People v. Kubat

JUSTICE SIMON, dissenting:

I cannot agree that this defendant received effective assistance of counsel at his trial and subsequent sentencing. According to the majority, defense counsel acted upon a reasonable strategy during the guilt phase of defendant’s trial in: (i) not calling two disinterested eyewitnesses who would have directly contradicted the testimony of the State’s primary witness, Carolyn Sue Quick, regarding the defendant’s whereabouts on the evening of November 1, 1979, and the following morning when the murder occurred; (ii) not calling a third alibi witness even though the prosecution had been told the witness would testify and even though the prosecution was allowed to argue an inference to the jury that the witness did not testify because she would not have supported the defendant’s alibi; (iii) not investigating the circumstances surrounding defendant’s purchase of new tires, even though such investigation would have disproved the State’s contention that the purchase showed consciousness of guilt, and even though the investigation would have further discredited Quick’s testimony by contradicting her assertion that the old tires were in good condition when in fact they were slashed; (iv) not presenting any testimony regarding Quick’s reputation for honesty, even though 12 witnesses were willing and able to testify at defendant’s trial that it was dismal; and (v) not eliciting on cross-examination of two prosecution witnesses that the car they saw rapidly departing the parking lot at the Coffee And tavern was a two-door Chevrolet Monte Carlo and not a station wagon as the defendant was supposed to have driven. The majority explains these shocking deficiencies variously as reasonable decisions and sound strategy, but I question whether any criminal or civil litigants would want to be so soundly and reasonably represented as was the defendant in this case.

Regarding the failure to call Margie Elea, a disinterested witness who claimed to see the defendant in Highland, Indiana, at the same time Quick testified the defendant was with her in Chicago, the majority finds the decision reasonable because “cross-examination could severely damage [Elea’s] credibility” and because her testimony was “of questionable value.” (114 Ill. 2d at 433.) Contrary to what the majority states, Elea testified at defendant’s post-conviction hearing that she was certain of the date she saw the defendant because it was on the day she took inventory at her gas station, the first of the month. She was at the station with the defendant for about four hours, and she observed that he was driving a white station wagon. Elea’s testimony would have been of tremendous value for it rebutted the star prosecution witness, a woman having both animosity toward the defendant and a motive to fabricate her testimony. Counsel’s additional omission in securing Charles Fleisig’s testimony is not a matter of counsel’s failure to find a witness, as the majority phrases it. (114 Ill. 2d at 433.) Counsel knew that Fleisig was a witness, but only attempted to subpoena him the night before the last day of trial. Fleisig could not be found that evening, and counsel’s belated effort kept the jury from hearing the testimony of a disinterested witness who would have placed the defendant in Chicago at the time he was allegedly with Carolyn Sue Quick in Kenosha, Wisconsin.

Prudence is evident, says the majority, in counsel’s decision not to call defendant’s girlfriend, Francine Bejda, to testify in his behalf; the majority suggests that Bejda’s testimony might have been harmful to the defendant because of her relationship with him. (114 Ill. 2d at 433.) Whether the jury would have attached any credibility to the alibi testimony of the defendant’s girlfriend is, of course, open to question, but it is difficult to see how her testimony in support of the defendant’s alibi could affirmatively harm his defense. Even if counsel thought that her testimony discounted by her prejudice might not have been helpful, is it not the height of negligence to give prosecutors a powerful rhetorical tool: that Bejda was not put on the stand because she would not support the defendant’s alibi? As evidenced by her testimony at the post-conviction hearing, she would have buttressed the alibi, and the failure to present her testimony — a failure which allowed the prosecutor to argue that Bejda “could not take the witness stand and under oath testify *** to this set of facts” — was inexcusable.

At trial the State made an issue of the defendant’s purchase of new car tires eight days after the crime. Claiming that the defendant purchased those tires out of fear that he might have left an identifiable tire print at the scene of Lydia Hyde’s murder, prosecutors said that the purchase established consciousness of guilt. That argument was supported by Quick’s testimony that the old tires were in good condition when the new ones were bought. At the post-conviction hearing, however, an insurance claims adjuster (who had not been contacted by defense counsel in preparation for defendant’s trial) testified that he examined the old tires and that they were slashed. He further testified that the old tires had been manufactured by Uniroyal; the State has stipulated that the tire tracks found alongside Lydia Hyde’s body were not left by Uniroyal tires. Nonetheless, the majority has decided that counsel’s failure to even investigate this matter was not outside the range of reasonable professional assistance, but in coming to that conclusion the majority has confounded the issue actually presented to the jury.

According to the majority, the defendant would have had to testify that the slashed tires which he replaced had been on his station wagon the day of the crime in order to nullify the State’s argument. But the issue framed by the State was not whether the disposed-of tires actually made the tracks and had been on the defendant’s car on November 2; rather, the question that the State argued to the jury was why the defendant would dispose of tires in good condition and buy new ones except to cover up his criminal involvement. Merely by proving that the tires were not in good condition and that they did not match the tracks found by police, the defendant would have demolished the State’s theory that the tire episode established consciousness of guilt. In so doing, Quick’s credibility would again have been challenged by a witness without any interest in the case.

Furthermore, the State never suggested during defendant’s trial that the tires which he replaced eight days after the crime had been on any car other than the defendant’s station wagon. To the contrary, the State argued: “Ladies and Gentlemen, Robert Kubat deep-sixed those tires that were on his car on November 2d.” If counsel’s failure on this issue can be deemed a reasonable trial strategy, it is difficult to understand what sort of legal assistance would be considered ineffective.

No more explicable is counsel’s failure to present before the jury discrepancies between Quick’s testimony and the accounts of two more disinterested witnesses. Quick claimed that the defendant abducted Lydia Hyde in the defendant’s white station wagon. Two witnesses testified for the State that they saw a grey car speed away from the Coffee And tavern where Lydia Hyde was abducted. Defense counsel failed to elicit on cross-examination that both of those witnesses saw a two-door Chevrolet Monte Carlo, and not a station wagon, the car which the defendant owned and Quick described. The majority implies that counsel’s failure in this regard was not outside the range of reasonable professional assistance. While acknowledging that it “might” have been “preferable” for counsel to have elicited this information (114 Ill. 2d at 435-36), the majority seems to say that counsel is competent and effective even if the jury is never apprised of basic contradictions in the stories of State witnesses.

More incredibly, the majority also says that if counsel was ineffective in not bringing the getaway-car contradiction to light, such incompetence did not prejudice the defense because a jury might believe that the witnesses “could have mistaken a station wagon for a Monte Carlo.” (114 Ill. 2d at 436.) A jury might, I suppose, believe almost anything. But to speculate that the jury might believe that two separate witnesses lack the cognitive ability to differentiate coupes from station wagons does not persuade me. Groundless speculation is susceptible to endless manipulation in support of any proposition, and such pliable reasoning is not reason at all.

The State itself has conceded in its response to the defendant’s direct appeal that the issue of defendant’s guilt was very close and that defendant’s innocence was “arguably established.” In its original brief to this court in that appeal, the State admitted: “It was conceivable that on November 2, 1979, the defendant was not with Ms. Quick, but rather was in the company of Francine Bejda.” Notwithstanding that concession and the fact that Quick’s credibility was the issue around which defendant’s trial revolved, the majority has concluded that the defendant was not prejudiced by counsel’s ineffective assistance in failing to call a single witness to testify as to Quick’s supposedly poor reputation for honesty in the community. (114 Ill. 2d at 436.) In examining the failure to present any reputation evidence — although 12 reputation witnesses were available, two of whom testified for the defense on other matters — the court should consider the extent to which counsel otherwise used available evidence to discredit Quick’s story. Counsel sought to use Joy Jesuit’s testimony to discredit Quick by proving that Quick had committed perjury in order to have her marriage annulled, but defendant’s attorneys were unable to lay a proper foundation upon which to admit evidence of Quick’s perjury and prior inconsistent statements (Kubat I, 94 Ill. 2d 437, 496 ). That inability to operate within the rules of evidence to the elementary extent necessary to lay a foundation for the admission of prior inconsistent statements, coupled with the failure to present any of the available reputation evidence, severely blunted the defendant’s counterattack on Quick’s vulnerable credibility. Given that as the trial actually occurred the defense was able to establish a “conceivable” alibi, specific and reliable evidence of Quick’s perjurous past and attacking her reputation for honesty could very possibly have changed the outcome of defendant’s trial.

On direct appeal this court rejected the defendant’s claim that he was denied the effective assistance of counsel at the penalty phase of trial even though his attorney failed to call any witnesses in mitigation. The court relied on the supposition that “there was nothing sufficiently mitigating in the circumstances surrounding the crime, defendant’s background or otherwise, that could have been presented.” ( 94 Ill. 2d 437, 489 .) The evidence subsequently elicited at the post-conviction hearing, however, has proved this assumption incorrect.

At the hearing on the post-conviction petition, 15 witnesses testified as to positive aspects of Kubat’s character and said that they had been available to testify at the penalty phase of the trial but were not asked to do so by defense counsel. The testimony of these character witnesses — co-workers, neighbors and friends, none of whom was related to the defendant — would have brought to the jury’s attention that some people had found him generous, a good husband and father, kind to his neighbors, a good worker, a faithful friend, honest, and dependable. Thesé are clearly relevant facts in mitigation.

The majority implies that perhaps counsel made a strategic decision not to call any witnesses in mitigation “in face of” the evidence of the defendant’s criminal background. (114 Ill. 2d at 438.) Such a “strategic decision” demonstrates to my satisfaction that the defendant did not receive effective assistance of counsel. Although a sentencing jury may consider mercy (People v. Holman (1984), 103 Ill. 2d 133, 170 ) or any mitigating facts drawn from the evidence at the trial, a defendant will stand little chance of avoiding the death penalty if no mitigating evidence at all is presented at the sentencing hearing. It can hardly be difficult for a jury to find there are “no mitigating factors sufficient to preclude the imposition of the death sentence” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(g)) where the silence of the defense leads the jurors to believe no such factors exist.

The supposed strategic judgment, which the majority is “unable to say [was] *** unreasonable” (114 Ill. 2d at 438), has as its foundation the novel theory that the stronger the opponent’s case, the less counsel should do in trying to rebut it. That argument carries its own refutation. The defendant was fighting for his life, but the jury never heard one word from anyone with something favorable to say about his character, although we now know that such people existed. The jury’s determination was necessarily a discretionary one, and the defendant could only have been helped by this evidence.

In any event, there is no basis in this record for regarding the failure to call any witnesses in mitigation as a strategic decision. The majority’s assertion that “the record does not show whether counsel interviewed” the potential character witnesses (114 Ill. 2d at 436-37) is inaccurate. In fact, the record discloses that all but two of those 15 witnesses were never contacted by defense counsel (the other two testified on unrelated issues at the guilt phase). Counsel were ignorant of the available mitigating evidence apparently because they never looked for it, and it cannot be seriously contended that defendant’s attorneys made a reasonable strategic decision not to present evidence of which they were unaware. “A total abdication of duty should never be viewed as permissible trial strategy” (Pickens v. Lock-hart (8th Cir. 1983), 714 F.2d 1455, 1467 (finding ineffective assistance where defense counsel failed to make any investigation of possible evidence in mitigation)), but that is precisely what this court has done.

In addition to the failure of defendant’s attorney to present any mitigating evidence (only one of defendant’s two attorneys bothered to make an appearance at defendant’s death sentence hearing), counsel’s closing argument at the second stage of the sentencing hearing, which covers only three pages of the record, was largely unintelligible and actually prejudicial to his client. The majority refuses to consider this claim of ineffective assistance, saying the “issue could have been raised on direct appeal and, therefore, is deemed waived.” (114 Ill. 2d at 438.) Contrary to the majority’s conclusion, this issue was fully argued by the defendant in his original, direct appeal to this court. On pages 90 and 91 of defendant’s brief and argument, filed with this court October 5, 1981, he argued:

“The failure to offer evidence in mitigation at the death penalty hearing was aggravated by defense counsel’s closing argument. When asked by the court how much time he needed for closing argument, Public Defender Pease replied:

It’s all been said. I don’t have to say anything more than three to five minutes. It’s all been said. (R. 1702)

Thereafter, attorney Pease delivered a curt argument to the jury which is contained in three pages of the appellate record. (R. 1709-1711) The closing argument, which may best be described as nonsensical, concluded as follows:

In talking about guides, approaches, the ways that you may think, I am not going to convince you. I think these are attitudes you form long before, certainly many years before coming to the Lake County Courthouse, but you may, while you deliberate, weigh them all again and decide the way you feel, Robert Kubat or Lydia Hyde.” (Emphasis in original.)

Both here and in the court’s opinion on defendant’s direct appeal, the court has failed to deal with the contention that asking the jury to choose between the defendant and the victim is an ineffective plea for the defendant’s life. The State has previously characterized that closing argument as “an insight into human behavior.” My characterization is not so kind.

To the extent that counsel’s remarks can be comprehended, he appears to have told the jury to measure the value of defendant’s life against that of Lydia Hyde, the innocent victim, and decide who they “felt” for more. Given that advice by counsel for the defense, it is not surprising that the jury preferred Lydia Hyde and sentenced Kubat to death. What is surprising is this court’s reticence to recognize and correct an egregiously unfair proceeding in which this defendant was sentenced to death with legal assistance that would border on the comical if only it were make believe.

Some 20 instances of ineffective assistance of counsel have been identified by the defendant, many of which are substantial. The defendant, in my view, has satisfied both prongs of the standard for demonstrating ineffective assistance of counsel set forth in Strickland v. Washington (1984), 466 U.S. 668 , 80 L. Ed. 2d 674 , 104 S. Ct. 2052 . Counsel’s performance was patently deficient, and there is a reasonable probability that the defendant would have been acquitted had his alibi defense been properly developed and Quick impeached with all the evidence at hand. It is also likely that the jury would not have sentenced him to death had it been exposed to the testimony of at least some of the 15 character witnesses and had counsel avoided a closing argument prejudicial to his client. Justice does not permit the execution of a defendant who was effectively rendered no legal assistance at all, and I must emphatically dissent.