{ "id": 5459126, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON BRIONES, Defendant-Appellant", "name_abbreviation": "People v. Briones", "decision_date": "2004-09-30", "docket_number": "No. 5-02-0821", "first_page": "913", "last_page": "922", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 913" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "176 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544906 ], "year": 1997, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0523-01" ] }, { "cite": "279 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75246 ], "year": 1996, "pin_cites": [ { "page": "162", "parenthetical": "\"[t]he question is not whether the defendant would more likely than not have received a different result without the professional errors of counsel but whether, with their presence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0152-01" ] }, { "cite": "326 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281435 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "637" }, { "page": "637" }, { "page": "640" }, { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0629-01" ] }, { "cite": "334 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521925 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "892" }, { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0882-01" ] }, { "cite": "129 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5566993 ], "year": 1989, "pin_cites": [ { "page": "249", "parenthetical": "defense counsel failed to subject the prosecution's case to meaningful adversarial testing, in part because counsel failed to call the defendant to testify, despite his opening statement to the contrary" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0233-01" ] }, { "cite": "240 Ill. App. 3d 463", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5137380 ], "year": 1992, "pin_cites": [ { "page": "468", "parenthetical": "defense counsel was incompetent for promising, during opening statements, to produce the defendant's pretrial exonerating statement when the statement was actually inadmissible hearsay" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0463-01" ] }, { "cite": "192 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453251 ], "year": 2000, "pin_cites": [ { "page": "121", "parenthetical": "the defendant was entitled to a postconviction evidentiary hearing involving an ineffective-assistance claim because defense counsel failed to produce evidence he had promised in opening statements" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0093-01" ] }, { "cite": "293 F.3d 19", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9413625 ], "year": 2002, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/f3d/293/0019-01" ] }, { "cite": "858 F.2d 16", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10523925 ], "year": 1988, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/f2d/858/0016-01" ] }, { "cite": "347 F.3d 219", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9047361 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "257" }, { "page": "257" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/f3d/347/0219-01" ] }, { "cite": "179 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801356 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "310" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0297-01" ] }, { "cite": "214 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5296623 ], "year": 1991, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0649-01" ] }, { "cite": "104 Ill. 2d 463", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146993 ], "year": 1984, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0463-01" ] }, { "cite": "192 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453252 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "344" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0307-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "525" }, { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 18, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "82 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225123 ], "year": 1980, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0652-01" ] } ], "analysis": { "cardinality": 935, "char_count": 22301, "ocr_confidence": 0.774, "pagerank": { "raw": 9.859061912858427e-08, "percentile": 0.5343942832188285 }, "sha256": "435d2a3bfeed9bdd118bce5b2356f033d7fe2dac753352ca19e683b5438fc212", "simhash": "1:829ff3aafabc0c5f", "word_count": 3631 }, "last_updated": "2023-07-14T19:57:06.765456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAPMAN, EJ., and KUEHN, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON BRIONES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Brandon Briones, was convicted of criminal damage to property (720 ILCS 5/21 \u2014 l(l)(a) (West 2002)) and sentenced to two years in prison. On appeal, the defendant argues that he was denied the effective assistance of counsel. We reverse and remand.\nFACTS\nOn May 30, 2002, the State charged the defendant by an amended information with criminal damage to property worth more than $300 (720 ILCS 5/21 \u2014 l(l)(a), (2) (West 2002)) and aggravated discharge of a firearm (720 ILCS 5/24 \u2014 1.2(a)(1) (West 2002)).\nAt the defendant\u2019s jury trial, the State presented the following evidence.\nIn the early morning hours of May 11, 2002, Darrel Moulton, with another man who stood in the darkness, knocked on the door of Michael Peyton and Darla Wynn\u2019s mobile home. When Michael opened the door, Darrel and Michael argued.\nDarla was lying in bed where she could view the door. When Michael and Darrel moved away from the door, Darla recognized the defendant, her nephew, poking his head around Darrel to smile in the light. Michael, who had a vision problem and was not wearing his glasses, was unsure of the accompanying man\u2019s identity.\nMichael shut the door but anticipated danger, so he began to dress. After five minutes, gunshots were fired at the mobile home. Darla and Michael exited the home and drove away in their truck. Darla and Michael recognized the defendant\u2019s voice when the defendant shouted that Darla and Michael were leaving.\nMichael saw Darrel jump onto the back of the truck, after which the rear window on the truck\u2019s camper shell shattered. When she heard the window break, Darla saw the defendant standing on the rear bumper of the truck. After the window shattered, Michael stopped the truck and saw two men running down the road. When Darla shouted at the defendant, he stopped and turned. The defendant was not wearing a shirt.\nApproximately seven minutes later, after Michael and Darla had driven to an unmanned police station, they returned to their residence. Their mobile home was on fire, the windows in their other two vehicles and in Darla\u2019s daughter\u2019s vehicle were broken, and police and fire personnel were on the scene. As a mechanic, Michael estimated that the cost to replace the windows exceeded $300.\nDon Tate, Darla and Michael\u2019s neighbor, testified that on the night in question, he returned home after midnight and heard yelling, gunshots, and windows smashing. He entered his home, telephoned the police, and returned outside. Don saw Darrel and Brian Thompson enter the mobile home, saw a \u201cbig flash of light,\u201d and saw the two men run from the mobile home. Don also witnessed another male, wearing no shirt, running near the mobile home, but Don could not positively identify the man as the defendant.\nIn denying the defendant\u2019s motion for a directed verdict, the circuit court noted that the evidence was \u201cnot overwhelming.\u201d\nDuring opening statements, the defendant\u2019s counsel stated:\n\u201cThe evidence will show that [the defendant] gave a statement to Officer Squibb. He told Officer Squibb [:] [\u2018]I wasn\u2019t there. I was over here at Conrad and Tina Wynn\u2019s house.[\u2019]\n[The defendant] has no obligation to testify. *** But he\u2019s going to get up here on this witness stand and he\u2019s going to testify and he\u2019s going to tell you the truth and he\u2019s going to subject himself to rigorous cross-examination by the State and he\u2019s going to do that because he\u2019s going to tell you the truth.\u201d\nThe defense called Darrel Moulton, who had pled guilty to residential arson with regard to the present case. Darrel testified that on the night in question, he approached Michael and Darla\u2019s mobile home with Avery Swarms, the defendant\u2019s cousin, not the defendant. Darrel testified that he and Avery had been drinking at Brian Thompson\u2019s house, that they approached Michael and Darla\u2019s mobile home, that Darrel argued with Michael, and that Brian Thompson shot at the mobile home. Darrel testified that when Michael and Darla attempted to leave, he and Avery chased them. Darrel testified that he broke Michael and Darla\u2019s truck window with a baseball bat and that Avery ran behind him.\nDarrel testified that after he had broken Michael\u2019s track window, he threw the baseball bat in a field, kicked in the front door of the mobile home, and ignited the home. Darrel testified that he then approached neighbors for a ride to town, including Conrad Wynn, whose window he approached for his request. Darrel then saw the defendant driving in his vehicle. Darrel asked the defendant for a ride, the defendant agreed, and the police later apprehended them together.\nDuring cross-examination, Darrel admitted that in a handwritten statement, given to police on May 30, he stated:\n\u201cThe last I saw of [the defendant] before he picked me up at the church was when I was in Brian\u2019s backyard and Darla and Mike were leaving. He picked up something and broke out their back window on their camper shell on the truck. That\u2019s when Brian\u2019s in the house getting another weapon.\u201d\nConrad and Tina Wynn, the defendant\u2019s brother and sister-in-law, lived near Darla and Michael. Conrad and Tina testified that at least 30 minutes before the fire started at Michael and Darla\u2019s home, the defendant arrived at the Wynn home and watched a movie with them. While the defendant was in their home, they heard pounding noises and saw the fire through their window. Before the defendant left their home, Darrel appeared at the window, and Conrad declined Darrel\u2019s request for a ride to town.\nConrad testified that approximately two weeks later, Avery admitted to him that the defendant was charged with crimes Avery had committed. Conrad testified that Avery and the defendant looked similar and that he sometimes confused the two.\nRamona Forbes, the defendant\u2019s mother, testified that Avery, who was her nephew, admitted to burning Michael and Darla\u2019s mobile home.\nAvery Swarms testified that he lived two blocks from Darla and Michael\u2019s mobile home. Avery testified that on the night of the fire, he alternated between his home and William DeMain\u2019s home and that he witnessed the fire from across the street. Avery began walking toward the fire but returned home when he saw the fire and emergency vehicles. Avery denied involvement in the activities that damaged Michael and Darla\u2019s mobile home and vehicles. Avery also denied telling Conrad or the defendant\u2019s mother that the defendant was charged with crimes he had committed. Avery testified that he did not see Darrel, Brian, the defendant, Michael, or Darla that night.\nWilliam DeMain testified that on the night of the fire, Avery was at his home early in the evening and William fell asleep on his couch. When William woke, he stepped outside, saw the fire, and walked toward it. Heading that way, William encountered Avery, who was also walking toward the fire. The police and fire vehicles arrived thereafter.\nThe defendant did not testify.\nDuring the State\u2019s rebuttal, the State recalled Officer Robert Squibb. Defense counsel objected to the State\u2019s questions to Officer Squibb regarding the defendant\u2019s postarrest statement. In his statement, the defendant asserted that on the night of the fire, he spoke with Chrystal Logsdon until approximately 10:45 p.m., went to his grandmother\u2019s to watch television, drove around, saw the fire, went to Conrad\u2019s home, and watched the fire. The court held the defendant\u2019s statements admissible as admissions by a party opponent, an exception to the hearsay rule.\nThe circuit court also stated:\n\u201cYou said yesterday in opening statements your client was going to testify, so I kind of anticipated that. *** I want to at least make a record on that.\u201d\nIn response to the circuit court\u2019s questioning, the defendant stated that it was his decision, along with his counsel\u2019s, that he not testify.\nDuring the jury instruction conference, defense counsel tendered a jury instruction regarding the weight to be given identification testimony (Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000)). The circuit court suggested including \u201cor\u201d between each element, the State agreed, and defense counsel withdrew the proposed instruction, which had omitted the word \u201cor.\u201d As a result, the jury was instructed as follows:\n\u201cWhen you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including, but not limited to, the following:\nThe opportunity the witness had to view the offender at the time of the offense, or\nThe witness\u2019s degree of attention at the time of the offense, or\nThe level of certainty shown by the witness when confronting the defendant, or\nThe length of time between the offense and the identification confrontation.\u201d\nThe jury found the defendant guilty of criminal damage to property over $300 but not guilty of aggravated discharge of a firearm. On December 5, 2002, the circuit court sentenced the defendant to two years in prison. The defendant filed a timely notice of appeal.\nANALYSIS\nPursuant to both the United States Constitution (U.S. Const., amend. VI) and the Illinois Constitution (111. Const. 1970, art. I, \u00a7 8), an accused has a due process right to the effective assistance of counsel in a criminal prosecution. People v. Connor, 82 Ill. App. 3d 652, 657 (1980). A defendant raising an ineffective-assistance-of-counsel claim must meet the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel\u2019s performance was so seriously deficient that it fell below an objective standard of reasonableness under prevailing professional norms, that is, counsel made errors so serious that he no longer functioned as the \u201ccounsel\u201d guaranteed by the sixth amendment. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Albanese, 104 Ill. 2d at 525. To establish deficiency, the defendant must overcome the strong presumption that counsel\u2019s challenged action or inaction was the product of sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.\nThe defendant must also show that his counsel\u2019s deficient performance so prejudiced him that it denied him a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Albanese, 104 Ill. 2d at 525. To show prejudice, the defendant must establish a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Albanese, 104 Ill. 2d at 525.\n\u201c[A] defendant is entitled to a fair trial, not a perfect one.\u201d People v. Easley, 192 Ill. 2d 307, 344 (2000). Likewise, the right to the effective assistance of counsel refers to competent, not perfect, representation. Easley, 192 Ill. 2d at 344; People v. Stewart, 104 Ill. 2d 463, 492 (1984). Only the most egregious of tactical or strategic blunders may provide a basis for a violation of a defendant\u2019s right to the effective assistance of counsel {People v. Kubik, 214 Ill. App. 3d 649, 661 (1991)), such as when trial counsel\u2019s chosen strategy was so unsound that counsel completely failed to conduct any meaningful adversarial testing (People v. Reid, 179 Ill. 2d 297, 310 (1997)).\nThe defendant argues that his counsel was deficient because she set the defense up to be discredited by promising the jury that the defendant would testify to the truth and, inexplicably, failing to call him. We agree.\nIn United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003), contrary to trial counsel\u2019s promise to the jury in opening statements, the defendant did not testify. The federal appellate court held, \u201c[Wlhen the failure to present the promised testimony cannot be chalked up to unforeseeable events, the attorney\u2019s broken promise may be unreasonable, for \u2018little is more damaging than to fail to produce important evidence that had been promised in an opening.\u2019 \u201d Leibach, 347 F.3d at 257, quoting Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988). The court continued:\n\u201cPromising a particular type of testimony creates an expectation in the minds of jurors, and when defense counsel without explanation fails to keep that promise, the jury may well infer that the testimony would have been adverse to his client and may also question the attorney\u2019s credibility. In no sense does it serve the defendant\u2019s interests.\u201d Leibach, 347 F.3d at 259.\nSimilarly, in Ouber v. Guarino, the federal appellate court stated:\n\u201cWhen a jury is promised that it will hear the defendant\u2019s story from the defendant\u2019s own lips, and the defendant then reneges, common sense suggests that the course of trial may be profoundly altered. A broken promise of this magnitude taints both the lawyer who vouchsafed it and the client on whose behalf it was made.\u201d Ouber v. Guarino, 293 F.3d 19, 28 (1st Cir. 2002).\nSee also People v. Patterson, 192 Ill. 2d 93, 121 (2000) (the defendant was entitled to a postconviction evidentiary hearing involving an ineffective-assistance claim because defense counsel failed to produce evidence he had promised in opening statements); People v. Lewis, 240 Ill. App. 3d 463, 468 (1992) (defense counsel was incompetent for promising, during opening statements, to produce the defendant\u2019s pretrial exonerating statement when the statement was actually inadmissible hearsay); People v. Chandler, 129 Ill. 2d 233, 249 (1989) (defense counsel failed to subject the prosecution\u2019s case to meaningful adversarial testing, in part because counsel failed to call the defendant to testify, despite his opening statement to the contrary).\nIn People v. Manning, contrary to defense counsel\u2019s promise during opening statements, the defendant informed the trial court that he did not want to testify. People v. Manning, 334 Ill. App. 3d 882, 892 (2002). The appellate court stated that because it could not determine from the record whether counsel\u2019s decision was based upon the defendant\u2019s choice not to testify, sound trial strategy, or incompetence, the court presumed it was the result of trial strategy and rejected the defendant\u2019s ineffective-assistance-of-counsel claim. Manning, 334 Ill. App. 3d at 893.\nWe agree with Manning that if the defendant, contrary to defense counsel\u2019s previous assertion, decided not to testify at the trial, his counsel\u2019s performance was not deficient. However, we decline to presume that defense counsel\u2019s decision not to present the defendant\u2019s testimony, after promising to do so in opening statements, was the result of trial strategy.\nAlthough the defendant must overcome the strong presumption that his counsel\u2019s challenged action or inaction was the product of sound trial strategy (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065), once defense counsel promised the jury that the defendant would tell the truth from his own lips and then counsel reneged on that promise, in no sense could it serve the defendant\u2019s interests (see Leibach, 347 F.2d at 259). When defense counsel promised the jury in opening statements that the defendant would testify but counsel later determined that the promise would go unfulfilled, it was counsel\u2019s responsibility to evidence in the record that she was not deficient, i.e., that the determination was a result of the defendant\u2019s fickleness or of counsel\u2019s sound trial strategy due to unexpected events. Because defense counsel in the case sub judice failed to show in the record that the defendant inexplicably changed his decision to testify or that, because of unexpected events, sound trial strategy required her to break her promise that the defendant would testify, we find that counsel\u2019s performance, in failing to present the defendant\u2019s testimony that she had promised in opening statements, was deficient.\nThe defendant also argues that his trial counsel was ineffective for allowing the jury to be improperly instructed regarding the weight to be given the identification testimony of Darla and Michael. We agree.\nIn People v. Gonzalez, the trial court had instructed the jury as follows:\n\u201c \u2018When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including but not limited to the following:\nThe opportunity the witness had to view the offender at the time of the offense; or\nThe witness\u2019[s] degree of attention at the time of the offense; or\nThe witnesses] earlier description of the offender; or\nThe level of certainty shown by the witness when confronting the defendant; or\nThe length of time between the offense and the identification confrontation.\u2019 (Emphasis added.)\u201d People v. Gonzalez, 326 Ill. App. 3d 629, 637 (2001).\nIn Gonzalez, as in the present case, the controversy surrounding the wording of the instruction involved the trial court\u2019s use of the word \u201cor\u201d between each of the five factors. Gonzalez, 326 Ill. App. 3d at 637. The Illinois pattern instruction states the following:\n\u201cWhen you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including, but not limited to, the following:\nThe opportunity the witness had to view the offender at the time of the offense.\n[or]\nThe witness\u2019s degree of attention at the time of the offense.\n[or]\nThe witness\u2019s earlier description of the offender.\n[or]\nThe level of certainty shown by the witness when confronting the defendant.\n[or]\nThe length of time between the offense and the identification confrontation.\u201d Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000).\nThe appellate court in Gonzalez held that the incorporation of the word \u201cor\u201d between each factor incorrectly implied, as a matter of law, that the identification testimony of an eyewitness may be deemed reliable if just one of the five factors weighs in favor of reliability. Gonzalez, 326 Ill. App. 3d at 640. The appellate court held that the trial court\u2019s error in so instructing the jury was improper and prejudicial. Gonzalez, 326 Ill. App. 3d at 641.\nSimilarly, in the present case, the circuit court erred in including the word \u201cor\u201d between the factors the jury was to consider in evaluating the eyewitness identification testimony. Although defense counsel submitted a proper instruction, she accepted the court\u2019s suggestion that her instruction was in error and withdrew it. Defense counsel was deficient in failing to cite Gonzalez to support the correct, proposed jury instruction and in withdrawing it.\nThe defendant also cites the following tactical or strategic errors by his counsel: (1) his counsel allowed into evidence his statement to Officer Squibb when the statement was inconsistent with the defense, i.e., in the statement, the defendant claimed that he did not arrive at his brother\u2019s home until after the fire had started, (2) his counsel called Avery Swarms as a witness even though counsel knew that Avery would not admit his culpability for the crimes, (3) his counsel failed to request that Darrel Moulton\u2019s oral statements to Officer Squibb be limited as impeachment evidence, (4) his counsel called Darrel to testify for the defense when Darrel\u2019s testimony allowed the State to show on cross-examination that Darrel had previously lied to the police and that Darrel had previously told the police that the defendant had accompanied him during the crime, and (5) his counsel provided alibi testimony that was impeached with the defendant\u2019s prior inconsistent statement.\nSuch tactical or strategic errors by counsel cannot support a claim of ineffective assistance of counsel unless trial counsel\u2019s chosen strategy was so unsound that counsel completely failed to conduct any meaningful adversarial testing. See Reid, 179 Ill. 2d at 310. Although we find that counsel\u2019s strategy was not so unsound that counsel completely failed to conduct any meaningful adversarial testing, trial counsel\u2019s strategy was refutable, and in conjunction with trial counsel\u2019s errors in failing to present promised testimony by the defendant and in allowing the jury to be misinstructed, we find that the defendant was prejudiced.\nThe prosecution\u2019s case primarily involved the testimony of Michael and Darla and their opportunity to identify their assailants under low light and while fleeing from their home. At the conclusion of the State\u2019s case, the circuit court noted that the evidence against the defendant was not overwhelming. From our review of the proceedings as a whole, considering the aggregate errors of defense counsel, we find that the verdict cannot be relied upon with confidence. See People v. Moore, 279 Ill. App. 3d 152, 162 (1996) (\u201c[t]he question is not whether the defendant would more likely than not have received a different result without the professional errors of counsel but whether, with their presence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence\u201d). We hold that the defendant was denied his right to the effective assistance of counsel.\nOn the other hand, although not overwhelming, the evidence against the defendant was sufficient to prove him guilty beyond a reasonable doubt. We therefore find no double jeopardy impediment to a new trial. See People v. Fornear, 176 Ill. 2d 523, 535 (1997).\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Marion County is reversed, and the cause is remanded for a new trial.\nReversed; cause remanded.\nCHAPMAN, EJ., and KUEHN, J., concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "James Creason, State\u2019s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Peterson, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON BRIONES, Defendant-Appellant.\nFifth District\nNo. 5\u201402\u20140821\nOpinion filed September 30, 2004.\nRehearing denied October 27, 2004.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJames Creason, State\u2019s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Peterson, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0913-01", "first_page_order": 931, "last_page_order": 940 }