# People v. Kubat > Illinois Supreme Court · January 24, 1983 · 94 Ill. 2d 437 URL: https://www.frixlaw.com/law-library/cases/9734152 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT KUBAT, Appellant - **Court:** Illinois Supreme Court - **Decided:** January 24, 1983 - **Citations:** 94 Ill. 2d 437; 69 Ill. Dec. 30; 447 N.E.2d 247; 1983 Ill. LEXIS 300 - **Precedential status:** Published - **Opinion:** Concurring in part by Clark - **Judges:** Underwood, Clark, Goldenhersh, Simon - **Cited by:** 186 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734152 ## How later opinions describe it (automated extraction) - finding that a prospective juror's use of phrases during voir dire, such as "I don't think" or "I don't know" is not necessarily indicative of doubt and "a venireman [is not expected] to express himself with meticulous preciseness . . ." - concluding that the death penalty statute ensures adequate safeguards to prevent the arbitrary or capricious imposition of the penalty ## Opinion text JUSTICE CLARK concurring in part and dissenting in part: I agree with Justice Goldenhersh’s dissent with the exception of his suggestion that the conviction should be reversed. I believe that if the questionable identifications are excluded there remains more than sufficient evidence to sustain the conviction. However, the cause should be remanded for resentencing. I cannot agree to affirm the execution of a man in a case where the sentencing jury received erroneous, inconsistent and contradictory instructions on the procedure for determining whether the death penalty should be imposed. It is inconceivable to me that this court can allow this defendant to be put to death when the jury was improperly instructed. The death sentence should be vacated. The jury was instructed: “If, after your deliberations you unanimously conclude that there is a sufficiently mitigating factor or factors to preclude imposition of the death sentence, you should sign the form which so indicates. If you sign the verdict form, the court will sentence the defendant to imprisonment.” (Emphasis added.) That instruction reflects the antithesis of the proper instruction that if just one juror concludes that the defendant should not be sentenced to death, a verdict is signed that indicates an inability to reach a unanimous verdict. While the proper instruction was given to the jury along with the incorrect instruction, for the majority to conclude “we do not believe that the inconsistency resulted in any confusion” (94 Ill. 2d at 492) is reaching a judgment that we are incapable of making. None of us sat in that jury room. We are simply not in a position to say that the erroneous instruction did not create confusion in the minds of the jurors. And yet the majority determines that despite a clearly erroneous instruction the jurors understood their task. To reach that conclusion is patently wrong. In People v. Jenkins (1977), 69 Ill. 2d 61 , a jury was given two inconsistent instructions. While the defendant’s counsel in Jenkins did not object to conflicting instructions, the court found that the failure to object did not constitute waiver because the conflicting instructions amounted to a substantial deficit that rose to the level of plain error. So, too, the failure to object in the instant case did not constitute waiver. See also People v. Jones (1982), 94 Ill. 2d 275, 294-95 ; People v. Carlson (1980), 79 Ill. 2d 564, 576-77 ; People v. Brownell (1980), 79 Ill. 2d 508, 542 . The court in Jenkins said: “[Wjhere the instructions are contradictory, the jury cannot perform its constitutional function ***. While it is true that an instruction may be inaccurate and other instructions may remove this error, such cannot be so when the instructions are in direct conflict with one another, one stating the law correctly and the other erroneously. *** Where the instructions are contradictory, the jury is put in the position of having to select the proper instruction — a function exclusively that of the court.” (People v. Jenkins (1977), 69 Ill. 2d 61, 66-67 .) The court concluded there that, “[cjertainly, a person should not stand to lose his liberty because a jury has received equivocal instructions. Bollenbach v. United States (1946), 326 U.S. 607, 613 , 90 L. Ed. 350, 355 , 66 S. Ct. 402, 405 .” 69 Ill. 2d 61, 67 . The majority of this court attempts to distinguish the above language in Jenkins by deciding that case was close factually and fundamental fairness required that the jury be properly instructed. How could this court now know that at least one juror may not have changed his vote and voted against the death penalty if properly instructed? I do not believe we can say under these circumstances that in Jenkins the case was so close factually that we can refuse to apply the waiver rule, but this case is not close factually and we therefore could find no fundamental unfairness and affirm the imposition of the death penalty. I also share Justice Goldenhersh’s concern with the photographic-identification procedures used prior to defendant’s trial on November 26, 1979, when Nora Lopez, Jesse Lopez and Sandra Lawson were shown a photographic display that included the defendant. Four of the photographs were close-ups of individuals against a wall. The photograph of the defendant was a full frontal view against a background consisting of a television set, a painting and furniture. The defendant was also the only individual wearing eyeglasses. The majority relies upon People v. Williams (1975), 60 Ill. 2d 1, 9-10 , in stating that the different pose of the defendant is not dispositive on the issue of suggestiveness. In Williams, three of eight photographs were of the defendant, one of which showed him wearing a hat and sunglasses. The court said in Williams: “[T]he three photographs of this defendant were so dissimilar that it is not readily apparent that they are photographs of the same man. If Mrs. Calderone’s identification was weak and based primarily on the hat and sunglasses, she might well have picked out only the photograph showing defendant in a hat and sunglasses, without recognizing that he was also the man in two of the other photographs.” 60 Ill. 2d 1, 10 . Here the display included only one photograph of the defendant, which was different both in composition and background from the others, and I feel that we should not condone such a highly suggestive technique. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734152. Public record. Not legal advice.