concurring in part, specially concurring in part and dissenting in part:
I agree with all but one part of the majority’s decision.
1. Ineffective Assistance of Counsel
I concur with the analysis of defendant’s claim of ineffective assistance of counsel based on the Illinois Constitution, but write separately to indicate my belief that the assistance was also ineffective based on the fifth amendment to the United States Constitution.
The majority notes that defendant’s fifth amendment right to counsel does not include the same guarantee of effective or competent assistance contained in the sixth amendment, because the former protects defendant only from a coerced confession. I do not deny that the general consensus of the cases is supportive of that conclusion. I do not, however, believe that the conclusion adequately addresses the challenge raised by defendant because it relates only to the boundaries of the attorney’s functions under the two amendments.
When a person who has been given Miranda warnings but has not yet been charged asks for legal representation, inherent in that request is an expectation that the attorney will be competent to render advice consistent with defendant’s best interest and untainted by any competing or conflicting interests. This expectation is reasonable and is fully justified by the attorney’s ethical obligation, imposed in all 50 states, not to undertake representation when a conflict exists. It is my understanding that an attorney has the ethical duty, regardless of the nature or parameters of the representation, to advise anyone who is relying on his/her skill or judgment that there is an actual or potential conflict of interest. With specific regard to this case, I do not believe that that obligation, or the corresponding right of the defendant to rely on it, is dependent on whether representation was undertaken pursuant to the fifth or sixth amendment to the United States Constitution.
For this reason, I would find that counsel’s failure to advise defendant of his relationship with the victim and allow her to decide whether or not to waive any conflict and put her fate in his hands was a violation of the United States Constitution’s fifth amendment as well as of the Illinois Constitution.
2. Apprendi Issue
I also specially concur with the majority’s decision on defendant’s Apprendi claim. It is clear, as our opinion recites, that the decision in this matter is dictated by the Illinois Supreme Court’s ruling in People v. De La Paz, 204 Ill. 2d 426, 791 N.E.2d 489 (2003), and I concur for that reason. I write separately to express my hope that that decision will be revisited at some point and my belief that it should be.
Certainly decisions limiting the potentially overwhelming impact of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), are practical (and perhaps even necessary) to contain its reach and limit the number of new reviews of cases long since decided. Most recently, in De La Paz, our supreme court has prohibited any claims by persons whose direct appeals were completed before Apprendi was decided in 2000, finding that neither prong of the test set out in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), warrants its retroactive application.
In my view, it is unfortunate that, in arriving at that decision, the court has found that Apprendi’s rule does not “require[ ] the observance of ‘those procedures that. . .are “implicit in the concept of ordered liberty.” ’ [Citations.]” Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073 (plurality op.). In arriving at its conclusion, our supreme court stated:
“An error which does not seriously affect the fairness, integrity or public reputation of judicial proceedings in one or more cases cannot be such a bedrock procedural element essential to the fairness of a proceeding as to fall within the second Teague exception, requiring retroactive application in all cases.” De La Paz, 204 Ill. 2d at 438.
Clearly, a sentencing hearing is a “judicial proceeding,” and in the Third District alone, the same “brutal and heinous” issue as that raised in the instant case has been challenged in 24 cases. The Apprendí court found that enhanced sentencing without the proof beyond a reasonable doubt implicated “constitutional protections of surpassing importance.” Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355.
Similarly, the Illinois Supreme Court held that a finding that defendant’s crime was brutal and heinous made by the circuit court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt, as was the case in the matter at bar, violated the due process requirement articulated in Apprendi and could not stand. People v. Swift, 202 Ill. 2d 378, 392, 781 N.E.2d 292, 300 (2002).
These holdings appear to me to stand for the proposition that violation of this principle inherently affects the fairness, integrity and public reputation of the judicial proceeding involved. Therefore, I believe Teague, Apprendi, and Swift compel a finding of retroactivity and consideration of this case where defendant’s sentence was increased beyond the statutory maximum because of the brutal and heinous factor.
3. Brady Violation
The majority finds that the failure of the State to disclose the laboratory report confirming the lab’s inability to analyze the water found with the victim was a discovery violation pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). But, it says, the violation is harmless because even if the report had been divulged, there was no reasonable probability that it would have affected the outcome of the trial. I cannot agree with that conclusion and, therefore, dissent from it.
The State’s case against this defendant was purely circumstantial. Success in prosecuting her was dependent on the State being able to put together enough evidentiary pieces, none of which was dispositive standing alone, that cumulatively made a case for defendant’s guilt.
To this end, and knowing that there was no way of tying any water to this defendant, the State produced three witnesses in an apparent attempt to associate defendant with Danny Edwards and the two of them with the purchase of bottled water of some kind. As is shown in the majority opinion, not one of the three provided any evidence that defendant, either alone or in concert with Edwards, had purchased any water of any kind.
The majority acknowledges that the testimony had “extremely low probative value.” 344 Ill. App. 3d at 1117. In point of fact, it had no probative value at all — a fact that leaves me wondering why the witnesses were produced at all if not to bolster the State’s case by innuendo, and why the State has battled in the circuit court and before
this court to keep the evidence in. I have to wonder if the jury, too, strove, possibly successfully, to find some significance in this testimony which, although admittedly without legal probity, had acquired some worth or utility simply by virtue of having been presented. For that reason, I cannot agree with the majority that the failure to provide the defense with a way to keep that testimony out is immaterial.
I believe the Brady violation was material and I would reverse the dismissal of counts IX and X of the postconviction petition and require a hearing on this issue on remand.