Appeal from the Circuit Court of Cook County. No. 83 C 127 Honorable Diane Canon, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hoffman
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Karnezis and Rochford concurred in the judgment and opinion.
¶ 1 The defendant, Robert Gacho, appeals from the circuit court's second-stage dismissal of his petition, filed pursuant to the Post Conviction Hearing Act (Act) (Ill. Rev. Stat. 1991, ch. 38, par. 122-1). On appeal, the defendant argues that his petition should not have been dismissed, because it made a substantial showing that (1) he was denied a fair trial due to his trial judge's corruption;
(2) he received ineffective assistance of counsel because his attorney failed to renew a motion to suppress his confession after witnesses testified that the confession had been physically coerced; and
(3) he received ineffective assistance of counsel because his attorney, who also represented a family member of one of the victims, labored under a conflict of interest. For the reasons that follow, we reverse the circuit court's dismissal of the defendant's corruption claim and conflict-of-interest claim and remand for further proceedings on those issues. We affirm the circuit court's dismissal of the defendant's claim of ineffective assistance of counsel.
¶ 2 After a jury trial, the defendant was convicted of murder, armed robbery, and aggravated kidnaping for his part in the killing of two men, Tullio Infelise and Aldo Fratto. The defendant was sentenced to death, and he appealed his conviction and sentence directly to the supreme court. See
Ill. Const. Art. VI, § 4(b); Ill. Sup. Ct. R. 603 (eff. July 1, 1971). The supreme court affirmed the defendant's convictions but vacated his death sentence and ordered that he be resentenced. People
v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988). On remand, the defendant was sentenced to imprisonment for life.
¶ 3 The evidence at the defendant's trial was detailed in the supreme court's decision on his direct appeal. For that reason, we recount that evidence only briefly here, along with additional details to provide context for the defendant's post-conviction claims.
¶ 4 Prior to the defendant's trial, one of the prosecuting attorneys pointed out on the record that the defendant's counsel had, in the past, represented a family member of Tullio Infelise. The following exchange then occurred between the defendant the trial judge, Thomas Maloney (Maloney):
"THE COURT: Mr. Gacho, are you aware of all these circumstances that are being referred to and discussed now?
DEFENDANT GACHO: Yes, sir.
THE COURT: And you have discussed it in detail with your attorney? DEFENDANT GACHO: Yes.
THE COURT: And you have no objection to whatever has occurred in the past regarding [your attorney's] representation of a family member of one of the victims here?
DEFENDANT GACHO: No, I don't.
THE COURT: And you wish him to continue as your lawyer, is that correct? DEFENDANT GACHO: Yes."
¶ 5 Also prior to the defendant's trial, the defendant moved to suppress his written confession, on the ground that police had physically and psychologically coerced it. At the hearing, the defendant's wife testified that she went to the police station while they were interrogating the defendant. While she was there, she said, police questioned her aggressively. She said that she began crying, and, as she cried, police walked the defendant by her room so that she and he could see one another. The defendant testified that police slapped him and struck him in his injured kidney as they questioned him. He also said that police told him they would charge his wife with the crimes, and have his children taken away from her, if he did not confess. The defendant recalled seeing his wife crying as police questioned her. He said that he signed a confession to stop the physical abuse and because he wanted his wife to be set free. The defendant was impeached on cross examination by the facts that he did not raise these allegations to people who interviewed him and gave him medical treatment after his confession, and the State adduced testimony from police officers saying that they did not abuse the defendant. At the conclusion of the hearing, Maloney denied the defendant's motion. The case proceeded to a trial at which the defendant was tried before a jury, while a co-defendant, Dino Titone, was tried simultaneously before Maloney.
¶ 6 At the defendant's trial, the State's theory of the case was supported by, among other things, the defendant's confession; information given to police by Infelise before he died; and the testimony of the defendant's girlfriend, Katherine De Wulf. The State's evidence produced the following narrative. On the night of December 11 and morning of December 12, 1982, the defendant, Joseph Sorrentino and Titone, met the victims at the defendant's home to consummate a drug deal. During the encounter, the defendant and Titone forced Infelise and Fratto at gunpoint to be bound, then guided them to a waiting car. Sorrentino and Titone rode in a car with the bound victims, while the defendant and De Wulf followed them in De Wulf's car. During the drive, the defendant explained to De Wulf that the group planned to "waste" the victims. After driving for less than an hour, the cars stopped, and the defendant told De Wulf that he and she were waiting to hear ...