Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 4721-Prentice H. Marshall, Judge.
Before CUDAHY, COFFEY, and FLAUM, Circuit Judges.
The petitioner, Daniel J. Kleba, filed a petition for a writ of habeas corpus challenging his convictions in the Circuit Court of Cook County, Illinois on the grounds that he was denied his Sixth Amendment right to counsel. Kleba alleged, inter alia, that he was not represented by the counsel of his choice and that he received ineffective assistance of counsel. Kleba appeals from the decision of the United States District Court for the Northern District of Illinois denying his petition. We affirm.
Daniel J. Kleba in August of 1979 for attempted rape, attempted deviate sexual assault, unlawful restraint, robbery and aggravated kidnapping. The evidence at Kleba's trial in the Circuit Court of Cook County revealed that at approximately 12:45 a.m. on August 3, 1979, one Jane Doe*fn1 was attacked on the street in front of her apartment on the near north side of Chicago as she was returning from work. According to Doe, her assailant hit her in the face, pushed her face down to the ground between two parked cars, and jumped on top of her. He subsequently pulled her to her feet, and with one arm around her neck the assailant forced her to walk toward the adjacent alley. Once in the alley, he led her into a dark gangway and through a gate to a dark yard area. In the yard, the assailant pushed Doe against a garage and began to sexually assault her. According to Doe, at some point during this incident, the assailant removed Doe's watch from her wrist, the watch fell to the ground, and the assailant picked it up. Throughout the assault and sexual attack, Doe was unable to see the assailant's face but she did note that he was a male Caucasian when she observed his hand reaching to the ground to pick up her watch. She also noted and stated that he had alcohol on his breath.
One of Doe's neighbors testified that while in his apartment on the morning of August 3, 1979, he heard a scream at approximately 12:45 a.m. and went out to the street where he observed a male lying on top of another person between two parked cars. The neighbor returned to his apartment and called the police to report the incident. While he was on the telephone with the police, he observed the male with his arm around the victim's neck leading her (he could then identify the victim as a female) towards the adjacent, lighted alley.
Investigator Clarence Oleskiewicz, a plain clothes officer with the Chicago Police Department, testified that he arrived at the crime scene in front of Doe's apartment around 1:00 a.m. in response to a police radiocast. Doe's neighbor directed Oleskiewicz and his partner to the illuminated alley where he had observed the assailant leading Doe. The officers drove through the illuminated alley looking for Doe and her assailant. Seeing no one, they proceeded down a street running parallel to the lighted alley in question, as Oleskiewicz shined the car's spotlight down gangways as they drove. Oleskiewicz eventually observed "a man choking a woman" in the gangway of one of the buildings. When the spotlight shone on the pair, the assailant pushed the victim to the ground and fled northward toward the lighted alley. Oleskiewicz exited his vehicle and pursued the assailant on foot north-ward across the illuminated alley and the headlights of an approaching vehicle, into yards on the north side of the alley. The assailant turned west, cutting across at least one yard, finally running into a locked gate where he was apprehended by Oleskiewicz and "other police officers" who subsequently arrived on the scene and joined in the pursuit. According to Oleskiewicz, the defendant fled approximately seventy-five yards before he caught him and no more than one minute elapsed from the time the chase began until the defendant was apprehended. Oleskiewicz testified that he never lost sight of the assailant from the time the spotlight first flashed upon him as he stood choking Doe until he and his fellow officer apprehended and arrested the assailant, Daniel Kleba, the defendant. The transcript of this testimony reads, in part: "Q. You had lost sight of him though, didn't you on some occasion? A. No, sir, I never lost sight of him. Q. You never lost sight of him at all? A. No sir, I never did." Oleskiewicz testified that following the arrest, he searched Kleba and found a woman's watch in his pocket which Doe identified at trial as her watch.*fn2
Bruce Stefan, an officer who joined the pursuit and assisted in the detention and arrest of Kleba, testified that he and his partner were driving through the lighted alley at the scene of the attack in response to a police radiocast. As they were driving through the illuminated alley, Stefan observed a Caucasian male, subsequently identified as Kleba, dart northward across the alley in the path of the headlight beam of his car. Kleba was being chased by Oleskiewicz who was about ten feet behind. Stefan undertook a lateral pursuit of the assailant, and entered a yard adjacent to the yard where he had observed Oleskiewicz in pursuit of Kleba. According to Stefan, Kleba jumped a fence into the yard where Stefan was waiting, ran into a locked gate, the yard where Stefan was waiting, ran into a locked gate, and was wrestled to the ground by Stefan and Investigator Oleskiewicz. Stefan related that he saw Oleskiewicz search Kleba, discover and recover a woman's watch from Kleba's pocket.*fn3
The defendant Kleba offered a different version of the events of the morning of August 3, 1979. He testified that after making calls on prospective customers for his remodeling business, he stopped for dinner at approximately 9:30 p.m. on the evening of August 2, 1979 in a restaurant a few blocks from the scene of the attack on Doe. At the restaurant, he met a young woman who introduced herself as "Candy" and she invited him to her apartment. They drove to her apartment in his car, located in the same block where the sexual attack occurred. According to Kleba, they arrived at the apartment around 11:00 p.m., he consumed one beer, they engaged in sexual intercourse, and he left the apartment at approximately 1:00 a.m. He stated that as he was walking along the sidewalk to return to his car, a man ran out of a gangway between two buildings, almost knocking him down. Two people then knocked him to the ground from behind and began beating Kleba until he lost consciousness. Kleba claimed that he regained consciousness in a hospital emergency room, with no recollection of how he had gotten there. Kleba denied that he committed the crimes charged and further denied that the watch was found in this pocket.
The defendant retained Samuel Wexler as his counsel and the parties agreed to a trial date of December 12, 1979. Between December 12, 1979 and October 27, 1980, the trial was continued on six occasions, and five of the continuances were attributable to Wexler's ill health. In June of 1980 Bernard Brody filed an appearance to serve as co-counsel for Kleba.
On October 27, 1980 Brody appeared without Wexler, and moved for another continuance because of Wexler's illness, and informed the court that Kleba demanded that Wexler and not he (Brody) represent him at trial. The trial court denied the motion for a continuance and the following exchange took place:
"MR. BRODY: ...I've had a talk with Mr. Kleba, and Mr. Kleba wishes to address the court, with your permission, Judge.
DEFENDANT KLEBA: Your honor, I have discharged Mr. Brody as co-counsel in this case, and I would like for Mr. Sam Wexler to be my lawyer.
THE COURT: Well, of course you remember I said at the time Mr. Brody had filed his appearance that, you know, whoever you got to get into this case as additional counsel certainly is your pleasure, but it would be set for trial and he would be--whatever, he would be made to go ahead with the trial.
You said you wanted Mr. Brody.
MR. BRODY: I think, Judge, he meant that I was to be co-counsel with Wexler. He wanted both. I think that's what he meant.
The trial court denied a motion to withdraw Brody as counsel, and continued the discussion with Brody and Kleba:
"THE COURT: ... Now, one of the conditions of your being out on bail is that you cooperate with the Court in getting this case to trial, and it's been out quite a lengthy time here. It's been put to trial for March 24.
...At this point, I'm beginning to find and to feel that they're just delaying tactics-- using delaying tactics here . . . .
MR. BRODY: Judge, he's discharged me.
THE COURT: I'm not discharging you.
...You're in the case. I'm not allowing any discharge. You're in the case. It's set for trial and today's the trial date and it's going to trial, so--
Kleba waived his right to a jury trial, but the court proceeded to empanel a jury for advisory purposes only, explaining that the court would not be bound by the jury's verdict, but would consider the verdict in making its final determination. Kleba objected to the advisory jury, and the court reversed its earlier denial of a continuance and granted a continuance to research the legal question "as to whether I (the Court) can have a jury to be advisory to the Court where a defendant ...