APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
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 (1978), 63 Ill. App.3d 171, 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 this guy is nuts. He is nuts." Sberna gave the police the address where the stabbing took place and advised them that the apartment was under the name of "M. Jobes." He also said that he was calling from the Ritz-Carlton but hung up without giving his name. In the call, Sberna did not identify the attacker by the name "Mitchell" and said that he did not know "the chick" who leased the apartment. At trial, Sberna attributed this omission to the fact that he was nervous, but in another part of his testimony he said that he had lied because he was "in confusion." Sberna did not tell the police that the man in the apartment had identified himself as a narcotics agent because by the time he made the telephone call, Sberna had time to think and "assumed that he [defendant] was not a narcotics officer."
Sberna and Carlyle drove back to Marigray's apartment but saw no police cars there. The police communications officer, James McNichol, testified that he had not ordered any police units to report to the scene because he thought Sberna's call was a "prank." Sberna looked into the window of the apartment and saw Marigray's body lying on the floor covered with blood. According to Carlyle, Sberna said, "Tinker [Marigray] got it. She's lying in a pool of blood." Carlyle also stated that after viewing Marigray's body, Sberna became ill and vomited. Carlyle and Sberna drove back to her apartment where she called a lawyer she knew, Jared Kelner.
Kelner also testified for the State. At the time of trial Kelner had been suspended from the practice of law for reasons unrelated to this case. Kelner arrived at Carlyle's apartment at approximately 1:30 a.m. and spoke with Sberna privately in the bathroom where Carlyle could not hear them. Sberna testified that Kelner told him that he was doing his laundry and had to get back to his building to change machines. Sberna dropped Kelner off at his apartment, then drove around the neighborhood for a few minutes looking for a place to dispose of the pistol which he had left in his car. Finally, he threw the gun down a sewer on Astor Street. *fn1 The weapon was ultimately recovered, identified and admitted into evidence. Sberna picked Kelner up and drove back to Carlyle's apartment where they talked further. Kelner testified that he advised Sberna not to call the police. Kelner also advised Carlyle not to speak with the police.
Mark's father, Andrew Demetrius, testified that at approximately 9:30 a.m. on Wednesday, March 3, 1976, two days after the killings, he telephoned Sberna looking for Mark. Demetrius had a business appointment with Mark on Tuesday, but Mark did not appear and could not be reached by telephone. Demetrius asked Sberna if he knew where his son was. Sberna told him he did not know, that he had tried to call Mark on Monday evening but was unable to reach him. At trial Sberna admitted that he had lied to Demetrius. Demetrius testified further that since he was still worried about his son after speaking with Sberna, he drove to Marigray's apartment. He had the custodian open the door and found Marigray's body in the living room and his son Mark's body in the bathroom. The custodian called the police.
In court Demetrius identified for the State two items of physical evidence offered to connect defendant with his son. One was Mark's appointment book which was discovered inside Marigray's apartment. That book contained the name "Mitchell" and defendant's telephone number. Demetrius also identified a photograph of defendant and defendant's wife which was found among his son's belongings at the Demetrius' home in Glenview.
Investigator Richard Morask testified that he went to Marigray's apartment after the bodies were discovered. He observed blood "all over the apartment" but saw no signs of forced entry. On Mark's body Morask found a wallet with seven $100 bills. On the dresser he found another $100 bill and a watch made from a $20 gold piece. The bodies were removed to the morgue where the medical examiner, Dr. Robert Stein, performed the autopsies.
Dr. Stein testified that there were multiple stab wounds and cuts on both bodies, including defensive wounds on Marigray's left hand. Both victims died of stab wounds to the chest. Chemical analysis of the body fluids revealed that both victims had consumed significant quantities of alcohol, cocaine and Quaaludes. A small bag of cocaine was found in Demetrius' shirt pocket and another bag of cocaine was discovered in Jobes' vagina.
The police called Sberna at his residence in Lake Forest about 5 p.m. on Wednesday, March 3, 1976. According to Sberna, the police advised him that Mark Demetrius and Marigray Jobes were dead and that the police wanted to speak with him at Area 6 headquarters. After this telephone conversation, Sberna called Kelner and asked him to meet him at Area 6. Before he left for the police station, Sberna called Andrew Demetrius and related to him what the police had just told him on the telephone. Sberna did not inform Demetrius of what he knew about the incident. Instead, he asked Demetrius to tell him what the police had told Demetrius regarding the crimes. Sberna's recollection of his conversation with Demetrius was hazy. Demetrius, however, testified that Sberna told him that the police were accusing him of the murders. According to Demetrius, Sberna said, "I think the police think I did this." Investigator Skelly confirmed that Demetrius later reported this to him. Demetrius assured Sberna that he would "back him up" because he could not believe that Sberna had anything to do with the murders.
Sberna arrived at the police station at 8 p.m. Present were his father, his brother and sister-in-law and Kelner who was then acting as Sberna's attorney. Sberna testified that he had not seen Mark and Marigray since brunch on Sunday, February 29. When the police asked Sberna if he had seen either of them after Sunday, Sberna declined to answer on the advice of his attorney and refused to respond to any more questions. Sberna, however, did inform the police that he knew of no illegal activities in which Mark and Marigray were involved. At trial he admitted that this statement was untrue since he knew that both used and dealt in drugs.
Late Wednesday or Thursday evening (March 3 or 4) the police attempted to interrogate Carlyle at Area 6 headquarters. In testimony which was corroborated by homicide investigator John Toenings, Kelner stated that he met Carlyle at the station and advised her not to speak with the investigators. Carlyle testified that she refused to answer any questions at that time.
Kelner testified that on Friday, March 5, 1976, Micky Carlyle told him that she had changed her mind and was going to cooperate with the police investigation. Kelner then withdrew from representing Carlyle but was present at Area 6 when Carlyle gave an oral statement to the police. On the same date investigator Philbin told Kelner that he had obtained a tape recording of Sberna's call to the police the night of the murders. After Kelner informed Sberna of these developments, Sberna decided, against Kelner's advice, to speak with the police. Sberna testified that on Friday evening, March 5, he related to the police "substantially the same things" he later testified to at trial.
The police traced the telephone number found in Mark's appointment book at Marigray's apartment to defendant's address and arrested him there as he drove into his parking garage at approximately 12:30 a.m. on Saturday, March 6. Sberna identified defendant in a lineup.
Investigator Theodore O'Connor testified that after defendant was arrested, he waived his Miranda rights and told O'Connor that he knew Mark Demetrius but did not know a girl named Marigray Jobes. He had, however, read newspaper accounts of the murders. Defendant told O'Connor that he had last been at the scene of the murders on Sunday night, February 29. Mark had called defendant at home and asked him to come to Mark's girlfriend's apartment. Defendant went there because he wanted to repay Mark $40 that he owed him. When defendant arrived at the apartment, Mark, his girlfriend and another person were present. Defendant tried some cocaine Mark's girlfriend offered him, had a brief conversation with Mark, then left.
O'Connor testified further that defendant denied being at the apartment late on the evening of March 1 or in the early morning hours of March 2. Defendant stated that he was playing cards with his friend, Steven Glassman, between 10 p.m. on March 1 and 2 a.m. on March 2. Defendant invited the police to contact Glassman to verify his alibi. They did, and Glassman denied that defendant was with him.
Glassman testified that on Wednesday or Thursday, March 3 or 4, before defendant had been arrested, defendant telephoned him and asked Glassman to tell anyone who called, "like my wife," that on Monday night he was playing cards at Glassman's house. On other occasions Glassman had agreed to "cover" for defendant and assured him that he would this time also. Glassman, however, testified that defendant was not with him at the time of the murders.
Investigator John Toenings testified that after obtaining a search warrant, he and four other officers searched defendant's apartment. They recovered a message form on which the name "M. Demetrius" and Marigray Jobes' telephone number were written; an article about the murders cut from the front page of the three star final edition of the Chicago Tribune for March 4, 1976; 13 keys; and a beaded choker. In the jury's presence Toenings identified each one of these items, including the choker.
Defendant did not testify in his own behalf but called two Chicago police investigators, Thomas Skelly and James Philbin, to perfect impeachment of Sberna. Skelly testified that Andrew Demetrius had told him that he had called Sberna on Wednesday, March 3, 1976, looking for Mark, and that Sberna informed Demetrius that he had not seen Mark or been at the home of Mark's girlfriend since Sunday, February 29. Philbin testified that Sberna had told Philbin that he expected Mark "to make up the money" he owed him by selling cocaine. Philbin also related some minor inconsistencies in Sberna's account of the murders themselves.
Defendant was found guilty of both murders and was sentenced to serve concurrent terms of 30 to 40 years in the penitentiary.
Defendant's principal argument on appeal is that the misconduct of the prosecutors deprived defendant of a fair trial. We are constrained to agree. In our judgment the prosecutors in this case failed to manifest a proper regard for the trial court's evidentiary rulings and for the defendant's constitutional right to a fair and impartial trial. In a veritable litany of errors, defendant cites 35 instances of alleged prosecutorial misconduct. While no single act would necessarily require reversal and not all are worthy of individual comment, we are unable to conclude that the cumulative impact of the following errors did not affect the jury's verdicts:
• 1 (1) In his opening statement the prosecutor told the jury that the only eyewitness, Cedric Sberna, would testify that when defendant arrived at Marigray's apartment, he was wearing "a turquoise necklace, shell necklace, * * *." The prosecutor then informed the jury that the police had recovered "a turquoise shell necklace" from defendant's apartment. Sberna, however, did not testify that defendant wore a necklace. The prosecutor's suggestion that he would so testify was therefore error. "[T]he prosecutor cannot comment during his opening statement upon what testimony will be introduced at trial and then fail to produce such testimony. Such arguments ...