The opinion of the court was delivered by: Justice McCULLOUGH
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
Appeal from Circuit Court of Macon County
Honorable, John L. Davis, Judge Presiding.
Following a jury trial in the circuit court of Macon County, defendant Forrest E. Bunning, Jr., was found guilty of armed robbery. 720 ILCS 5/18-2(a) (West 1996). He was sentenced to 25 years' imprisonment to be served consecutive to a sentence imposed in Macon County case No. 95-CF-1134. Defendant was credited with 254 days previously served. The issues are whether defendant was denied a fair trial (1) when the prosecutor, during opening statement, told the jury defendant had confessed and referred to two witnesses, but did not call them or produce evidence of a confession; (2) when testimony was presented that he refused to continue with the police interrogation and requested counsel; (3) as a result of prosecutorial misconduct in eliciting inadmissible prior consistent statements and by using leading questions to complete the impeachment of a witness; (4) when the prosecutor, during closing argument, misstated the law and the evidence and referred to defendant as "playing games" by taking his case to trial instead of pleading guilty; and (5) because he was denied the effective assistance of counsel when defense counsel failed to (a) object to the prosecutor's opening statement; (b) move to strike testimony about defendant's assertion of his rights; (c) object to hearsay and leading questions; (d) object to the prosecutor's closing argument; and (e) raise these issues in a posttrial motion. We reverse and remand for a new trial. The facts will be discussed only as necessary for this court's Disposition.
None of the issues raised by defendant were properly preserved for review by contemporaneous objection and inclusion in defendant's posttrial motion. People v. Keene, 169 Ill. 2d 1, 9-10, 660 N.E.2d 901, 906 (1995). The only issues raised in the posttrial motion were that (1) the evidence was insufficient to find defendant guilty beyond a reasonable doubt and (2) the trial court erred in allowing the prosecutor to ask leading questions of Jason Crawley, but those specific questions were not identified. With regard to every issue, defendant argues on appeal that the error alleged should be considered as plain error. 134 Ill. 2d R. 615(a). The plain error rule may be invoked to protect the defendant from serious inJustices and to preserve the integrity and reputation of the judicial process under either of the following circumstances: (1) the evidence is closely balanced, and the error should be considered to preclude argument that an innocent person may have been wrongly convicted; or (2) the errors are of such a magnitude that there exists a substantial risk the accused was denied a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363, 673 N.E.2d 1037, 1041 (1996). Defendant also contends that all of these issues should be considered a basis for ineffective assistance of counsel.
"The Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, two-part test of effective assistance of counsel was adopted by this court in People v. Albanese (1984), 104 Ill. 2d 504. Under the test, a defendant must establish that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, were it not for counsel's unprofessional errors, the result of the proceeding would have been different. (Albanese, 104 Ill. 2d at 525.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Albane se, 104 Ill. 2d at 525.) The deficiency in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance. See Barnard, 104 Ill. 2d at 233.
*** [D]etermining the prejudice component entails more than applying an outcome-determinative test. The defendant must show that counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. (People v. Mahaffey (1995), 165 Ill. 2d 445, 458.) Resolution of such claims, based only on the prejudice component, involves looking at the findings unaffected by error, accounting for the effect of error on remaining findings and answering, in the end, whether the decision would '"reasonably likely"' have been different. Erickson, 161 Ill. 2d at 90, quoting Strickland, 466 U.S. at 695-96, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69." People v. Whitehead, 169 Ill. 2d 355, 380-81, 662 N.E.2d 1304, 1316 (1996).
However, a claim of incompetency arising from a matter of defense strategy will not support a claim of ineffective assistance of counsel. People v. Madej, 106 Ill. 2d 201, 214, 478 N.E.2d 392, 397 (1985).
Defendant points out that the failure of defense trial counsel to object to improper evidence or prejudicial argument of the prosecutor may result in a finding of ineffective assistance of counsel. People v. Royse, 99 Ill. 2d 163, 171-74, 457 N.E.2d 1217, 1221-22 (1983); see also People v. Rogers, 172 Ill. App. 3d 471, 476-79, 526 N.E.2d 655, 659-61 (1988); People v. Sanchez, 240 Ill. App. 3d 533, 535, 608 N.E.2d 477, 478-79 (1992). The impact of the alleged error depends on the facts of the particular case.
At the trial conducted on February 26, 1997, the prosecutor, as part of his opening statement, informed the jury:
"Now, we will also present some other evidence in this case besides Mr. Crawley's testimony. There will be testimony of Jerry Houghland, and some police officers as well. Some of this other evidence, first of all, Mr. Stolte and Mr. Houghland, will be that they did take Mr. Crawley and the defendant to that area and drop them off shortly before the robbery was committed. We will also present to you evidence of two confessions to the crime that defendant made. First of all, the next day when he saw Jerry Houghland, he bragged to Jerry Houghland that he and Jason had committed the armed robbery. And second, when the defendant was picked up a couple of days later. He was taken down to headquarters and after he got to headquarters he was interviewed by two detectives of the Sheriff's Department. They told him what was going on. First of all, the defendant expressed his disbelief that he would be arrested based on the word of a sixteen year old. They confronted the defendant with some of the evidence against him and he made a statement, that, well, he knew Jason was going to commit the robbery but he couldn't believe he did it. Then he told the officers that he wasn't there and he had nothing to do with it. When the defendant was told that, nonetheless, due to the evidence, that he was going to be held, the defendant blurted out 'I wasn't in the building, so I'm not guilty.' After that, they said 'Well, you just told us you weren't there; now you're telling us you were there.' Then the defendant began to backtrack and said 'Well, what I meant to say was, if I had been there, I wouldn't have been in the building.'"
Stolte and Houghland were not called as witnesses by the State.
It is impermissible for a prosecutor to comment during opening statement upon what testimony will be introduced at trial and then fail to produce that testimony since such an argument is, in effect, an assertion of the prosecutor's own unsworn testimony in lieu of competent evidence. People v. Rogers, 42 Ill. App. 3d 499, 502-03, 356 N.E.2d 413, 416 (1976). An improper remark during opening statement will be grounds for reversal if it substantially prejudiced ...