Kubat v. Thieret

Citation867 F.2d 351
Decision Date15 March 1989
Docket Number88-1520,Nos. 88-1440,s. 88-1440
PartiesRobert KUBAT, Petitioner-Appellant, Cross-Appellee, v. James THIERET, Warden, and Neil F. Hartigan, Attorney General of Illinois, Respondents-Appellees, Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David E. Bindi, Asst. Atty. Gen., Chicago, Ill., for petitioner-appellant, cross-appellee.

Jonathan Haile, James C. Craven, P.C., Springfield, Ill., for respondents-appellees, cross-appellants.

Before FLAUM, RIPPLE and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Petitioner Robert Kubat was convicted by a jury in Illinois state court of aggravated kidnapping and murder. After a separate sentencing hearing, the same jury sentenced Kubat to death. On direct appeal, the Illinois Supreme Court affirmed both the conviction and the death sentence. People v. Kubat, 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247 (1983) ["Kubat I "], cert. denied, Kubat v. Illinois, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). Kubat filed a petition for post-conviction relief. After an evidentiary hearing, the Illinois trial court denied the petition, and the Illinois Supreme Court affirmed. People v. Kubat, 114 Ill.2d 424, 103 Ill.Dec. 90, 501 N.E.2d 111 (1986) ["Kubat II "], cert. denied, Kubat v. Illinois, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987), reh'g denied, Kubat v. Illinois, --- U.S. ----, 107 S.Ct. 2471, 95 L.Ed.2d 879 (1987). Kubat then filed a petition for a writ of habeas corpus asking the district court to vacate both his conviction and his sentence. The district court denied the petition with respect to Kubat's conviction, but granted the petition with respect to his sentence. Kubat v. Thieret, 679 F.Supp. 788 (N.D.Ill.1988). Both Kubat and the state appeal from the adverse portions of the district court's order.

Kubat challenges his conviction on the following grounds: (1) violation of due process resulting from impermissibly suggestive photo identification procedures and unreliable in-court identification testimony; (2) violation of the sixth amendment right to effective assistance of counsel during trial; and (3) violation of due process by the trial judge's failure to instruct the jury, sua sponte, on a lesser included offense. With respect to the death sentence, the state challenges the district court's ruling that: (1) counsel rendered constitutionally ineffective assistance during the sentencing hearing; and (2) the trial judge committed plain error when he instructed the jury that a unanimous verdict was required to preclude imposition of the death penalty. In addition, the state points out that should this court reinstate Kubat's sentence, we would be required to address constitutional objections to the Illinois death penalty statute raised in Kubat's petition. For the reasons stated in this opinion, we affirm the judgment of the district court, and we therefore do not reach the constitutionality of the statute.

I.

The facts of this case have been set out in detail in two prior state court opinions, Kubat I, 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247; Kubat II, 114 Ill.2d 424, 103 Ill.Dec. 90, 501 N.E.2d 111, and thoroughly reviewed in the district court's opinion, Kubat v. Thieret, 679 F.Supp. 788 (N.D.Ill.1988). The following summary is abstracted from those opinions and from the trial transcripts and presents only the facts relevant to this appeal. The parties do not dispute the state court factual findings and, pursuant to 28 U.S.C. Sec. 2254(d), we presume their correctness.

In the early afternoon of November 2, 1979, the body of Lydia Hyde was found along a highway in Illinois, near the Wisconsin border. Ms. Hyde had been shot in the head at close range. The chief prosecution witness was Carolyn Sue Quick, former wife of defendant Kubat and admitted participant in the abduction of Ms. Hyde. In exchange for her testimony, the state dismissed the charges against her.

Quick testified as follows. At approximately 11:00 p.m. on November 1, 1979, she met Kubat at a bar in the Chicago area. They stayed at the bar until past midnight, visited a second bar, and in the early hours of November 2 drove to Kenosha, Wisconsin, in Kubat's white station wagon. In Kenosha, they parked and napped at a gas station until morning and then visited several restaurant/bars, including the "Back Door" and the "Coffee And."

When the couple first reached the Back Door, an employee informed them that the restaurant was closed. They returned shortly after 11:00 a.m. when the restaurant opened. While there, they had a lengthy conversation with the owner, Jesse Lopez. The owner's wife, Nora Lopez, served them a sandwich, which they shared. They spoke to Sandra Lawson, the employee who had earlier informed them that the restaurant was closed. Quick commented about the owner's "beautiful gray hair," and Sandra Lawson responded to the effect that "it ought to be pretty, he combs it all the time." Sandra Lawson asked if they would be staying for lunch, and Kubat responded that they would be leaving shortly.

After leaving the Back Door, Kubat and Quick drove to the Coffee And where Lydia Hyde was alone, bartending. While the two sat at the bar, a man came down from upstairs, mixed two drinks, and left. A woman later came downstairs, mixed drinks, and left. Kubat then displayed a gun and directed Ms. Hyde to put the money from the cash register in a bag. Kubat directed Quick to empty the glasses from which they had drunk and place them in her purse. Quick and Kubat forced Ms. Hyde into Kubat's car and drove across the state line into Illinois. They stopped at a roadside sign where Kubat told Ms. Hyde to get out of the car, hold the sign, and face west. As Ms. Hyde complied, Kubat shot her in the head.

Kubat and Quick then visited several more bars, including the "M & D" lounge where the two had a conversation with the owners, Michael and Delores Pagden, and their son, Thomas Pagden. Quick gave Thomas Pagden the glasses she had taken from the Coffee And.

That night, Kubat and Quick stayed in a motel. Kubat left the following morning at about 7:00 a.m. Thus, according to Quick's testimony, she was continuously with Kubat from 11:00 p.m. on November 1 to 7:00 a.m. on November 3.

The state presented numerous witnesses to corroborate Quick's testimony. The witnesses included Jesse Lopez, Nora Lopez and Sandra Lawson from the Back Door; the man and woman at the Coffee And who had separately come downstairs, mixed drinks, and left; Michael, Delores, and Thomas Pagden from the M & D; and various employees from the other establishments that Quick testified she and Kubat had visited. Many of the witnesses corroborated that a couple had visited their establishment and corroborated details of the visit but did not identify Kubat as the male of the couple. Five witnesses did identify Kubat as the male: Jesse Lopez, Nora Lopez, Sandra Lawson, Delores Pagden, and Thomas Pagden.

Kubat presented an alibi defense, contending as follows. On the morning of November 2, 1979, Kubat accompanied a friend, Francine Bejda, to the General Assistance office in Lyons Township where she picked up a rent-assistance check which was payable to Kubat as Bejda's landlord. At approximately 11:00 a.m., Bejda and Kubat visited "Lil's Tavern" in Chicago where they spoke to the owner, Lillian Tesnohlidek, and a regular customer, Charles Fleisig. Kubat attempted to cash the check at Lil's, but Ms. Tesnohlidek refused to cash it. The two then stopped at Mario Brajkovich's tavern in Chicago. Mr. Brajkovich cashed the check.

The alibi was presented through the testimony of Nancy Schultz, Lillian Tesnohlidek, and Mario Brajkovich. The check, dated November 2, 1979, was also introduced into evidence. Nancy Schultz, a caseworker at General Assistance, testified that Bejda and a man fitting Kubat's description picked up the check on November 1 or 2. Lillian Tesnohlidek testified that Kubat, whom she had known for several years, visited her bar at approximately 11:00 a.m. on November 2 and asked to cash the rent-assistance check, but that she refused to cash it. 1 She testified that while at the bar Kubat had a conversation with another customer named Charlie. She also testified that Kubat was accompanied by his wife, "Sue" (not Bejda). Mario Brajkovich testified that he heard of Kubat's arrest about a week after it occurred, that four weeks earlier, on a Friday (indicating November 2) Kubat and a woman, not his wife, had visited his bar, and that on that day he cashed the rent-assistance check. The defense also called two witnesses to impeach Quick's credibility as to details of her marriage to Kubat and one witness to impeach Delores Pagden's testimony as to the date on which Quick and Kubat had visited her bar.

On rebuttal, the state called Ann Painter, the supervisor of General Assistance who had signed the rent-assistance check. She testified that she was not in her office during business hours on November 2, 1979; that she would not have signed the check prior to that date; and that therefore the check could not have been delivered to Francine Bejda on that date.

Additional facts will be developed in the course of this opinion.

II.

As stated above, Kubat challenges his conviction on three grounds: (1) unreliable identification testimony; (2) ineffectiveness of counsel; and (3) failure to instruct on a lesser included offense.

A. Identification Testimony

Kubat challenges the trial court's refusal to suppress the identification testimony of Jesse Lopez, Nora Lopez, and Sandra Lawson (the owners and employee at the Back Door). The facts of their identification are as follows. On November 26, 1979, three and a half weeks after the murder, police exhibited five color polaroid photographs to the personnel at the Back Door. Although all three witnesses were...

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