People v. Kubat

JUSTICE GOLDENHERSH, dissenting:

I dissent and would reverse the judgment and remand for a new trial. As Justice Clark clearly points out, the death sentence in this case should not stand. I share his views regarding the impropriety of the photographic identification and the erroneous instructions. But I cannot agree that the conviction should stand.

The majority concedes that the identification procedure was improper and that there was no reason why a lineup was not used in the later identification. The reliability of the identification should be appraised in light of the fact that the witnesses were shown the photographs more than three weeks after the day on which they had allegedly seen defendant. The record shows that three identification witnesses were permitted to view the photographs in the same room at the same time. This court has recognized that an identification by one witness may influence the identification by others. (People v. Williams (1972), 52 Ill. 2d 455 .) Detective Myhre testified that of the five photographs shown the witnesses the picture of defendant was “distinctively different than the remaining four.” Several of the witnesses were not certain of their initial identification. Mrs. Lopez particularly appears to have expressed considerable doubt as to her ability to make the identification. Nevertheless, the majority holds that the identifications were reliable.

Stripped of these questionable identifications, the conviction rests on the testimony of defendant’s former wife who was in the process of seeking an annulment of their marriage. Further, she had sent him a message in effect threatening his life, was unquestionably disgruntled with his sleeping arrangements with Francine Bejda, and was herself intermittently living with a man whose general description matched that of defendant. On this record I cannot join the majority’s conclusion that the evidence “leaves no doubt of defendant’s guilt of those offenses.” 94 Ill. 2d at 446.

I do not agree with the majority that the circuit court did not err in failing to instruct on unlawful restraint. Section 10 — 1 of the Criminal Code of 1961 provides:

“Sec. 10 — 1. Kidnaping.

(a) Kidnaping occurs when a person knowingly:

(1) And secretly confines another against his will, or

(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or ***.” (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 1(1), (2).)

Section 10 — 3 provides:

“Sec. 10 — 3. Unlawful Restraint.

(a) A person commits the offense of unlawful restraint when he knowingly without legal authority detains another.” (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3(a).)

There was no evidence here of any intent to “secretly confine [the victim] against her will,” and on this record the circuit court should have given an instruction on unlawful restraint.

Simply stated, it is the majority’s position that defendant was not entitled to the instruction because he did not request that one be given. It is difficult to reconcile this holding with the majority opinion in Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208 , in which the majority granted the defendant a new trial although the record showed that the defendant in its post-trial motion and on appeal expressly disclaimed any desire for a new trial and repeatedly asserted that the only relief sought was entry of judgment notwithstanding the verdict.

Assuming, arguendo, that the trial errors may be euphemistically characterized as “harmless” the death sentence should nevertheless be vacated. The aggravating factor which invoked the death penalty provision in this case was the alleged aggravated kidnaping of the victim. Section 9 — 1(b)(6) provides that a defendant may be sentenced to death if the murdered individual was killed in the course of the commission of another felony if “(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child; ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 9— 1(b)(6)(c).) I will not lengthen this dissent by a discussion of whether that provision is constitutional, other than to point out that article I, section 11, of the Constitution of 1970 provides that “All penalties shall be determined *** according to the *** offense” and to suggest that the holding in People v. Wagner (1982), 89 Ill. 2d 308 , casts considerable doubt on its validity. Armed robbery (section 18 — 2) is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 18— 2(b)); robbery (section 18 — 1) is a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1(b)); rape (section 11 — 1) is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(c)); deviate sexual assault (section 11 — 3) is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3(b)); aggravated kidnaping (section 10 — 2) for ransom is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(b)(1); not for ransom is a Class 1 felony (Ill. Rev. Stat. 1979, ch. 38, par. 10— 2(b)(2)); forcible detention (section 10 — 4) is a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 4(b)); arson (section 20 — 1) is a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1(c)); burglary (section 19 — 1) is a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(b)); taking of indecent liberties with a child (section 11 — 4) is a Class 1 felony (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(e)). Aggravated arson (section 20 — 1.1), a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1.1(b)), is not enumerated among the offenses the commission of which invokes the death penalty. It seems strange, indeed, that the General Assembly could have intended that Class 1 offenses invoke the death penalty and Class X offenses fail to do so.

The offense of aggravated kidnaping is charged in two counts in the indictment. In one count it is charged that defendant “knowingly and secretly confined Lydia C. Hyde against her will and committed great bodily harm upon her by shooting her in the head with a hand gun, thereby causing the death of Lydia C. Hyde, in violation of Section 10 — 2a3 of Chapter 38 of the Illinois Revised Statutes; ***.” In another count it is charged that defendant committed the offense of aggravated kidnaping in that he “knowingly and secretly confined Lydia C. Hyde against her will, while armed with a dangerous weapon, a pistol, in violation of Section 10 — 2a5 of Chapter 38 of Illinois Revised Statutes; ***.”

The jury verdict finding defendant guilty of aggravated kidnaping did not specify the count on which the finding was made. In Williams v. North Carolina (1942), 317 U.S. 287 , 87 L. Ed. 279 , 63 S. Ct. 207 , the Supreme Court set aside a conviction of bigamous cohabitation which could have rested on either of two theories. The court reasoned that because a finding of guilt on one of the theories would serve to deprive the defendants of a constitutional right, it was necessary to reverse the conviction because it was impossible to determine on which theory the convictions were based. The situation presented here is clearly distinguishable from those in which a general verdict is returned covering two separate and distinct offenses. (See People v. Jones (1975), 60 Ill. 2d 300 .) Had the question of guilt of the aggravated-kidnaping charge been submitted to the jury in separate verdicts, an acquittal on one count and a hung jury on the other would not have served to bar a second prosecution. (People v. Cole (1982), 91 Ill. 2d 172 .) The aggravated kidnaping was a single offense involving a single victim, and the jury had a choice of determining whether it was committed in one or both of the manners charged.

A proper verdict in the aggravated-kidnaping charge was crucial to the question whether the death penalty could be imposed. The only basis for invoking the death penalty provision in this case is, of course, the alleged commission of an aggravated kidnaping. If enhancement of the kidnaping to the offense of aggravated kidnaping rested upon the murder of the victim, then the murder served to enhance the felony from one that would not invoke the death penalty to one that, under the provisions of section 9 — 1(b)(6), invoked the death penalty; it then served to enhance the murder from one for which the death penalty could not be imposed to one for which it could be imposed. This is violative of the policy of lenity which applies with respect to the interpretation of criminal statutes (People v. Haron (1981), 85 Ill. 2d 261, 278 ) and contravenes the legislative intent that the felony enumerated in section 9— 1(b)(6) be complete without enhancement effected by the homicide. If the review of convictions for bigamous cohabitation in Williams was of sufficient importance to require a clear indication of the basis of the jury’s verdict, it is obviously of far greater importance in a case where the finding makes the difference between a prison sentence and a death penalty.

In the instructions in the second phase of the sentencing hearing the court instructed the jury as follows:

“If after your deliberations, you unanimously determine that there is no sufficiently mitigating factor or factors to preclude the imposition of the death sentence on the defendant, you should sign the verdict form which so indicates. If you sign that verdict form, the Court must sentence the defendant to death.

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 that verdict form, the Court will sentence the defendant to imprisonment.”

The majority concedes that the giving of the instruction was error but concludes that “we cannot conceive that the jurors could have believed the death sentence verdict should be returned in the absence of complete agreement.” (94 Ill. 2d at 493.) This court has said on many occasions that jurors are presumed to have followed the instructions, and there is no basis for applying any other rule in this case. The instruction was clearly erroneous and highly prejudicial and unquestionably was a material factor in producing the verdict upon which the death penalty was based.

JUSTICE SIMON joins in this dissent.