People v. Kubik

573 N.E.2d 1337, 214 Ill. App. 3d 649, 158 Ill. Dec. 152, 1991 Ill. App. LEXIS 856
CourtAppellate Court of Illinois
DecidedMay 21, 1991
Docket1-87-1525
StatusPublished
Cited by13 cases

This text of 573 N.E.2d 1337 (People v. Kubik) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kubik, 573 N.E.2d 1337, 214 Ill. App. 3d 649, 158 Ill. Dec. 152, 1991 Ill. App. LEXIS 856 (Ill. Ct. App. 1991).

Opinion

JUSTICE DiVITO

delivered the opinion of the court:

Following a jury trial, defendant James Kubik was found guilty of murder, rape, and conspiracy to commit both murder and rape. (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1, 11—1, 8—2.) He received consecutive prison terms of 40 years for murder and 30 years for rape. The circuit court had denied a motion for severance and, during the joint trial, admitted defendant’s confession with the interlocking confessions of two nontestifying codefendants. Defendant appealed, his conviction was affirmed (People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744), and the Illinois Supreme Court denied leave to appeal. Defendant appeals from the dismissal of his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.).

Defendant was tried jointly with codefendants Daniel Visnack and Randall Weidner for the rape and murder of Visnack’s wife. Defendant’s confession revealed the following. On August 6, 1979, Visnack offered defendant and Weidner a car, money, and a gun in exchange for the murder of Sharon Visnack. On the morning of August 7, 1979, defendant and Weidner went to Visnack’s apartment and gained access with a key that Visnack had provided. Defendant entered Sharon’s bedroom, grabbed her, tied her hands behind her back, taped her mouth with duct tape that he had brought from his home, and raped her. He then went through the apartment looking for something to take. Later, defendant placed a plastic bag over Sharon’s head and secured it with duct tape. After she managed to rip the bag off her head, defendant placed another plastic bag over her head and used more duct tape. Sharon could not free herself and died from asphyxiation.

Defendant stated that since he wanted the intrusion to look like a burglary, he “messed up” the apartment. To hide the fact that he had a key, defendant found a screwdriver in Visnack’s toolbox and used it to break the lock on the door. Thereafter, he returned to his parents’ home and burned some of his clothing as well as Visnack’s screwdriver in his barbecue grill.

On August 14, 1979, defendant was arrested by Officer Kelly Matthews of the Calumet City police department; he was advised of his constitutional rights and taken to the police station. At the station, defendant again received his constitutional rights and he confessed to the crimes. Later, defendant gave a second confession in the presence of several police officers, an assistant State’s Attorney, and a court reporter. His confession was corroborated by the condition of the body and the evidence found at the crime scene.

The police also found independent evidence linking defendant to the rape and murder. At the time of his arrest, police officers matched defendant’s shoeprint with a print they had found on a plastic bag at the crime scene. During a search of defendant’s residence, police found a roll of duct tape that matched a piece taken from Sharon’s body. A search of defendant’s grill revealed the screwdriver that he had used to break the lock on Visnack’s door. Codefendants Visnack and Weidner also gave confessions which revealed the same basic facts contained in defendant’s confession.

Prior to trial, defendant filed a motion to suppress the confessions. He asserted that they were the product of an earlier statement to him by Officer Matthews to the effect that he would get the electric chair if he did not give a statement. He also asserted that he had informed a priest about Matthews’ alleged threat, although the priest had not heard the threat and could not substantiate what defendant had told him.

At the hearing on the motion, defendant reiterated his contention that his confession was involuntary. The priest’s testimony was not offered and defendant’s attorney did not call every State witness who was present when defendant gave his second confession. The circuit court denied the motion to suppress the confessions as well as a motion for severance which had also been filed.

During their joint trial, none of the codefendants testified. The jury heard the confessions, including a tape recording of Visnack’s confession. The circuit court instructed the jury to consider each codefendant’s confession only against the one who gave it. The independent evidence linking defendant to the rape and murder was also admitted.

On direct appeal, defendant argued, inter alia, that the circuit court erred in denying defendant’s motion for a severance and that the prosecutor’s improper comments during closing argument resulted in prejudice. As noted previously, defendant’s conviction was affirmed and the Illinois Supreme Court denied leave to appeal.

Subsequently, defendant filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Illinois. On September 17, 1986, defendant voluntarily dismissed the petition. On September 18, 1986, defendant filed for relief under the Post-Conviction Hearing Act. The State responded with a motion to dismiss. On May 17, 1987, the circuit court granted the motion without an evidentiary hearing. This appeal followed.

I

Defendant first maintains that his rights under the confrontation clause of the sixth amendment to the United States Constitution were violated through the admission of his nontestifying codefendants’ interlocking confessions at their joint trial. He argues that the Supreme Court’s pronouncement in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, created a new procedural rule that bars the admission of a nontestifying codefendant’s interlocking confession. In the alternative, defendant argues that Cruz reaffirmed a more venerable interpretation of the confrontation clause. Under either analysis, defendant maintains that Cruz should be applied retroactively on collateral review. He therefore argues that the circuit court’s dismissal of his post-conviction petition without an evidentiary hearing was error.

The State maintains that defendant raised this issue on direct appeal, albeit before Cruz was decided, and therefore collateral review is precluded by the doctrine of res judicata. The State also argues that Cruz should not be given retroactive application on collateral review. Alternatively, the State maintains that the admission of the two nontestifying codefendants’ confessions constituted harmless error in light of the overwhelming evidence against defendant.

The Post-Conviction Hearing Act provides that “[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Ill. Rev. Stat. 1985, ch. 38, par. 122—1.) (Compare Illinois’ collateral review mechanism with the writ of habeas corpus, 28 U.S.C. §2254 (1988).) The purpose of the Act is “to afford to the convicted an opportunity to inquire into the constitutional integrity of the proceedings in which the judgment was entered.” People v. Pier (1972), 51 Ill. 2d 96, 98, 281 N.E.2d 289, 290. See People v.

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Bluebook (online)
573 N.E.2d 1337, 214 Ill. App. 3d 649, 158 Ill. Dec. 152, 1991 Ill. App. LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kubik-illappct-1991.