People v. Kubat (94 Ill. 2d 437, 1983)

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 murder 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 existence of statutory aggravating factors and determined that there were no mitigating factors sufficient to preclude the imposition of the death sentence. The trial court accordingly sentenced defendant to death for the murder and to an extended term of 30 years’ imprisonment for the aggravated kidnaping. Defendant appeals directly to this court pursuant to article VI, section 4(b), of the 1970 Constitution and our Rule 603 (73 Ill. 2d R. 603).

Defendant alleges 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, alongside 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 participant in the abduction of Mrs. Hyde. The State’s Attorney of Lake County had agreed to dismiss the aggravated kidnaping charges pending against her in exchange for her testimony.

Quick had been married to defendant twice; they had no children. She was also divorced from her first husband, Gwen Quick, with whom she had three children. Her marriage to defendant in June 1976 ended in a divorce in September 1977. She and defendant remarried in late August 1979, while she was hospitalized for an operation. She testified that she had only a partial recollection of this marriage 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, following their divorce and lived together not infrequently until they remarried. Prior to her second marriage to defendant, Quick had also lived with Larry (Ray) Flatoff for approximately one month at his trailer-house in South Bend, Indiana. She left Fla-toff’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-cali-ber revolver and holster on that date, and she and defendant returned 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 testified, defendant was sleeping, while Quick slept on the floor. Apparently unhappy with that arrangement, Quick left in mid-September and returned to Flatoff’s residence in South Bend. At about that time, she consulted her attorney 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 jury. She stated that Flatoff did not have a cleft chin.

Quick’s testimony concerning the events which preceded and followed the death of Lydia Hyde was as follows: 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 sleeping accommodations. The three returned to Des Moines in the early morning of November 1, at which time Quick retrieved her car and followed the two men back to Chicago. Quick went to the residence of Emily Gabriel, defendant’s sister, in Tinley Park. She stayed there until approximately 10:30 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 meet at an intersection on the way to the lounge, and changed plans with Quick following defendant to the Nugget 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 defendant’s station wagon and proceeded to Kenosha, Wisconsin. Quick left 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 station 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 left the Back Door after being informed by an employee that the restaurant was closed. They then went to the Sunnyside restaurant 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 coat with a black collar. It was shortly after 11 a.m.

The couple sat at the bar in the Back Door, and defendant 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 sandwich. Quick commented about the owner’s “beautiful gray hair,” and an employee, Sandra Lawson, who had previously 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 cash 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 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 beer 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, fatally wounded. Defendant got back into the car, and Quick drove on to the Illinois Tollway.

The next stop defendant and Quick made was in Stickney, Illinois, at Valentine’s restaurant. Defendant ordered lunch and an Old Style beer with a shot of CC. They left 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 Candlelight Theater. Quick handed Thomas, who was bartending, the three glasses she had taken from the Coffee And bar 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 car at Ed’s Grill and went to the Brookfield Motel. Defendant cancelled their theater reservations and placed a call to his brother, Richard, and Francine Bejda.

Defendant left the motel the following morning about 7 a.m.; Quick left about 11 a.m. and drove to Joy Jesuit’s 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 left 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 Olczak, who advised Quick to talk to the FBI. She subsequently met with agents of the FBI and the Illinois Department of Law Enforcement on November 23 and 24, and gave written statements.

On November 27, Quick appeared in court, testified that her second marriage to defendant was never consummated, 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 annulment proceeding, Quick equivocated, conceding the possibility 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 report 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 displayed 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 intended 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 witnesses, some of whom were able to positively identify defendant as her companion. Paul Kacelak, defendant’s co-worker on the trip to Nevada, testified that he, defendant and defendant’s girlfriend or former wife made the trip to Nevada on October 27. He stated that they returned 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 7:30 or 8 a.m. that morning, the couple “straightened up beddings, folded a blanket,” and pulled up to the pumps. She stated that the man went to the washroom, the woman paid for the gas, and the couple drove away.

Mary Sands was employed as a waitress at the Chat and Chew restaurant in Kenosha on the morning of November 2. She testified that a woman came into the restaurant 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 office, shortly before the witness testified.

Nick Bastían 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 November 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 testified 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. Lopez testified that the Back Door was a neighborhood bar frequented by few strangers; 98% of his business came from the American Motors plant in the area. Mr. Lopez testified that defendant 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 change that were already wrapped. He spoke to defendant for 20 to 25 minutes at a distance of 3V2 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 day.” 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 identified a photograph of defendant on two separate occasions. On cross-examination, it was established that he had previously made a written statement in which he stated, “[S]ome days later officers showed me some pictures. I picked out a picture of the female right 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 witness was preparing for the noon-lunch-hour crowd while the couple sat at the bar. She, too, testified that the patrons 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 Attorney and several lawyers and detectives, left the bar just before noon.

Nora Lopez identified 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 50 minutes, and that she served them a sandwich. Mrs. Lopez was preparing food for the lunch-hour crowd and did not engage in a conversation with the couple. She also testified that she had identified 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 females. 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 restaurant and lived upstairs with Julie Lewis, the owner of the bar. He testified that, at approximately 12:30 p.m., on November 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 returned 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 officers 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 parking lot.

Dorothy Hawley testified that she spent the night in the apartment above the Coffee 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 bar 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 November 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.

Julie Lewis testified that Mrs. Hyde, who had been employed 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. Julie 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 standard unmarked bar glasses that she bought from a wholesale store.

Delores Padgen, who owned M & D’s bar with her husband, Michael, testified that defendant and his wife, “Pat or Carol,” came into her bar at 3 or 3:30 p.m. on November 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. Either defendant or Quick also stated that they had tickets to go to the Candlelight theater that evening. Mrs. Padgen testified that her husband gave defendant a case of paper towels that had previously been ordered, for which defendant paid $23 in cash.

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 conceded 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 testimony, he saw defendant in the courtroom. Defense counsel’s “strenuous 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 thought 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, either 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 identified in court, was in M & D’s bar on November 2 while Thomas was bartending. He testified that defendant arrived 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 defendant was seated at one of the two tables about 15 feet from the bar. When asked how he remembered the date, he replied that the only reason he remembered was because it was Friday, one of his busiest afternoons.

Vashanti Parikh worked at the Brookfield Motel on November 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 years. 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 Rubber Company, testified that defendant, whom he identified in court, purchased five new tires and two wheels on November 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 sheriff’s department testified that he interviewed Mr. and Mrs. Lopez separately at the Back Door bar on November 26, 1979. After viewing a color photographic display, Mr. Lopez 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 identified 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 sheriff’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 photographic display consisting of seven black and white photographs of different men. Mr. Lopez identified the photograph of defendant. Detective Douma subsequently met with Mrs. Lopez and Sandra Lawson at the Back Door bar on February 26, 1980. These witnesses viewed a different black and white photographic display at separate times. Mrs. Lopez positively identified the photograph of defendant. Sandra Lawson identified the photograph of defendant, but then indicated that she was not certain whether he looked familiar because of a picture she had seen of him in the newspaper.

Ray Flatoff, a truck driver, also testified on behalf of the State. He drove a pickup truck and did not own an automobile He was 33 years old, 5 feet 11 inches tall, and weighed approximately 170 pounds. The record indicates that he does not have a cleft chin, and the jury was able to so observe. He was acquainted with Dorothy Hawley.

Mr. Flatoff 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 Olczak, 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 September 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. Olczak further testified that Quick again contacted him on November 21, 1979, and on November 23 he contacted the FBI. He and his client and Ray Flatoff subsequently met with agents of the FBI, and on November 24 they met with several agents of the Illinois Department of Law Enforcement. Mr. Olczak stated that, during the course of these meetings, he had not obtained any promises 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 November motel conference in South Bend with Quick, her attorney, Flatoff, members of the FBI, agent Marshall of the Illinois Department of Law Enforcement, and Sergeant Douma of the Kenosha County sheriffs department. He stated that no promises were made to Quick prior to the meeting.

On January 3, 1980, while Quick was in custody, she accompanied agent Hamm, agent Marshall, Sergeant Douma, and an assistant State’s Attorney to Kenosha and retraced the steps she and defendant had taken on November 1 and 2, 1979. Their first stop was the Kickapoo gas station. They then proceeded to the Chat and Chew restaurant, which was a mile, to a mile and a half east of the gas station. Next they drove to the Sunny-side bar, where Nick Bastían was bartending. Mr. Bastían 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 Coffee 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 Hamm 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 behalf of the State. He essentially corroborated Quick’s testimony concerning the meetings and the fact that no promises were made to Quick on November 23 and 24.

Inspector Loren Williams, an evidence technician with the Illinois Department of Law Enforcement, testified that he arrived at the scene of the crime at approximately 3:30 p.m. on November 2. He secured evidence, including the victim’s clothing, eyeglasses and denture plate, blood samples from her head, fragments from her brain, hair standards, finger and palm prints. He also took photographs and prepared a plaster casting of what appeared to be fresh tire tracks. He subsequently transported the evidence to the crime laboratory in Maywood.

Further evidence produced by the State included the testimony of Michael Podlecki, a forensic scientist. Several hairs found in the front seat of defendant’s car were consistent with the known hairs taken from the victim. Several other distinct hairs taken from the car were consistent with defendant’s. None were consistent with Quick’s hair.

Office Allan Marshall of the Illinois Department of Law Enforcement was one of the officers who arrested defendant on November 24, 1979, at defendant’s residence in Lyons, Illinois. Officer Marshall testified that Francine Bejda was also present in defendant’s home at the time of the arrest. After defendant was advised of his rights and transported 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 investigators 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 alibi 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 photocopy of a rent check, dated November 2, 1979, payable to defendant, who was Francine Bejda’s landlord, was admitted 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. Schultz’ testimony, when Francine Bejda came to the office, she was accompanied by a “man with a hat and glasses, about 5 feet 11, not particularly big, not particularly small,” who stood in the hall. Mrs. Schultz identified People’s exhibit No. 58 as similar in style to the hat the man 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 signatories, 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 Tesnohlidek, 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 a.m. on November 2, 1979. Also present on that date was a regular customer, Charlie. She identified Quick’s photograph as the woman to whom she was referring. She had identified the same photograph previously when the police showed it to her on June 5, 1980. The witness was positive that it was Sue who was with defendant on November 2; however, she stated that Sue had much shorter hair on that date than she did in the photograph. The photograph, 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 attempted to cash a check on November 2, 1979, and she identified the check to which she was referring as defendant’s exhibit No. 9(B). She did not cash the check.

Mario Brajkovich, the owner of a Chicago bar, also testified on behalf of defendant. He had known defendant for approximately 12 years, and heard about defendant’s arrest 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 arrived. 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 exhibit No. 9(B), which was endorsed by Mr. Brajkovich, was identified 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 defendant.

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 before 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 marriage license. Quick had asked if she could have a small reception after the wedding at the witness’ bar. The reception 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 ceremony 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 ceremony, and did not appear to be under sedation or medication.

Mary Cooper, testifying for the defense, had known defendant and Quick for several years. She and her husband had seen them quite frequently prior to July 1979. Mrs. Cooper testified that Quick told her at that time that 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 from the hospital, and she appeared very happy.

The final defense witness was Stephen Martin, a law student, who had previously 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 Assistance. She testified that, on November 2, 1979, she left her home in La Grange 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 recall 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 office during business hours 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, 1980, he interviewed Lillian Tesnohlidek and Mario Brajkovich. Agent Hamm stated that the former told him that she was positive that defendant was with his wife, Carolyn Sue Quick, when he was in her bar the preceding November. She knew Quick and also identified her photograph. Mr. Brajkovich told Officer Hamm that he had last seen defendant five weeks prior to his arrest, sometime in October, and that defendant was accompanied by a woman, not his wife, of either Mexican or Italian descent, approximately two inches taller than defendant. Officer Hamm 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 Ill. 2d 346, People v. Williams (1976), 65 Ill. 2d 258, People v. Hermens (1955), 5 Ill. 2d 277, and People v. LaCoco (1950), 406 Ill. 303, that the only evidence linking him to the offenses charged was the discredited testimony of an accomplice 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, 1979. There is no dispute that she was in Wisconsin on November 2, and that she was present when Mrs. Hyde was kidnaped and later murdered in Illinois. Several witnesses in Wisconsin and Illinois positively identified defendant as her companion on that day. Further, the State’s witnesses corroborated details related by Quick, including conversations, times, the couple’s actions and drinking pattern. The defendant’s “alibi” evidence, 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 evidence and factual disputes and weigh the credibility of the witnesses. People v. Lewis (1981), 88 Ill. 2d 129, 151-53; People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Clark (1972), 52 Ill. 2d 374, 387. In our judgment, the testimony as well as the physical evidence overwhelmingly supports the verdicts of guilty, and we must accordingly reject defendant’s contention that a reasonable doubt as to his guilt exists.

Defendant next argues that the photographic identification procedures utilized by police were unnecessary and improper and so “impermissibly suggestive and conductive to misidentification” as to deny defendant due process of law. Following an extensive two-day hearing, defendant’s motion 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 testimony of Nick Bastían.

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 witness a photographic display to determine whether they could identify people who were in the bar the morning of the preceding November 2. Each individual was interviewed 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 photograph had a different color background; 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 defendant was somewhat 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 hanging on a wall in the background. Defendant was the only man wearing glasses.

Detective Myhre testified that Jesse Lopez, who looked at the photographs one at a time, stated that the photograph 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 photograph of defendant, stating that “she was as sure as she could be” that he was the man who was in the bar, although 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 interviewed 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. Lopez 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 Lopez was at the south end of the bar during this interview. Sergeant Douma asjted 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 positively [identified] this photo”; he also initialed the photograph and dated it.

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 photographic 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 reliability 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 v. United States (1968), 390 U.S. 377, 385-86, 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. Jackson (1973), 54 Ill. 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, absent extenuating circumstances justifying their use. People v. Williams (1975), 60 Ill. 2d 1, 9; People v. Jackson (1973), 54 Ill. 2d 143, 147-48; People v. Holiday (1970), 47 Ill. 2d 300, 306-07.

The police here were faced with the task of interviewing numerous potential witnesses at a time when they were simply attempting to discover whether any nonoccurrence 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 station-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 remember seeing a couple earlier that month at their establishment or whether they could make an identification. Thus, we do not believe that the initial photographic identification procedures were improper.

Nor do we believe that the first color photographic array 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, 88 S. Ct. 967, 971). That the photograph 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. Moreover, the Lopezes positively identified defendant in the subsequent array in which he was pictured entirely differently and without eyeglasses, which indicates that their initial identification was not based primarily upon the “differences” to which defendant points. Finally, the record establishes 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 separately and at a distance from the others; such a procedure resulted in independent identification, free from the damaging influence which might have inured had the witnesses been in the presence of each other when making the identification. See People v. Williams (1972), 52 Ill. 2d 455, 463-64.

The fact that the subsequent photo arrays were not inherently 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 (1975), 60 Ill. 2d 1, when considering the propriety of an array containing several photographs of the defendant, the court noted that “the use of multiple, identical or obviously similar, photographs of the same person is normally an undesirable photographic identification procedure.” (60 Ill. 2d 1, 10.) Because the photos of the defendant in Williams were so dissimilar, the court found no evidence of suggestiveness. (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 subsequent interviews. Once the persons interviewed had identified the defendant’s photograph, albeit tentatively, the possibility 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 photographic identification technique. (See People v. Holiday (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 Lopezes. Nor do we believe that impropriety should have resulted 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. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253; Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382; see also People v. McTush (1980), 81 Ill. 2d 513, 521; People v. Manion (1977), 67 Ill. 2d 564, 571, cert. denied, (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Both Jesse and 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. 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 witnesses, while occupying themselves with routine tasks during the conversation, were attentive during the conversation. 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 photograph 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 photographic and in-court identifications. We accordingly conclude that the in-court identifications made by the Lopezes were clearly reliable and therefore properly admitted. People v. McTush (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. 2d 38, 44.) 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.

Defendant’s further argument that the trial court erred in failing to sua sponte instruct the jury concerning the possibility of mistaken identification is unpersuasive. He contends that the dangers inherent in eyewitness identification 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 not premised upon a “combination of suggestive photographic displays,” and we therefore cannot agree that there existed specific risks in this case which made such an instruction necessary to protect defendant’s right to a fair trial. Further, the trial court is ordinarily under no obligation to give instructions not requested by the parties (People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Underwood (1978), 72 Ill. 2d 124, 129) and under the circumstances of this case, the instructions given on the credibility of witnesses generally, 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. Fox (1971), 48 Ill. 2d 239, 249; see also Illinois Pattern Jury Instruction, Criminal, No. 3.15 (2d ed. 1981) — Circumstances of Identification. “The Committee recommends that no instruction be given on this subject. It should be adequately covered by the general instruction on believability of witnesses.”

Defendant raises several issues concerning his representation: 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 interest, 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, after the court determined that defendant was indigent. A private attorney, Charles Kopeny, had appeared on defendant’s behalf solely for an earlier bond hearing. At the arraignment on December 3, the assistant State’s Attorney advised the court that defendant was charged with aggravated kidnaping and murder and announced that the State would seek the death penalty. Defendant stated that he was 44 years old, and attorney Pease informed the court that defendant had read the charges against him and understood the possible penalties. A formal reading of the indictment 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 preparation 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 Pease advised the court that potential witnesses in Indiana had been interviewed and that the investigation was proceeding in southern Wisconsin 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 hearing, after receiving a written motion from defendant entitled “Amended Motion For Change of Attorney”; several 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 attorney 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 pressured his investigator to drop charges against a State representative. 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 justice, although the newspaper account related that the grand jury released a report in which it stated that attorney Pease’s attitude had “led to the exercise of poor judgment” in the State representative case.

The affidavits were dated January 6, 1980, the day before 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 John Gabriel and Francine Bejda. Mr. Gabriel, a “family member,” stated that he had been unable to