dissenting:
The majority concludes that trial counsel’s representation fell below an objective standard of reasonableness in failing to adequately subject the State’s case to meaningful adversarial testing and, as a result of his deficiencies, caused substantial prejudice to defendant. Although I concur in the majority’s conclusion that trial counsel rendered deficient representation during the course of the trial, I respectfully dissent from the majority’s holding that defendant was ultimately prejudiced by these deficiencies.
In order to prevail on a claim of ineffective assistance, a defendant must satisfy both the performance and the prejudice prongs of Strickland. People v. Evans, 209 Ill. 2d 194, 220 (2004). The majority acknowledges that the second prong of Strickland requires a showing that counsel’s deficient performance resulted in prejudice, but fails to articulate or apply the standard by which a defendant must establish that prejudice. A defendant establishes prejudice by showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. People v. Peeples, 205 Ill. 2d 480, 513 (2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial and not merely a possibility of a different result. Evans, 209 Ill. 2d at 220; Peeples, 205 Ill. 2d at 513. In making a determination of prejudice, the court must examine the totality of the circumstances and not isolated incidents. People v. Mitchell, 105 Ill. 2d 1, 15 (1984).
The majority essentially finds prejudice in counsel’s failure on cross-examination to “clearly or unequivocally” challenge Deveaux’s credibility and identification of defendant as one of his attackers by confronting him with the weaknesses in his identification, including his misidentification of Hedley. 399 Ill. App. 3d at 889. The majority points to counsel’s inability to elicit “the core of the theory of defense” with “clarity” (399 Ill. App. 3d at 894, 896), highlighting what it views as crucial missed opportunities for impeachment including: (1) that Deveaux had told that police that he was “100 percent” certain regarding his identification of Hedley as one of his attackers; (2) that the police had determined that Hedley was exonerated; and (3) that Deveaux continued to maintain the possibility that Hedley was the third attacker. The majority additionally points to counsel’s failure to challenge Deveaux’s inability to accurately and consistently identify his attackers and their respective roles. 399 Ill. App. 3d at 896.
Given these deficiencies, the majority then finds that prejudice resulted from the lack of clarity in counsel’s representation. However, the record establishes that during trial, counsel indeed elicited these points through other witnesses. Detective Kelly specifically testified that Deveaux related to him that Deveaux was “100 percent certain” that Hedley was one of the offenders, that he was “face to face” with Hedley when he was shot, and that he could never forget his face. Counsel also elicited from Kelly that even though Kelly had “determined that the person who was identified was not, in fact, one of the offenders in the actual robbing and shooting,” Deveaux “stated that he was still standing by his identification of the alleged offender.” Thus, contrary to the majority’s findings, counsel indeed elicited “the evidence which was the most devastating to Deveaux’s account.” 399 Ill. App. 3d at 896.
Additionally, the jury was made well aware of the discrepancy between the description Deveaux originally gave to police of his attackers as being 5 feet 7 inches, and then 5 feet 11 inches, and defendant’s actual height which was 6 feet 6 inches. Defense counsel also highlighted the length of time between the offense and the identification and introduced the photograph of the lineup of June 15, 2005, in which Deveaux identified defendant, showing that defendant was several inches taller than the other individuals in the lineup.
Moreover, counsel strenuously argued these points in closing argument as follows:
“[N]ow they’ve investigated a guy who’s about five/eleven, a little over six feet who the witness says is involved, he’s sure, as one of the offenders. In fact, he’s a hundred percent sure. I mean, what is this? Okay, now it turns out the guy couldn’t possibly have done it. The police officers don’t even bother investigating anymore and let him go because he couldn’t possibly have done it.
The victim says he’s still him. Clearly the victim wants someone to be responsible, so what does he do? Well, he throws away his five/eleven description and he looks at another line-up and says that’s the person and he points out — he says there’s the person. He doesn’t care whether the person was five/eleven before, now the person is six/seven. It’s a little bit of a difference between five/ eleven and six/seven and he doesn’t care because he wants somebody to be responsible ***.”
Thus, based upon the totality of the record, the impeaching evidence was introduced through another witness, and defendant’s theory of mistaken identity was indeed articulated to the jury in closing argument.
Additionally, the cases cited by the majority in support of its finding of prejudice are also distinguishable. Unlike the present case, in Anthony Roy W, counsel failed to present the jury with any evidence challenging the credibility of the victim. Anthony Roy W., 324 Ill. App. 3d at 186-87. In Wilson, the court found ineffective assistance of counsel where trial counsel failed to make any closing argument. Wilson, 392 Ill. App. 3d at 201-02. In Bryant, trial counsel completely failed to present any evidence to support his theory of defense after promising to present the jury with such testimony in opening statements. Bryant, 391 Ill. App. 3d at 242-43. In Spann, the court held that counsel was ineffective based upon the cumulative impact of counsel’s failure to present a motion to dismiss the indictment, failure to present a motion to suppress evidence, failure to present an opening statement, failure to call any witnesses, failure to present any evidence, and failure to test the credibility of the State’s only witness. Spann, 332 Ill. App. 3d at 439-40, 444. We are not faced with these unique circumstances in the present case.
For the foregoing reasons, I believe defendant has not met his burden to establish that, but for counsel’s deficiencies, there is a reasonable probability the outcome of the trial would have been different. Deveaux never waivered from his testimony that defendant was the offender that he saw come out of the closet. I would affirm defendant’s conviction and sentence.