Kustok v. Mitchell

1

ALLAN KUSTOK, Petitioner, v. DAVID MITCHELL, Respondent.

No. 21 C 6932

United States District Court, N.D. Illinois, Eastern Division

May 8, 2023

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, DISTRICT JUDGE:

In 2014, Allan Kustok was convicted of first degree murder after a jury trial in the Circuit Court of Cook County. The trial court sentenced him to a sixty-year prison term. In 2021 after exhausting the state court appellate and post-conviction process, Kustok filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Kustok asserts in his petition that his trial counsel rendered unconstitutionally ineffective assistance. For the reasons stated below, the Court denies Kustok's petition.

Background

Just before 7:00 a.m. on September 29, 2010, Kustok arrived at Palos Community Hospital with the deceased body of his wife Anita "Jeannie" Kustok.^[1]He told medical professionals that Jeannie had been shot in the head after a gun accidentally discharged in their bed around 5:30 that morning. Kustok stated that Jeannie had brought the gun to bed because she was afraid an intruder would break into their home. He said that he did not immediately call 911 or seek medical care because he could tell she was dead. Kustok also said that he considered shooting himself with the gun but decided against it and discharged the five remaining bullets into nearby furniture. He then sat with and held Jeannie for awhile before attempting to clean the blood from her body and taking her to the hospital. Jeannie was pronounced dead shortly after her arrival, and Kustok was eventually charged with first degree murder.

A. State court proceedings

1. Kustok's trial

a. Prosecution witnesses regarding the Kustoks' relationship

During the prosecution's case at trial, several witnesses testified regarding Jeannie and Kustok's relationship. The pair had been married for over thirty years and raised two adult children by the time of Jeannie's death, and friends and family members-including their daughter Sarah Kustok-stated that they were not aware of any marital strife between the two.^[2]Sarah testified that her mother was worried about home intrusions and burglaries in the neighborhood and did not like spending nights alone in the couple's Oak Park home when Kustok traveled out of town for work. Sarah also stated that she sometimes stayed at the Kustok home while Kustok was travelling to keep Jeannie company, and she slept in the same bed as Jeannie on those occasions.

Sarah and other family members said they did not know of any firearms in the house, and Sarah said that Jeannie never brought a gun to bed when Sarah slept over. Two of Jeannie's close friends, however, testified that during a conversation about being home alone at night Jeannie told them that she and Kustok had a gun. The manager of a local gun store confirmed that he sold Kustok a gun in June 2009, and he stated that Kustok did not mention home defense when purchasing the gun but said it was for target practice.

Five women testified at trial regarding Kustok's extramarital relationships. All the women had romantic encounters with Kustok during his marriage, ranging from a single meeting to a five-year relationship. Two of the women with whom Kustok had one-time encounters stated that he told them he was unhappy in his relationship or planned to get a divorce. The woman with whom Kustok had a five-year relationship testified that he "never spoke ill of" Jeannie and had no plans to leave his marriage. Resp.'s Answer, Ex. O ("Resp. Ex. O"), at 3036-37 (dkt. no. 22). The friends and family members who testified said they were not aware of these extramarital relationships at the time.

b. Prosecution witnesses regarding events of September 29

The prosecution called various medical professionals and police department personnel to testify regarding the events of September 29, 2010. A nurse and doctor both stated that they spoke with Kustok when he arrived at the hospital with Jeannie's body, and two police officers said they questioned Kustok about the events of that morning. Collectively, these witnesses testified that Kustok said (1) Jeannie woke up around 3:30 a.m. after hearing a noise and asked Kustok to investigate; (2) both of them went back to sleep after Kustok checked the house and found nothing; (3) Kustok heard a gunshot around 5:30 a.m. and saw that Jeannie had been shot; and (4) Kustok cleaned Jeannie's body and sat with her before going to the hospital approximately ninety minutes later.^[3] One of the officers said he collected Kustok's clothing and glasses, while an investigator testified to finding various bloodstained pillows, bedding, towels, and clothing and an armoire with five bullet holes at the Kustoks' home.

Various forensic scientists testified about the physical evidence. A scientist specializing in firearms stated that the gun "had single and double-action trigger modes" to prevent accidental discharge and that it "should not discharge if dropped in singleaction mode," while another scientist testified that the gunshot residue (GSR) test results indicated that Jeannie "may not have discharged a firearm with either hand" but that Kustok "either discharged a firearm, was in the vicinity of a discharged firearm, or contacted a primer GSR-related item." People v. Kustok, 2021 IL App 191899-U, ¶ 17, 18. A third forensic scientist who performed DNA testing stated that the blood on the firearm, some of the clothing, and two pillowcases matched Jeannie's profile, but she "did not locate Kustok's DNA in the samples from the firearm." Id. at 16.

c. Forensic pathologist Dr. Hiliary McElligott

The state called DuPage County chief forensic pathologist Dr. Hiliary McElligott to testify about the cause and manner of Jeannie's death. Dr. McElligott stated that she performed autopsy. She opined that the gun was discharged at least six inches from Jeannie's face. Dr. McElligott said she came to this conclusion because she did not see any soot around the injury, and "soot tends to disappear by approximately six inches when handguns are used." Resp. Ex. O. at 2880.

Furthermore, Dr. McElligott determined that Jeannie's death was a homicide because she did not believe it was a suicide or an accident. She concluded that Jeannie did not commit suicide because the gunshot wound was on the left side of Jeannie's face; a police officer informed her that the gun was in Jeannie's right hand; and it "seemed like an unlikely scenario to reach across one's body and fire with the right hand toward the left side of the face." Id. at 2845. Dr. McElligott also stated that most suicides involve a "contact range gunshot," in which the gun is in direct contact with the body at the time of discharge. In this case, she testified, the lack of soot led her to conclude that the range of fire was at least six inches. Lastly, Dr. McElligott testified that the facts of the case "didn't fit very well with a suicide" because Kustok said he was in the room when the shooting happened and there was "such a significant delay" before he sought medical treatment. Id.

Dr. McElligott also testified that she believed Jeannie's death was not accidental. When first asked to explain her thinking, she mentioned the delay between the infliction of injury and Kustok's arrival at the hospital. Dr. McElligott later stated that she considered "[t]he whole circumstances and autopsy as a complete package" and agreed that she used "many of the factors that [she] considered to rule out suicide" in determining that "it was not an accidental shooting." Id. at 2848-49.

On cross-examination, Dr. McElligott again agreed that Kustok's delay in taking Jeannie to the hospital was "significant" to her analysis and "played into [her] decision to label [the death] a homicide." Id. at 2869. Dr. McElligott admitted that she was not a ballistics expert but stated said the nature of Jeannie's injury meant that her death was "very quick" and "in all likelihood" within seconds. Id. at 2866. She also agreed that she "didn't really consider accident[] for too long" as a cause of death because "the detectives had told [her] that [Jeannie] had the gun in her right hand." Id. at 1275.

d. Prosecution expert Rod Englert

The prosecution called Rod Englert to testify as an expert in crime scene reconstruction and blood pattern analysis. Englert said that he reconstructed the incident in a police garage based on photos and measurements from the Kustoks' bedroom. He stated that he believed the "high velocity impact" blood spatters on various pieces of evidence-including the carpet, pillows, gun, and Kustok's shirt, shorts, and glasses-were consistent with Kustok shooting Jeannie. When asked if the shooting could have been accidental, Englert cited the absence of soot on the pillows in ruling out that possibility.

On cross-examination, Englert stated that after he submitted his report stating his opinions, but before trial, the prosecution reached out to ask if a dark area on one of the pillowcase might be soot. Englert testified that he knew the Sodium Rhodizonate Test ("SR Test"), a laboratory examination that takes approximately five minutes, is the proper test for soot or cylinder gases "[i]f you can't visually see it[.]" Id. at 3307. He also said that he visually examined the pillowcase again after the prosecution's inquiry and did not see any soot but that he did not recommend administering the SR Test because "the soot is very recognizable, and [the stain] was obviously clotted blood." Id. Englert did not elaborate on this point beyond stating that he did not see any soot. When asked if he had recommended that any of the evidence be tested for cylinder gases that are easily obscured, he...