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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

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

A.

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.
B.
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."

C.

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.

D.

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.

E.

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.

F,

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 °

2

10

15

18

22

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
oe

» 26

23,80

ll
25

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

he

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.

I.
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

9

—

(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

(c) the other felony was one of the follow-
ing: armed robbery, robbery, rape, deviate
sexual assault, aggravated kidnapping,
forcible detention, arson, burglary, or the
taking of indecent liberties with a child; or

(c) CONSIDERATION OF FACTORS IN AGGRAVATION
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
4

(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

6

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.

8

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.

V.
REASONS FOR GRANTING 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 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

10

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).

1]

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

13

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.

14

B.

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.

15

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

16

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.

17

C.
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).

18

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

19

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

20

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.

21

D.

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
22

(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.

is

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.

25

F.
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.

26

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

27

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-

al

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
2.

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-

a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1445%3A1. Public record. Not legal advice.