Appeal from the Circuit Court of Cook County No. 96 CR 13548 Honorable John Joseph Hynes, Judge Presiding.
The opinion of the court was delivered by: Justice Palmer
JUSTICE PALMER delivered the judgment of the court, with opinion.
Presiding Justice R. Gordon and Justice Lampkin concurred in the judgment and opinion.
¶ 1 Defendant Richard Milam appeals from the second-stage dismissal of his amended petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 to 122-8. (West 2000). Defendant contends that post-conviction counsel did not fulfill her duties under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), because she failed to allege ineffective assistance of appellate counsel in the amended petition to overcome the procedural bar of waiver. We reverse and remand with instructions.
¶ 3 On May 23, 1996, defendant was charged with the first degree murder of his wife, Tammy Milam, who was stabbed to death on January 13, 1994. Before trial, defendant moved to suppress his confession, arguing, inter alia, that law enforcement personnel ignored his request for counsel and that his statement was procured by an act of delay by the authorities. The trial court held a hearing on the motion, where the evidence established that defendant was questioned on November 29, 1995, and on May 15, 1996, in connection with Tammy's murder.
¶ 4 At the hearing, the State's witnesses included investigator Joseph Curtin and Assistant State's Attorneys Thomas Dixon and James McCarter. According to their testimony, at both interviews Curtin asked defendant whether he was represented by an attorney and defendant replied he was not. On both dates Curtin also read defendant his Miranda rights and had defendant sign a form stating that he waived his rights. On May 15, 1996, defendant was interviewed at the courthouse, resulting in a confession. The confession was dictated to and written by Dixon and signed by defendant at 6:36 p.m. Curtin and Dixon both testified that defendant never asked for an attorney during the interview and neither was aware that an attorney was present at the courthouse until after the statement was signed. McCarter testified that at 6:30 p.m., Raymond Fabricius arrived at the courthouse and identified himself as defendant's attorney. McCarter asked Fabricius for identification, made a copy of Fabricius's attorney registration card, then permitted Fabricius to see defendant. About 10 minutes passed between the time Fabricius arrived and when he saw defendant.
¶ 5 Raymond Fabricius and defendant testified that sometime between November 1995 and May 1996 defendant asked Fabricius to be present at any interrogations related to Tammy's murder. At both interviews, defendant asked to have an attorney present and was denied by the investigators. He was never read his Miranda rights. At the May 15 interview, Curtin told defendant that signing the form waiving his Miranda rights was simply a formality and ignored defendant's multiple requests for an attorney. Fabricius arrived at the courthouse and asked to see defendant at 6:32 p.m. He was told to wait. About 11 or 12 minutes later, McCarter asked Fabricius for a card and told him they were finishing up with defendant. Three minutes later, Fabricius was permitted to see defendant. Defendant had already signed the statement.
¶ 6 The trial court denied defendant's motion.
¶ 7 The evidence at trial essentially established that on the evening of January 13, 1994, both defendant and Tammy Milam were stabbed. Defendant told the police that they were attacked by an assailant when they entered their van after going out to dinner. In the course of the investigation, police discovered that defendant and Tammy both used drugs, that they had been having domestic and financial problems, and that Tammy had various life insurance policies totaling over $100,000. Several witnesses testified that defendant was violent toward his wife on occasion. William Love testified that defendant had come to him with a plan to kill Tammy, but Love never followed through with it. Defendant later confessed to Love that he had stabbed Tammy.
¶ 8 The State also introduced defendant's confession at trial, in which defendant stated, inter alia, that when Tammy opened the door to the van after dinner, a knife fell from inside the van to the ground. Tammy retrieved the knife and the couple began to argue. The argument escalated until Tammy stabbed defendant in the shoulder. Defendant then "lost it," took the knife from Tammy and stabbed her two or three times.
¶ 9 The jury found defendant guilty of first degree murder. Defendant filed a posttrial motion in which he claimed, among other assertions, that the authorities improperly delayed his attorney's attempt to speak with him. The trial court denied the motion and sentenced defendant to 55 years in prison.
¶ 10 On direct appeal, defendant asserted that the trial court erred in denying his motion to suppress because his confession was involuntary. Defendant specifically claimed that: (1) his confession was obtained after he requested the presence of counsel; (2) the waiver of his Miranda rights was obtained by trickery and deception; (3) his confession was procured following a violation of the Illinois Rules of Professional Conduct; and (4) his confession was obtained by threats and coercion. This court affirmed defendant's conviction and sentence, finding that the trial court's denial of his motion to suppress was not against the manifest weight of the evidence. People v. Milam, No. 1-98-2091 (2000) (unpublished order under Supreme Court Rule 23).
¶ 11 On May 2, 2001, defendant filed a pro se post-conviction petition alleging ineffective assistance of trial counsel based on counsel's failure to test evidence and call witnesses material to the case. Defendant claimed that trial counsel refused defendant's requests to test defendant's clothing for DNA evidence. Defendant also claimed that trial counsel failed to call attorney Joseph Haddad as a witness. Defendant maintained that, if called, Haddad would have testified that in 1994 he represented defendant and had told Bridgeview ...