Petition — KUBAT v. ILLINOIS (No. 82-6876)

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QF. HRY " Office - Supreme Covirt, U.S.

Gee 874 FILED

JUN g§ 1983

ALEXANDER L. STEVAS,

IN THE CLERK

No.

SUPREME COURT OF THE UNITED STATES

October Term, 1982

ROBERT KUBAT, Petitioner

vs.

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

GARY R. PETERSON

Assistant Defender

Office of the State Appellate Defender

Fourth Judicial District

300 East Monroe, Suite 102

Springfield, IL 62701

(217) 782-3654

COUNSEL FOR PETITIONER

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

ROBERT KUBAT, Petitioner

vs.

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

QUESTIONS PRESENTED FOR REVIEW

Whether, where the petitioner's jury was not permitted to

consider a verdict of guilt on a lesser included non-capital

offense, the Illinois Supreme Court's affirmance of the petition-

er's death sentence is in direct and substantial conflict with

this Court's decision in Beck v. Alabama. In addition, this case

presents a question left unresolved in Beck v. Alabama concerning

whether it is the duty of the state, the defendant, or the trial

court, to insure that the jury is instructed on the lesser

included non-capital offense.

Whether, where the sentencing jury received erroneous,

inconsistent, and contradictory instructions on the procedure for

imposing the death penalty, the Illinois Supreme Court's

affirmance of the petitioner's death sentence is in direct and

substantial conflict with this Court's mandate that jury instruc-

tions and capital sentencing proceedings must provide "clear and

objective standards" and ''specific and detailed guidance" that

"make rationally reviewable the process for imposing a sentence

of death."

Whether certiorari should be granted to properly assess the

reliability of identification testimony which the Illinois

Supreme Court found to have been premised upon improper identifi-

cation procedures.

Whether certiorari should be granted to consider whether the

Illinois death penalty statute, which allows the consideration of

undefined, non-statutory factors in aggravation, violates the

Eighth Amendment ban on unguided jury discretion in capital

cases.

Whether certiorari should be granted to determine whether

the Illinois death penalty statute violates the Eighth and

Fourteenth Amendments by allowing prosecutors to exercise stan-

dardless discretion in seeking the death penalty following a

conviction.

Whether certiorari should be granted to determine whether

the Illinois death sentencing scheme provides adequate compara-

tive review procedures.

ii.

TABLE OF CONTENTS

Opinion Below .

Jurisdiction.

Constitutional and Statutory Provisions Involved.

Statement of the Case

Reasons for Sranting Certiorari

A. WHERE THE PETITIONER'S JURY WAS NOT PERMITTED TO

CONSIDER A VERDICT OF GUILT ON A LESSER INCLUDED

NON-CAPITAL OFFENSE, THE ILLINOIS SUPREME COURT'S

AFFIRMANCE OF THE PETITIONER'S DEATH SENTENCE IS

IN DIRECT AND SUBSTANTIAL CONFLICT WITH THIS

COURT'S DECISION IN BECK V. ALABAMA. IN ADDITION,

THIS CASE PRESENTS A QUESTION LEFT UNRESOLVED IN

BCCK V. ALABAMA CONCERNING WHETHER IT IS THE DUTY

A HE DEFENDANT, CR THE TRIAL COURT,

TO INSURE THAT THE JURY IS INSTRUCTED ON THE

LESSER INCLUDED NON-CAPITAL OFFENSE. . .

B. WHERE THE SENTENCING JURY RECEIVED ERRONEOUS,

INCONSISTENT, AND CONTRADICTORY INSTRUCTIONS

ON THE PROCEDURE FOR IMPOSING THE DEATH PEN-

ALTY, THE ILLINOIS SUPREME COURT'S AFFIRMANCE

OF THE PETITIONER'S DEATH SENTENCE IS IN

DIRECT AND SUBSTANTIAL CONFLICT WITH THIS

COURT'S MANDATE THAT JURY INSTRUCTIONS AND

CAPITAL SENTENCING PROCEEDINGS MUST PROVIDE

"CLEAR AND OBJECTIVE STANDARDS" AND "SPECIFIC

AND DETAILED GUIDANCE" THAT ''MAKE RATIONALLY

REVIEWABLE THE PROCESS FOR IMPOSING A SENTENCE

OF DEATR.” os. : ‘ :

C. CERTIORARI SHOULD BE GRANTED TO PROPERLY ASSESS

THE RELIABILITY OF IDENTIFICATION TESTIMONY WHICH

THE ILLINOIS SUPREME COURT FOUND TO HAVE BEEN

PRENISED UPCN IMPROPER IDENTIFICATION PROCEDURES.

D. CERTIORARI SHOULD BE GRANTED TO CONSIDER WHETHER

THE ILLINOIS DEATH PENALTY STATUTE, WHICH ALLOWS

THE CONSIDERATION OF UNDEFINED, NON-STATUTORY

FACTORS IN AGGRAVATION, VIOLATES THE EIGHTH AMEND-

MENT BAN ON UNGUIDED JURY DISCRETION IN CAPITAL

CASES. 6 «3 . F °

VI.

E. CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER

THE ILLINOIS DEATH PENALTY STATUTE VIOLATES THE

EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING PRO-

SECUTORS TO EXERCISE STANDARDLESS’ DISCRETION IN

SEEKING THE DEATH PENALTY FOLLOWING A CONVICTION.

F. CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER

THE ILLINOIS DEATH SENTENCING SCHEME PROVIDES

ADEQUATE COMPARATIVE REVIEW PROCEDURES.

Conclusion.

Appendix A.

Appendix B.

iv.

TABLE OF AUTHORITIES

Cases

Barclay v. Florida, No. 81-6908 (oral argument held

March 30, 1983). <a ae er eee ee ae ea ae

Beck v. Alabama, 447 U.S. 25, 100 S.Ct. ra 65 L.Ed.2d

392 (1980) cae eR ee a ee ca ee

Bollenback v. United States, 326 U.S. 607, 66 S.Ct. 402,

90 L.Ed. 350 (1946). tk? ee eer eR oe cee he Bare

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969)

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d

346 (1972)

Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64

L.Ed.2d 398 (1980) gia eo eie ae gle ape eee Urs

Goode v. Wainwright, 704 F.2d 593 (llth Cir. 1983).

Gregs v. Sogrgta 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d

( et ie FE OR ee ied ee Toe ee ee

Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982) cert.

granted sub nom. Pulley v. Harris, No. 82-1095

CMMECN 25 SESE 8 ae ee ae

Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981) vacated

on other grounds oS , 402 S.Ct. 2922, 73

L.Ed.2d 1326 ghana d — F.2d 311 a Cis.

OLE B, 29Geds « és ,

Hopper v. Evans, U.S. : o.Ct. » 2 LL. Bd.2d

367 (1982) eee ee wore eee

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53

L.Ed.2d 140 (1977) S. SaceY eiee at araeeae

People ex rel. Carey v. Cousins, 77 I11.2d 531, 397 N.E.2d

809 (1979) ie ee ae ae ee ae ee ee

People v. Flores, 79 I1ll.App.3d 869, 389 N.E.2d 1132 (lst

DAUR. BEEEDS 8S eee RRR Se ee ee

People v. Greer, 79 I11.2d 103, 402 N.E.2d 203 (1980)

13,22,20

i ee

» 26

23,80

People v. Hipkins, 97 I11l. —: 3d lad 423 N.E.2d 208 (3d

Dist. 1981).

People v. Kubat, 94 I11.2d 437, 447 N.E.2d 247 (1983).

People v. Lewis, 88 I11.2d 129, 430 N.E.2d 1346 (1981).

People v. Rehbein, 54 I1l.App.3d 93, 369 N.E.2d 190 (lst

Dist. 19//) aff'd, 74 I11.2d 435, 386 N.E.2d 39

SRI cee Fg a eee sara Ne ete! Gran wy ge ey

People v. Riley, 89 Ill. Caistor 3d 438, 411 N.E.2d 1039 (1st

Dist. 1980).

People v. Robinson, 87 I1l. Aud 3d 621, 410 N.E.2d 121 (3d

Dist. 1980).

People v. Walker, 84 I11.2d 512, 419 N.E.2d 1167 (1981)

Profitt v. Wainwright, 685 F.2d 1227 (llth Cir. 1982)

State v. Bartholemew, 654 P.2d 1170 (Wash. 1982).

United States v. Gilmore, 398 F.2d 679 (7th Cir. 1978).

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed.2d 1149 (1967). A pcm et elms (Soe eee

Statutes

Ill.Rev.Stat., 1979, Ch. 38, § 91-(b)(6)(c)

I1ll.Rev.Stat., 1979, Ch. 38, §§ 10-2

I1l.Rev.Stat., 1979, Ch. 38, § 10-3 .

Ill.Rev.Stat., 1979, Ch. 38, § 10-l(a).

I1l.Rev.Stat., 1979, Ch. 38, § 9-l(g)

I1l.Rev.Stat., 1979, Ch. 38, § 9-l(c)

Miscellaneous

I, A.B.A. Standards for Criminal Justice, 2d ed., 1980, The

Defense Function, § 4-5.2.

vi.

: ae

12,16,17,

18,20,23

» 24,25

15,16

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

ROBERT KUBAT, Petitioner

Vs.

PEOPLE OF THE STATE OF ILLINOIS, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

The petitioner, Robert Kubat, respectfully prays that a Writ

of Certiorari issue to review the judgment and opinion of the

Illinois Supreme Court which upheld the petitioner's convictions

and sentence of death.

OPINION BELOW

The opinion of the Illinois Supreme Court was filed on

January 24, 1983. People v. Kubat, 94 I11.2d 437, 447 N.E.2d 247

(1983). See Appendix A,

Il.

JURISDICTION

The judgment of the Illinois Supreme Court was entered on

January 24, 1983. A petition for rehearing was denied on April

8, 1983. See Appendix B. This petition is being filed within

sixty days of the Illinois Supreme Court's denial of rehearing.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1257(3).

Iti.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

Amendment VII.

Excessive bail shall not be required, nor

excessive fines imposed, mor cruel and

unusual punishments inflicted.

Amendment XIV.

No state shall... deprive any person of

life, liberty, or property, without due

process of law...

ILLINOIS REVISED STATUTES

Section 9-1. MURDER-DEATH PENALTIES-EXCEP-

TIONS-SEPARATE HEARINGS-PROOF-FINDINGS-APPEL-

LATE PROSECURES-REVERSALS. (a) A person who

kills an individual without lawful justifica-

tion commits murder if, in performing the

acts which cause the death:

(1) He either intends to kill or do great

bodily harm to that individual or another, or

knows that such acts will cause death to that

individual or another; or

—

(2) He knows that such acts create a strong

probability of death or great bodily harm to

that individual or another; or

(3) He is attempting or committing a forcible

felony other than voluntary manslaughter.

(b) AGGRAVATING FACTORS. A defendant who at

the time of the commission of the offense has

attained the age of 18 or more and who has

been found guilty of murder may be sentenced

to death if: ,

6. the murdered individual was killed in the

course of another felony if:

(a) the murdered individual was actually

killed by the defendant and not by another

party to the crime or simply as a consequence

of the crime; and

(b) the defendant killed the murdered indi-

vidual intentionally or with the knowledge

that the acts which caused the death created

a strong probability of death or great bodily

harm to the murdered individual or another;

and

ing: armed robbery, robbery, rape, deviate

sexual assault, aggravated kidnapping,

forcible detention, arson, burglary, or the

taking of indecent liberties with a child; or

AND MITIGATION. The court shall consider, or

shall instruct the jury to consider any

aggravating and any mitigating factors which

are relevant to the imposition of the death

penalty. Aggravating factors may include but

need not be limited to those factors set

forth in subsection (b). Mitigating factors

may include but need not be limited to the

following:

1, the defendant has no significant history

of prior criminal activity;

ss the murder was committed while the

detendant was under the intluence of extreme

mental or emotional disturbance, although not

such as to constitute a defense to prosecu-

tion;

3. the murdered individual was a participant

in the defendant's homicidal conduct or

consented to the homicidal act;

4. the defendant acted under the compulsion

of threat or menace of the imminent inflic-

tion of death or great bodily harm;

5. the defendant was not personally present

during commission of the act or acts causing

death.

% % * *

(g) PROCEDURE-JURY. If at the separate

sentencing proceeding the jury finds that

none of the factors set forth in Subsection

(b) exists, the court shall sentence the

defendant to a term of imprisonment under

Chapter V of the Unified Code of Correc-

tions. If there is a unanimous finding by

the jury that one or more of the factors set

forth in Subsection (b) exists, the jury

shall consider aggravating and mitigating

factors as instructed by the court and shall

determine whether the sentence of death shall

be imposed. If the jury determines unani-

mously that there are no mitigating factors

sufficient to preclude the imposition of the

death sentence, the court shall sentence the

defendant to death.

Unless the jury unanimously finds that there

are no mitigating factors sufficient to

preclude the imposition of the death sentence

the court shall sentence the defendant to a

term of imprisonment under Chapter V of the

Unified Code of Corrections.

* * *

(1) APPELLATE PROCEDURE. The conviction and

sentence of death shall be subject to auto-

matic review by the Supreme Court. Such

review shall be in accordance with rules

promulgated by the Supreme Court.

Section 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

Section 10-2. AGGRAVATING KIDNAPING. (a) A

kidnaper within the definition of paragraph

(a) of Section 10-1 is guilty of the offense

of aggravated kidnaping when he

(5) Commits the offense of kidnaping while

armed with a dangerous weapon, as defined in

Section 33A-1 of the "Criminal Code of 1961".

Section 10-3. UNLAWFUL RESTRAINT. (a) A

person commits the offense of unlawful

restraint when he knowingly without legal

authority detains another.

IV.

STATEMENT OF THE CASE

Robert Kubat was charged with the offenses of murder and

aggravated kidnaping. (C. 7-10, 15-16) Following a jury trial,

Mr. Kubat was found guilty of the offenses charged. (R. 1640-

1641) The petitioner was subsequently sentenced to death. (R.

1717)

Prior to trial, the defense moved to suppress the identifi-

cation testimony of various non-occurrence witnesses. (C. 60-62)

The motion alleged that the witnesses were shown photographic

displays which were impermissibly suggestive. Following a

hearing, the motion was denied with respect to witnesses Sandra

Lawson, Nora Lopez, and Jesse Lopez. (R. 344-345)

The defense also filed a motion alleging that the Illinois

death penalty statute was unconstitutional. (C. 81-83) The

mction was denied.

The evidence at trial established that at approximately

12:lu p.m. on November 2, 1979, bartender Lydia Hyde was dis-

covered missing from the Coffee and Tavern in Kenoshea, Wiscon-

Sin. (R. 767-770) A gray automobile was observed leaving the

tavern at this time. (R. 795,796) Approximately one hour later,

Ms. Hyde's body was found on the shoulder of an Illinois highway,

one mile south of the Wisconsin border. (R. 830-831, 837, 848)

It was subsequently determined that the cause of death Was a

bullet wound to the right side of the head. (R. 1359, 1372)

On November 21, 1979, Carolyn Sue Quick contacted the

Federal Bureau of Investigation and admitted her participation in

the murder of Lydia Hyde. (R. 1064) Ms. Quick further informed

federal agents that she had been accompanied by her husband

Robert Kubat. Thereafter, on November 24, 1979, Mr. Kubat was

arrested and incarcerated in the Lake County jail. (R. 1386)

Three days later Ms. Quick was granted an annulment by default in

Indiana circuit court. (R. 1070)

Carolyn Quick testified that she and her former husband had

motored from Chicago, Illinois to Kenoshea, Wisconsin on the

morning of November 2, 1979 in their station wagon. (R. 1185-

1186) After making a few stops for gas, coffee and drinks, the

couple arrived at the Backdoor Tavern. (R. 1193) They remained

at the tavern for approximately forty-five minutes. (R. 1196)

Ms. Quick further testified that they subsequently proceeded

to the Cotfee and Tavern. (R. 1199-1201) According to Quick,

the petitioner exhibited a revolver and directed the bartender to

empty the cash register. (R. 1205) Ms. Quick further stated

that the petitioner informed the bartender that "she was going

with us." (R. 1206) The trio exited the bar, entered the car,

and Ms. Quick began driving. (R. 1208)

Ms. Quick drove south and subsequently parked the car on the

Side of the highway. (R. 1209-1210) According to Ms. Quick, the

petitioner and Ms. Hyde exited the car, and the petitioner dis-

charged the gun at the woman's head. (R. 1216) The woman fell

to the ground. (R. 1216)

Ms. Quick concluded her direct examination by stating that

she had entered into an agreement with the Lake County State's

Attorney whereby the State agreed to dismiss the charges against

her in return for her testimony against Mr. Kubat. (R. 1229)

On cross-examination, Ms. Quick testified that prior to the

date of the instant offense, she had contacted the Federal Bureau

of Investigation on two separate occasions in an attempt to have

Mr. Kubat arrested. (R. 1260-1263) Ms. Quick further stated

that in July, 1979, she exhibited a .38 caliber revolver to a

young child who lived near Mr. Kubat's residence. (R. 1263) Ms.

Quick also handed the boy a bullet and told him to give it to Mr.

Kubat with a message that "it ha[{s] five more sisters if he

[finds] me." (R. 1264) Ms. Quick testified that the message

could be construed as a threat to kill Mr. Kubat. (R. 1264)

Ms. Quick testified that the gun which was used to kill

Lydia Hyde belonged to Raymond Flatoff. (R. 1292) Ms. Quick was

living with Mr. Flatoff at the time she contacted the Federal

Bureau of Investigation and implicated the petitioner in the

instant offense. (R. 1054, 1225) According to Ms. Quick, the

petitioner had taken the gun from Ms. Flatoff's trailer several

months prior to the instant offense. (R. 1158, 1177)

Sandra Lawson, Nora Lopez, and Jesse Lopez each identified

the petitioner as the man who had been in the Backdoor Tavern

with Carolyn Quick on the morning of November 2, 1979. (R. 910,

1322-1333, 1301-1302) |

Lilian Tesnohlidek, testifying on behalf of the defense,

stated that she owned the Star Club Tavern in Chicago, Illinois.

(R. 1439-1440) Ms. Tesnohlidek testified that Mr. Kubat was at

her tavern at approximately 10:30 a.m. on November 2, 1979. (R.

1442-1444) On cross-examination, Ms. Tesnohlidek stated that Mr.

Kubat had been accompanied by a woman named Sue. (R. 1445)

Following closing arguments, the jury deliberated for seven

hours prior to finding the petitioner guilty of the offenses

charged. (R. 1640-1641)

The following day, the same jury sentenced the petitioner to

suffer death. (R. 1717)

On direct appeal to the Illinois Supreme Court the petition-

er raised twenty-two issues including those relating to the

"Questions Presented For Review" contained herein.

The Illinois Supreme Court affirmed the petitioner's convic-

tions and sentence. People v. Kubat, 94 I11.2d 437, 447 N.E.2d

247 (1963). Justices Clark, Goldenhersh, and Simon dissented,

finding that the death penalty was improperly imposed where (1)

the jury was not instructed on a lesser included offense which

would have precluded the imposition of the death penalty; and (2)

the sentencing jury received erroneous, inconsistent and contra-

dictory instructions on the procedure for determining whether the

death penalty should be imposed. People v. Kubat, 447 N.E.2d at

278-282. In addition, Justices Goldenhersh and Simon dissented

from the affirmance of the petitioner's conviction, reasoning

that the identification testimony of three non-occurrence wit-

nesses which resulted from improper identification procedures

should have been suppressed because such testimony was unreli-

able. People v. Kubat, 447 N.E.2d at 280.

On April 8, 1983, the Illinois Supreme Court denied a

petition for rehearing.

REASONS FOR GRANTING CERTIORARI

WHERE THE PETITIONER'S JURY WAS NOT PERMITTED TO

CONSIDER A VERDICT OF GUILT ON A LESSER INCLUDED

NON-CAPITAL OFFENSE, THE ILLINOIS SUPREME COURT'S

AFFIRMANCE OF THE PETITIONER'S DEATH SENTENCE IS IN

DIRECT AND SUBSTANTIAL CONFLICT WITH THIS COURT'S

DECISION IN BECK V. ALABAMA. IN ADDITION, THIS CASE

PRESENTS A QUESTION LEFT UNRESOLVED IN BECK V. ALABAMA

CONCERNING WHETHER IT IS THE DUTY OF THE STATE,

DEFENDANT, OR THE TRIAL COURT, TO INSURE THAT THE JURY

IS INSTRUCTED ON THE LESSER INCLUDED NON-CAPITAL

OFFENSE.

In Beck v. Alabama, 447 U.S. 25, 100 S.Ct. 2382, 65 L.Ed.2d

392 (1980), this Court held that a sentence of death cannot be

imposed where the jury is not permitted to consider a verdict of

guilt on a lesser included non-capital offense. Nevertheless,

the Illinois Supreme Court affirmed the petitioner's death

sentence in this case, despite the fact that the jury was not

instructed on a lesser included offense which would have preclud-

ed the imposition of the death penalty. Since the evidence would

have supported a verdict of guilt on the lesser rather than the

greater offense, the Illinois Supreme Court's affirmance of the

petitioner's death sentence conflicts with this Court's holding

in Beck v. Alabama.

The petitioner was found guilty of the offenses of murder

and aggravated kidnaping. The aggravated kidnaping conviction

elevated the murder conviction to a capital offense. I11.Rev.Stat.,

1979, Ch. 38, § 9-1(b)(6)(c). Although the offense of unlawful

restraint is a lesser included offense of aggravated kidnaping

(Ill.Rev.Stat., 1979, Ch. 38, §§ 10-2, 10-3; People v. Riley, 89

Ill.App.3d 438, 411 N.E.2d 1039 (lst Dist. 1980)), the jury was

not instructed on the lesser offense. Unlike aggravated kidnap-

ing, the offense of unlawful restraint is not a statutory aggra-

vating factor and thus could not have been used to invoke the

death penalty provisions in this case. I11.Rev.Stat., 1979, Ch.

38, § 9-1(b)(6)(c).

Significantly, unlike the factual situation in Hopper v.

Evans, U.S. _, 102 &.Ct. __, 72 L.Ed.2d 367 (1982), the

evidence in this case would have supported a verdict of guilt on

the lesser offense. The evidence established that a bartender

was transported in an automobile under the threat of force, from

her place of employ in Kenoshea County, Wisconsin, along public

roads to a location approximately seven miles distant in Illi-

nois. The bartender was shot at this location and left near the

side of the road in broad daylight and in full view of passing

motorists. Under the aggravated kidnaping statute, the prose-

cution had the burden of proving the element of "secret confine-

ment'' beyond a reasonable doubt. I11.Rev.Stat., 1979, Ch. 38, §

10-l(a). However, the evidence indicated that the bartender was

seated in the front seat of the automobile in full view of

passing motorists. Under these circumstances, the jury could

reasonably have concluded that the bartender although detained,

was not "secreted",*

* Under similar circumstances, in People v. Rehbein, 54

Ill.App.3d 93, 369 N.E.2d 190 (lst Dist. I577) aff'd 74

Ill.2d 435, 386 N.E.2d 39 (1978), the jury acquitted

the defendant of aggravated kidnaping, convicting him

of the lesser included offense of unlawful restraint.

Also People v. Flores, 79 I1l.App.3d 869, 389 N.E.2d

1132 (Ist Dist. 1979).

Moreover, an instruction on the lesser included offense of

unlawful restraint would not have detracted from the petitioner's

alibi defense because the question as to whether a verdict on the

lesser offense should be imposed would have arisen only after the

alibi defense had been rejected. Under these circumstances,

rather than detracting from the petitioner's defense, an instruc-

tion on the lesser offense would have given the jury a "third

option" - convicting the defendant of unlawful restraint - which

would have precluded the imposition of the death penalty. See

Beck v. Alabama, 65 L.Ed.2d at 401 citing Keeble v. United

States, 412 U.S. 205, 93 S.Ct. 1993, 36 I..Ed.2d 844 (1973).

The Illinois Supreme Court, with three justices dissenting,

held that the death penalty was properly imposed because the

defendant failed to request an instruction on the lesser included

offense. (People _v. Kubat, 447 N.E.2d at 269) However, the

dissenting justices recognized that the trial court was under a

duty to sua sponte instruct the jury on the lesser offense.

(People _v. Kubat, 447 N.E.2d at 280, Goldenhersh dissenting)

Consequently, the divergent opinions of the Illinois Supreme

Court in this case raise an issue left unresolved in Beck v.

Alabama concerning whether it is the duty of the State, the

defendant, or the court to insure that the jury is instructed on

the lesser offense.

The majority, citing various non-capital cases, reasoned

that the burden was on the defendant to request such an instruc-

tion. However, such reasoning appears to conflict with the broad

language of the Beck decision since absent the lesser offense

instruction, the State is precluded from imposing the death

penalty. Thus, under Beck, defense counsel may have declined to

submit the instruction for the specific purpose of preventing the

possible imposition of a death sentence.

Significantly, it is the State which is seeking the death

penalty and it would seem appropriate that the State should be

required to lay the proper foundation for the imposition of

death. The State, as well as the defendant, is permitted to

tender instructions on lesser included offenses. Thus, if the

State had tendered such an instruction in this case and the jury

had nevertheless returned a verdict of guilt on the greater

offense of aggravated kidnapping, the death penalty could have

been constitutionally imposed under Beck v. Alabama.

Cn the other hand, the dissenting opinions of the Illinois

Supreme Court recognize that the trial judge had a duty to sua

sponte instruct the jury on the lesser offense. It would seem

that this approach might best preserve the reliability of the

sentencing determination while insuring that the defendant is

afforded the protection provided by lesser offense instructions.

This approech is also consistent with the A.B.A. Standards for

Criminal Justice which indicate that the decision as to whether

to submit a lesser offense instruction, like the decisions as to

whether to plead guilty or seek a jury trial, are personal to the

cetendant. I, A.B.A, Standards for Criminal Justice, 2d ed.,

1980, The Defense Function, § 4-5.2. Under this approach, the

trial court would be required to conduct an informed inquiry of

the defendant concerning the matter of the lesser offense in-

struction. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969). If the defendant subsequently elected to

waive such an instruction, the waiver would be intelligently made

and a matter of record. Under these circumstances, it would be

unnecessary to presume waiver of such an important right from a

silent record - a practice which was condemned by this Court in

Boykin v. Alabama.

Therefore, because the majority decision of the Illinois

Supreme Court conflicts with the broad holding of Beck v. Ala-

bama, this Court should grant certiorari to either reverse the

lower court's decision or clarify the language of the Beck

opinion. In addition, certiorari should be granted to resolve

whether it is the duty of the State, the defendant, or the court,

to insure that a jury in a capital proceeding is instructed on

lesser included non-capital offenses.

WHERE THE SENTENCING JURY RECEIVED ERRONEOUS, INCONSIS-

TENT, AND CONTRADICTORY INSTRUCTIONS ON THE PROCEDURE

FOR IMPOSING THE DEATH PENALTY, THE ILLINOIS SUPREME

COURT'S AFFIRMANCE OF THE PETITIONER'S DEATH SENTENCE

IS IN DIRECT AND SUBSTANTIAL CONFLICT WITH THIS COURT'S

MANDATE THAT JURY INSTRUCTIONS AND CAPITAL SENTENCING

PROCEEDINGS MUST PROVIDE "CLEAR AND OBJECTIVE STAN-

DARDS" AND "SPECIFIC AND DETAILED GUIDANCE" THAT "MAKE

RATIONALLY REVIEWABLE THE PROCESS FOR IMPOSING A

SENTENCE OF DEATH."

This Court has mandated that the penalty of death may not be

imposed under circumstances that create a substantial risk that

the punishment will be inflicted in an arbitrary and capricious

manner. Furman _v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.Ed.2d 346 (1972). Accordingly, a capital sentencing jury must

be given "clear and objective standards" and "specific and

detailed guidance" that "make rationally reviewable the process

for imposing a sentence of death." Godfrey v. Georgia, 446 U.S.

420, 100 S.Ct. 1759, 64 L.Ed.2d 398, 406 (1980). In this case,

the Illinois Supreme Court affirmed a sentence of death which was

imposed by a jury pursuant to erroneous, inconsistent, and

contradictory instructions. These instructions maximized the

risk of arbitrary and capricious action, and failed to provide

any rational basis for meaningful appellate review of the peti-

tioner's death sentence.

The Illinois death penalty statute mandates that a defendant

may be sentenced to death only if "the jury determines unanimous-

ly that there are no mitigating factors sufficient to preclude

the imposition of the death sentence." I11.Rev.Stat., 1979, Ch.

38, § 9-l(g). In contravention of this statute, the jury in the

present case was instructed:

If, after your deliberations you unanimously

conclude that there is a sufficiently mit-

igating factor or factors to preclude the

imposition of the death sentence, you should

sign the form which so indicates. If you

sign the verdict form, the court will sen-

tence the defendant to imprisonment. (Empha-

sis added)

The foregoing instruction is erroneous because it requires a

unanimous verdict to preclude the imposition of death. As such,

the instruction is the antithesis of the statute.

Although the Illinois Supreme Court specifically found that

the instruction "was incorrect in requiring unanimously", the

majority reasoned that "we cannot conceive that the jurors could

have been believed the death sentence verdict should have been

returned in the absence of complete agreement." (People v.

P g

Kubat, 447 N.E.2d at 272.)

Under these circumstances, it is obvious that the misguided

imposition of the death sentence by a misinstructed jury was in

no way cured by the affirmance of the sentence by the Illinois

Supreme Court. Because the jury was given erroneous, inconsis-

tent, and contradictory instructions, there is no rational basis

for reviewing the death sentence which was imposed in this case.

As the dissenting opinions recognize:

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" 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

uncerstood their task. To reach that conclu-

sion is patently wrong.

(People _v. Kubat, 447 N.E.2d at 278, Clark

dissenting. )

This Court has mandated that the State is required to

"tailor and apply its law in a manner that avoids the arbitrary

and capricious infliction of the death penalty." Godfrey v.

Georgia, 64 L.Ed.2d at 406. The Illinois Supreme Court failed to

follow this mandate in the instant case, for as this Court has

recognized:

Certainly, a person should not stand to loose

his liberty because a jury has. received

equivocal instructions.

Bollenbach v. United States, 326 U.S. 607, 66

S.Ct. 402, 90 L.Ed. 350, 355 (1946).

Therefore, because the sentencing jury in this case was

misguided by erroneous instructions which maximized the risk of

arbitrary and capricious action in direct contravention of the

decisions of this Court, certiorari should be granted and the

petitioner's death sentence vacated.

CERTIORARI SHOULD BE GRANTED TO PROPERLY ASSESS THE

RELIABILITY OF IDENTIFICATION TESTIMONY WHICH THE

ILLINOIS SUPREME COURT FOUND TO HAVE BEEN PREMISED UPON

IMPROPER IDENTIFICATION PROCEDURES.

The Illinois Supreme Court specifically found that the iden-

tification testimony of non-occurrernce witnesses Sandra Lawson,

Nora Lopez, and Jesse Lopez, were premised upon an improper iden-

tification procedure. People v. Kubat, 447 N.E.2d at 262. How-

ever, the court further found that the identification testimony

was "clearly reliable and therefore properly admitted." Because

the court's assessment of the reliability of the identification

testimony of these non-occurrence witnesses does not comport with

the decisions of this Court, certiorari should be granted.

Once the impropriety of the identification procedure has

been shown, the prosecution must prove by a "clear and convinc-

ing" evidence that the witness' identification of the defendant

had an independent origin and was not influenced by the unneces-

sary and suggestive identification procedures. United States v.

Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In

this case, the record indicates that the non-occurrence identi-

fication witnesses did not view the man at the time of the crime;

did not furnish a description of the man to the police; and were

unsure of their iaietal taeecitioacbons of the petitioner. These

factors each indicate that the subsequent in-court identifica-

tions were unreliable. See Manson v. Brathwaite, 432 U.S. 98, 97

S.Ct. 2243, 53 L.Ed.2d 140, 154 (1977).

This unreliability is especially pronounced with respect to

Sandra Lawson's in-court identification of the petitioner.

Significantly, Sandra Lawson never made a positive pretrial

identification of the petitioner despite having viewed a combina-

tion of photographic displays and confronting the petitioner in

court at the suppression hearing. In fact, when Miss Lawson

confronted the defendant in court and was asked to identify him,

she stated:

I think that's him there, but I'm not sure.

(R. 249)

Under similar circumstances, in United States v. Gilmore, 398

F.2d 679 (7th Cir. 1978), the court stated:

Indeed we only have to note [the witness']

hesitancy and his statement that he would not

swear to the identification, to find lacking

the constitutional requirement of due process

of law.

A primary factor to be considered in determining the reli-

ability of an in-court identification is the certainty with which

the witness first identified the suspect. United States v. Wade,

3€8 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In this

case, the record reflects that Sandra Lawson was not only uncer-

tain of her identification after viewing back to back photograph-

ic displays, but she was also uncertain after confronting the

petitioner in court in what was in effect a one-on-one show up.

A second factor to be considered in determining reliability

is the witness' opportunity for observation at the time of the

incident. United States v. Wade. In this case, Miss Lawson was

not even sure whether her identification was premised upon her

observation of the suspect or her observation of the petitioner's

photograph in the newspaper. As Sandra Lawson testified:

It had been a long time since this had

happened, and I didn't remember from that day

or from what I read in the paper, this

sketch, or the photograph.

(R. 262)

Ms. Lawson's foregoing testimony is also relevant to a third

factor: the length of time between the crime and the identifica-

tion. United States v. Wade. As Ms. Lawson's own testimony

reveals, it has "been a long time since this had happened." (R.

262)

A final factor concerns the accuracy of the description

furnished before the suggestive identification. United States v.

Wade. The record in this case reveals that Ms. Lawson did not

give a description of the suspect prior to being exposed to the

improper photographic displays.

Thus, with respect to Sandra Lawson, each and every requi-

site factor indicates that her in-court identification of the

defendant is not reliable. Nevertheless, the Illinois Supreme

Court summarily concluded that:

The circumstances were such as to indicate

that she, too, could have made a reliable

in-court identification. The fact that she

did not make a positive identification did

not render her testimony inadmissible.

People v. Kubat, 447 at 263.

Under these circumstances, the petitioner respectfully

submits that the Illinois Supreme Court's assessment of the

reliability of the in-court identification testimony of Sandra

Lawson, Nora Lopez, and Jesse Lopez, fails to comport with the

decisions of this Court. Accordingly, this Court should grant

certiorari to properly assess the reliability of the non-occur-

rence identification testimony.

CERTIORARI SHOULD BE GRANTED TO CONSIDER WHETHER TIE

ILLINOIS DEATK PENALTY STATUTE, WHICH ALLOWS THE

CONSIDERATION OF UNDEFINED, NON-STATUTORY FACTORS IN

AGGRAVATION, VIOLATES THE EIGHTH AMENDMENT BAN ON

UNGUIDED JURY DISCRETION IN CAPITAL CASES.

The Illinois death penalty statute requires the considera-

tion of undefined, non-statutory aggravating factors. Section

9-l(c) mandates that the sentencing body "consider any aggravat-

ing ... factors which are relevant to the imposition of the death

penalty. Aggravating factors may include but need not be limited

to those [statutory] factors set forth in sub-section (b)."

Ill.Rev.Stat., 1979, Ch. 38, § 9-l(c). Thus, under the Illinois

Statute, the discretion of the sentencing body is broadened

rather than channelled thereby permitting the arbitrary and

capricious imposition of the death penalty.

The Illinois statutory scheme violates the Eighth Amendment

ban on unguided sentencing discretion in capital cases. See

Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981) vacated on other

grounds) = (026... EOS S.Ct. -2922,. 72 Biba 2d: 13926" (i982)

aff'd 686 F.2d 311 (llth Cir., Unit B, 1982). The sentencing

jury in Henry was instructed that in considering aggravating

circumstances the jurors were not limited to statutorily defined

factors. Henry v. Wainwright, 661 F.2d at 57. The Fifth Circuit

held that this instruction improperly broadened sentencing

discretion and violated this Court's decision in Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The

Henry decision has been followed in Profitt v. Wainwright, 685

F.2d 1227 (llth Cir. 1982), Goode v. Wainwright, 704 F.2d 593

(llth Cir. 1983),and State v. Bartholemew, 654 P.2d 1170, 1183

(Wash. 1982); but see, Harris v. Pulley, 692 F.2d 1189, 1194 (9th

Cir. 1982) cert. granted sub nom. Pulley v. Harris, No. 82-1095

(March 21, 1983). The issue of whether a death sentence can be

premised on the consideration of non-statutory aggravating

factors is currently before this Court in Barclay v. Florida, No.

81-6908, (oral argument held March 30, 1983).

The unrestricted consideration of undefined non-statutory

aggravating factors was approved by the Illinois Supreme Court in

this case. As the court stated:

Nor do we believe that the statute violates

the Eighth Amendment or due process consid-

erations because it allows the jury in the

second phase to consider undefined non-

Statutory aggravating factors.

People v. Kubat, 447 N.E.2d at 277.

The Illinois statutory scheme, as approved by the Illinois

Supreme Court, increases the danger that death will be imposed

for emotional rather than rational reasons and precludes any

possibility of meaningful appellate review. There is now no way

to determine if one sentencing jury has considered the same

undefined aggravating factors as another and thus no way to

meaningtully distinguish cases in which death has been imposed

from those in which the defendant's life has been spared.

For these reasons, this Court should grant certiorari and

review the Illinois statutory scheme.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER THE

ILLINOIS DEATH PENALTY STATUTE VIOLATES THE EIGHTH AND

FOURTEENTH AMENDMENTS BY ALLOWING PROSECUTORS TO

EXERCISE STANDARDLESS DISCRETION IN SEEKING THE DEATH

PENALTY FOLLOWING A CONVICTION.

Four of the seven justices now sitting on the Illinois

Supreme Court have held that the Illinois death penalty statute

violates the Eighth Amendment by allowing prosecutors to exercise

standardless discretion im seeking the death penalty following a

conviction. See People v. Lewis, 88 I11.2d 129, 430 N.E.2d 1346

(1981). The Illinois death penalty statute provides that after a

conviction for murder, a death penalty hearing can be held only

"[wlhere requested by the State." I1l.Rev.Starc., 1979, Ch. 38, §

9-1(d). The Illinois Supreme Court has recognized that this

statutory language places the decision of whether to convene a

death penalty hearing solely in the hands of the prosecutor.

People ex rel. Carey v. Cousins, 77 I11.2d 531, 397 N.E.2d 809

(1979). Thus, unlike every other state in the union, Illinois

permits the prosecutor, during the middle of a death penalty

proceeding, to exercise discretion in deciding who will be spared

from the ultimate penalty.

This Court has held that the death penalty cannot be imposed

under sentencing procedures that create a substantial risk that

it will be inflicted in an arbitrary and capricious manner.

Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d

859 (1976). However, the risk of arbitrary and capricious

imposition of the death penalty is maximized by a statutory

scheme which allows the prosecutor unfettered discretion in

deciding whether to convene a death penalty hearing. For in-

stance, in People v. Greer, 79 I11.2d 103, 402 N.E.2d 203 (1980),

both the Illinois Attorney General and the local prosecutor

admitted that the local prosecutor's predecessor had erroneously

(and successfully) sought imposition of the death penalty. In

two other cases, the prosecutors reversed their own decisions to

seek imposition of the death penalty for reasons apparently

unrelated to either the possible existence of an aggravating

factor or the prosecutor's evaluation of the evidence. See

People v. Hipkins, 97 I1l.App.3d 579, 423 N.E.2d 208 (3d Dist.

1981); People _v. Robinson, 87 I1l.App.3d 621, 410 N.E.2d 121

(3d Dist. 1980). In People v. Walker, 84 I11.2d 512, 419 N.E.2d

1167 (1981), a local prosecutor initially agreed to allow the

defendant to plead guilty and receive a sixty year sentence. The

defendant later withdrew the plea. The prosecutor, citing

"mistake" and concern for "conservation of tax dollars" as

affecting his earlier decision, changed his mind and requested

the death penalty after the defendant pleaded guilty once again.

The discretion granted Illinois prosecutors is unique and

totally avoidable. Such discretion has not yet been‘reviewed by

this Court. Furthermore, although a majority of the Illinois

Supreme Court has Pound that the Illinois statute violates the

Eighth and Fourteenth Amendments, three of those justices have

deferred to this Court for a final resélution of the issue.

People v. Lewis, 430 N.E.2d at 1364.

For these reasons, certiorari should be granted.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER THE

ILLINOIS DEATH SENTENCING SCHEME PROVIDES ADEQUATE

COMPARATIVE REVIEW PROCEDURES.

In Furman v. Georgia, 408 U.S, 238, 92 S.Ct. 2726 (1972),

this Court held that the penalty of death may not be imposed

under sentencing procedures that create a substantial risk that

the punishment will be inflicted in an arbitrary and capricious

manner. A capital sentencing scheme must provide a "meaningful

basis for distinguishing the few cases in which the, death penalty

is imposed from the many cases in which it is not."

Appellate review procedures which serve to insure that the

death penalty is not being imposed arbitrarily and capriciously,

by providing for comparative review, are essential to a constitu-

tional death penalty scheme. Because such procedures are not yet

provided for in Illinois, there is no guarantee that the death

penalty will not be imposed in an arbitrary and capricious

manner.

In the present case, the petitioner's sentence of death was

affirmed in an opinion which made no attempt at comparative or

proportionality review. This issue is presently before this

Court in Pulley v. Harris, No. 82-1095. Accordingly, certiorari

should be granted to determine whether the lack of comparative

review in Illinois violates the constitution.

VI.

CONCLUSION

For the foregoing reasons, Robert Kubat, petitioner, re-

spectfully requests that a writ of certiorari issue to the

Supreme Court of Illinois.

Respectfully submitted,

GARY R. PETERSON

Assistant Defender

Office of the State Appellate Defender

Fourth Judicial District

300 East Monroe, Suite 102

Springfield, IL 62701

(217) 782-3654

COUNSEL FOR PETITIONER

APPENDIX A

Docket No. 53726—Agenda 45—May 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee.

v. ROBERT KUBAT, Appellant.

JUSTICE UNDERWOOD delivered the opinion of the

court:

The defendant, Robert Kubat, was indicted by a Lake

County grand jury for the aggravated kidnaping and mur-

der on November 2, 1979, of Lydia Hyde. Prior to trial,

the State announced its intention to seek the death penalty,

and after an extensive voir dire examination, a jury was

empaneled. Following a five-day trial, the jury found

defendant guilty of both offenses. At the subsequent two-

Stage sentencing proceeding, the same jury found the ex-

istence of statutory aggravating factors and determined

that there were no mitigating factors sufficient to preclude

the imposition of the death sentence. The trial court ac:

cordingly sentenced defendant to death for the murder and

to an extended term of 39 years’ imprisonment for the ag-

gravated kidnaping. Defendant appeals directly to this

court pursuant to article VI, section 4(b), of the 1970 Con-

stitution and our Rule 603 (73 Ill. 2d R. 603).

Defendant aileges numerous grounds for reversal of his

convictions and sentences, the first of which is that he was

not proved guilty beyond a reasonable doubt. A review of

the substantial evidence produced by the State, however,

leaves no doubt of defendant's guilt of those offenses.

The body of the 63-year-old victim, Lydia Hyde, was

found in the early afternoon of November 2, 1979, along:

side a highway in Lake County, approximately one mile

from the Wisconsin State line. Mrs. Hyde had been shot in

the head at close range.

The chief prosecution witness was Carolyn Sue Quick,

age 41, the former wife of defendant and an admitted par-

ticipant in the abduction of Mrs. Hyde. The State's Attor-

ney of Lake County had agreed to dismiss the aggravated

kidneping charges pending against her in exchange for her

testimony. .

Quick had been married to defendant tvice: they had

no children. She was also divorced from her first husband.

Gwen Quick, with whom she had three children. Her mar.

riage to defendant in June 1976 ended in a divorce in Sep-

tember 1977. She and defendant remarried in late August

1979. while she was hospitalized for an operation. She tes-

A-l-

tified that she had only a partial recollection of this mar-

riage ceremony, which she said was arranged by defendant

Without any prior agreement between the two. She and

defendant had continued to see each other, however, fol-

lowing their divorce and lived together not infrequently un-

til they remarried. Prior to her second marriage to defend-

ant, Quick had also lived with Larry (Ray) Flatoff for

approximately one month at his trailer-house in South

Bend, Indiana. She left Flatoff’s residence in August 1979

to enter the hospital and returned with defendant, her two

adult sons and a son's girlfriend on September 7, 1979, to

retrieve her clothing. She testified that defendant removed

Flatoff’s .38-caliber revolver and holster on that date, and

she and defendant retwned to Lyons, Illinois, where she

had been living with defendant following their marriage

and her hospital stay. Also living with defendant and Quick

at that time was Francine Bejda, with whom, Quick testi-

fied, defendant was sleeping, while Quick slept on the

floor. Apparently unhappy with that arrangement, Quick

left in mid-September and returned to Flatoft’s residence

in South Bend. At about that time, she consulted her attor-

ney regarding an annulment. She subsequently moved to

her father’s house in West Frankfort, Illinois. During the

course of Quick’s testimony, she indicated that defendant's

height was approximately 5 feet 11 inches, he weighed 150

pounds, and he had an indented or cleft chin, which she

pointed out before the jwry. She stated that Flatotf did not

have a cleft chin.

Quick’s testimony concerning the events which pre-

ceded and followed the death of Lydia Hyde was as fol-

lows: On October 27, 1979, Quick left her father's house

and drove to Des Moines, iowa, to meet defendant.

Defendant was employed as a truck driver at the time and

was scheduled to drive to Sparks, Nevada, in connection

with his work. Quick accompanied defendant and his co-

worker, Paul Kacelak, on the trip in a truck which was

equipped with sieeping accommodations. The three re-

turned to Des Moines in the early morning of November l,

at which time Quick retrieved her car and followed the two

men back to Chicago. Quick went to the residence of Em-

Uy Gabriel, defendant's sister, in Tinley Park. She stayed

there until approximately 10:20 or 11 p.m. that night,

when she left to meet defendant at Jeannie’s Lounge. She

Was driving her 1978 Buick; defendant was driving his

white 1977 Chevrolet station wagon. The two happened to

AQ.

meet at an intersection on the way to the lounge, and

changed plans with Quick following defendant to the Nug-

get in Berwyn, where they had a couple of drinks and

stayed until closing time, approximately 12:50’a.m. Their

next stop was Ed’s Grill. They left Ed’s Grill in defend-

ant’s station wagon and proceeded to Kenosha, Wisconsin.

Quick leit her car in front of Ed’s Grill.

During the early morning hours of November 2, 1979,

defendant and Quick stopped at the Kickapoo gas station

in Kenosha, where they parked and napped until the sta-

tion opened. When they awoke, defendant folded a blanket

and stacked a pillow, put gas in the car, and went to the

washroom, and the two proceeded to the Chat and Chew

restaurant. Quick went inside the restaurant alone, had a

bowl of oatmeal, and ordered two coffees to go. The pair

continued to drive through Kenosha until they reached the

Back Door restaurant and bar. They lert the Back Door af-

ter being informed by an employee that the restaurant was

closed. They then went to the Sunnyside restawrant and

bar, where Quick drank a can of grapefruit juice and

defendant an Old Style beer and a shot of Canadian Club

(CC). After staying at the Sunnyside for approximately 45

minutes, they returned to the Back Door, which was then

open. Defendant was wearing a “rusty brown’ hat (which

Quick identified as People’s exhibit No. 58) and a gray cout

with a black coilar. It was shortly after 11 a.m.

The couple sat at the bar in the Back Door, and defend-

ant engaged in a lengthy conversation with Jesse Lopez,

who owned the bar with his wife, Nora. Mrs. Lopez was

also present. Defendant drank an Old Style beer and a

shot of CC; Quick had a soda, and the two shared a sand-

wich. Quick commented about the owner's “beautiful gray

hair,” and an employee, Sandra Lawson, who had previ-

ously informed defendant and Quick that the restaurant

was closed, jokingly responded with the words to the effect

that “it ought to be pretty, he combs it all the time.” As it

approached the noon hour, Sandra Lawson asked the

couple whether they would be staying for lunch. Defendant

responded that they would be leaving shortly.

After leaving the Back Door, defendant and Quick

drove to the Coffee And bar, where Lydia Hyde was alone.

bartending. Defendant sat at the bar directly in front of

the casi register; Quick sat to his left. Defendant drank an

Old Style beer and a shot of CC; Quick drank a glass of

grapefruit juice. While the two sat at the bar, a man came

A .3.

down from upstairs, mixed two drinks and left with the

drinks. Shortly thereafter, a woman came down and also

mixed two drinks and left. After Mrs. Hyde placed a

money bag in the cash register, defendant went behind the

bar, held a .38-caliber revolver to her back, and told her to

put the money from the register in the bag. She complied.

At defendant's direction, Quick emptied the heer can and

glasses on the bar and floor and placed them in her purse.

Defendant told Mrs. Hyde that “she was going with

(them)."" She asked and was allowed to get her coat. Mrs.

Hyde was taken to the car where she sat in the front seat

between Quick, who was driving, and defendant. Quick

drove at defendant's direction until she saw a sign that

read “41 to the left, Illinois tollway straight ahead,” at

which point defendant told her to pull over. Mrs. Hyde

held Quick's hand while defendant displayed the gun. After

stopping the car next to the sign, defendant ordered Mrs.

Hyde out of the car and told her to hold the sign and face

west. As Mrs. Hyde held her hands up to hold the sign,

defendant, who was standing just beside her, told her ‘‘she

wouldn't feel a thing’ and shot her in the back of the

head. Mrs. Hyde fell to the ground at defendant's feet, fa-

tally wounded. Defendant got back into the car, and Quick

drove on to the Illinois Tollway.

The next stop defendant and Quick made was in Stick-

ney, Illinois, at Valentine’s restawrant. Defendant ordered

lunch and an Old Style beer with a shot of CC. They lett

Valentine’s and went to the M&D lounge in Berwyn,

where they saw Michael and Delores Padgen and their son,

Thomas, with whom they were acquainted. Mr. and Mrs.

Padgen gave defendant and Quick paper towels that

defendant had ordered about three weeks previously.

Defendant drank an Old Style beer and a shot of CC. He

had a conversation with the Padgens about a play that he

and Quick had tickets to see that evening at the Candle-

light Theater. Quick handed Thomas, who was bartending,

the three glasses she had taken from the Coffee And har

which she told him to keep, although he had indicated that

the glasses were not from M & D's. Defendant and Quick

later picked up Quick's ear at Ed’s Grill and went to the

Brookfield Motel. Defendant cancelled their theater reser-

vations and placed a call to his brother, Richard, and Fran-

cine Bejda.

Defendant left the motel the following morning about 7

a.m.; Quick left about 11 a.m. and drove to Joy Jesuit’s

A .4-

house in Chicago, where she stayed for a couple of weeks.

While staying there, Quick saw defendant every day at Joy

Jesuit’s tavern. On November 9 or 10, Quick accompanied

defendant to the Goodyear Tire store, where defendant

bought a new set of tires for his car. She stated that the

tires were in good condition, although defendant had had

trouble with the rims on two or three occasions.

Quick lett Jesuit’s residence on November 19 and drove

to Flatoff's trailer-house in South Bend. She told Flatoff

about the kidnaping and murder of Mrs. Hyde, and the

two went to see an attorney, Edward Olezak, who advised

Quick to talk to the FBI. She subsequently met with

agents of the FBI and the Illinois Department of Law En-

forcement on November 23 and 24, and gave written state-

ments.

On November 27, Quick appeared in court, testified

that her second marriage to defendant was never consum-

mated, and received an annulment. She was arrested the

following day, waived extradition, and was taken to the

Lake County jail. She testified at defendant’s trial while

still in custody.

On cross-examination. Quick was repeatedly questioned

concerning her sleeping arrangements and sexual intimacy

with defendant following their marriage in August 1979,

She stated that she did not sleep with defendant when

they lived together with Francine Bejda in Lyons, Illinois.

After persistent cross-examination by defense counsel in an

attempt to establish that she had lied under oath in the an-

nulment proceeding, Quick equivocated, conceding the pos:

sibility that she and defendant might have had sex on the

night they spent at a motel in Wyoming on the return trip

from Nevada.

Quick also testified that she had contacted the FBI and

the police in July 1979, and again in October 1979, to re-

port that defendant was stealing. In October, she reported

that defendant had stolen Flatoff's guns. She indicated

that the FBI gave her the “runaround.”

It was further established that, in July 1979. Quick dis-

played a .38-caliber revolver to defendant’s neighbors’ son,

and handed the boy a bullet which he was instructed to

give to defendant with a message. She testified that the

boy was to tell defendant that “it (the bullet] had five more

sisters if he found [Quick]. She was asked whether the

message was intendeu as a threat to kill defendant, and

she replied, ‘you can put it any way you want; *** only if

he bothered me.”

Quick’s testimony concerning the events from October

27 to November 3 was corroborated by a number of wit:

nesses, some of whom were able to positively identify

defendant as her companion. Paul Kacelai, defendant's co-

worker on the trip to Nevada, testified that he, defendant

and defendant's mrifriend or former wife made the trip to

Nevada on Octover 27. He stated that they retumed to

Des Moines, Iowa, on November 1, at which time they

dropped off Quick, who picked up her car. They returned

to Chicago about noontime.

Emily Gabriel, defendant's sister, testified that Quick

was at her home in either October or November. arriving

at approximately 2 in the afternoon. She testified that

Quick left at approximately 10 or 10:30 p.m. that evening.

Rhonda Meeker operated the Kickapoo self-service gas

station in October and November, 1979. She testified that,

in late October or early November, she opened the station

at 6 a.m. and observed a couple parked in the parking area

in a white station wagon. At approximately 7:20 or S a.m.

that morning, the couple “straightened up beddinys, folded

a blanket,” and pulled up to the pumps. She stated that

the man went to the washroom, the woman paid ror the

gas, and the couple drove away,

Mary Sands was emploved as a waitress at the Chat

and Chew restaurant in Kenosha on the morning of No-

vember 2. She testified that a woman came into the res-

taurant on that date, alone, between 8 a.m. and 9 a.m. She

served her a bowl of oatmeal and two coffees to go. She

had never seen the woman before, but testified that she

again saw her that morning in the State's Attorney’s of:

fice, shortly before the witness testified.

Nick Bastian had been a bartender at the Sunnyside

bar for over 20 years. He testified that a man and a

woman came into the bar at approximately 8 a.m. on No-

vember 2. He served the woman grapefruit juice and the

man a bottle of Old Style beer and a shot of CC. He stated

that the man’s order was not a usual order because most

of the shot and beer drinkers drank the bar liquor. The

couple stayed between a half hour and 45 minutes. He tes:

tified that he subsequently identified the woman.

Jesse Lopez identified defendant as the man who was

in the Back Door bar the morning of November 2. Mr. Lo-

pez testified that the Back Door was a neighborhood bar

frequented by few strangers; 987 of his business came

A 6

from the American Motors plant in the area. Mr. Lopez

testified that defencant and a woman came into the bar

shortly after it opened at 11 a.m. Defendant drank an Old

Style beer and two shots of CC, and he and the woman

shared a sandwich. Mr. Lopez was checking his receipts

from the previous evening and counting rolls of chanze

that were already wrapped. He spoke to defendant for 20

to 25 minutes at a distance of 3 2 to 4 feet. He recalled

that the woman made a nice comment about his hair. and

that Sandra Lawson responded that he would have a “big

head the rest of the dav.” He remembered that defendant

was wearing a cap, and that he had a “dimple” or cleft in

the middle of his chin, which reminded Mr. Lopez of a

movie star who had a similar feature. Mr. Lopez positively

identified defendant in court and pointed out the “dimple”

or cleft at the bottom of defendant's chin.

Mr. Lopez also testified that he had previously identi-

fied a photograph of defendant on two separate occasions.

On cross-examination, it was established that he had previ-

ously made a written statement in which he Stated,

“[SJome days later officers showed me some pictures. I

picked out a picture of the female mght away. I was pretty

sure of the picture of the male.”

Sandra Lawson testified that she was working at the

Back Door bar on November 2. She identified defendant as

a man who looked like the man who was in the bar with a

woman between 11 a.m. and noontime. She also testified

that she had seen the couple before the bar Opened and

told them that they would be opening at 11 a.m. The wit-

ness was preparing for the noon-lunch-hour crowd while

the couple sat at the bar. She, too, testified that the pa-

trons of the bar were regular customers, most of whom

She knew on a first-name basis. She also testified to the

conversation concerning Mr. Lopez’ hair, and stated that

she had asked the couple whether they would be staying

for lunch inasmuch as they were seated in a reserved spot.

Defendant and the woman, whom she said she had seen

again on January 3, 1980, with the assistant State’s Attor-

ney and several lawyers and detectives, left the bar just

before noon.

Nora Lopez idéntified defendant as the man who was in

the Back Door bar on the morning of November 2. It was

her testimony that the couple, whom she had never seen

before, stayed between 40 and 30 minutes, and that she

Served them a sandwich. Mrs. Lopez was preparing food

‘Ss s¥

for the lunch-hour crowd and did not engage in a conversa:

tion with the couple. She also testified that she had identi-

fied a photograph of defendant in February 1980. On

cross-examination, Mrs. Lopez indicated that she had

signed a statement on January 14, 1980, in which she

Stated that the ‘‘police came with pictures of males and fe-

males. I recognized a picture of the female who was in the

bar, *** but not the male.”

Dale Gonsky worked at the Coffee And bar and restau-

rant and lived upstairs with Julie Lewis, the owner of the

bar. He testified that, at approximately 12:30 p.m., on No-

vember 2, 1979, he went down to the bar to get two

drinks for Julie Lewis and Dorothy Hawley, a friend, who

was also staying at the apartment at the time. Lydia Hyde

was bartending, and a man and woman were seated at the

bar. He stayed a couple of minutes and returned upstairs

with the drinks. He subsequently retuned to the bar. saw

that Mrs. Hyde and the couple were gone and that there

was “water or something on the floor.” He indicated on

cross-examination that he told the investigating police offi-

cers that the woman seated at the bar had given him “an

icy stare,” and that he told the officers that he had seen a

gray car pulling away from the par'ing Jot.

Dorothy Hawley testified that she Spent the night in

the apartment above the Cotfce And on November 1. She

was employed as a truck driver and had driven in from

North Carolina. On November 2, at approximately 12:30

p.m., she also went down to the bar, observed a man and a

woman at the bar “who were staring at her,” and took

two 7-Ups back upstairs. She subsequently returned to the

bur to use the bathroom, and saw that Mrs. Hyde and the

couple were gone. Mrs. Hyde's sweater was thrown over

the coffee pot, the money from the cash register was gone,

there were no glasses on the bar, and a drink was spilled.

The police were called. Mrs. Hawley, who was acquainted

with Ray Flatoff, testified that she had never before seen

the man or woman who were at the bar that morning.

On cross-examination, Mrs. Hawley testified that, on

Novernber 2, she had attempted to describe the man at the

bar to the police. She thought he weighed approximately

190 pounds. She also stated that she had initially described

the car that she had seen rapidly pulling away from the

bar as yellowish or white, but that Dale (Gonsky) thought

it was gray, and that she, too, then indicated that it Was

probably gray. On redirect examination, she testified that

in her description to the police, at which she guessed, she

had also indicated that the man was approximately 50

years old and 5 feet 10 inches tall. e

Julie Lewis testified that Mrs. Hyde, who had been em-

ployed as her bartender for approximately seven years,

opened the bar at 10 a.m. on the morning of November 2.

Mrs. Lewis was in the apartment upstairs with Dale

Gonsky and Dorothy Hawley. She testified that she was ill

that day and that both Dale Gonsky and Dorothy Hawley

went downstairs to the bar, at separate times, sometime

after 12:30 p.m., and returned a couple of minutes later

with glasses of 7-Up. Mrs. Hawley informed her that a

man and a woman were seated at the bar, and that they

glared at her. Juiie Lewis immediately dressed and went

downstairs. No one was in the bar. She searched for Mrs.

Hyde, to no avail, but she did discover that Mrs. Hyde's

purse was in the cupboard, her sweater was thrown over

the coffee pot, there were drinks spilled on the bar, and

there was no money in the cash register. She told Mrs.

Hawley to call the police.

On direct examination, Julie Lewis identified a glass,

People’s exhibit No. 10, as similar to the type of glasses

she had used in the bar. The same exhibit had previously

been identified by Quick as the type of glass she had taken

from the Coffee And. On cross-examination, Julie Lewis

testified that she had used seven different types of stand-

ard unmarked bar glasses that she bought from a whole-

sale store.

Delores Padgen, who owned M & D's bar with her hus-

band, Michael, testified that defendant and his wife, “Pat

or Carol,”’ came into her bar at 3 or 3:30 p.m. on Novem:

ber 2. They stayed one hour to one hour and one-half. Mrs.

Padgen had known defendant for approximately three

years, and identified him in court. She testified that

defendant drank an Old Style beer and a shot of CC, which

she knew to be his usual drink. She recalled that the

couple told her that they had just returned from “Vegas”

and that they had been in Wisconsin that day. Defendant

indicated that he would be going on another trip to Vegas,

but that he was not planning on leaving until Monday. Ei.

ther defendant or Quick also stated that they had tickets

to go te the Candlelight theater that evening. Mrs. Padven

testified that her husband gave defendant a case of paper

towels that had previous!y heen ordered, for which defend.

ant paid 323 in cash.

A .9.

On cross-examination, Mrs. Padgen testified that she

had ordered the paper towels for defendant three weeks

before he picked them up. She was certain that the date

the couple picked up the towels was November 2. She con-

ceded that she had previously told defense counsel that

defendant was late in picking up the towels; she indicated,

however, that it normally took only a few days for such an

order to be delivered.

Michael Padgen testified that he had seen “Bob” on

four or five occasions over a three-year period. It was his

testimony that “Sue and Bob” picked up paper towels

sometime in November—“‘November 2nd, something like

that.” He was unable to identify defendant as being in the

courtroom.

After Mr. Padgen’s testimony, the State sought to recall

him to determine whether, subsequent to his testi imony, he

saw defendant in the courtroom. Defense counsel's “‘stren-

uous objection” was sustained. Later, in an in-chambers

conference, the assistant State’s Attorney asked the court

to reconsider its previous ruling, indicating that he thou ught

Mr. Padgen never looked at defense counsel's table and

made an honest mistake. Defense counsel objected. The

court was of the opinion that Mr. Padgen looked at defense

counsel's table and appeared to wink with his right eye. ei-

ther consciously or subconsciously. The court ruled that. in

any event, Mr. Padgen had had an opportunity to identify

defendant, and the State would not be permitted to recall

him.

Thomas Padgen testified that defendant, whom he iden-

tified in court, was in M & D's bar on November 2 while

Thomas was bartending. He testified that defendant ar-

rived between 3:30 and 4 p.m. with a woman, whom

Thomas believed was “Carol.” The couple stayed in the

bar approximately one hour and a half, during the course

of which the woman gave Thomas three glasses which she

told him she was returning. Thomas told her that they

were not from M & D's, as they were shaped differently

from the glasses he used. Two of the glasses were later

broken; the remaining glass was given to a police officer

(who later identified it as being People’s exhibit No. 10).

Thomas identified People’s exhibit No. 10 as the glass that

the woman had given him.

On cross-examination, Thomas testified that there were

12 or 14 people in the bar on November 2 and that defend:

ant Was Seated at one of the two tables about 15 feet from

the bar. When asked how he remembered the date, he re-

plied that the only reason he remembered was because it

was Friday, one of his busiest afternoons.

Vashanti Parikh worked at the Brookfield Motel on No-

vember 2. She testified that she had rented a room to a

woman on that date and identified a registration card.

Mrs. Parikh stated that she had seen the woman on the

day of her testimony in the State's Attorney’s office.

Joy Jesuit was called as a witness by both sides. She

had known both defendant and Quick for several vears. On

behalf of the State, she testified that Quick called her the

morning of November 3 and asked if she could stay with

the witness for a week or two. Quick stayed approximately

two weeks, leaving on a Monday or Tuesday. During that

period, Quick and defendant saw each other every day in

Joy Jesuit’s bar.

George Kautz, an employee of Goodyear Tire and Rub-

ber Company, testified that defendant, whom he identified

in court, purchased five new tires and two wheels on No-

vember 10, 1979. The tires on defendant's car, which were

inflated, were removed and returned to defendant. The

transaction was charged on defendant's American Express

card; a copy of the receipt was identified by the witness.

The invoice from the store, which identified the witness as

the salesman, and the charge card receipt were admitted

in evidence.

Detective Wayne Myhre of the Kenosha County sher-

iff's department testified that he interviewed Mr. and Mrs.

Lopez separately at the Back Door bar on Novernber 26,

1979, After viewing a color photographie display, Mr. Lo-

pez identified the photograph of defendant, Stating that it

looked like the person who was in the bar on November 2.

Mrs. Lopez subsequently viewed the display and also iden.

tified defendant, stating that she was as positive as she

could be that he was the male of the couple that was in the

bar on November 2,

Detective Roger Douma of the Kenosha County sher-

iff’s department testified that he also interviewed Mr. and

Mrs. Lopez as well as Sandra Lawon at the Back Door

bar. He initially met with Mr. Lopez on November 29,

1979. He showed Mr, Lopez a photographie display consist-

ing “ seven black and white photographs of different men.

Mr. Nopez identified the photograph of defendant. Detee-

tive Douma subsequently inet with Mrs. Lopez and Sandra

Lawson at the Back Door bar on February 26, 1980. These

A-11-

witnesses viewed a different black and white photographic

display at separate times. Mrs. Lopez positively identitied

the photograph of detondant. Sandra Lawson identified the

photograph of defendant, but then indicated that she was

not certain whether he looked familiar because vf a picture

she had seen of him in the newspaper.

Ray Flatoff, a truck driver, also testitied on behalf of

the State. He drove a pickup truck and did not own an au-

tomobile He was 33 years old, 5 feet 11 inches tall, and

weighed approximately 170 pounds. The regord indicates

that he does not have a cleft chin, and the jury was able to

so observe. He was acquainted with Dorothy Hawley:

Mr. Flatotf testified that he met Quick in July 1979 and

they lived together thereafter for approximately one month

in South Bend, until she entered the hospital. He further

testified that he had contacted the police in South Bend on

September 7, 1979, and told them that Quick had removed

her clothes from his trailer-house, and that a .38-caliber

handgun and a .22 automatic rifle were missing. He had

previously spoken to Quick by telephone, and stated that

she denied taking the guns. He subsequently saw her on or

about November 19, when she came to his home. Quick

told him “what [had] happened,” and they went to see a

lawyer, Later they met with the FBI.

Edward Olezak, Quick's attorney, testified that Quick

had contacted him on September 25 or 26, 1979, and that

he filed an action for an annulment on her behalf on Sep-

tember 27. The marriage was annulled on November 27,

the complaint stating that “the contract of marriage was

obtained through fraud and duress all at a time when said

plaintiff was a patient in a hospital and under sedation.”

Mr. Olezak further testitied that Quick again contacted

him on November 21, 1979, and on November 23, he con-

tacted the FBI. He and his client and Ray Flatoff subse-

quently met with agents of the FBI, and on November 24

they met with several agents of the Illinois Department of

Law Enforcement. Mr. Olezak stated that. during the

course of these meetings, he had not obtained any prom-

ises or engaged in any plea negotiations on behalf of his

client,

Agent David Hamm of the Illinois Department of Law

Enforcement testified that he was present at the late No-

vember motel conference in South Bend with Quick, her

attorney Flatoff. members of the FBI, agent Marshail of

the Illinois Department of Law Enforceme t, and Sergeant

Douma of the Kenosha County sheriff's department. He

Stated that no promises were made to Quick prior to the

meeting. f

On January 3, 1980, while Quick was in custody, she ac-

companied agent Hamm, Agent Marshall, Sergeant

Douma, and an assistant State’s Attorney to Kenosha and

retraced the steps she and defendant had taken on Novem:

ber 1 and 2, 1979. Their first stop was the Kickapoo gas

Station. They then proceeded to the Chat and Chew restau:

rant, which was a mile to a mile and a half east of the gas

station. Next they drove to the Sunnyside bar, where Nick

Bastian was bartending. Mr. Bastian identified Quick as

the woman who was in the bar with a man on November

Agent Hamm, further testifying, stated that the group

left the Sunnyside bar and continued to drive east, about a

half mile, until they reached the Back Door bar, They there

conversed with Jesse Lopez, who identified Quick as the

woman who was in the bar on November 2 accompanied

by a man.They then drove to the Coffee And bar at the

outskirts of Kenosha and met with Julie Lewis and Dale

Gonsky. Mr. Gonsky identified Quick as the woman who

had been in the bar with a man on November 2 about

noontime.

After leaving the Cotfee And, they drove North, passed

under the Interstate 1-294 and proceeded south on a

frontage road into Illinois, until they arrived at the scene

of the murder. Agent Humm testified that Quick became

nauseated at the scene of the crime, and they returned to

the county jail.

An FBI agent, Thomas Dupriest, also testified on be-

half of the State. He essentially corroborated Quick's testi-

mony concerning the meetings and the fact that no prom:

ises were made to Quick on November 23 and 24.

Inspector Loren Williams, an evidence technician with

the Illinois Department of Law Enforcement, testitied that

he arrived at the scene of the crime at approximately 3:5

p.m. on November 2. He secured evidence. including the

victim's clothing, eyeglasses and denture plate, blood sam-

ples from her head, fragments from her brain, hair stand-

ards, finger and palm prints. He also took photographs and

prepared a plaster casting of what appeared to be fresh

tire traci.s. He subsequently transported the evidence to

the crime laboratory in Maywood,

Further evidence produced by the State included the

A -13-

testimony of Michael Podlecki, a forensic scientist. Several

hairs found in the front seat of defendant's car were con:

sistent with the known hairs taken from the victim. Sev:

eral other distinct hairs taken from the car were consistent

with defendant's. None were consistent with Quick's hair,

Office Alian Marshall of the Illinois Department of Law

Enforcement was one of the officers who arrested defend-

ant on November 24, 1979, at defendant's residence in Ly-

ons, Illinois. Officer Marshall testified that Francine Bejda

was also present in defendant's home at the time of the ar-

rest. After defendant was advised of his rights and trans:

ported to the Lake County jail, he agreed to answer a few

questions. In response to the officers’ questions, defendant

stated that he was in Lyons, Illinois, on November 1, 1979,

with Francine Bejda and that he was also with her on the

following day. He further stated that he had never been in

Wisconsin.

The State’s other witnesses included the officers and in-

vestigators who found Mrs. Hyde's body, the physician who

performed the autopsy, and the victim's daughter. Their

testimony need not be restated here.

Defendant did not testify on his own behalf: however,

several witnesses were called in an attempt to establish an

v'hi and to impeach some of the State’s witnesses, Nancy

Foster Schultz, a caseworker for the General Assistance

Department of the township of Lyons was the first witness

called by the defense.

Mrs. Schultz testified that Francine Bejda applied for

rent assistance on October 2, 1979. The witness’ records

indicated that she subsequently met with the applicant on

October 29. To the best of her recollection, she again saw

her three or four days later on November 1 or 2. A photo-

copy of a rent check, dated November 2, 1979, payable to

defendant, who was Francine Bejda’s landlord, was admit-

ted in evidence as defendant's exhibit No. 9(B). That check,

drawn on the township of Lyons General Assistance Fund,

indicated that it was for October and November 1979 rent.

It was signed by Ann B. Painter and Art Schlaman: Mrs.

Schultz had typed the check. Mrs. Schultz testified that her

records indicated that the check was not mailed. According

to Mrs. Sehultz’ testimony, when Francine Bejda came to

the office, she was accompanied by a “man with a hat and

glasses, about 5 feet 11, not particarly big, not particu:

larly small,‘ who stood in the hall. Mrs. Schultz identitied

People's exhibit No. 58 as similar in style to the hat the

i) Wore.

On cross-examination, Mrs. Schultz testified’that there

was nothing in her records which indicated the date that

the check was delivered. Their regular office hours ended

at 4:30 p.m., and they were closed on the weekend. She

further stated that the check could not have been issued on

Friday, November 2, 1979, if Ann Painter, one of the sig:

natories, had not been in the office on that day. Mrs.

Schultz had no recollection of whether Mrs. Painter was in

the office on November 2.

Lillian Tesnonlidek, who owned the Star Club bar in

Chicago, also testified on defendant's behalf. She had

known defendant seven or eight years, although he came

to her bar infrequently. She testified that defendant and his

wife, Sue, came into her bar between 10:30 and 11 am. on

November 2, 1979. Also present on that date was a recu-

lar customer, Charlie. She identified Quick's photograph as

the woinan to whom she was referring. She had identified

the same photograph previously when the police showed it

to her on June 5, 1480. The witness was positive that it

was Sue who was with defendant on November 2: how:

ever, she stated that Sue had much shorter hair on that

date than she did in the photograph. The photoyraph, in

which Quick appeared with long hair, was dated November

28, 1979, and had been taken at the Lake County sheriff's

department following her arrest.

The witness further testified that defendant had at:

tempted to cash a check on November 2, 1979, and she

identified the check to which she was referring as defend-

ant’s exhibit No. 9(B). She did not cash the check.

Mario Brajkovich, the owner of a Chicago bar, also tes-

tified on behalf of defendant. He had known defendant for

approximate!y 12 years, and heard about defendant's ar-

rest from a customer named Charlie, about a week after it

occurred. The witness testified that Charlie had been to

Lil’s Tavern (Lillian Tesnohlidek) before he amived. Mr.

Brajkovich also stated that defendant had been in his bar

four weeks prior to that conversation with Charlie. on a

Friday, at which time he cashed a check. Defendant's ex:

hibit No, 9B), which was endorsed by Mr. Brajkovich, was

identifie? by him as the check that he had cashed on that

Friday. He further stated that, on the date that defendant

cashed the check, which did not appear on the instrument,

defendant was accompanied by a woman, not his wife,

with dark hair, approximately the same height as defend-

ant.

On cross-examination, Mr. Brajkovick indicated that he

had spoken to agent Hamm on June 5, 1980, and told him

that defendant had been in his bar four or five weeks be-

fore his arrest; he was not exactly sure. He also indicated

that he had told the officer that the woman with defendant

“looked” to be of Mexican or Italian descent and that she

was close to defendant's size or possibly two inches taller,

He denied that he had identified defendant in a photograph

of defendant's brother, Richard,

The defense also called Joy Jesuit and Mary Cooper for

the purpose of impeaching Quick's credibility. Joy Jesuit

testified that Quick had told her on August 21, 1979, about

her plans to remarry defendant. and showed her a mar-

riage license. Quick had asked if she could have a small re-

ception after the wedding at the witness’ bar. The recep-

tion never took place, however, because Quick entered the

hospital. Joy Jesuit, who had brought a negligee that Quick

had requested, was present at the hospital during the cere-

mony performed by a minister who, she said, had been

contacted by Quick. The witness stated that Quick was

very happy about the marriage, coherent during the cere-

mony, and did not appear to be under sedation or medica-

tion.

Mary Cooper, testifying for the defense, had known

defendant and Quick for several years. She and her hus-

band had seen them quite frequently prior to July 1979,

Mrs. Cooper testified that Quick told her at that time thut

she was happily married and living in Indiana. A few

weeks later, Quick apologized to Mrs, Cooper, explaining

that she had lied about being married in the hope that the

information would be passed to defendant so that he would

be hurt. Mrs. Cooper also stated that she saw Quick a day

or two after she was released trom the hospital, and she

appeared very happy.

The final defense witness was Stephen Martin, a law

student, who had previousiy worked as an investigator

with the Lake County public defender's office. Mr. Martin

testified that he went to M & D's lounge on January 18,

1980, and met with Mr. and Mrs. Padgen, who told him

that defendant and Quick could have picked up the towels

on the last Friday in October, November 2 or November 9.

1979,

The State called two witnesses in rebuttal, Ann Painter

and agent David Hamm. Mrs. Painter, an elected official of

the township of Lyons, was the supervisor of General As-

sistance. She testified that, on November 2, 1979, she left

her home in LaGrange at 7 a.m. and drove to Chicago,

Where she attended a meeting at the American Hospital

Association on Lake Shore Drive. It was established that

she returned home after 4:30 p.m. While she could not re-

call whether she stopped at her office when she returned,

if she had, the office would have been closed. She testified

that the check payable to defendant (defendant’s exhibit

No. 9(B)), dated November 2, 1979, would not have been

signed prior to that date; and since she was not in her of-

fice during business howrs on that date, the check could

not have been delivered then. Further, she indicated that

Art Schlaman, the second signatory, would not have signed

the check unless her signature appeared.

Agent David Hamm testified that on June 5, 1280, he

interviewed Lillian Tesnohilidek and Mario Brajkovich.

Agent Hanim stated that the former told him that she was

positive that defendant was with his wire, Carolyn Sue

Quick, when he was in her bar the preceding November.

She knew Quick and also identified her photograph. Mr.

Brajkovich toid Officer Hamm that he had last seen

defendant five weeks prior to his arrest, sometime in Octo-

ber, and that defendant was accompanied by a woman, not

his wife, of either Mexican or Italian descent, approxi-

mately two inches taller than defendant. Officer Hann

testified that he was familiar with Francine Bejda, and

that she was 5 feet 4 inches tall: he estimated defendant's

height at 6 feet 1 inch. He also stated that Mr. Brajkovich

identified defendant in a photograph of defendant's

brother, Richard.

Defendant argues, citing People v. Wilson (1977), 66 II.

2d 346, People v. Williams (1976), 65 Ill. 2d 258, People v.

Hermens (1955), 5 Ill. 2d 277, and People v. LaCoeco (1950),

406 Il]. 303, that the only evidence linking him to the of:

fenses charged was the discredited testimony of an accom:

plice whose testimony lacked “absolute conviction of

truth,” was premised upon promises of leniency and was

uncorroborated, and that, consequently, he was not proved

guilty beyond a reasonable doubt. We cannot agree.

Quick testified in detail concerning the events which

transpired on November 1 and 2, 1970. There is no dispute

that she was in Wisconsin on November 2, and that she

Was present when Mrs. Hyde was kidnaned and later mur

dered in Illinois. Several witnesses in Wisconsin and [inoi:

A-17-

positively identified defendant as her companion on that

day. Further, the State’s witnesses corroborated details re-

lated by Quick, including conversations, tines,-the couple's

actions and drinking pattern. The defendant's “alibi” evi-

dence, which was contradictory and unpersuasive in any

event, was refuted by Mr. and Mrs. Lopez. who placed

defendant in Wisconsin with Quick, and by Delores and

Thomas Padgen whose testimony sufficiently established

that defendant was with Quick, not Francine Bejda, in M

& D's lounge on the afternoon of November 2, 1979. It

was the jury’s responsibility to resolve contradictory evi-

dence and factual! disputes and weigh the credibility of the

witnesses. People v. Lewis (1981), 88 Ill. 2d 129, 151-33;

People v. Carison (1980), 79 Ill. 2d 564, 383; People v,

Clark (1972), 52 Ill. 2d 374, 387. In our judgment, the tes-

timony as well as the physical evidence overwhelmingly

supports the verdicts of guilty, and we must accordingly re-

ject defendant's contention that a réasonable doubt as to

his guilt exists.

Defendant next argues that the photographie identitica-

tion procedures utilized by police were unnecessary and im-

proper and so "impermissibly sugzestive and conductive to

misidentification” as to deny defendant due process of law.

Following an extensive two-day hearing, defendant's mo:-

tion to suppress the identification testimony of Mr. and

Mrs. Lopez and Sandra Lawson was denied: the court

granted the motion with respect to the identification testi-

mony of Nick Bastian.

Detective Wayne Myhre testified that he went to the

Back Door bar on November 26, 1979, while investigating

the murder of Lydia Hyde. He interviewed Mr. and Mrs.

Lopez and Sandra Lawson and showed each potential wit-

ness a photographie display to determine whether they

could identify people who were in the bar the morning of

the preceding November 2. Each individual was inter-

viewed separately and shown the display without any other

person in the immediate vicinity. The display consisted of

five color Polaroid photographs of identical size. (People’s

exhibit No. 2). Each photoyraph had a different color back-

ground; four were close-ups depicting a man standing

against a solid wall ranging from a facial view to a nearly

full chest view; the photograph of defendont was some-

What unclear, not a close-up, and depicted a full frontal

view with defendant standing in a living room next to a

television and a couch, with a picture hanying on a wall in

A-18-

the background. Defendant was the only man wearing

glasses.

Detective Myhre testified that Jesse Lopeze who looked

at the photographs one at a time, stated that the photo-

graph which pictured defendant looked like the male of the

couple that was in his tavern on November 2, 1979. The

officer also testified that Nora Lopez identified that photo-

graph of defendant, stating that “she was as sure as she

could be” that he was the man who was in the bar, al-

though he agreed on cross-examination that she did not

say she was absolutely certain.

Finally, the officer interviewed Sandra Lawson, who

made a tentative identification of defendant's photograph.

She stated that the photograph of defendant appeared to

be the man.

Sergeant Roger Douma, also investigating the murder,

went to the Back Door bar on November 29 and inter-

viewed Jesse Lopez. It was his recollection that he and Mr.

Lopez were the only two people present. Sergeant Douma

was aware of the fact that Mr. Lopez had previously

viewed photographs. Sergeant Douma showed Mr. Lopez

seven black and white photographs of different men: all

were mug-shots. (People’s exhibit No. 4.) One individual

was pictured with eyeglasses; defendant was not. Mr. Lo:

pez identified defendant.

On February 26, 1980, Sergeant Douma again went to

the Back Door bar, where he showed another photographic

display to Sandra Lawson and Nora Lopez. He interviewed

Sandra Lawson first at the north end of the bar; Nora Lo-

pez was at the south end of the bar during this interview.

Sergeant Douma asked Sandra Lawson to carefully view

the photographic display (People’s group exhibit No. 3)

consisting of seven black and white mug-shots of different

men, one of whom was pictured wearing eyeglasses while

defendant was not. She did so, identifying the photograph

of defendant, but then indicated that she was concerned

that she might have recognized the photograph because

she had seen it in the newspaper.

Sergeant Douma subsequently interviewed Nora Lopez

at the extreme north portion of the bar. She, too, identified

the photograph of defendant as the man who was in the

bar with a woman in early November. Sergeant Douma

thereafter wrote on the photograph, “Nora Lopez posi-

tively [identified] this photo”; he also initialed the photo-

graph and dated it.

A-19-

Jesse Lopez, testifying at the hearing, made an in-court

identification of defendant. He was positive that defendant

was the man in his bar on November 2. It was Mr. Lopez’

testimony that he had initially viewed the black and white

photographic display. He testified that he had not read a

newspaper account of the abduction and murder of Lydia

Hyde before the officer initially interviewed him.

Nora Lopez also identified defendant at the hearing as

the man who was with a woman at the Back Door bar the

morning of November 2. She testified that she was not

certain of her initial photographic identification; she could

not recall her exact words to the officer.

Sandra Lawson testified at the hearing that a middle-

aged couple was in the Back Door bar on the morning of

November 2. She pointed to defendant in the courtroom

and said, “I think that’s him there, but I’m not sure.” She

further testified that she had viewed two different photo-

graphic displays on separate occasions. She could not recall

the details of the viewings. She indicated, however, that

she initially picked out a photograph and said, “I believe

this man was in here with this woman.” She recalled that,

in February 1980, she had told the officer that she was not

certain whether she was influenced by what she had read

and seen in the newspaper.

Defendant argues specifically that (1) the photographic

identification procedures were improper because he was in

custody, (2) the first array itself, as well as the manner in

Which it was presented, was inherently suggestive, (3) the

Subsequent arrays, while not in themselves suggestive,

Were tainted by the initial viewing, and additionally became

Suggestive because defendant was the only man whose

photograph was common to each of the displays, and (4) an

independent origin did not exist to establish separate relia-

bility for the in-court identification.

There is, of course, no constitutional impediment to the

use of photographs in the initial identification, despite the

recognition that there is a risk of misidentification when

the procedures are improperly employed. (Simmons vr.

United States (1968), 390 U.S. 377, 885-86, 19 L. Ed. 2d

1247, 1254, 88 S. Ct. 967, 972.) When properly used, this

technique “‘is indispensable in the investigatory phase of a

criminal case.” (People v. Jacksun (1973), 54 Ml. 2d 143,

147.) When a suspect is in custody, however, and a lineup

is otherwise feasible, this court has generally disapproved

of the use of photographs as a basis of identification, ab-

- k20-

Sent extenuating circumstances justifying their use. People

v. Williams (1975). 60 Ill. 2d 1, 9: People v. Jackson

(1973), 54 Il. 2d 143, 147-48; People v. Holiday (1970), 47

Ill. 2d 300, 306-07.

The police here were faced with the task of interview-

ing numerous potential witnesses at a time when they

were simply attempting to discover whether any nonoccur-

rence witnesses existed to corroborate Quick's statement.

Indeed, many of the individuals interviewed in Wisconsin,

including those who had little opportunity to observe the

couple, could not make an identification. There is a vast

difference between asking a local resident to view a sta-

tion-house lineup and the situation that existed here. where

the police would have had to ask many individuals to travel

to Illinois without even knowing whether they could re-

member seeing a couple earlier that month at their estab-

lishment or whether they could make an identification.

Thus, we do not believe that the initial photographic identi-

fication procedures were improper.

Nor do we believe that the first color photographie ar-

ray was so “impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification”

(Simmons v. United States (1968), 390 U.S. 377, 384. 19 L.

Ed. 2d 1247, 1253, 8 S. Ct. 967, 971). That the photo-

graph of defendant depicted him wearing eyeglasses and in

a different pose from the others is not dispositive. (See

People v. Williams (1975), 60 Ill. 2d 1, 9-10.) The fact that

the photograph of defendant was somewhat unclear

seemed to make it the least suited to identification. More-

over, the Lopezes positively identified defendant in the sub-

Sequent array in which he was pictured entirely differently

and without eyeglasses, which indicates that their initial

identification was not based priinarily upon the “differ.

ences” to which defendant points. F inally, the record estab-

lishes that the police made no Suggestion to the witnesses

that defendant was the suspect or in any way emphasized

his photograph. Although the interviews were conducted in

the same room, each of the witnesses was interviewed sep-

arately and at a distance from the others: such a procedure

resulted in independent identification, free from the dam-

aging influence which might have inured had the witnesses

been in the presence of each other when makirg the identi-

fication. See People v. Williams (1972), 52 Il. 2d 455, 463-

64.

The fact that the subsequent photo arrays were not in-

herently suggestive is not disputed. We have examined

them and do not believe that they in any way “suggested

defendant was the suspect.” In People v. Williams (1973),

60 Ill. 2d 1, when considering the propriety of an array

containing several photographs of the defendant, the cowt

noted that ‘‘the use of multiple, identical or obviousiy simi-

lar, photographs of the same person is normally an unde-

sirable photographic identification procedure.” (60 I). 2d 1,

10.) Because the photos of the defendant in Williams were

so dissimilar, the court found no evidence of suggestive-

ness. (60 Ill. 2d 1, 10.) Similarly, if the police here had used

identical or obviously similar pictures of defendant at each

interview, the possibility of suggestiveness would have

been greater. In light of the great dissimilarity of those

photographs, we find that the subsequent set of interviews,

when considered in conjunction with the first, were not

suggestive.

Although a lineup was not feasible at the time of the

initial interviews, the same cannot be said of the subse-

quent interviews. Once the persons interviewed had identi-

fied the defendant's photograph, albeit tentatively, the pos-

sibility that they were not witnesses was substantially

lessened. Accordingly, arranging for these witnesses to

view a lineup would not have inconvenienced either them

or the police to the extent necessary to find extenuating

circumstances, and it was improper to again use the pnoto-

graphic identification technique. (See People v. Roliday

(1970), 47 Ill. 2d 300, 307.) Nevertheless, the record clearly

establishes that any impropriety involved did not affect the

subsequent positive in-court identifications made by the Lo-

pezes. Nor do we believe that impropriety should have re-

sulted in the exclusion of Sandra Lawson's less certain in-

court identification.

Reliability is the most important factor in determining

the admissibility of identification testimony. (Janson v.

Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140,

154, 97 S. Ct. 2243, 2253; Neil v. Biygers (1972), 409 U.S.

188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 373, 382: see

also People v. McTush (1980), 81 Ill. 2d 513, 521: People v.

Manion (1977), 67 Ill. 2d 564, 571, cert. denied (1978), 425

U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Both Jesse

anc Nora Lopez had an excellent opportunity to view

defendant at the time for which their testimony was

sought—to corroborate Quick's testimony concerning the

couple’s whereabouts in Wisconsin on November 2, 1979.

A-22-

Mr. Lopez conversed for more than 20 minutes at close

range with defendant during a “slow” time at his bar, and

Mrs. Lopez was present during the conversation. Both wit-

nesses, while occupying themselves with routine tasks dur-

ing the conversation, were attentive during the conversa-

tion. Indeed, their degree of attention was heightened due

to defendant’s and Quick's friendliness, coupled with the

fact that they were strangers in a bar frequented almost

exclusively by a regular clientele. Although the witnesses

were not asked to supply a description of defendant, both

of them positively identified the defendant's picture from

an array which was not at all suggestive. Because the pho-

tograph of defendant used during the initial interviews was

of such poor quality, the fact that the witnesses were less

certain when identifying that photograph does not reflect

adversely on the reliability of the subsequent positive pho-

tographic and in-court identifications. We accordinzly con-

clude that the in-court identifications made by the Lopezes

were clearly reliable and therefore properly admitted. Peo-

ple v. MeTush (1980), 81 Ill. 2d 513.

The question asked of Sandra Lopez during trial was

Whether she saw anybody in the courtroom “who looks

like” the man who was in the bar on November 2. 1979.

She identified defendant. We consider that that testimony

as well as her prior tentative photograph identification was

relevant to the weight to be accorded her identification.

(See People v. Allender (1977), 69 Ill. 24 38, 44.) The cir-

cumstances were such as to indicate that she, too, could

have made a reliable in-court identification. The fact that

she did not make a positive identification did not render

her testimony inadmissible.

Defendant’s further argument that the trial court erred

in failing to sua sponte instruct the jury concerning the

possibility of mistaken identification js unpersuasive. He

contends that the dangers inherent in eyewitness identifi-

cation testimony generally, coupled with the specific risks

involved in this case, made such an instruction necessary.

As we have indicated, however, the identification testimony

Was hot premised upon a “combination of suggestive pho-

tographic displays," and we therefore cannot agree that

there existed specific risks in this case which made such an

instruction necessary to protect defendant's rignt to a fair

trial. Further, the trial court is ordinarily under no obliga-

tion to give instructions not requested by the parties (Pev-

ple v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Under-

A-22-

wood (1978), 72 Ill. 2d 124, 129) and under the circum-

stances of this case, the instructions given on the credibil-

ity of witnesses generaliy, the presumption of innocence,

and the burden of proof adequately protected defendant's

right to a fair trial. People v. Stringer (1972), 52 Ill. 2d

564, 569-70; People v. For (1971), 48 Ill. 2d 289, 249: see

also Illinois Pattern Jury Instruction, Criminal, No. 3.15

(2d ed. 1981)—Circumstances of Identification. “The Com:

mittee recommends that no instruction be given on this

subject. It should be adequately covered by the general in-

struction on believability of witnesses.”

Defendant raises several issues concerning his represen-

tation: He argues that the trial court's denial of his pretrial

motion for a change of counsel violated his constitutional

rights under the sixth and fourteenth amendments. that

his court-appointed attorney labored under a conflict of in-

terest, and that his attorneys’ performance denied him the

effective assistance of counsel.

The Lake County public defender, George Pease, was

appointed to represent defendant on December 3, 1979. af-

ter the court determined that defendant was indigent. A

private attorney, Charles Kopeny, had appeared on defend-

ant’s behalf solely for an carlier bond hearing. At the ar.

raignment on December 3, the assistant State's Attorney

advised the court that defendant was charged with aggra-

vated lidnaping and murder and announced that the State

would seek the death penaity. Defendant stated that he

was 44 years old, and attorney Pease informed the cowt

that defendant had read the charges against him and un-

derstood the possible penalties. A formal reading of the in-

dictment was waived, and a plea of not guilty was entered

on all charges.

Defendant thereafter wrote a letter to the court in

which he expressed his concern about his attorney’s prepa-

ration for trial. The court held a hearing on January 7,

1980, at which time defendant requested a change of

venue to Cook County and asked the court to appoint an

attorney from the bar. Attorney Pezse advised the court

that potential witnesses in Indiana had been interviewed

and that the investigation was proceeding in southern Wis-

consin and northern Indiana. The court denied defendant's

request, indicating that it had confidence that defendant

would be competently represented by the public defender's

office.

Two months later, on March 7, the court held another

A-24-

hearing, after receiving a written motion from defendant

entitled “Amended Motion For Change of Attorney”: sev-

eral exhibits were attached. Defendant stated in his motion

that attorney Pease and his investigator were misleading

and deceiving him by ignoring phone calls and messages

from defendant and his friends, and falsely stating that

witnesses were being interviewed, when in fact they were

neither interviewing defense witnesses nor pursuing other

avenues of investigation. Further, he asserted that attor-

ney Pease had previously been the subject of similar

charges. Attached to the motion were newspaper clippings,

dated September 15, 21 and October 29, 1979, affidavits of

seven individuals, and two letters. The newspaper articles

indicated that attorney Pease had been under grand jury

investigation stemming from charges that he had pres-

sured his investigator to drop charges against a State rep-

resentative. The newspaper account also related that the

chief judge of Lake County was investigating allegations

that attorney Pease had often been absent from his office

and operated his office “in a fashion which could deprive

clients of adequate defenses.”” In late October, the grand

jury refused to return an indictment for obstruction of jus-

tice, although the newspaper account related that the

grand jury released a report in which it stated that attor-

ney Pease'’s attitude had ‘led to the exercise of poor judg:

ment” in the State representative case.

The affidavits were dated January 6, 1980, the day be-

fore the prior hearing, and all the affiants stated that “no

one from the Public Defender’s Office has approached me

regarding the information I have, which may be of help in

the defense of Robert Kubat.”

The letters, addressed to the trial judge, were written

by Jonn Gabriel and Francine Bejda. Mr. Gabriel, a “family

member,” stated that he had been unable to reach attorney

Pease and the investigator for the public defender's office,

Stephen Martin on three separate occasions and that his

phone calls were not returned. Further, he stated, that he

had supplied counsel and the investigator with the names

of individuals who should have been interviewed but were

not. ,

Francine Bejda wrote that she had attempted to reach

Mr. Pvase and Mr. Martin at least 10 times, and that her

phone calls were never returned. She was trying to reach

them for advice on what she should do with defendant's

possessions, which she thought could be helpful to defend-

A -25-

ant and could be lost or destroyed because she had to va-

cate the premises. :

The court conducted a fairly extensive hearing on

defendant’s motion. Defendant stated that he thought very

little was being done in his defense, although he could not

supply the court with specific information or the names of

individuais who had not been contacted. Defendant stated,

“IT don’t know the names of some of the people because

these people just have to prove that I was there. *** With

all at stake I thought they should go all out and try to find

anybody in my favor.” He did indicate, however, that there

were three different gas stations, one of which was in

Hammond, Indiana, and other places in Gary and Ham-

mond, Indiana, where he had directed attorney Pease to

investigate. The judge asked the public defender tc advise

the court as to what had been done in defendant's behalf

in view of his general allegations, and attorney Pease then

questioned investigator Martin under oath.

The investigator testifed that he had interviewed Julie

Lewis, Dale Gonsky and Dorothy Hawley in Kenosha, Wis-

consin, in December 1979. In January 1980, he interviewed

Sandra Lawson and Rhonda Meeker in Kenosha, Michael

and Delores Padgen in Berwyn, Illinois, and a potential

witness, Kevin Gibson, at the Skyline motel in Gary, Indi-

ana. In February, he interviewed Jesse Lopez and Nick

Bastian in Kenosha, and Lillian Tesnohlidek and Mario

Brajkovich in Chicago. Also interviewed that month by ei-

ther Mr. Martin or Mr. Pease and another individual from

their office were George and Tony Matos, potential wit-

nesses, at a service station in Gary. In March, investigator

Martin took several photographs at a gas station in Indi-

ana and attempted to locate Mary Sands, whom he indi-

cated he would make a later attempt to contact. In addi-

tion, the investigator testified that he had held telephone

conferences and issued a subpoena duces tecum for various

records. He further stated that either he or the public de-

fender had met with defendant weekly at the Lake County

jail more than 14 times, and that Francine Bejda as well as

various members of defendant's family had been to their

office probably 10 times. “Ace’ Kubat, one of defendant's

brothers, had supplied the names of several persons whose

knowleage was limited to Quick's possible prejudice.

Following Mr. Martin's testimony, defendant indicated

that he was still not satisfied. The court, finding that there

had been a substantial investigation on behalf of defendant

A -26-

in three States, and that there was no evidence which sug-

gested that defendant did not have competent counsel who

was actively working in his behalf, denied defendant's mo-

tion. Trial was set for March 31, 1980.

On March 20, another hearing was held, at which time

attorney Pease informed the court that defendant’s family

and friends had contacted an Jllinois attorney, Arthur

O’Donnell, who requested leave to enter the case on March

31 as co-counse]. Mr. Pease also asked for a continuance of

the trial date, to which defendant consented. The court in-

dicated that it would allow attorney O'Donnell to enter the

case to assist the public defender, who would be lead coun-

sel. The court also stated that it would inquire into the cir-

cumstances under which Mr. O'Donnell was being paid to

determine whether defendant, who had been adjudged indi-

gent, would continue to receive representation from the

public defender.

On March 31, Mr. O'Donnell appeared in court with

defendant and Mr. Pease and entered his appearance as

additional counsel. He informed the court that he was not

being paid by defendant or anyone in defendant's immedi-

ate family. Later he stated that defendant's mother in

Florida was contributing. He indicated that it was not his

intention to substitute for Mr. Pease because he had not

had sufficient time in which to prepare. By agreement be-

tween the State and defendant, a new trial date was set

for June 9.

On June 6, the hearing on defendant's motion to sup-

press began with both defense attorneys actively partici-

pating. On June 9, a further discussion took place concern-

ing Mr. O’Donnell’s status as co-counsel. The court initially

ruled that Mr. O’Donnel! could serve only in an advisory

capacity in view of the appointment of the public defender.

The defense attorneys pointed out that the relationship be-

tween Mr. O'Donnell and defendant had existed since ap-

proximately 1965, and Mr. Pease indicated that he had ob-

served that defendant had a certain degree of confidence

in Mr. O'Donnell. It was argued that a ruling by the court

which would limit counsel's role would deny defendant the

effective assistance of counsel and counsel of his choice.

The Stite partially agreed, expressing concern that the

contemplated ruling would present a viable issue on appeal

in the event of a conviction. The trial judge subsequently

reconsidered his ruling and advised Mr. O'Donnell that he

would be permitted to participate at trial to the same de

gree that he had at the hearing on the motion to suppress.

As a result of the court’s ruling, defendant was in the

anomalous but favored position of being represented by

two quite competent attorneys, the private attorney of his

choice employed by his mother and others and the public

defender who had been appointed because of defendant's

indigency.

Defendant’s claim that the trial court merely conducted

a perfunctory inquiry following defendant’s request for a

change of counsel despite, he asserts, the presentation of

substantial grounds indicating that counsel was operating

ineffectively and under a conflict is a plain misstatement of

the facts. The trial court conducted two hearings. At the

first hearing, conducted one month following counsel's ap-

pointment, no evidence was presented which showed a fac-

tual basis underlying the allegations. At the subsequent

hearing, defendant supported his allegations with affida-

vits, signed two months previously, two letters that added

little to defendant's claims, and newspaper clippings, some

of which were nearly six months old, which indicated that

the grand jury had completed its investigation of Mr.

Pease, prior to his appointment as defendant's attorney,

and refused to return an indictment. Defendant's allega-

tions that the public defender was not exercising diligence,

pursuing avenues of investigation, interviewing witnesses

or being responsive to defendant were largely refuted by

Mr. Martin's testimony, which revealed that an extensive

investigation had already been conducted and was continu-

ing with defendant being visited regularly. Under these cir-

cumstances, after an evidentiary hearing established that

defendant’s allegations were substantially unsupported, the

trial cowt’s denial of defendant’s motion for a change of

counsel was not error. (People v. Lewis (1981), 88 Ill. 2d

129, 161.) Moreover, the fact that Mr. O'Donnell, a private

attorney of defendant’s choice, entered the case shortly af-

ter the hearing and more than two months before trial

substantially militates against defendant's claims. Defend-

ant’s argument here that he is entitled to a new trial at

which he will be represented by counsel other than the

public defender completely ignores the fact that he was

represented by another attorney in addition to the public

defender. Too, we find nothing in the record which indi-

cates that defendant's initial lack of faith in his appointed

counsel resulted in an “‘irreconcilable conflict.” (People v.

Friedman (1980), 79 Ill. 2d 341, 349; People v. Lewis

A-23-

(1981), 88 Ill. 2d 129, 159.) Indeed, defendant’s dissatisfac-

tion seems to have dissipated once Mr. O’Donnell entered

the case as co-counsel.

Defendant makes a related claim that the trial court

erred in failing to ascertain the nature and extent of his

court-appointed attorney’s potential conflict of interest af-

ter defendant informed the court of the facts underlying

the potential conflict. He urges that a conflict of interest

was apparent, making it unnecessary to demonstrate that

any prejudice resulted therefrom, and that he was there-

fore denied the effective assistance of counsel. As we have

noted, the newspaper articles, upon which defendant relies

to establish that a potential conflict of interest existed,

were several months old and revealed that the grand jury

had concluded its investigation of Mr. Pease with a repri-

mand. Although the newspaper account indicated that the

chief judge of the county was continuing an unrelated in-

vestigation concerning alleged misconduct by the public de-

fender regarding the manner in which he operated his of-

fice, that article too was several months old. Moreover, the

evidence at the hearing established that defense counsel

was actively working on defendant's behalf whether or not

there were allegations against him that he had previously

been absent from his office with some frequency. Defend-

ant argues, however, that “subtle” influences nevertheless

existed which could have adversely affected counsel's abil-

ity to represent him in an independent and vigorous man-

ner. These subtle influences existed, he asserts, because,

despite the grand jury's action, the State’s Attorney of

Lake County had the option to continue the investigation

and either reconvene the grand jury or proceed by infor-

mation. Among the cases cited by defendant, al! of which

involved an alleged potential or actual conflict of interest in

the way of conflicting professional relationships or obliga-

tions, none are sufficiently analogous to lend support to

this tenuous claim. (E.g., Cuyler v. Sullivan (1980), 446

U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; Holloway v.

Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct.

1173; Glasser v. United States (1942), 315 U.S. 60, 86 L.

Ed. 680, 62 S. Ct. 457; People v. Kester (1977), 66 Ill. 2d

162; People v. Stoval (1968), 40 Ill. 2d 109.) Since no poten-

tial or actual conflict of interest was present in the form of

counsel's professional relationships or obligations, which

would have obviated the need to show actual prejudice

(see, e.g., People v. Franklin (1979), 75 Ill. 2d 172, 176),

A29.

the trial court’s failure to appoint separate counsel or

make a further inquiry regarding the alléged conflict did

not deprive defendant of the effective assistance of coun-

sel. See People v. Lewis (1981), 88 Ill. 2d 129.

Defendant further characterizes his attorney's perform-

ance as “‘of such a nature as to deny him the effective as-

sistance of counsel.” Considering the quality of the repre-

sentation revealed by this record, it would be frivolous to

argue that it approached “actual incompetence *** which

result{ed] in substantial prejudice without which the out-

come would probably have been different.” (People y.

Carlson (1980), 79 Ill. 2d 564, 584-85.) Defendant does not

do so. Rather, he alleges that some actions of trial counsel

were erroneous, or should have been done differently. We

deem it unnecessary, in order to demonstrate that defend-

ant received competent representation, to detail the actions

taken by the trial attorneys on defendant’s behalf, many of

which are evident from our discussion of the pretrial hear-

ings, conferences, and testimony. Suffice it to say that the

record establishes that his attorneys competently and vig-

orousl; defended him and insured that he received a fair

trial. Few potential errors were waived because of inac-

tion; indeed, it is more likely that any inaction by the attor-

neys was a matter of strategy ‘as to which hindsight fre-

quently indicates a different course might have been

preferable.” People v. Lewis (1981), 88 Iil. 2d 129, 154.

Among the instances alleged to demonstrate ineffective-

ness, defendant cites several in which an objection would

have been frivolous and several in which a favorable ruling

or further action by the attorneys would have been incon-

sequential. He complains that, prior to trial, his attorneys

failed to pursue his request for a change of venue, failed to

impeach Nora Lopez during the suppression hearing with a

prior inconsistent statement, and failed to request a .Mont-

gomery (People v. Montgomery (1971), 47 Ill. 2d 510) hear-

ing. Further, the attorneys failed to request an instruction

at the close of the evidence on the dangers inherent in

identification testimony and did not tender an instruction

for the offense of unlawful restraint, a lesser included of-

fense of aggravated kidnaping. Several other matters are

raised concerning the attorneys’ performance at the sen-

tencing hearing.

The failure to pursue defendant's request for a change

of venue obviously does not demonstrate incompetence on

this record. We find nothing in the record, nor is any argu-

A-30-

ment brought to our attention on appeal, which indicates

that defendant could not or did not receive,a fair trial in

Lake County by a fair and impartial jury. See People v.

Torres (1978), 54 Ill. 2d $84, 389-90.

The failure to impeach Nora Lopez during the suppres-

sion hearing with her prior written statement was inconse-

quential. The trial court denied the motion to suppress her

in-court identification testimony because that testimony

was reliable: “[Sjhe had ample opportunity to observe and

reason to remember *** the couple “**."’ Moreover, Mrs.

Lopez was subsequently impeached during trial with the

written statement she had made in which she stated that

she could not initially make a photographie identification,

and the statement was admitted in evidence. Counsel was

not remiss in emphasizing this fact in closing argument,

and the jury was instructed that the fact that a witness

had previously made an inconsistent statement was to be

considered in determining the weight to be give that testi-

- mony. The court's ruing would not have been different had

Mrs. Lopez been impeached with the statement at the sup-

pression hearing; and the failure to impeach her was not

incompetence. See People v. Johnson (1970), 45 Ill. 2d 501,

505.

Had defendant's attorneys requested a Montgomery

hearing to prevent the Siate from impeaching defendant

with his numerous convictions if he testified, the motion

would undoubtedly have been denied. As we stated in Peo-

ple v. Lewis (1981), 88 Ill. 2d 129, in which the identical

claim was made and rejected under very similar facts,

“The fact that [defendant] did not testify in the sentencing

phase, even though the full record had been admitted in

those proceedings, would seem to be some indication that

there were reasons other than his criminal record for his

failure to testify. This fact, coupled with the probability

that the motion to exclude would have been denied [cita-

tions], militate against a characterization of that conduct as

demonstrating incompetence.” 88 Ili, 2d 129, 156,

Nor do we agree that the failure to request an instruc-

tion on the dangers inherent in identification testimony

shows incompetence. That request, too, would have proba-

bly been denied, under the facts in this case, and it is ap-

parent that defendant's attorneys piaced considerable em-

phasis both in cross-examination and in closing arguments

upon the possibility of misidentification by the non-occur:

rence witnesses. Counsel is not required nor should he be

criticized for failing to make useless requests People v.

Lewis (1981), §8 Ill. 2d 129, 156; People v. Johnson (1970),

45 Ill. 2d 501, 505-06.

Finally, the failure to tender an instruction on the lesser

included offense of unlawful restraint does not establish in-

competency; such an instruction would have been inconsis-

tent with defendant's alibi defense, and thus appears to

have been a matter of trial strategy. Defendant contends

that such an instruction could have only helped him, since

a finding of guilty of unlawful restraint instead of aggra-

vated kidnapping would have precluded imposition of the

death penalty. While this contention may be true in retro-

spect, with a guilty verdict of murder and aggravated kid-

naping and a sentence of death, in the posture of the trial,

tendering such an instruction would have been entirely in-

compatible with the proffered defense. Indeed, it mizht

have resulted in the attorneys abdicating defendant's posi-

tion to the extent of denying him effective representation.

(See People v. Redmond (1972), 50 Ill. 2d 318, 316-17.) In-

competence is not established by erroneous or unsuccessful

Strategic judgments (People v. Murphy (1978), 72 Ill. 2d

421, 437): under the circumstances, the attorneys appear

to have presented the best possible defense. People v.

Torres (1973), 54 Ill. 2d 384, 391.

Nor can we agree that the trial judge was under an ob-

ligation to instruct the jury sua sponte on the offense of

unlawful restraint. It is well settled that the burden of pre-

paring jury instructions is primarily on the parties, not the

trial court; and as we have indicated, with limited excep-

tions the trial court is under no obligation to give jury in-

structions not requested by counsel; (People v. Carlson

(1980), 79 Ill. 2d 564, 583; People v. Underwood (1978), 72

Ill. 2d 124, 129; People v. Grant (1978), 71 Ill. 2d 55),

557.) This is true in capital cases as well as other criminal

proceedings. (People v. Guines (1981), 88 II]. 2d 342, 366-

67.) People v. Joyner (1972), 50 Ill. 2d 202, cited by defend:

ant for the proposition that failure to instruct sua sponte

on a lesser included offense may constitute plain error, is

distinguishable. In that case, defendant tendered an in-

struction setting forth the law of voluntary manslaughter,

but it was not in conformity with the appropriate IP! in-

struction. Since defendants there raised the defense of selé-

defense to murder, the case was close factually, and the

defendants tendered an instruction, although incorrect, on

voluntary manslaughter, this court held that the trial court

should have given an appropriate instruction. 50 Ill. 2d

302, 307.

Defendant does not dispute the fact that the evidence

supported a finding of guilty of aggravated kidnaping if

the defendant was found tc be the abductor. (See People v.

Bishop (1953), 1 Ill. 2d 60, 64, where the court found that

a person forcibly confined in an automobile on the high-

ways of the State ‘may be more secretly and effectively

confined from the kidnapper’s standpoint than one kept in

a building or other place of incarceration.”) We consider

that under the circumstances here where the defendant

submitted alibi evidence and did not request a lesser in-

cluded instruction, and the case was not close factually, the

trial judge was under no obligation to sua sponte instruct

the jury on the lesser included offense; the failure to do so

did not constitute plain error or result in an unfair trial.

See People v. Grant (1978), 71 Ill. 2d 551, 558.

At the sentencing hearing, defendant complains that his

attorneys failed to object to the admission of irrelevant and

inflammatory evidence, allowed the State to present both

opening and rebuttal arguments, did not offer any evidence

in mitigation and failed to object to erroneous. inconsistent

and fatally prejudicial instructions or to tender other in-

structions.

During the second phase of the sentencing hearing,

Quick testified to the victim's fear, cooperation and plea

that she not be hurt. She told defendant that she was 63

years old and had 13 grandchildren. During the closing ar-

guments, the prosecutor made two references to this fact.

Defendant contends that his attorneys’ failure to object to

this evidence and the subsequent argument which was ir-

relevant and highly prejudicial demonstrates ineffective as-

sistance and that this highly prejudicial evidence denied

him due process.

Initially, we must point out that defense counsel did

challenge, albeit unsuccessfully, testimony by Quick con-

cerning any conversations with the victim unless the vic

tim’s statements qualified as dying declarations. Further,

the evidence was not introduced during trial and therefore

did not influence the verdict, and we believe that the vie-

tim’s plea for her life and the statements she made in an

attempt to convince defendant not to hurt her were rele

vant as additional aggravating factors to be considered by

the jury. (People v. Gaines (1981), 88 Ill. 2d 242, 371: see

also People v. La Pointe (1981), 88 Ill. 2d 482, 494-98.)

A -33-

Moreover, the prosecutor did not, as defendant contends,

“repeatedly emphasize” this fact in closing argument. We

do not agree that the evidence was erroneously received or

the argument improper.

Defendant's contention that he was denied the effective

assistance of counsel! because his attorneys did not offer

mitigating evidence or object to the order of presentation

of closing arguments at the second phase of the sentencing

hearing, although neither side has a burden of proof at

that stage, is unpersuasive. As we have indicated, the re-

cord clearly does not support defendant's allecation that

his attorneys rendered ineffective assistance of counsel.

Nor do we find any merit in defendant’s contention that

his sentence must be vacated because the prosecutor was

allowed to present a rebuttal argument at the second stage

of the sentencing proceeding.

The failure to offer evidence in mitigation does not nec-

essarily demonstrate incompetence. (See People v. Gaines

(1981), 88 Ill. 2d $42, 351 (‘The defendant did not take the

Stand at the penalty hearing, and he called no witnesses to

rebut the State's evidence in aggravation or to testify to

any mitigating factors"); see also People v. Ruiz (Dec. 17,

1982), No. 53415.) If, as defendant contends, the jury had

no alternative but to impose the death penalty, the reason

Seems to be that there was nothing sufficiently mitigating

in the circumstances surroundine the crime, defendant's

background or otherwise, that could have been presented,

Defendant's record of violent criminality began at age

21, and the pattern continued consistently for the next

quarter century. The presentence report and the FBI files

contained in the record indicate that defendant was drafted

into the army in December 1954 and was assigned in Geor-

gia. He went AWOL in September 1955, in order to evade

a charge of assault, and then proceeded to commit a series

of separate armed robberies in Florida. He pleaded guilty

and was sentenced to five consecutive five-year terms.

While incarcerated defendant was something less than a

mode! prisoner. In July 1958 he and a fellow prisoner es-

caped from a Florida State road camp, stole a car, and

were later apprehended in Ohio. Defendant then escaped

from the Ohio jail, and was apprehended a few weeks

later. He received eight additional years’ ‘mprisonment in

August 1958 for larceny and escape. Approximately one

year later, he pleaded guilty to assault with intent to com:

mit murder, possession of a weapon by a prisoner and at-

tempted escape. He was sentenced to 10 additional years

for the first offense and two concurrent one-vear terms for

the latter two offenses. He was released from the Florida

State Penitentiary in Jwy 1963, apparently following the

decision in Gideon v. Wainwright (1963), 872 U.S. 335, 9

L. Ed. 2d 799, 83 S. Cx. 792.

In 1965, defendant again proceeded to commit a series

of armed robberies, this time in Cook County. On March

17, he robbed a cashier and pharmacist at gunpoint at a

drug store and as he fled fired a shot at a customer who

was writing his license plate number. On March 22. he re-

turned to the same drug store and at knife point robbed

another cashier and the pharmacist’s wife. On April i2, he

committed yet another armed robbery at gunpoint at a

pharmacy, and finally on April 14, he committed a final

armed robbery with a gun at another store. He pleaded

guilty to each charge and was sentenced to four concurrent

four- to seven-year terms.

Defendant was released from the Illinois State Peniten-

tiary at Joliet in January 1970. He was arrested in June

and charged with unlawhu use of a weapon. He pleaded

guilty, served eight months in jail, and received five years’

probation. He was released in February 1971.

In September 1972, deZendant and a companion com-

mitted an armed robbery at a dry cleaner in Berwyn.

Defendant pleaded guilty to armed robbery and was sen-

tenced to two concurrent terms of four years to four years

and one day for the robbery and a violation of probation.

He was paroled in 1976 from the Illinois State Penitentiary

pursuant to a mandatory statutory release date, although

the parole board panel concluded that he was not a good

risk for parole. Since the order was mandatory, the board

recommended very close supervision. Defendant was ar-

rested later that year on a charge of unlawful use of a

weapon but later found not to be a violater. His parole was

continued.

During the second phase of the sentencing hearing,

defendant's four 1965 convictions and his three convictions

in the 1970's were introduced in evidence. The jury did not

receive any evidence of defendant's criminal background

prior to 1965. Defendant points out here that he was hon-

orably discharged from the army and was employed con-

sistently following his last prison release, and that this in-

formation, which was contained in the presentence report,

should have been introduced at sentencing in mitigation.

As the State points out, however, defendant’s army career

was marked by his unauthorized absences, arid interrupted

when he committed several armed robberies. Had defend-

ant’s attorneys introduced the evidence concerning deiend-

ant’s service in the army and honorable discharge (he was

originally given an undesirable discharge; it was later

changed), the State, no doubt, would have responded by

seeking to introduce the evidence contained in the presen-

tence report concerning defendant's criminal behavior in

the 1950's. The fact that defendant was employed follow-

ing his iast release from prison until his arrest for this

murder would hardly have been viewed as demonstrating

potential for rehabilitation considering defendant’s habitual

criminality. We consider that defendant's attorneys did not

introduce the evidence to which appellate counsel refers be-

cause of the probability that the jury would then have re-

ceived evidence that could only have been more damaging

_ to defendant. We accordingly conclude that the failure to

offer evidence in mitigation did not deprive defendant of

the effective assistance of counsel.

One of the instructions given in the second phase of the

sentencing hearing was erroneous. After the court gave

several general instructions and instructed the jury on the

factors which may be considered in aggravation and miti-

gation, the following instruction was given:

“If after your deliberations, you unanimously deter-

mine that there is no sufficiently mitigating factor or fac-

tors 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 imprison-

ment.”

The jury was further instructed:

“If after your deliberations one or more jurors con-

clude that the defendant should not be sentenced to

death, al! jurors shall sign the verdict reflecting the ju-

ry's inability to reach a unanimous verdict.

If after your deliberations you unanimously conclude

that the defendant should be sentenced to death, all ju-

rors sha!] sign the verdict reflecting the jury's unanimous

conclusion that the court shal! sentence the defendant to

death.

You will be provided with (2) two forms of verdict.

When you have unanimously agreed upon, your verdict

you will select the form which reflects your verdict and

sign it as I have stated.

The forms of verdict which you will receive read as

follows, ***”’

Neither defense attorney objected or tendered alternate in-

structions, which we find curious in view of the numerous

objections made to the State’s instructions at the conclu-

sion of the trial itself. Nevertheless, we do not believe that

the inconsistency resulted in any confusion. Nor do we be-

lieve that this inaction by the attorneys denied defendant

the effective assistance of counsel.

While we agree that, despite the failure to object to an

instruction, this cowt will take notice of errors which de-

prive a defendant of his constitutional rights, the giving of

an erroneous instruction does not necessarily constitute a

denial of due process of law. (People v. Roberts (1979), 75

Ill. 2d 1, 14-15.) This court has corrected “grave” errors in

trial instructions despite the lack of an objection (e.g., Peo-

ple v. Jenkins (1977), 69 Ill. 2d 61, 66), and refused to ap-

ply the waiver rule where the case was close factually and

fundamental fairness required that the jury be properly in-

structed (People v. Joyner (1972), 50 Ill. 2d 302, 307).

Here, however, we find no fundamental! unfairness. No

mitigating evidence had been offered, presumably because

there was little available, and the jury had no factual dis-

putes to resolve. There is no indication that the jury was in

any manner confused. The alternate verdict form was clear

and simply drafted:

“(Wje, the jury, cannot unanimously conclude that the

death penalty shall be imposed upon the defendant, RO-

BERT KUBAT. The Court shali sentence the defendant to

imprisonment.”

While we agree that the second paragraph of the first of

the earlier quoted instructions was incorrect in requiring

unanimity, we cannot conceive that the jurors could have

believed the death sentence verdict should be returned in

the absence of complete agreement.

In People v. Lewis (1981), 88 Ill. 2d 129, in considering

whether the court erred in failing to instruct the jury that

if it failed to agree that there were no mitigating factors

sufficient to preclude the imposition of the death penalty,

the trial judge would impose a sentence of imprisonment,

we commented:

“The jury appears to have experienced little difficulty

in deciding that there were no ‘mitigating factors suffic-

ient to preclude death,’ returning that verdict in approxi-

mately one hour. Too, the judge, at the request of defense

counsel, had the jury polled, a process (see People v. Kel:

logg (1979), 77 Ill. 2d 524) which normally reveals any

overbearing of one juror by another.” (People v. Lewis

(1981), §8 Il]. 2d 129, 150.)

Here, too, the jurors took only an hour to decide there

were no sufficient mitigating factors and to return their

verdict accordingly. No evidence of doubt or hesitation was

apparent during the polling process.

Among the remaining alleged trial errors cited by

defendant, he contends that his attorneys’ waiver of his

presence at the conference on jury instructions denied him

his constitutional and statutory rights to be present at

every stage of the proceedings. He asserts that he should

have been consulted concerning the decision not to tender

_an instruction on the risks of misidentification, and that he

was fatally prejudiced by the decision not to tender an in-

struction on the offense of unlawful restraint. As we have

indicated, an instruction on the risks of eyewitness identifi-

cation would have probably been denied, and the failure to

offer a lesser included instruction was a matter of trial

Strategy. Considering that defendant's claim was that he

Was not a participant in the abduction and murder of Ly:

dia Hyde, we believe that his presence at the conference,

in which his rights were adequately protected, would not

have had a “relation, reasonably substantial, to the fulness

of his opportunity to defend against the charge.” (Snyder

v. Massachusetts (1934), 291 U.S. 97, 105, 78 L. Ed. 674.

678, 54 S. Ct. 330, 332; see also People v. Pierce (1974), 56

Ill. 2d 361, 365.) The principal case relied upon by defend-

ant, People v. McGrane (1929), 236 Ill. 404, 499, in which

the court instructed the jury in defendant's absence follow-

ing a request by the jury for further instructions, is inappo-

site.

Defendant next argues that the trial court abused its

discretion by admitting over defense objection five en-

larged color photographs of the victim which he character:

izes as gruesome and argues could only have served to in-

flame and prejudice the jury. Three of the photographs

were taken before the autopsy. One showed a view of the

victim’s face, another depicted the left side of her head,

and the third showed the right side of the victim's head,

The remaining two photographs which were taken follow-

A -33-

ing the autopsy showed views of the left and right sides of

the victim’s head. A small area around her ear was parti-

ally shaved, and the wounds were cleaned. There appear to

be brain fragments near the victim's hair. The State justi-

fies the admission of the photographs on the ground that

they depicted the nature, extent and location of the vic-

tim’s wounds and were thus admitted for a proper pur-

pose.

In People v. Foster (1979), 76 Ill. 2d 365, this court

found no abuse of discretion in admitting four color photo-

graphs of the decedent's decaying and dismembered body

which were quite gruesome because they were probative of

the time and manner of the homicidal death and the cir-

cumstances of its concealment. The court extensively re-

viewed prior cases, in which the photographs held admissi-

ble seemed far more gruesome than those admitted here,

and noted that ‘photographs depicting the condition of the

decedent normally are probative of one or more issues,

such as manner or cause of death, means used, and loca-

tion of the events in question. That such photographs po-

tentially are prejudicial to the defendant is due largely to

their accurate depiction of a horrible crime.” 76 Ill. 2d 365,

878.

Defendant's argument here that the photographs were

irrelevant to any issue because there was no question that

a horrible crime had been committed is, under our cases,

without merit. Photographs may be properly admitted to

corroborate testimony on the same subject (People v.

Henenberg (1973), 55 Il. 2d 5, 13-14), despite defendant's

offer to stipulate as to matters shown by the photographs

(People v. Nicholls (1969), 42 Ill. 2d 91, 99, cert. denied

(1970), 396 U.S. 1016, 24 L. Ed. 2d 507, 90 S. Ct. 578;

People v. Speck (1968), 41 Ill. 2d 177, 202-04). While we

might disagree with the trial court on the necessity to ad-

mit all five photographs, we cannot say, under the deci-

sions, that that ruling was an abuse of discretion. People v.

Foster (1979), 76 Ill. 2d 365 and cases cited therein: see

also People v. Lindgren (1980), 79 Ill. 2d 129,

Defendant also argues that it was reversible error for

the trial court to foreclose defense counsel from asking Joy

Jesuit whether Quick had told her that Quick and defend-

ant had had sex. The witness testified that Quick had

stayed at her residence in November 1979, while Quick

was still married to defendant. During the course of the

witness’ direct testimony on behalf of defendant, defense

A:39-

counsel established that she and Quick had had many con-

versations. He then asked the witness whether Quick had

ever told her that Quick had had sex with defendant. She

responded affirmatively. The court sustained an objection,

and the jury was instructed to disregard the answer. De-

fense counsel subsequently asked whether Quick had com-

plained of the marriage relationship. The witness re-

sponded that she had not. The court again sustained an

objection. The State submits that the questions were im-

proper for several reasons, but mainly because defense

counsel failed to establish a proper foundation—Quick was

not asked on cross-examination whether she had had such

a conversation. See, e.g., People v. Smith (1980), 78 Ill.

298, 304-05.

The purpose of eliciting evidence of a prior inconsistent

statement is to cast doubt on the testimony of a witness or

to impeach his or her credibility. (E.g., People v. Moses

(1957), 11 Ill. 2d 84, 87.) In view of the fact that Quick was

‘extensively cross-examined on the subject of her sexual in-

timacy with defendant during their second marriage and

impeached herself by her equivocal testimony, we consider

that the admission of Joy Jesuit's testimony on this issue,

even if a proper foundation had’ been established, would

not have affected the outcome of defendant's trial consid-

ering the substantial corrcboration of Quick’s account of

the events of November 2, 1979.

Defendant’s final argument concerning the conduct of

his trial is that the prosecutor's closing argument was im-

proper. He contends that the prosecutor’s remarks that

Francine Bejda was a witness available to defendant but

did not testify that she was with him on November 2,

1979, impermissibly shifted the burden of proof to defend-

ant and destroyed the presumption of innocence. We do

not agree.

In People v. Nilsson (1970), 44 Ill. 2d 244, 248, cert. de-

nied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct.

1881, the court noted that there was conilicting authority

in Illinois on the question of whether it is improper for the

prosecutor to comment on defendant's failure to support

his alibi by presenting the alleged alipi witness. The court

held that, in any event, the remarks do not constitute re-

versibie error unless they result in substantial prejudice to

the accused. Since that decision, this court held, in People

v. Blakes (1976), 63 Ill. 2d 354, 258-60, that it was not im-

proper for the prosecutor to comment on defendant's fail-

A -40-

ure to produce any witnesses from the club where defend.

ant had testified he spent five hours on the night of the

crime. The court quoted with approval from People v. Wil:

liams (1968), 40 Ill. 2d 522, 528-29, cert. denied (1960), 393

U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004:

(A) jury in its deliberations is not limited to a con-

sideration of that which is, strictly speaking, testimony.

To the contrary, it may properly consider any facts devel-

oped in the trial from which a reasonable inference may

be drawn for or against either party. For instance, if it is

developed in a trial that a witness exists, presumably un-

der the concrol of a defendant, who can throw light upon

a vital matter, and he is not produced, certainly a jury

may fairly consider that fact, and. likewise, counsel would

have a legitimate right to comment thereon. ***

(I}t is our conclusion that though failure to call a wit-

ness or produce evidence may not be relied on as sub-

stantial proof of the charge, nonetheless. if other evi-

dence tends to prove the guilt of a defendant and he fails

to bring in evidence within his contro! in explanation or

refutation, his omission to do so is a circumstance enti-

tled to some weight in the minds of the jury, and, as

. Such, is a legitimate subject of comment by the prosecu-

tion.’ " (63 ili. 2d 354, 359-60.)

(See also People v. Lion (1957), 10 Ill. 2d 208; cf People v.

Moore (1973), 55 Ill. 2d 570.) Subsequently, in People v.

Beller (1979), 74 Ill. 2d 514, 526, this court heid that, while

it was harmless error beyond a reasonable doubt, it was

improper for the prosecutor to comment during closing ar-

gument on defendant's failure to call a witness because

there was no showing that the witness Was an alibi witness

and that he was not equally accessible to both parties,

In the appellate court, in decisions too numerous to list,

in interpreting the cases from this court, limited comment

has been approved as an exception to the general principle

(see People v. Munday (1917), 280 Ill. 32) that it is im-

proper to comment on defendant's failure to produce wit-

nesses: “[I]f a defendant ‘injects into a case his activities

with potential witnesses during a particular period of time

ostensibly for the purpose of establishing an alibi ***, his

failure to produce such witnesses is a proper subject of

comment on the part of the State,’ ”’ (People v. Lawson

(1980), 86 Ill. App. 3d 376, 405, quoting People v. Gray

(1964), 52 Ill. App. 2d 177, 190, reversed on other grounds

(1965), 33 Ill. 2d 160; accord, People v. Gaines (1982), 104

lll. App. Sd 974, People v. Kane (1980), 81 Ill. App. 3d 641,

644; People v. Jackson (1979), 79 Il. App. 3d 660, 667.)

A -41-

Some of the decisions have indicated that when alibi wit

nesses are injected into the case by defendant, they are

deemed unavailable to the prosecution (e.9., People v. Scott

(1980), 92 Ill. App. 3d 106, 112), while others have stated

that the permissibility of the prosecutor's comments are

“not limited to situations where the potential witnesses are

unavailable to the prosecution” (People v. Wilson (1978),

66 Ill. App. 3d 380, 337).

We accordingly conclude, consistent with Blulics and the

appellate court decisions, that where a defendant injects

into the case the name of an alibi witness and then fails to

call the witness, the prosecutor may legitimately comment

on the lack of such evidence although it may not be relied

upon as proof of the charge. We do not see why the rule

should be different here because, defendant contends. the

prosecutor had the power to subpoena the witness. The

prosecutor’s comments regarding defendant's failure to

produce Francine Bejda, the alleged alibi witness, were

therefore not improper,

Defendant contends that his sentence must be vacated

because a prospective juror was excused in violation of the

principles established in Witherspoon v. Illinois (1968), 391

U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. The potential

juror stated that he did not believe in the death penalty,

The court then asked him whether it was his opinion ‘that

no matier what the facts of the case were, cr no matter

what the background of the defendant was, that under no

circumstances would (he) ever consider signing a verdict di-

recting the court to sentence the defendant to death?” He

replied, “I don’t think I could do it.” The juror was ex-

cused by the court without an objection from the defense

attorneys.

The fact that a potential juror prefaces his answers

with phrases like, “I don't think” or “I don’t know” is not

necessarily to be viewed as an expression of doubt or res-

ervation. (People v. Gaines (1981), 88 Ill. 2d 341, 356.)

Witherspoon does not prescribe a set catechism or require

“a venireman to express himself with meticulous precise-

ness." (People v. Gaines (1981), 8S Ml. 2d 342. 356.) We

recognize, of course, that a potential juror cannot be auto

matically disqualified because of general opposition to the

death penalty. (Witherspoon v. Illinois (1968), 391 U.S.

510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.) As we stated in

Gaines, however, the trial judge is in a superior position to

ascertain the meaning which the venireman intends to con-

A -42-

vey. We find that the exclusion of the prospective juror

here which was without objection did not constitute plain

error. Cf. People v. Szabo (Jan. 24, 1983), No. 52626.

Defendant also argues that his death sentence must be

vacated because it was imposed in violation of double jeop-

ardy principles. Essentially he contends that his murder

conviction was enhanced to “capital’’ murder pursuant to

the jury’s determination that defendant had murdered Mrs.

Hyde in the course of an aggravated kidnaping, and that

the “failure to vacate that conviction allowed the jury to

consider the conviction on the lesser offense as a further

aggravating factor when it weighed the factors in aggrava-

tion and mitigation” in the second phase of the sentencing

proceeding. Thus, he proposes that this constituted “pyra-

miding” upon the already enhanced murder conviction, a

result prohibited by the constitutions and decisions of the

Supreme Court. To support this claim defendant relies on

the decision in State v. Cherry (1979), 298 N.C. 86, 113,

257 S.E.2d 551, 568, cert denied (1980), 446 U.S. 941, 64

L. Ed. 2d 796, 100 S. Ct. 2165, wherein the Supreme

Court of North Carolina held that a sentencing jury in that

State could not consider as an aggravating circumstance

the underlying felony “when a defendant is convicted of

first degree murder under the felony murder rule.” In

view of the fact that North Carolina’s murder statute is

entirely different from ours, the court’s decision and ra-

tionale in Cherry is of limited value in resolving the issue

with which we are presented. It is sufficient, we think, to

point out that the statute under consideration in Cherry

provided that a felony murder was deemed murder in the

first degree for which the death penalty could be imposed.

The felony, robbery with a firearm in that case, was subse-

quently an “automatic” aggravating circumstance at the

sentencing proceeding. The problem, which was specifically

noted not to be a double jeopardy one, was that, in that

jurisdiction, the underlying felony became an element of

the “capital” felony conviction. Ultimately, the court be-

lieved that the possibility that a defendant convicted of fel-

ony murder would be sentenced to death was dispropor-

tionately higher than a defendant convicted of

premeditated murder, which was highly incongruous. (In

view of the Supreme Court's decision in Enmund v. Flor-

ida (1982), __. U.S. ___, 73 L. Ed. 2d 1149, 102 S. Ct.

3368, that statute may be subject to attack on other

grounds as well.)

Pe43-

Initially, we point out that “there is only one offense of

murder in Illinois; no distinction is made between capital

and non-capital murder.” (People v. Brownell (1980), 79 Ill.

2d 508, 524; Ill. Rev. Stat. 1977, ch. 38, par. 9—1.) More-

over, it is evident in this case that defendant’s conviction

of murder was not “enhanced” in the manner he posits so

as to raise any double jeopardy problems.

Defendant was convicted of murder and aggravated

kidnaping. The jury was instructed that in order to find

him guilty of murder it must have found that the State

had proved beyond a reasonabie doubt that (1) he intended

to kill or do great bodily harm to Lydia Hyde, or (2) he

knew that his act would cause death or great bodily harm

to Lydia Hyde, or (3) he knew that his acts created a

strong probability of death or great bodily harm, or (4) he

Was attempting to commit or was committing the crime of

aggravated kidnaping. The jury returned a general verdict

finding defendant guilty of murder. Subsequently, however,

in the first stage of the sentencing hearing, the jury unani-

mously found beyond a reasonable doubt that defendant

had murdered Lydia Hyde in the course of an aggravated

kidnaping and that Mrs. Hyde was actually murdered by

defendant intentionally or with the knowledge that the acts

which caused death created a strong probability of death

or great bodily harm to her. Once the jury made this find-

ing the offense of aggravated kidnaning did not become an

underlying felony of “capital” murder for double jeopardy

purposes as defendant suggests and should not have been

vacated. Finally, we perceive no double jeopardy problem

in allowing the jury to subsequently weigh the aggravating

circumstances and any mitigating circumstances, a balanc-

ing process we have indicated is constitutionally sound, de-

spite the fact that the precise weight to be given each fac-

tor is not calculated as percentages or proportions. People

v. Brownell (1980), 79 Ill. 2d 508, 534.

Defendant raises several issues concerning the constitu-

tionality of the death penalty statute, some of which have

previously been considered by this court and need not be

reexamined here. The statute does not offend the eighth

amendment because the prosecutorial discretion (People ex

rel. Carey v. Cousins (1979), 77 Ill. 2d 531, cert. denied

(1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1693),

and the fact that a formal presentence report is not pre-

sented to the jury does not render the death sentence in-

valid (People v. Gaines (1981), 88 Ill. 2d 342, 72-74).

I, 4

Defendant's further argument that the statute violates the

Illinois Constitution because it allows the sentencing body

to impose death without requiring a finding that the

defendant cannot be restored to useful citizenship was a!so

considered in People v. Gaines (1981), 88 Ill. 2d 342. We

there stated that “the legislature might reasonably have

concluded that the rehabilitative potential of the offender

was not a relevant factor and that the jury need not con-

sider it.” (88 Ill. 2d 342, 382.) We further indicated that

even if a contrary assumption were made, the Act requires

that the jury consider “any mitigating factors which are

relevant to the imposition of the death penalty” (Ill. Rev.

Stat. 1979, ch. 38, par. 9—1(c)), including factors other

than those specified in the Act. We consider that, as in

Gaines, there was no prejudicial error here where defend-

ant did not introduce evidence at the sentencing hearing,

tendered no instruction directing the jury to consider

whether he could be restored to useful citizenship, and his

counsel did not argue to the jury the possibility that

defendant could be rehabilitated. (Although counsel did

mention generally the “concept” of rehabilitation, no argu-

ment was made concerning defendant’s rehabilitative po-

tential.)

Defendant also urges that the death sentencing

“scheme” is defective because it fails to provide adequate

‘comparative review procedures to insure that the penalty

is not imposed in an arbitrary or disproportionate manner.

He contends that this court must, by rule, provide for the

collection of data on all murder cases in the State, so as to

make a comparison between those cases in which the death

penalty is imposed ahd those in which it is rejected by the

sentencing body, in order to guarantee that the penalty is

not being imposed in an arbitrary and capricious manner.

(He has attached an appendix listing several cases in which

the sentencing body rejected the death penalty and several

in which the prosecutor did not request a death penalty

hearing.)

In People v. Brownell (1980), 79 Ill. 2d 508, this court

considered a similar argument. The defendant there urged

that the statute does not provide for adequate review be-

cause it does not require this court to compare all the

cases in which the death sentence is imposed to determine

if it is being imposed uniformly. The court considered the

controlling Supreme Court decisions, the automatic appel-

late review procedures authorized under our statute, and

A -45-

the rules promulgated by this court and concluded:

“The court stated in Prortitt: ‘While it may be true

that [the Florida Supreme Court] has not chosen to for-

mula‘: 1 rigid objective test as its standard of review for

all c. 2s, it does not follow that the appellate review

proc ‘s ineffective or arbitrary.’ (428 U.S. 242, 258, 49

L. E. 24 913, 926, 96 S. Ct. 2960, 2969.) The same was

held «s to the Texas statute. In Jurek it was concluded:

‘By providing prompt judicial review of the jury’s deci-

sion in a court with statewide jurisdiction, Texas has pro-

vided a means to promote the evenhanded, rational, and

consistent imposition of death sentences under law.’ (428

U.S. 262, 276, 49 L. Ed. 2d 929, 941. 96 S. Ct. 2950,

2958.) The same may be said of the review which will be

accorded each similar case before this court. The entire

record undergoes scrutiny for errors and defects. The

sentencing hearing is reviewed with the object of ascer-

taining whether any aggravating factors are proved be-

yond a reasonable doubt. *** Our review of the e

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