{ "id": 4286794, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. BRYANT et al., Defendants-Appellants", "name_abbreviation": "People v. Bryant", "decision_date": "2009-04-30", "docket_number": "Nos. 5-06-0573, 5-06-0598 cons.", "first_page": "228", "last_page": "245", "citations": [ { "type": "official", "cite": "391 Ill. App. 3d 228" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "141 Ill. 2d 323", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238398 ], "year": 1990, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0323-01" ] }, { "cite": "383 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5251318 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "1071-73" }, { "page": "1072-73" }, { "page": "1073" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1065-01" ] }, { "cite": "168 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514148 ], "year": 1988, "pin_cites": [ { "page": "425", "parenthetical": "\"Cross-examination in which a party attempts to put its theory of a case before a jury, but which is beyond the scope of the direct examination of the witness, is improper\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0416-01" ] }, { "cite": "314 Ill. App. 3d 658", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1208086 ], "year": 1999, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0607-01" ] }, { "cite": "194 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096315 ], "year": 2000, "pin_cites": [ { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0361-01" ] }, { "cite": "218 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735992 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "143-44" }, { "page": "143-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0125-01" ] }, { "cite": "217 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875001 ], "year": 2005, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0407-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1438, "char_count": 46857, "ocr_confidence": 0.759, "pagerank": { "raw": 8.349352442634833e-08, "percentile": 0.48113654502637027 }, "sha256": "28f2eb3c34613b32f93961e996c8428c5f3c822b7a87afbba192b2599801805f", "simhash": "1:9ebb90a462065c51", "word_count": 7682 }, "last_updated": "2023-07-14T21:50:16.782503+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. BRYANT et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE WEXSTTEN\ndelivered the opinion of the court:\nIn June 2006, following a joint jury trial in the circuit court of Jackson County, defendant John L. Bryant was convicted of first-degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2004)) and concealment of a homicidal death (720 ILCS 5/9 \u2014 3.1(a) (West 2004)), and his wife, defendant Lisa Bryant, was convicted of first-degree murder under a theory of accountability (720 ILCS 5/5 \u2014 2(c), 9 \u2014 1(a)(1) (West 2004)). On appeal, the defendants argue, inter alia, that their convictions should be reversed because their trial attorney was ineffective for failing to call witnesses in support of their defense. We agree.\nBACKGROUND\nThe following facts are relevant to the disposition of this appeal. Christopher Gandy, a 23-year-old black male from Chicago, was an undergraduate student at Southern Illinois University at Carbondale who dealt cocaine. On the morning of January 28, 2006, Gandy\u2019s burnt car and burnt corpse were discovered in a cemetery south of Murphys-boro. An autopsy revealed that he had been stabbed numerous times about the face and chest and had been repeatedly struck in the head with what could have been a wrench or a pipelike object. No fractures to his skull were observed. The official cause of Gandy\u2019s death was exsanguination, i.e., blood loss, and the death was ruled a homicide. An investigation led authorities to four suspects: Rocky Maki, Jeffery Holt, and the defendants. The defendants and Maki were subsequently charged with Gandy\u2019s murder, but in exchange for his promise to testify against the defendants, Holt was not.\nThe defendants were arrested at a hotel in Carbondale on the afternoon of January 28, 2006. When questioned by investigators, both defendants asserted that they had not murdered Gandy, and although they indicated that they were aware that something had happened to him, they refused to give statements regarding what they knew. During the interviews, investigators suggested several hypothetical scenarios regarding what might have led to Gandy\u2019s murder, but their efforts to elicit incriminating statements failed. At one point, Lisa did ask if Illinois had the death penalty, and when asked what should happen to whoever had killed Gandy, she stated that they should receive \u201c[a] lot of rehab.\u201d Gandy\u2019s blood was discovered in the defendants\u2019 living room and on their back patio. Gandy\u2019s blood was also discovered on Maki\u2019s shoes. Gandy\u2019s driver\u2019s license was found in the pocket of a jacket in the defendants\u2019 kitchen.\nAt the defendants\u2019 trial, the State\u2019s theory of guilt was that Maki and the defendants had lured Gandy to the defendants\u2019 residence, where he was battered severely and robbed of his cocaine and cash. He was then left for dead in the trunk of his car, and the car was abandoned at the cemetery. Concerned that Gandy\u2019s car contained physical evidence that could be used to connect them to the crime, the defendants later returned to the cemetery to burn the car. When they arrived, they found Gandy alive and sitting in the driver\u2019s seat of the car. Gandy was subsequently stabbed, and his car was set on fire. At the trial, the only direct evidence supporting the State\u2019s case against the defendants came from Holt, who testified that he was present when the events in question unfolded.\nIn his opening statement to the jury, defense counsel asserted that, although the defendants were cocaine addicts who had sometimes purchased cocaine from Gandy, they had absolutely nothing to do with his murder. Counsel maintained that Holt and Maki had killed Gandy while the defendants were asleep in their bedroom and that Holt had later awoken them, shown them that there was blood in their house, and told them what had happened. Counsel stated that the defendants subsequently went to a hotel because they needed time to rest and think. Counsel repeatedly advised the jury that the defendants would testify to what really happened on the night in question and, at one point, stated the following: \u201cMy clients will testify in this trial, make no bones about it. We know you want to hear it from their mouths. We will let them tell you, in the Defense\u2019s case, exactly what they did, and you will make up your mind[s] then, by listening to all of the evidence and by listening to their side.\u201d Counsel then set forth in detail what the defendants\u2019 testimony would purportedly establish. Counsel suggested that the jury would also hear evidence that, after the defendants had been arrested, Maki and Holt met at Wal-Mart to discuss what they were going to tell the police. Counsel further suggested that the jury would hear evidence that, after the murder, Maki had been seen with a collapsible baton and had bragged to several people that he had killed Gandy with it. Counsel maintained that the physical evidence implicated Maki and Holt but did not implicate the defendants. Counsel repeatedly asked the jury to reserve judgment until it had heard all the evidence.\nAt the trial, Holt testified that he was a drug addict who had often obtained drugs from the defendants. He testified that, on the night of January 27, 2006, he and Maki went to the defendants\u2019 residence hoping to exchange a television and a DVD player for some drugs. Bryan Bruce testified that he was also present at the time and was wanting to purchase some cocaine. Bruce and Holt both testified that Lisa called Gandy and told him that she and John needed to meet with him. Gandy subsequently arrived with a large quantity of cocaine and sold some to Bruce but was not interested in trading any for the television and DVD player. Gandy then left, and after sharing some of his cocaine with the defendants as payment for brokering his purchase, Bruce left as well.\nHolt testified that after Gandy and Bruce left, John began complaining because Gandy would not advance him any cocaine. Holt testified that the defendants and Maki then agreed that they should just take Gandy\u2019s cocaine and that Lisa called Gandy back and told him that she and John would trade their flat-screen television for some cocaine. Gandy agreed to come back and make the trade. Holt testified that while awaiting Gandy\u2019s return, John stated that they were going to hit Gandy in the back of the head to knock him out. Holt stated that John had handed him a small crescent wrench to use as a weapon and that he agreed to hit Gandy with it. John was armed with a larger crescent wrench. Gandy returned and while he was inspecting the defendants\u2019 flat-screen television, John nodded at Holt to hit Gandy. Holt testified that he ignored John and would not do it. John then struck Gandy in the back of the head with the larger wrench. Gandy fell to the floor, and Maki took his cash, cocaine, and car keys. When Gandy moved, John hit him again and then drug him from the living room outside to the back patio. Once outside, John struck Gandy in the head with several flowerpots. Holt testified that he pleaded with John to stop. Maki then began punching and kicking Gandy, and John struck Gandy in the head with a large rock. John and Maki then placed Gandy into the trunk of Gandy\u2019s car, and John drove the car to the cemetery. Maki and Holt followed in Maki\u2019s car. Holt testified that, before abandoning Gandy\u2019s car, John had struck Gandy in the face with a floor jack that was lying in the trunk. John, Holt, and Maki then went to Motomart and purchased cigarettes and fuel for Maki\u2019s car. Holt testified that John and Maki also split up Gandy\u2019s money at Motomart. The three men then returned to the defendants\u2019 house, where Gandy\u2019s cocaine was divided between the defendants and Maki. Maki then left. Holt testified that he remained at the house at John\u2019s insistence and that he and the defendants smoked most of the defendants\u2019 share of Gandy\u2019s cocaine. Maki later returned and asked Holt if he wanted to leave with him, but Holt declined.\nHolt testified that when the defendants became concerned that the police might be able to recover fingerprints from Gandy\u2019s car, the defendants decided to burn the car, so he and the defendants drove back to the cemetery in the defendants\u2019 truck with some lighter fluid. When they arrived, they saw that Gandy had escaped from the trunk of the car and was sitting in the driver\u2019s seat. John unsuccessfully tried to light the car on fire with the lighter fluid and a lighter. Holt testified that he and the defendants then returned to the defendants\u2019 residence, where John retrieved a propane torch and a knife. Lisa then dropped Holt and John off at the cemetery, where John stabbed Gandy numerous times and lit the car on fire with the torch. Holt testified that Lisa came back later and picked up him and John and that they returned to the defendants\u2019 house and smoked the remainder of their cocaine. Holt testified that the defendants talked about possibly leaving town, that he and the defendants subsequently went to Motomart and purchased cigarettes and fuel for the defendants\u2019 truck, and that they then drove to Marion, where they unsuccessfully attempted to obtain more cocaine. After returning to the defendants\u2019 residence, Lisa cleaned up the living room and John cleaned up the back patio.\nHolt testified that the defendants dropped him off at his house between 7 and 8 a.m on the morning of January 28. When he entered his home, Maki was asleep on the couch. Holt testified that the following day, investigators contacted him about Gandy\u2019s murder, and he told them that he had never seen a \u201cblack man\u201d at the defendants\u2019 house. He also claimed that he had never purchased drugs from the defendants. When interviewed again in February, he denied having any information about Gandy\u2019s murder. Holt testified that he lied to the investigators because he was afraid of John. In March, Holt provided an investigator with \u201cbits and pieces\u201d of what he knew. Holt testified that he had not struck or stabbed Gandy and that he had not set Gandy\u2019s car on fire.\nHolt was thoroughly cross-examined by defense counsel, and he admitted, inter alia, that he had thrown away the jacket that he had worn on the night in question because it had Gandy\u2019s blood on it. He also admitted that he had told the police that a female was in the car when he and Maki were at Motomart on the night of January 27. Holt acknowledged that, in exchange for his testimony against the defendants, he was not going to be charged with Gandy\u2019s murder. Holt denied that at the time he was questioned by the police he was aware that John had been arrested. When counsel asked Holt whether he and Maki had met at Wal-Mart to discuss what they were going to tell the police, the State objected to counsel\u2019s inquiries on the basis that they were beyond the scope of the direct examination, and the trial court sustained the objections. Similar objections were sustained when counsel asked Holt if he had \u201cdescribed to [the police] how [he] and [Maki] had gone to other dealers to rip them off for money\u201d and if he had told the police that he had stolen \u201cweed and money from a dealer in Carbondale.\u201d\nLisa\u2019s sons testified that Lisa had briefly visited them on the night of January 27 around midnight. She appeared scared and upset but would not tell them what was wrong. The following day, they met the defendants at a hotel in Carbondale, and Lisa told them that she had to leave town for a while. John\u2019s sister, Kerri Gregory, testified that Lisa had told her that \u201csomething bad had happened\u201d and that she and John \u201cwere going to leave town until things got straightened out.\u201d\nJo Lynn Stearns testified that she had seen Maki at a party in Murphysboro on the night of January 27, 2006. Stearns stated that Maki had bloodstains on his pants.\nAndrea Harker testified that she also saw Maki on the night of January 27. Harker stated that Maki had given her $30 that he owed her and that he had also given her and her friends a small amount of cocaine from a large bag of cocaine that he had. On cross-examination, when counsel asked Harker whether she had later seen Maki on January 29, the State objected to the question on the ground that it was beyond the scope of direct. The trial court sustained the State\u2019s objection, and in the presence of the jury, defense counsel stated, \u201cI\u2019ll ask that question when we recall her in our case, Judge.\u201d\nHolt\u2019s father, Warren, and Warren\u2019s neighbor, Stacey Franklin, testified and corroborated Holt\u2019s claim that the defendants had dropped him off at his house on the morning of January 28. Warren also testified that he had seen Maki the night before and that it appeared as if Maki had been injured. Maki told Warren that he had been in a motorcycle accident. On cross-examination, defense counsel asked Warren whether he had told investigators that, a few days after Gandy\u2019s murder, he had seen Maki with a collapsible baton and that Maki was \u201cbragging about beating some nigger to death.\u201d The State objected to the line of questioning on the ground that it was beyond the scope, and the objections were sustained. The court then admonished the jury to disregard the questions, and the court ordered the parties into chambers. In chambers, the court advised defense counsel to discontinue his efforts to introduce defense evidence through his cross-examination of the State\u2019s witnesses. The court told counsel that he could call Warren in his case in chief and ask him about what he knew about Gandy\u2019s murder. Noting that the right way to introduce evidence was not necessarily \u201cthe easiest way,\u201d the court explained that cross-examination was limited to matters covered during direct examination. In response, defense counsel complained that the court was unduly restricting his cross-examination. Thereafter, in the presence of the jury, counsel stated, \u201cI\u2019ll reserve my questions when we recall [Warren] in our defense\u2019s case in chief.\u201d During a subsequent break in the proceedings, the court again admonished defense counsel about his attempts to present evidence through his cross-examination of the State\u2019s witnesses.\nFrederick Pendleton testified that he was working at the Mur-physboro Motomart on the morning of January 28, 2006, and that at approximately 5 a.m. John came into the store and bought a lighter and a pack of cigarettes. Pendleton stated that John was \u201ca little bit dirty\u201d and smelled like a campfire. The store\u2019s video surveillance system recorded John\u2019s early morning purchase, and the video was shown to the jury. The jury also saw a video of Maki, Holt, and an unidentified third person at Motomart the night before.\nPete Sopczak of the Illinois State Police testified that he had assisted in the investigation of Gandy\u2019s murder by photographing and processing the defendants\u2019 residence and the cemetery where Gandy\u2019s car and body had been found. Sopczak testified that no blood was recovered from the defendants\u2019 truck. When defense counsel asked Sopczak on cross-examination whether he had gathered any evidence at a \u201cburn pile,\u201d the State objected to the inquiry on the ground that it was beyond the scope of the direct examination. When the trial court sustained the objection, defense counsel stated, in the presence of the jury, \u201cWell, Your Honor, then I reserve the right to recall this witness in my case.\u201d When defense counsel subsequently asked Sopczak to identify a photograph of the burn pile, the trial court sustained the State\u2019s objection and, in chambers, again admonished counsel to stop attempting to introduce the defendants\u2019 evidence through his cross-examination of the State\u2019s witnesses.\nDetective Michael Ryan of the Jackson County sheriffs department testified regarding his involvement in the investigation of Gan-dy\u2019s death. When cross-examined, Ryan acknowledged that, \u201clater in the investigation,\u201d both Maki and Holt had stated that John had struck Gandy with a wrench. When defense counsel asked whether Maki and Holt had met at Wal-Mart following the defendants\u2019 arrests, the State objected to the question as being beyond the scope of direct. After the court sustained the objection, defense counsel requested to be heard outside the presence of the jury. In chambers, counsel again complained that his cross-examination was being unduly limited. In response, the trial court again explained that the questions counsel was posing were beyond the scope of the State\u2019s direct examination and were thus improper questions to ask on cross-examination. The court then invited counsel to call Ryan in the defendants\u2019 case in chief if he so chose. Thereafter, the following occurred in the presence of the jury:\n\u201c[Defense counsel]: Mr. Ryan, will you be available to testify in my case in chief?\n[Detective Ryan]: Yes, sir, I will.\n[Defense counsel]: All right. I\u2019ll reserve the rest of my questioning for that time. Thank you.\u201d\nAt the end of the final day of the State\u2019s presentation of evidence, the State advised the court that it would rest its case against the defendants the following morning, and defense counsel indicated that he would have his witnesses ready at that time. The next day, however, after the State rested, the defense rested without presenting any evidence.\nIn its closing argument to the jury, the State maintained that Holt was a believable witness because his story had been corroborated in several respects. The State also noted that Holt\u2019s account of Gandy\u2019s death was uncontradicted and that the case against the defendants had to be judged on the evidence presented at the trial and \u201cnot the wild suppositions of the defense.\u201d\nIn the defendants\u2019 closing argument, defense counsel stated the following:\n\u201cLadies and gentlemen, there\u2019s so much information in this case it\u2019s difficult for a lawyer to know where to start, but I\u2019ll start with this. When I gave my opening statement I told you we had a simple defense, and it hasn\u2019t changed. They were present together at their residence, my two clients, and they were in their bedroom when the victim was struck, assaulted by Holt and Rocky Maki. They did not see what had happened to him at their house, and they didn\u2019t see what happened to him at the cemetery where he was finished off. They only knew what Holt had told them in the middle of the night when he returned.\nThe defendants were arrested when they were still trying to make sense of what had happened and what they should do. And they did not know what had happened to Christopher Gandy at that point, because they weren\u2019t there in the cemetery, and there\u2019s no believable evidence that they were there.\u201d\nAs for his failure to present any evidence, defense counsel stated: \u201cI\u2019ll hope you forgive me for not extending the trial about another week and not putting on any evidence. I ask you not to hold that against my clients[;] that is my decision, because I thought we\u2019ve had enough.\u201d Maintaining that the State had failed to prove the defendants\u2019 guilt beyond a reasonable doubt, counsel argued that \u201call of the alleged evidence to support this case comes out of the mouth of Jeff Holt,\u201d who counsel referred to as a \u201cstory maker.\u201d Counsel assailed Holt\u2019s testimony as consisting of self-serving fabrications and emphasized that the evidence had established that Gandy\u2019s blood was only present on the clothing worn by Holt and Maki and that no blood was observed anywhere in the defendants\u2019 truck. Counsel also argued that if Holt\u2019s account of the events in question were true, Gandy would have sustained skull fractures. Noting that the blood found in the defendants\u2019 living room was near the back door and that the back door was \u201cas far away as you can get from the bedroom as possible,\u201d counsel again argued that the defendants were in the bedroom when the murder occurred. Emphasizing that \u201cthe bedroom is on the opposite corner\u201d of the back patio, counsel suggested that Maki and Holt were able to beat Gandy outside while the defendants slept. Counsel noted that the Motomart video taken on the night of January 27 showed Maki and Holt together but did not show that John was with them, as Holt had contended. Counsel argued that the injuries to Gan-dy\u2019s head were made with a \u201cpipelike object,\u201d but Maki and Holt \u201chad a plan to say that [John] hit [Gandy] with a wrench.\u201d Counsel argued that Maki and Holt had killed Gandy for his cocaine and that they had discussed the \u201cstory they were going to tell\u201d when they met at Wal-Mart following the defendants\u2019 arrests. In response to numerous objections by the State that counsel was arguing facts not in evidence, the jury was repeatedly admonished that closing arguments are not evidence and that statements not based on evidence should be disregarded.\nIn rebuttal, the State argued, \u201cTo find the defendants not guilty would require you to ignore all of the uncontroverted uncontradicted evidence that has been presented to you over the past three weeks,\u201d and the State suggested that defense counsel was attempting to confuse the jury with \u201cspeculation\u201d and \u201cguesswork.\u201d The State also noted that there was \u201cno evidence, whatsoever, that [the defendants were] in the bedroom\u201d when Gandy was attacked in their home.\nIn September 2006, the trial court held a hearing on the defendants\u2019 posttrial motions, and when called by the State, defense counsel testified at the hearing. In response to the allegation that he was ineffective for failing to call any witnesses for the defense, defense counsel explained that he was \u201cable to elicit on cross[-]examination that which [he] would have elicited on direct examination had [he] called [the State\u2019s] witnesses.\u201d He was thus \u201cable to get the information from the State\u2019s witnesses that [he and the defendants] wished to use in [their] closing argument.\u201d Counsel stated that many of the 15 defense witnesses he had subpoenaed were also witnesses for the State, and he specifically defended his decision not to call Holt and Warren as witnesses for the defense. Referring to his decision to not call Warren as a witness, counsel maintained that although Warren would have testified that he heard Maki say that he had beaten Gandy to death, \u201cit was perfectly clear that [the defense] theory was that the two murderers were Jeff Holt, [the] State\u2019s star witness, and Rocky Maki, rather than either one of the [defendants].\u201d Counsel also indicated that a pretrial ruling \u201cprecluded [him] from bringing that hearsay statement in.\u201d Counsel testified that he did not call Holt as a witness because he had successfully impeached him and that \u201cthere was nothing to be gained for the defense\u201d by calling him. With respect to the failure to call the defendants after promising the jury that they would testify, counsel stated that the State\u2019s evidence had provided \u201calmost every element of [the defense] theory.\u201d Noting that \u201cthe [defense] theory was not abandoned,\u201d counsel reiterated that he was able to \u201cmake the closing argument that [he] made.\u201d Counsel also stated that by not calling the defendants as witnesses, he avoided subjecting them to cross-examination and further avoided the possibility that the State might elicit damaging rebuttal testimony. Counsel testified that he believed that the State\u2019s case was \u201cridiculously inadequate,\u201d that he was able to bring out the inadequacies through his cross-examination of the State\u2019s witnesses, and that he was able to make \u201cthe closing argument that [he] wanted to make.\u201d Counsel acknowledged that during the course of the trial, when many of his questions were objected to on the ground that they were beyond the scope of the State\u2019s direct, the trial court had sustained the objections and had advised him that the proper way to introduce the evidence that he had attempted to elicit was to present it in his own case in chief. Counsel testified that he \u201cmade [the] decision along with [his] clients not to call [any witnesses],\u201d but he subsequently stated that \u201cit was [his] decision not to put on [any] evidence.\u201d Counsel also stated that he believed that not putting on any evidence \u201cwas in the best interest of [his] clients.\u201d\nWhen denying the defendants\u2019 posttrial motions, the trial court concluded that defense counsel had conducted a \u201csignificant and meaningful adversarial testing\u201d of the State\u2019s case. The court also stated that counsel had effectively cross-examined the State\u2019s witnesses and had elicited \u201csignificant admissions\u201d from Holt.\nAt sentencing, the defendants maintained their innocence and asserted that Holt and Maki were responsible for Gandy\u2019s death. Lisa also contended that she \u201cdidn\u2019t know [defense counsel] was going to give up on [the] case and not put up a defense.\u201d The present appeals followed.\nANALYSIS\nThe defendants argue, inter alia, that their convictions should be reversed because their trial attorney was ineffective for failing to call any witnesses in support of their defense. The defendants maintain that counsel\u2019s failure in this regard was especially prejudicial in light of his opening statement to the jury.\nTo succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Patterson, 217 Ill. 2d 407, 441 (2005). \u201cUnder Strickland, a defendant must prove not only that defense counsel\u2019s performance fell below an objective standard of reasonableness, but also that this substandard performance caused prejudice by creating a reasonable probability that, but for counsel\u2019s errors, the trial result would have been different.\u201d People v. Johnson, 218 Ill. 2d 125, 143-44 (2005). \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel\u2019s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.\u201d People v. Enis, 194 Ill. 2d 361, 376-77 (2000).\n\u201cAlthough counsel\u2019s decision regarding whether or not to present a particular witness is generally a matter of trial strategy [citation], counsel may be deemed ineffective for failure to present exculpatory evidence of which he is aware, including the failure to call witnesses whose testimony would support an otherwise uncorroborated defense.\u201d People v. Tate, 305 Ill. App. 3d 607, 612 (1999). Counsel may also be deemed ineffective \u201cif he promises that a particular witness will testify during his opening statement but does not provide the promised testimony during trial.\u201d People v. Ligon, 365 Ill. App. 3d 109, 119-20 (2006). In either case, \u201cthe reviewing court must indulge in a strong presumption that counsel\u2019s conduct fell into a wide range of reasonable representation, and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.\u201d People v. Cloutier, 191 Ill. 2d 392, 402 (2000); see also People v. Gacy, 125 Ill. 2d 117, 126 (1988) (\u201cThe burden of proving incompetence, and of overcoming the presumption that an attorney\u2019s decision is the product of \u2018sound trial strategy,\u2019 rests upon the defendant, not the State\u201d). \u201cA defendant can overcome the strong presumption that defense counsel\u2019s choice of strategy was sound if counsel\u2019s decision appears so irrational and unreasonable that no reasonably effective defense attorney, facing similar circumstances, would pursue such a strategy.\u201d (Emphasis in original.) People v. King, 316 Ill. App. 3d 901, 916 (2000).\nHere, in light of defense counsel\u2019s testimony at the hearing on the defendants\u2019 posttrial motions, it is evident that counsel\u2019s failure to call any witnesses in support of the defendants\u2019 defense was a matter of trial strategy as opposed to witness reluctance or unavailability. We cannot conclude, however, that the strategy was sound or that the resulting prejudice was harmless.\nWhile we recognize that abandoning or changing a defense during trial can be a plausible strategic decision (see People v. Manning, 334 Ill. App. 3d 882, 893 (2002); Anderson v. Butler, 858 F.2d 16, 19 (1st Cir. 1988)), as defense counsel made clear in his closing argument and at the hearing on the defendants\u2019 posttrial motions, the defense in the present case, i.e., that the defendants were asleep while Maki and Holt murdered Gandy, remained the same throughout the trial and \u201cwas not abandoned.\u201d After promising and suggesting that the jury would hear evidence supporting the defense, however, counsel failed to present any evidence whatsoever, and his stated reasons for failing to do so are not reasonable explanations.\nIn his opening statement, defense counsel indicated that the jury would hear testimony that, after Gandy\u2019s murder, Maki had been seen with a collapsible baton and had bragged to several people that he had used it to kill Gandy. Counsel further suggested that the jury would hear testimony that, following the defendants\u2019 arrests, Maki and Holt had met at Wal-Mart to discuss what they were going to tell the police. Thereafter, counsel attempted to adduce this testimony when cross-examining Warren and Holt (and Detective Ryan), but, sustaining the State\u2019s objections that counsel\u2019s questions were beyond the scope of direct, the trial court, in the exercise of its discretion, precluded counsel from doing so. See People v. Taylor, 314 Ill. App. 3d 658, 664 (2000) (\u201c[R]ulings involving the scope of a witnesses] testimony on cross-examination are within the trial judge\u2019s discretion\u201d); Cuellar v. Hout, 168 Ill. App. 3d 416, 425 (1988) (\u201cCross-examination in which a party attempts to put its theory of a case before a jury, but which is beyond the scope of the direct examination of the witness, is improper\u201d). The court also instructed the jury to disregard all questions to which objections had been sustained. Counsel later explained that he did not call Warren as a witness because, although Warren would have testified that he had heard Maki say that he had beaten Gandy to death, \u201cit was perfectly clear that [the defense] theory was that the two murderers were Jeff Holt, [the] State\u2019s star witness, and Rocky Maki, rather than either one of the [defendants].\u201d Counsel testified that he did not call Holt because he had successfully impeached him and because \u201cthere was nothing to be gained for the defense\u201d by calling him.\nWhile it might have been \u201cperfectly clear\u201d that the defense theory was that Maki and Holt were solely responsible for Gandy\u2019s death, defense counsel failed to properly present any evidence to support that theory. After unsuccessfully attempting to elicit evidence in support of the theory through his cross-examination of the State\u2019s witnesses, counsel opted not to present a case in chief and thus made no further attempts to introduce any of the evidence that he had promised to produce. As a result, as the trial court observed at the hearing on the defendants\u2019 posttrial motions, nothing in the evidence before the jury \u201cwent to anything but the guilt of [the] defendants.\u201d Given that counsel justified the failure to call any witnesses by stating that he was able to make the argument that he wanted to make, one might conclude that counsel believed that by zealously arguing and suggesting that Maki and Holt were the real murderers, he need not have presented any evidence to support the claim. The trial court repeatedly instructed the jury, however, that opening statements and closing arguments are not evidence and that any statement made by an attorney that was not based on the evidence or on reasonable inferences that could be drawn from the evidence should be disregarded. In any event, despite the availability of witnesses whose testimony could have been used to support the defense theory that Maki and Holt were the real killers, the theory was left unexplored and undeveloped, and under the circumstances, counsel\u2019s chosen strategy was unreasonable. See People v. Ortiz, 224 Ill. App. 3d 1065, 1071-73 (1992).\nIt was further unreasonable for defense counsel not to call either of the defendants to support the claims that they were asleep in their bedroom while Maki and Holt killed Gandy and that Holt had awakened them and confessed that he and Maki had committed the murder. In his opening statement to the jury, counsel promised that the defendants would testify to what happened on the night of Gan-dy\u2019s murder, and he described in detail what their version of events would be. In his closing argument, after stating that the defense had not changed, counsel asserted that the defendants were in their bedroom when Maki and Holt attacked Gandy in the living room and at the cemetery and that \u201c[tjhey only knew what Holt had told them in the middle of the night when he returned.\u201d Counsel later testified that by not calling the defendants to testify, he avoided subjecting them to cross-examination and further avoided the possibility that the State might elicit damaging rebuttal evidence in response to their testimony. It thus appears that counsel concluded that rather than support the defense theory with evidence that the jury might reject, it was better to not support the theory at all. In our view, this was not a reasonable strategic decision. Counsel further explained that he did not call the defendants as witnesses because the State\u2019s witnesses had provided \u201calmost every element of [the defense] theory\u201d and he was thus able to make the argument that they wanted to make without their testimony, an explanation which again suggests that he erroneously believed that he did not need to support his arguments with evidence. In any event, counsel\u2019s failure to call the defendants to testify left their defense unsupported, and under the circumstances, counsel\u2019s chosen strategy was unsound.\nWe cannot conclude that counsel\u2019s failure to call any witnesses in support of the defense that he both promised and adhered to throughout the defendants\u2019 trial was a rational strategic decision. It appears that counsel believed that by making the closing argument that he wanted to make and by asking the jury to not hold the failure to present any evidence against the defendants, the jury would ignore the court\u2019s instructions regarding opening statements, closing arguments, statements not based on evidence, and questions to which objections had been sustained. If this was, in fact, counsel\u2019s strategy, it ignored that \u201cit is \u2018the almost invariable assumption of the law that jurors follow their instructions.\u2019 \u201d People v. Sandoval, 135 Ill. 2d 159, 192 (1990), quoting Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 185, 107 S. Ct. 1702, 1707 (1987). As it stood, even if the jurors were inclined to consider the theory advanced by the defense, they had no choice but to ignore it because they were presented with no evidence to support it. The supreme court has observed, \u201c \u2018[t]he spectrum of counsel\u2019s legitimate tactical choices does not include abandoning a client\u2019s only defense in the hope that a jury\u2019s sympathy will cause them to misapply or ignore the law they have sworn to follow.\u2019 \u201d People v. Chandler, 129 Ill. 2d 233, 248 (1989), quoting United States ex rel. Barnard v. Lane, 819 F.2d 798, 805 (7th Cir. 1987). We likewise believe that the spectrum of sound strategy does not include failing to adduce available evidence that would support an otherwise unsupported defense in the hope that the jury will both forgive counsel\u2019s promises to present that evidence and ignore the court\u2019s instructions. In the present case, counsel\u2019s conduct fell below an objective standard of reasonableness because no reasonably effective defense attorney, facing similar circumstances, would have pursued the same strategy.\nWe must next address whether the defendants were prejudiced by defense counsel\u2019s substandard performance, because \u201c[t]he failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance of counsel.\u201d People v. Deleon, 227 Ill. 2d 322, 338 (2008). In the absence of overwhelming evidence establishing a defendant\u2019s guilt, the failure to present promised evidence that someone other than the defendant is guilty of the offense in question is highly prejudicial (see, e.g., Ortiz, 224 Ill. App. 3d at 1072-73), as is the failure to present a defendant\u2019s testimony after promising to do so (see, e.g., People v. Briones, 352 Ill. App. 3d 913, 921 (2004)). With respect to the latter, it has been said:\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).\nIt has further been held, \u201c[W]here a lawyer has promised the jury that a criminal defendant will testify in his own defense, and then unreasonably breaks this promise by not calling the defendant to the stand, such an error is both objectively unreasonable and prejudicial to the defendant.\u201d Barrow v. Uchtman, 398 F.3d 597, 606 (7th Cir. 2005).\nHere, although the evidence presented for the jury\u2019s consideration was sufficient to prove the defendants\u2019 guilt beyond a reasonable doubt (see People v. Tenney, 205 Ill. 2d 411, 429 (2002)), the State\u2019s case hinged on the testimony of an admitted addict and uncharged accomplice whose testimony defense counsel effectively impeached. Moreover, not only did counsel promise in his opening statement that the jury would hear a theory contra to the State\u2019s, throughout the course of the trial, he repeatedly indicated, in the jury\u2019s presence, that he would present evidence supporting the theory in the defendants\u2019 case in chief. Given the import of the testimony that counsel promised to present but failed to deliver and given that he had repeatedly asked the jury to reserve judgment until it had heard all the evidence, the defendants were undoubtedly prejudiced by counsel\u2019s conduct. See Ortiz, 224 Ill. App. 3d at 1073; Anderson, 858 F.2d at 19. Although counsel vigorously cross-examined the State\u2019s witnesses and exposed various weaknesses in the State\u2019s case, by leaving the defense theory wholly unsupported, counsel allowed the State to rightfully argue to the jury that its theory was uncontradicted and that there was \u201cno evidence, whatsoever, that [the defendants were] in the bedroom.\u201d Given that the evidence of the defendants\u2019 guilt was not overwhelming, had counsel properly supported the defense theory with witness testimony, in our view, there is a \u201creasonable probability\u201d that \u201cthe trial result would have been different.\u201d Johnson, 218 Ill. 2d at 143-44. That said, because the State\u2019s evidence was sufficient to prove the defendants\u2019 guilt beyond a reasonable doubt, \u201cthere is no double jeopardy impediment to a new trial.\u201d Tenney, 205 Ill. 2d at 442. We accordingly reverse the defendants\u2019 convictions and remand this cause for a new trial.\nBecause the issue is likely to arise again on remand, we will lastly address an evidentiary issue that the defendants argue on appeal. See People v. Harlacher, 262 Ill. App. 3d 1, 8 (1994). As previously noted, when questioned following their arrests, both defendants claimed that they had not murdered Gandy, and although they indicated that they were aware that something had happened to him, they refused to give statements regarding what they knew. During the interviews, investigators advanced several hypothetical scenarios regarding what might have led to Gandy\u2019s murder, but their efforts to elicit incriminating statements failed. At one point, Lisa did ask if Illinois had the death penalty, and when asked what should happen to whoever killed Gandy, she stated that they should receive \u201c[a] lot of rehab.\u201d\nAt the trial, the State sought to have video recordings of the defendants\u2019 interviews admitted into evidence. As grounds for their admission, the State argued that the recordings were relevant because they demonstrated that \u201cthe defendants had multiple opportunities *** to explain what had happened at their residence.\u201d The State further argued that the defendants\u2019 body language during the interviews was also relevant. Defense counsel maintained that the recordings were irrelevant and did not contain any actual admissions. Referring to the investigators\u2019 use of hypothetical scenarios, defense counsel further argued that the recordings contained numerous unfounded allegations that could only prejudice the defendants. After reviewing the transcripts of the videos, the trial court sustained some of counsel\u2019s objections to specific portions of the recordings on relevancy grounds and ordered those portions redacted. The trial court held that the recordings\u2019 contents were otherwise relevant and admissible under the admissions-by-party-opponent exception to the hearsay rule. The recordings of the defendants\u2019 interrogations were played for the jury during the trial, and the jury heard the hypothetical scenarios posited by the investigators. When the recordings were played, however, the trial court sua sponte instructed the jury as follows: \u201cThe questions posed by the interviewers are to be considered by you, not as evidence of what occurred, but as statements designed to elicit a response from the defendants as to what occurred.\u201d On appeal, the defendants contend that the trial court erred in allowing the State to use the video recordings because they contained irrelevant and prejudicial material.\nAs a general rule, evidence is admissible if it is relevant. People v. Begay, 377 Ill. App. 3d 417, 421 (2007). \u201cGenerally, evidence is relevant if it tends to make the existence of any fact in consequence more or less probable than it would be without the evidence.\u201d People v. Beaman, 229 Ill. 2d 56, 75-76 (2008). \u201cRelevant admissions of a party, whether consisting of a statement or conduct, are admissible when offered by the opponent as an exception to the hearsay rule.\u201d People v. Cruz, 162 Ill. 2d 314, 374-75 (1994). Moreover, courts generally \u201cgrant wide latitude in construing statements as admissions.\u201d Zaragoza u. Ebenroth, 331 Ill. App. 3d 139, 142 (2002). \u201cEven if evidence is relevant, it should be excluded if its prejudicial impact substantially outweighs its probative value.\u201d Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 100 (2008). \u201cThe determination as to whether evidence is relevant and admissible is within the sound discretion of the trial court, and its ruling will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to the defendant.\u201d People v. Gonzalez, 379 Ill. App. 3d 941, 948-49 (2008). A trial court abuses its discretion when its ruling is \u201carbitrary, fanciful[,] or unreasonable[ ] or when no reasonable person would take the same view.\u201d People v. Jenkins, 383 Ill. App. 3d 978, 988-89 (2008).\nHere, the trial court did not abuse its discretion in admitting the recordings of the defendants\u2019 interviews. The court considered the recordings\u2019 contents, considered counsel\u2019s objections, ordered that certain portions of the recordings be redacted, and gave a limiting instruction specifically directed at the concern that the jury might consider the investigators\u2019 hypothetical scenarios as evidence. We thus agree with the State\u2019s observation that \u201cthe court exercised considerable discretion with respect to the videos\u2019 admission.\u201d We further agree with the State\u2019s suggestion that although the recordings\u2019 probative value was relatively minimal, \u201cit was certainly not outweighed by any prejudicial material.\u201d\nDuring the interviews, neither of the defendants confessed to have taken part in Gandy\u2019s murder, and although in its closing argument the State referred to Lisa\u2019s inquiry about the death penalty as \u201can expression of guilt,\u201d through his cross-examination of one of the interrogators, defense counsel suggested that Lisa\u2019s \u201cdeath penalty\u201d and \u201crehab\u201d statements were \u201cperfectly appropriate\u201d considering that Lisa was a cocaine addict charged with first-degree murder. In its closing argument, the State also noted that, although the defendants had the opportunity to tell their side of the story during the interviews, they did not, but defense counsel countered that the recorded interrogations proved the defendants\u2019 innocence because, despite \u201cbeing interrogated for hours on end,\u201d the defendants refused to \u201cconfess to murdering somebody they didn\u2019t murder.\u201d In response to the State\u2019s argument that the defendants\u2019 body language suggested that they were guilty, counsel maintained that by purporting to interpret the body language of two individuals who had \u201cbeen up for days high on cocaine\u201d and then accused of murder, the State was making a desperate attempt to compensate for its lack of actual evidence.\nHowever the jury ultimately chose to perceive the contents of the recordings, we cannot conclude that the evidence was irrelevant or that the trial court\u2019s decision to admit the evidence was arbitrary, fanciful, or unreasonable. We therefore reject the defendants\u2019 contention that the trial court abused its discretion by allowing the jury to view the video recordings of the defendants\u2019 interviews.\nCONCLUSION\nFor the foregoing reasons, we reverse the defendants\u2019 convictions and remand for a new trial.\nReversed; cause remanded.\nGOLDENHERSH and DONOVAN, JJ., concur.\nMaki did not testify at the defendants\u2019 trial, advising through counsel that, if called as a witness for either side, he would exercise his fifth amendment privilege against self-incrimination. See U.S. Const., amend. V.\nAs previously noted, counsel also indicated that a pretrial ruling precluded him from asking Warren about Maki\u2019s statement, but that assertion is belied by the record. Maki\u2019s alleged statement to Warren was never the subject of a pretrial ruling. Moreover, after sustaining the State\u2019s objection to counsel\u2019s inquiry on the ground that it was beyond the scope of the State\u2019s direct examination, the court indicated that counsel was free to ask Warren about the statement in the defendants\u2019 case in chief. The court therefore evinced its willingness to at least consider allowing the statement to be admitted under the statement-against-penal-interest exception to the hearsay rule (see, e.g., People v. House, 141 Ill. 2d 323, 390 (1990)).", "type": "majority", "author": "PRESIDING JUSTICE WEXSTTEN" } ], "attorneys": [ "E. Joyce Randolph and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant John L. Bryant.", "Ira H. Fertel and William A. Schroeder, both of Carbondale, for appellant Lisa Bryant.", "Michael L. Wepsiec, State\u2019s Attorney, of Murphysboro (Norbert J. Goet-ten, Stephen E. Norris, and Patrick D. Daly, 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. JOHN L. BRYANT et al., Defendants-Appellants.\nFifth District\nNos. 5\u201406\u20140573, 5\u201406\u20140598 cons.\nOpinion filed April 30, 2009.\nE. Joyce Randolph and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant John L. Bryant.\nIra H. Fertel and William A. Schroeder, both of Carbondale, for appellant Lisa Bryant.\nMichael L. Wepsiec, State\u2019s Attorney, of Murphysboro (Norbert J. Goet-ten, Stephen E. Norris, and Patrick D. Daly, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0228-01", "first_page_order": 242, "last_page_order": 259 }