Appeal from the Circuit Court of Lake County, the Hon. Fred A.
Geiger, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 1, 1986.
Following a jury trial in the circuit court of Lake County, defendant, Robert Kubat, was convicted of the aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10-2) and murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) of Lydia Hyde. In a hearing requested by the People, the jury found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)) and that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death for murder and to an extended term of 30 years' imprisonment for aggravated kidnaping. On direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603), the convictions were affirmed (People v. Kubat (1983), 94 Ill.2d 437 (hereinafter referred to as Kubat I)). A petition for rehearing in this court was denied, and the Supreme Court denied defendant's petition for writ of certiorari. (Kubat v. Illinois (1983), 464 U.S. 865, 78 L.Ed.2d 174, 104 S.Ct. 199.) Defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.), and the circuit court appointed counsel. The People's motion to dismiss the petition, as amended, was denied. Following an evidentiary hearing the circuit court denied defendant's amended petition for post-conviction relief, and defendant appealed. Upon allowance of the People's motion made pursuant to Rule 302(b) (103 Ill.2d R. 302(b)), the appeal was transferred to this court. Because the opinion affirming defendant's convictions contains a comprehensive review of the evidence (94 Ill.2d 437, 446-63), the facts will be stated here only to the extent necessary to discuss the issues.
The testimony at trial (Kubat I) showed that during the evening of November 1, 1979, accompanied by Carolyn Sue Quick, his former wife, defendant visited several bars in the Chicago area. After closing time, they traveled in defendant's station wagon to Kenosha, Wisconsin. During the early morning hours of November 2, 1979, defendant and Ms. Quick stopped at the Kickapoo gas station in Kenosha, where they parked and slept until the station opened. When they awoke, they continued to drive through Kenosha, stopping at several taverns, at each of which defendant consumed boilermakers (an Old Style beer and a shot of Canadian Club) while Ms. Quick drank coffee and grape fruit juice.
The last bar at which they stopped was the Coffee And bar, where Lydia Hyde was alone, bartending. Defendant sat at the bar directly in front of the cash register while Ms. Quick sat to his 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. Defendant told Mrs. Hyde that she was coming with them. Mrs. Hyde was taken to the car, where she sat in the front seat between Ms. Quick, who was driving, and defendant. At defendant's direction, Ms. Quick drove into Illinois. Defendant told her to stop, and she stopped the car next to a road sign. Defendant ordered Mrs. Hyde to leave the car and to hold the sign and face west. As she held her hands up to grasp the sign, defendant shot her in the back of the head. About three weeks later, Ms. Quick met with agents of the FBI and the Illinois Department of Law Enforcement and gave statements inculpating defendant and herself.
Defendant contends first that, in violation of the sixth amendment to the United States Constitution, he was denied the effective assistance of counsel at both the guilt and sentencing stages of his trial. Defendant argues that his counsel were ineffective in that they failed to call alibi witnesses who were available to testify on his behalf, failed to move to suppress illegally seized evidence, failed to thoroughly investigate the case, and failed to present important exculpatory evidence.
The People assert that this court, in defendant's direct appeal, considered and rejected the claim that defendant's counsel were incompetent and that the matter is res judicata. Defendant argues that the contentions made in this appeal are based upon evidence adduced at the post-conviction hearing, that they could not have been previously raised, and that the incompetence created such substantial prejudice that, absent the inadequate representation, the result of the trial would probably have been different. Defendant also charges that defense counsel failed to discover and present at the penalty hearing evidence in mitigation and failed to object to an erroneous instruction which advised the jury that a unanimous verdict was required in order to reject the death penalty.
The parties are in agreement that the question whether defendant received ineffective assistance of counsel must be determined under the standards enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. Although noting that application of the Strickland standards was unlikely to result in findings significantly different from those reached under the tests established by this court in People v. Greer (1980), 79 Ill.2d 103, 120-21 (actual incompetence of retained counsel entitles defendant to a new trial if the incompetence created such substantial prejudice that the trial result probably would have been different), and People v. Royse (1983), 99 Ill.2d 163, 170 (same standard applicable to appointed counsel), this court, in People v. Albanese (1984), 104 Ill.2d 504, adopted the Strickland standards. In People v. Lewis (1984), 105 Ill.2d 226, 245, the court noted its previous summarization of the Strickland standard in People v. Mack (1984), 105 Ill.2d 103:
"`As announced in Strickland, the test for effective assistance of counsel has two prongs:
"First, the defendant must show that counsel's performance was deficient [by] showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (466 U.S.
, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064.)
"In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. * * *
Judicial scrutiny of counsel's performance must be highly deferential. * * * [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" (466 U.S.
, 80 L.Ed.2d 674, 694-95, 104 S.Ct. 2052, 2065.)
"When a defendant challenges a death sentence * * * the question is whether there is a reasonable probability that, absent the errors, the sentencer including an appellate court, to the extent it independently reweighs the evidence would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." 466 U.S. 668, 695, 80 L.Ed.2d 674, 698, 104 S.Ct. 2052, 2069.
In developing the reasonable-probability test, the court stated that it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding, because "[v]irtually every act or omission of counsel would meet that test * * *." (466 U.S. [668, 693], 80 L.Ed.2d 674, 697, 104 S.Ct. 2052, 2067.) On the other hand, the "defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case." (466 U.S. [668, 693], 80 L.Ed.2d 674, 697, 104 S.Ct. 2052, 2068.) The appropriate standard of prejudice, the court stated, should be somewhat lower because "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (466 U.S.
, 80 L.Ed.2d 674, 698, 104 S.Ct. 2052, 2068.) Thus the court settled on the reasonable-probability test and stated:
"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding ...