of a fair trial; that the court made improper rulings on the evidence, including an inflammatory prejudicial cross-examination of the defendant; that the jury was not properly instructed; and that she was not proved guilty beyond all reasonable doubt. The People's theory is that the evidence of guilt, though circumstantial, was conclusive; that the defendant and Mattox were linked in a common design to murder; that the defendant incited, aided and abetted in the murder; that her appeal strategy is to attempt to create an aura and environment of error by the accumulation of many unsubstantial points; that no harmful error occurred and that she received a fair and impartial trial.
On Saturday, September 28, 1963, Harvey Weinstein, husband of the defendant, was seen in good health around their home at 9716 Van Vlissingen Road, in Chicago. At 5:00 a.m., on September 29, a truck driver, while near 138th Street on the Calumet Expressway, saw a station wagon drive into a garbage dump. When he again passed the area at 7:30 a.m. he saw the station wagon on fire. The license on the station wagon was registered to Royal Displays, the business where Harvey Weinstein was employed. This station wagon was frequently used by Harvey, who was employed by A.L. Slatin, father of defendant. Co-defendant Mattox was also employed on and off by A.L. Slatin. The first police on the scene arrived at 5:40 a.m. The automobile was burning "profusely." Officer Gibson observed the remains of a corpse in the front seat. A police specialist from the Arson Unit later examined the car and found the gas tank intact. Because of the even burning the specialist felt that an accelerant was used in the fire. After the fire was extinguished, the corpse, badly scorched and partly destroyed, was transported to the morgue. The station wagon did not have a trunk. A jack handle was not found in the vehicle.
On Monday, September 30, Dr. Harold Wagner, the coroner's pathologist, and Dr. Peter Zullo, a dentist, examined the body. Present at the examination was Detective William Mitchell. Dr. Zullo compared dental charts produced by dentists who worked on Harvey Weinstein's teeth, with the teeth of the corpse. In his opinion the corpse was that of Harvey Weinstein.
Dr. Wagner testified that Weinstein's body was badly burned and charred. The scalp, the chest, the lower legs, the hands and forearms were burned away. An examination of the head revealed a star-shaped portion, an inch by an inch and one-half, of bone missing from the skull. Below the hole in the skull was a tear in the membrane through which blood had poured. The doctor felt that death was associated with this traumatic subdural hemorrhage. Other possible causes of death were obscured by the fire. Dr. Wagner testified that he found no evidence of carbon monoxide in the tissues of the body, leading him to conclude that Weinstein was dead before the fire. In the stomach of the corpse, Dr. Wagner found approximately three ounces of partly digested food. From this he concluded that the food was eaten up to five hours before digestion stopped. Digestion could be stopped when a head blow or other trauma was sustained even though death did not follow until two hours later. The blood found on the charred corpse was analyzed and found to be Type A.
On Saturday, September 28, Shirley Lome, a nearby neighbor and long-time acquaintance of Mrs. Weinstein, received a telephone call about 11:00 p.m. A voice, later learned to be Mrs. Vilma Graziani, asked if "Winnie" and Harvey Weinstein were at home. Mrs. Lome, upon seeing the Weinstein station wagon in front of their house, answered, "Yes." Mrs. Graziani made the inquiry at the request of Richard Mattox. The defendant admitted that Mattox came to her home at 2:00 a.m. on Sunday, September 29th. She testified that Mattox and her husband had a fight, but said that it was over "money" and that they, both bleeding, walked from the house to "talk about this." A next door neighbor, Lester Michell, whose bedroom faces the Weinstein house, testified that at approximately 2:30 a.m. on Sunday, he heard a "moan" by his window, then heard a sound (wood banging against wood) like a gate slamming (the Weinstein backyard has two wooden gates); then Michell heard a vehicle pull rapidly away, the car wheels spinning on stones. Mr. Michell looked out his bedroom window and saw that the light was on in the Weinstein bedroom and the window open.
At 3:45 a.m. on Sunday, September 29, the defendant called Shirley Lome and said, "Come over right away, I need your help." The defendant told Mrs. Lome that Mattox (height 6 feet over 200 pounds) and Harvey (height, 5 feet 9 inches, weight 175 pounds) had had a fight and that Harvey was frightened and ran into Bonnie's bedroom. (Bonnie was the Weinstein's eight-year-old daughter.) The defendant told Mrs. Lome that they left in Harvey's station wagon and that Mattox was driving. The defendant asked Mrs. Lome to do her a "big favor"; if anyone questioned her, to say that Irwinna told her that she and Harvey had a fight and that Harvey had walked out. At 8:00 or 8:30 Sunday morning, the defendant called Mrs. Lome and said that the station wagon had been found in Calumet Expressway burning. The defendant repeated: "Please remember what I told you to tell anybody if they ask." The defendant then pointed to a spot on the doorstep and asked Mrs. Lome if it looked like blood. The defendant later cleaned the spot, as well as the bedroom, which had "mud" on the floor. Some time in the the early morning hours on Sunday, September 29th, Mattox returned to the Graziani residence in Steger, Illinois. He had no shirt on and his trousers were soiled. No injuries were sighted. At 7:00 a.m. on Sunday, the defendant brought several bags of laundry to Mrs. Lome's house, her machine being disabled. The defendant asked Mrs. Lome for a stiff brush. She took the stiff brush and clorox and left for the laundry. In the wash were two sponges. Defendant also asked Mrs. Lome if she could leave "something" in her closet. Later in the day the defendant gave Mrs. Lome two stuffed toy animals, suggesting that they belonged to Mrs. Lome's daughter.
About 10:00 p.m. on Sunday, when Mrs. Lome happened to look into her closet, she saw a suitcase which she recognized as defendant's. Upon opening it she saw something "red." She then closed it, but opened it the next day in the company of Lt. Cartan and Commander Flanagan. In the suitcase were a quilt and a blanket from Bonnie Weinstein's bed. Some time on Sunday, September 29, the defendant spoke with Detective William Mitchell. The defendant later called Mitchell on the telephone. Commander Flanagan and Lt. Cartan, of the Chicago Police, after speaking with Mrs. Lome, talked with the defendant on Monday, September 30, at about 8:00 p.m. When asked if Harvey Weinstein had been murdered in the house, she nodded, "No." When asked if Mattox was involved, she answered, "Yes." Taken to police headquarters, the defendant was asked if she was having an affair with Richard Mattox. She replied, "How do you know this, who told you this?" When confronted with the suitcase the defendant said, "My God, don't open that!" Defendant then told the police that the suitcase contained a quilt and a spread from Bonnie's room and that they were bloody. She then told the police, substantially as she testified, that Mattox and Harvey had a fight, that both got bloody and that Harvey said, "We'll go outside and finish this" and that they walked from the house. Mrs. Weinstein told the police that she then went to sleep.
On October 7, 1963, Police Officers Anton Prunckle and Lt. Cartan, accompanied by Meyer Weinstein, the deceased's father, searched the Weinstein house. They found two books, two dolls, a white shirt and towel in a hamper and two stuffed toys, a rabbit and a teddy bear. Some of the articles, taken to the crime laboratory, had visible red stains or specks. When analyzed, a chemist testified that the objects with enough blood to be studied, revealed that the blood was Type A. On October 12, 1963, Prunckle and Cartan recovered two sponges from the kitchen of the Weinstein home. On October 29, 1963, a defense attorney was in the Weinstein home in the presence of the police officers. He was there for the purpose of taking pictures of the interior of the home. Meyer Weinstein gave the key for entrance to the home to a police officer. On March 7, 1964, Prunckle, Cartan and the defense attorney found certain stolen musical instruments in the Weinstein attic.
Shirley Lome and Mrs. Weinstein had been friends since they were 11 years of age. As close neighbors they visited each other's homes frequently. Mrs. Lome was divorced. Mrs. Lome testified that she first saw Richard Mattox in the spring of 1963. He was painting and helping around the Weinstein house. Prior to this time Mrs. Weinstein complained to Mrs. Lome about her relationship with her husband, Harvey. The following is the testimony by Mrs. Lome of conversations between the two: In the last week of June 1963, Mrs. Weinstein said that Harvey had come home and found her and Mattox on the couch in the living room. Mrs. Weinstein said that she would wait and see what Harvey would say. That night Mrs. Weinstein said Harvey had decided to "forget it" because he assumed it had not been planned and would not happen again. On another occasion defendant said, "she could pull the wool over anybody's eyes." That same night, while Mrs. Weinstein spoke to Mattox over the telephone, she (defendant made the phone call from Mrs. Lome's kitchen telephone) said something about an "automobile accident"; and then, "You can't do that because my father drives the car," and "I drive it" and "sometimes Harvey has the children in with him." On another occasion in June, Mrs. Weinstein called Mattox on Mrs. Lome's phone. When asked what she was "planning," Mrs. Weinstein said, "Dick Mattox had hired someone to kill Harvey" and she "couldn't care less." Later that day Mrs. Weinstein again used Mrs. Lome's telephone to call Mattox. She told Mattox, "You have got to call it off, I can't do it to my father and I can't do it to my children, you have got to call it off." After she hung up she told Mrs. Lome that Mattox had hired someone to kill Harvey and he didn't know whether he could get in touch with the man he hired, but he was going to try. In the first two weeks in July, 1963, Mrs. Lome received long-distance calls from the defendant, vacationing in Michigan. On one call she said that Harvey had written a note implicating Mattox in case anything should happen to him. On subsequent calls Mrs. Weinstein assured Mrs. Lome that nothing was going to happen to Harvey. In the middle of July, the defendant said that she was going to see a marriage counselor at the request of her husband. She said she was "going along with Harvey because she could fool anybody." In August, Mrs. Weinstein said she was "getting increasingly unhappy" with Harvey and that she didn't know how she was going on living with him very much longer. Mrs. Weinstein revealed that she and Mattox had been discovered at the Whitcomb Hotel on the day that Mrs. Weinstein had visited the marriage counselor. At that time the defendant expressed the fact that she wished the original plan had gone through. In August, Mrs. Lome visited the Weinsteins at their summer home in Michigan. While there, Harvey and defendant had a fight. Harvey called her names and she walked out of the house. Just after Labor Day, when in Chicago, defendant admitted that she had continued seeing Mattox in the basement of their home in Michigan and though "it was out of character" she felt she was "falling in love" with Mattox. She said she had him like a "dog on a leash" and likened him to a "tiger." She again said she wished the "original plan" to murder had gone through. Again in the week after Labor Day, Mattox knocked at Mrs. Lome's back door. Mrs. Lome called the defendant and then Mattox and the defendant left. Again in that week, defendant, when talking to Mattox over the telephone, said "I can't go on, I can't go on living with him any longer. How long do I have to wait? Am I going to have to wait until Christmas?" During the week of September 16, 1963, Mrs. Lome gave the defendant access to her home to feed her child, as she made a trip to the loop. Mrs. Lome said she returned home to find the defendant and Mattox using her bedroom. Three or fours days before September 28, the defendant said, "Don't be surprised if Harvey isn't around in the morning, because I am going to throw him out." At various times the defendant said she tried to commit suicide and wished she could "black out all the street lights on her block."
The defendant testified that she had terminated her relationship with Mattox "about the middle of September" when she learned that he was married and had been in prison. On cross-examination she said "The last time I saw Mattox was in Steger, Illinois, which was the first two weeks of September, at which time I went to his home." When asked if she saw Mattox on September 16th in Mrs. Lome's bedroom, she said she "didn't remember." The defendant said she didn't expect to see Mattox on September 29. She "believed him to be out of the state." The defendant admitted putting the suitcase of bloody bedquilts in Mrs. Lome's closet and admitted conversations with Mrs. Lome about being discovered in the Michigan hotel with Mattox. She admitted telling Mrs. Lome that she had fallen in love with Mattox. She admitted meeting Mattox in the living room of their home when the children and Harvey were asleep, but denied most other conversations related by Mrs. Lome.
Mrs. Weinstein testified that Mrs. Lome was "drunk" on the evening of Saturday, September 28. Defendant's sister, Miriam Slatin agreed and added that Mrs. Lome was "drunk" virtually every time she saw her. Mrs. Lome denied being drunk. Six neighbors testified as to Mrs. Lome's good reputation for sobriety. The defendant testified that her husband sold stolen musical instruments frequently to men named "Dave" and "Morrie" who owned a pawnshop. One of the men lived next to her "Uncle Joe," the defendant said. This was denied by "Uncle Joe." A check by the police officers failed to turn up any sign of "Dave" or "Morrie." The defendant's maid testified that Shirley Lome, dressed in a housecoat, visited Harvey Weinstein in his bedroom for about an hour on Saturday afternoon, September 28. Harvey's Rabbi testified that Harvey was in a north-side Temple that afternoon. Mrs. Lome denied ever having been intimate with Harvey.
On the first occasion Mattox visited the Weinstein home it was at the invitation of Harvey. The adulterous conduct of defendant was known to Harvey. There was testimony that Harvey and Mattox were seen together after Harvey knew of his wife's adulterous conduct. Harvey and Mattox had been arrested together in a minor case involving the repair of a TV set. Defendant denied the testimony of Mrs. Lome about the ...