Illinois Official Reports

Appellate Court

People v. Gunn, 2020 IL App (4th) 170653

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

KENDALL OMAR GUNN, Defendant-Appellant.

District & No. Fourth District

No. 4-17-0653

Filed January 21, 2020

Decision Under 

Review

Appeal from the Circuit Court of McLean County, No. 08-CF-1381; 

the Hon. Charles M. Feeney III, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

James E. Chadd, Thomas A. Lilien, and Bruce Kirkham, of State 

Appellate Defender’s Office, of Elgin, for appellant.

Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David 

J. Robinson, and Luke McNeill, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justices Cavanagh and Holder White concurred in the judgment and 

opinion.
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OPINION

¶ 1 Defendant, Kendall Omar Gunn, appeals from the second-stage dismissal of his amended 

petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 

(West 2014)). Defendant argues this court should reverse the trial court’s judgment because 

his amended postconviction petition made a substantial showing of a constitutional violation. 

We agree and reverse and remand for a third-stage evidentiary hearing.

¶ 2 I. BACKGROUND

¶ 3 In December 2008, the State charged defendant by indictment with three counts of first 

degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) for causing the death of Shane 

Howard. 

¶ 4 In May 2009, defense counsel filed a motion to suppress a statement 18-year-old defendant 

made to detectives after his arrest. The motion alleged “[d]efendant did not knowingly, 

intelligently and voluntarily waive his Miranda rights in that the [d]efendant’s mental 

deficiencies prevented him from making a legally sufficient decision to waive those rights.” 

¶ 5 In September 2009, the trial court held a hearing on the motion to suppress. The court heard 

testimony from several detectives and two expert witnesses, a forensic psychiatrist and a 

clinical psychologist. The court denied the motion. In doing so, the court acknowledged 

defendant had a below-average intelligence. 

¶ 6 On January 8, 2010, the trial court conducted a final pretrial conference. The court asked 

defense counsel whether, pursuant to the principles outlined in People v. Zehr, 103 Ill. 2d 472, 

477, 469 N.E.2d 1062, 1064 (1984), and codified in Illinois Supreme Court Rule 431(b) (eff. 

May 1, 2007), it should ask prospective jurors if they understood and accepted the fourth Zehr 

principle that a defendant’s failure to testify cannot be held against him. Counsel replied, “You 

don’t need to even deal with that, because he’s going to testify, it’s absolutely certain.” 

¶ 7 On January 11, 2010, the trial court commenced a jury trial. Prior to selecting a jury, the 

court again asked defense counsel if it should ask the jurors if they understood and accepted 

the fourth Zehr principle. Counsel confirmed the court need not conduct such an inquiry as 

defendant was going to testify. 

¶ 8 In opening statement, defense counsel informed the jury it would hear defendant testify at 

trial. First, counsel said: 

“You are going to hear about a lot of lies in this case. Some of them have been told 

by my client. He’s going to tell you that he lied about a number of things when he was 

talking to police, and he’s going to give you a reason why he lied. But the fact of the 

matter is, other people are going to tell you things that aren’t true, too, and it isn’t up 

to [the State] or [the defense] to say that one’s lying and that one isn’t. That’s your 

decision, just like it’s your decision to come to a conclusion at the end as to what 

actually happened.” 

At another point, counsel stated: 

“You’re going to hear a lot about my client from various people. You’re going to 

hear speculation that he was a member of several gangs. Some people thought he was 

a member of the Gangster Disciples. Some people thought he was something called a 

moe, which is someone associated with another group called the P-stones. Other people 
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are going to tell you he wasn’t in a gang. As a matter of fact, he’s going to tell you he 

wasn’t in a gang. But you’re going to know by the end of the case here that he was 

friends with some people who were in gangs.” 

Finally, counsel told the jury: 

“Now, the question about how many times he stabbed him I’m going to leave to the 

evidence in this case. It’s not appropriate for me to talk to you about what I believe at 

this point in time. But I want you to listen carefully to that, because my client—from 

my client’s perspective and the testimony that you will hear from him, is that he was 

trying to get Mr. Howard to back off. And he said, ‘Stop. Get back.’ And when you 

listen to the medical examiner about the nature of the wounds, I believe that’s consistent 

with what my client said. Two of the wounds were not lethal wounds, one was. Mr. 

Howard kept coming towards my client. My client finely [sic] stabbed him.” 

¶ 9 The State presented evidence showing, on December 11, 2008, Howard brought a knife, 

strapped to his arm, to a residential party where alcohol and marijuana were consumed. A 

physical altercation transpired between several individuals at the party, including defendant 

and Howard. At some point, Howard lost, and defendant gained, possession of the knife. 

Defendant stabbed Howard with the knife, which caused Howard’s death. In presenting its 

case, the State elicited testimony from several witnesses who were at the party. Through that 

testimony, the jury was provided with information suggesting Howard (1) was intoxicated and 

angry; (2) had been confrontational with defendant and others; (3) pulled out the knife during 

a confrontation with defendant and threatened to use it against him; (4) slammed defendant 

against a closet door, pulled defendant’s shirt up over defendant’s head, and placed the knife 

against defendant’s throat; (5) punched defendant in the face while holding the knife in his 

hand; and (6) told defendant he was going to kill him. The State also presented an edited audio 

and video recording of a police interview involving defendant taken several hours after the 

stabbing. During the interview, defendant (1) admitted to stabbing Howard after Howard threw 

an object, possibly a liquor bottle, at him and ran toward him; (2) asserted he was not part of a 

gang despite being friends with members of a gang; (3) gave several explanations as to what 

he did with the knife after the stabbing; and (4) stated, “I ain’t supposed to do it like that, I 

wasn’t supposed to stab him to be for real cause he didn’t, he didn’t have nothing for me to be 

scared of no more. I could whip his ass you know what I’m saying and I was just in the heat 

of the moment because he had the knife and now I got the knife.” 

¶ 10 The defense presented testimony from two witnesses who were at the party. Through that 

testimony, the jury was provided with information suggesting (1) Howard was intoxicated, 

armed with a knife, and confrontational with defendant and others during the party; (2) Howard 

placed defendant up against a wall and told him he was going to take his life while holding the 

knife; and (3) Howard’s friends told Howard to kill defendant while he was up against the wall. 

On the final day of trial, defense counsel informed the trial court the defense would rest without 

calling defendant to testify. The court then admonished defendant as follows: 

“THE COURT: Okay. And [defendant], I need to admonish you personally, okay? 

The statements in this case were that you were going to testify, and you have an 

absolute Constitutional right to testify or to not testify, but it needs to be your election. 

Do you understand this?

[DEFENDANT]: Yes, sir. 
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THE COURT: Have you had an opportunity to discuss with [defense counsel] 

whether or not you wish to testify?

[DEFENDANT]: Uh-huh. 

THE COURT: And they have advised you in that respect I take it? 

[DEFENDANT]: Yes, sir. 

THE COURT: And do you feel well-informed about this decision that you have 

made? 

[DEFENDANT]: Yes, sir. I do. 

THE COURT: It is my understanding that you do not wish to testify at this time, is 

that correct? 

[DEFENDANT]: I do not.” 

¶ 11 At the jury-instruction conference, the trial court ruled, over the State’s objection, it would 

instruct the jury on self-defense and second-degree murder based on imperfect self-defense.

¶ 12 In closing, the defense did not dispute defendant stabbed Howard with a knife. Instead, the 

defense argued defendant did so as a matter of self-defense or, alternatively, imperfect selfdefense. The defense did not address the unfulfilled promise to present defendant’s testimony. 

The State argued defendant had neither a reasonable nor unreasonable belief he needed to use 

force to protect himself. In so arguing, the State published to the jury portions of the audio and 

video recording of the police interview involving defendant and highlighted, in part, 

defendant’s statement indicating he knew he had nothing to fear because he had the knife. The 

State also commented defendant “lied” to the police during the interview when he provided 

varying accounts to where he discarded the knife. In response to this comment, the defense 

argued the fact defendant “lied” did not “tell us about what happened at the party” and 

suggested it was simply an act done by an 18-year-old who felt “guilty” because he “stabbed 

somebody.” 

¶ 13 The trial court instructed the jury on self-defense and second-degree murder based on 

imperfect self-defense. The court also instructed the jury: (1) “Neither opening statements nor

closing arguments are evidence, and any statement or argument made by the attorneys which 

is not based on the evidence should be disregarded” and (2) “The fact that the defendant did 

not testify must not be considered by you in any way in arriving at your verdict.” 

¶ 14 Following deliberations, the jury found defendant guilty of first degree murder, and in 

March 2010, the trial court sentenced him to 35 years’ imprisonment. 

¶ 15 In May 2010, defendant appealed from his conviction and sentence, and this court affirmed. 

People v. Gunn, 2012 IL App (4th) 100397-U. 

¶ 16 In February 2013, defendant filed a pro se postconviction petition, which later advanced to 

the second stage of postconviction proceedings. Appointed postconviction counsel 

supplemented defendant’s pro se postconviction petition, and the State filed a motion to 

dismiss. Following a hearing, the trial court granted the State’s motion to dismiss. 

¶ 17 In December 2013, defendant appealed from the dismissal of his postconviction petition, 

and this court reversed and remanded for new second-stage proceedings, concluding defendant 

was denied reasonable assistance of postconviction counsel. People v. Gunn, 2015 IL App 

(4th) 131093-U. 
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¶ 18 In August 2016, newly appointed postconviction counsel filed an amended postconviction 

petition on defendant’s behalf, which counsel later amended a second time. The amended 

petition alleged, in part, defendant’s trial “[c]ounsel was ineffective regarding [defendant’s] 

right to testify at trial.” Specifically, the petition alleged the following: 

“Trial counsel was ineffective for objecting to the reading of the fourth Zehr 

principle on the basis that [defendant] would testify and for telling the jurors the 

petitioner was going to tell them certain things throughout the trial, when in fact he did 

not tell them anything because he never testified. Trial counsel’s performance in telling 

the jury they will hear from [defendant] and then not following through falls well below 

the objective standard of reasonableness and meets the first prong of the Strickland test. 

Meeting the second prong of Strickland, [defendant] was prejudiced by trial counsel’s 

performance as it lead to doubt in the eyes of the jury as to what [defendant] was hiding 

by not testifying when they were told from the beginning that he would be. 

Additionally, by not having the jurors questioned during voir dire regarding the fourth 

Zehr principle, [defendant] does not know how the jurors felt about not hearing from 

him at trial.” 

The petition further alleged defendant’s appellate counsel was ineffective for failing to raise 

his claim of ineffective assistance of trial counsel on appeal from his conviction and sentence. 

¶ 19 Postconviction counsel attached to the amended postconviction petition a personal affidavit 

of defendant, which averred, in part, the following: (1) “Throughout the trial preparation 

process, [trial counsel] and I agreed that I would testify at my jury trial”; (2) “During the 

pendency of the jury trial, it was still my intention to testify on my own behalf”; (3) “The 

morning of [the last day of trial], prior to the jury trial starting for the morning, [trial counsel] 

met with me just outside the courtroom to discuss whether I should testify”; (4) “[Trial counsel] 

advised me that she believed the jury had heard sufficient evidence so as not to convict me of 

first degree murder and advised me that my testimony was not necessary”; (5) “This was the 

first time [trial counsel] had indicated that I should not testify”; (6) “The meeting lasted no 

more than five to seven minutes”; (7) “I don’t feel I was given adequate time to fully consider 

and understand the advice as it was sprung on me at the very last minute prior to the time I was 

to testify”; and (8) “Had I been given more time to consider this advice, I would have chosen 

to testify at my trial so I could explain the situation from my point of view.” 

¶ 20 In March 2017, the State filed a motion to dismiss defendant’s amended postconviction 

petition, which it later amended. With respect to defendant’s claim of ineffective assistance 

involving the right to testify, the amended motion argued, in part, the following: (1) the record 

showed defendant elected to not testify after being advised by counsel and admonished by the 

trial court the decision was his alone to make; (2) the “change in strategy” by trial counsel 

“was not unreasonable” as “[s]he probably believed that it would be unwise to subject 

defendant to cross[-]examination by a seasoned prosecutor, and instead rely upon favorable 

evidence that had already been introduced at trial which supported [defendant’s] claim of self[-

]defense”; and (3) defendant failed to establish he was prejudiced by any alleged error as there 

was no evidence to suggest the jury was not fair and impartial nor was there evidence showing 

the jury did not follow the court’s instruction at the close of evidence that defendant’s failure

to testify could not be used against him. As to trial counsel’s change in strategy, the motion 

highlighted the evidence introduced in the State’s case-in-chief showing Howard brought the 

knife to the party, was intoxicated, was confrontational, brandished the knife, threatened 
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defendant with the knife, and got into a fight with defendant. The motion also highlighted the 

information counsel had showing defendant was intellectually slow and had told police he was 

not afraid of Howard after he obtained control of the knife. 

¶ 21 In August 2017, the trial court, with the same judge who presided over the jury trial, held 

a hearing on the State’s amended motion to dismiss defendant’s amended postconviction 

petition. The State argued the points raised in its motion. With respect to defense counsel’s 

change in strategy, the State specifically argued: 

“But trials are a dynamic thing. We all have a pretty good expectation about what 

probably is going to happen and what strategies we are probably going to use, but the 

way this case developed, her whole defense of self[-]defense, was really spelled out 

completely in the State’s case-in-chief. It’s highly unusual that it comes in that way. 

Counsel may very well have thought I’m going to leave well enough alone. You’ll 

recall, because there was extensive testimony regarding the [m]otion to [s]uppress the 

statements that he made, and some of them were very damning to him, but all sorts of 

testimony was given by a psychiatrist and a psychologist as to his competency even to 

understand his Miranda rights and the ability to waive them. The testimony was he 

wasn’t a very smart individual. She may very well have thought that undergoing cross 

from a seasoned prosecutor would just have destroyed him and further have given the 

State the opportunity to use the damning admissions that he made in the statement to 

the police against him.”

In response, postconviction counsel argued defendant was well aware trial counsel was a 

seasoned attorney and “relied very heavily upon her advice in regards to whether or not he 

should testify.” Postconviction counsel further argued: 

“[The State] argues that maybe it was her strategy that he ended up not testifying 

because of the fact that he—I think the words that he used was not very smart—and 

that he could have been tripped up by seasoned—the seasoned prosecutor that was at 

the trial at that point in time. But, your [h]onor, that wasn’t the case. I mean, we can 

tell by the way that the opening statements unfolded, we can tell by the fact that she 

didn’t want the fourth Zehr principle to be laid out there. She was going to have him 

testify, and then ultimately he didn’t testify, and I believe that hurt [defendant] 

immensely because the whole—all along, the jury thought that they were going to hear 

from him and then they didn’t.”

Following arguments, the court dismissed defendant’s petition, finding it failed to make a 

substantial showing of a constitutional violation. As to defendant’s claim of ineffective 

assistance involving the right to testify, the court found the record showed defendant elected 

not to testify after being advised by counsel and admonished by the court the decision was his 

alone to make. The court further found: 

“And, at this point, it’s not appropriate to say, well, that didn’t work out well for him, 

I want a do-over, because maybe my trial would be different if I would have chosen to 

testify. That particular strategy didn’t work.

Trials are a dynamic thing, and we make our choices, and we have to live with them 

in that regard. And so the fact that [trial counsel] initially anticipated having the 

defendant testify, and then given the state of the evidence chose to change strategy in 

the middle of a trial, that’s not that unusual. There’s lots of times a defense attorney 

might choose to not call a particular witness or might in this instance choose to have a 
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defendant, client, testify or not testify, contrary to what was originally planned. Why 

would they do that? Well, because trials are dynamic. And, as [the State] mentioned, it 

may be, or may not—I’m not going to speculate—but there was evidence in [m]otions 

to [s]uppress regarding the intellectual capacities of the defendant, and it’s possible that 

counsel looked at that and said there’s a pretty substantial risk of harm to our case by 

exposing the defendant to cross[-]examination by an experienced trial counsel. I don’t 

know, and I’m not going to speculate on that, but what is important is, is it wasn’t 

ineffective assistance of counsel. It was the best efforts of a counsel. It was a personal 

election made by the defendant after the defendant was chose—chose what course he 

wished to pursue after being informed by the [c]ourt even of what his rights were. And, 

given that, it’s not ineffective. I don’t know that it would have changed anything in this 

case. It may or may not have, but it’s speculation to say what a jury would have done 

or did as a result of being told that he would testify and then he didn’t testify. It’s 

speculation that—that they would just tell, you know, basically treat the [c]ourt’s 

instructions with utter disregard. That, in fact, not only is there speculation on that 

point, I think it’s fair to say that the—a jury would follow the [c]ourt’s instructions. 

And that instruction seems curative. This one Zehr principle is—can be either given or 

not given at the choice of the defense. But it is—if the defendant chooses to testify, 

then that Zehr principle is irrelevant. If the defendant chooses not to testify, then the 

jury is already informed in a jury instruction, like they have been for the history of our 

country, for the most part, I think, that, hey, he has a right to remain silent. You can’t 

hold that against him. And that’s exactly what this jury was told. 

So I don’t think there’s any merit to ineffective assistance of counsel as to the 

defendant’s right to testify.”

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 On appeal, defendant argues this court should reverse the trial court’s judgment because 

his amended postconviction petition made a substantial showing of a constitutional violation. 

Specifically, defendant contends he made a substantial showing of ineffective assistance of 

trial and appellate counsel based on trial counsel’s unfulfilled promise to present his testimony 

and waiver of his right to have the court inquire about the fourth Zehr principle. Defendant 

requests the matter be remanded for a third-stage evidentiary hearing concerning the factual 

question of whether counsel’s actions constituted a valid trial strategy. 

¶ 25 The Act (725 ILCS 5/122-1 to 122-7 (West 2014)) “provides a mechanism by which a 

criminal defendant can assert that his conviction and sentence were the result of a substantial 

denial of his rights under the United States Constitution, the Illinois Constitution, or both.” 

People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The adjudication of a postconviction 

petition follows a three-stage process. People v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615. 

In this case, defendant’s amended postconviction petition was dismissed at the second stage. 

We review a trial court’s second-stage dismissal de novo. People v. Dupree, 2018 IL 122307, 

¶ 29, 124 N.E.3d 908.

¶ 26 At the second stage of postconviction proceedings, the trial court must determine “whether 

the petition and any accompanying documentation make a substantial showing of a 

constitutional violation.” People v. Johnson, 2018 IL 122227, ¶ 15, 123 N.E.3d 1083. In 
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making this determination, the court accepts all well-pleaded facts as true, unless they are 

affirmatively refuted by the record. People v. Domagala, 2013 IL 113688, ¶ 35, 987 N.E.2d 

767. The defendant bears the burden of making a substantial showing of a constitutional 

violation. Id. 

¶ 27 “The sixth amendment [(U.S. Const., amend. VI)] guarantees a criminal defendant the right 

to effective assistance of trial counsel at all critical stages of the criminal proceedings ***.” 

People v. Brown, 2017 IL 121681, ¶ 25, 102 N.E.3d 205. Claims of ineffective assistance of 

counsel are governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 

668 (1984). See People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (1984) 

(adopting Strickland). To succeed on a claim of ineffective assistance of counsel, a defendant 

must show (1) counsel’s performance fell below an objective standard of reasonableness and 

(2) the deficient performance resulted in prejudice. Strickland, 466 U.S. at 687; Brown, 2017 

IL 121681, ¶ 25. 

¶ 28 To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel’s 

performance was so “inadequate ‘that counsel was not functioning as the “counsel” guaranteed 

by the sixth amendment.’ ” Dupree, 2018 IL 122307, ¶ 44 (quoting People v. Evans, 186 Ill. 

2d 83, 93, 708 N.E.2d 1158, 1163 (1999)). To satisfy the prejudice prong of Strickland, the 

defendant must demonstrate “there is a ‘reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.’ ” Domagala, 

2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 694). “A defendant must satisfy both 

prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding 

of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

¶ 29 “A counsel’s failure to provide promised testimony is not ineffective assistance per se.” 

People v. Manning, 334 Ill. App. 3d 882, 892, 778 N.E.2d 1222, 1230 (2002). This is because, 

as the trial court noted in this case, trials are dynamic. To determine whether the failure to 

provide promised testimony amounts to ineffective assistance, we must look to the factual 

circumstances of a given case. 

¶ 30 In this case, the record, including the well-pleaded facts in defendant’s amended 

postconviction petition and accompanying affidavit, shows both defendant and his trial counsel 

anticipated defendant testifying up until the last day of trial. Trial counsel, therefore, 

(1) waived defendant’s right to have the trial court ask prospective jurors whether they 

understood and accepted the fourth Zehr principle and (2) promised the jury defendant would 

testify and explain “why he lied” to the police, that “he wasn’t in a gang,” and that he stabbed 

Howard when he was trying to get him to “ ‘[s]top’ ” and “ ‘[g]et back.’ ” On the last day of 

trial, trial counsel changed course and advised defendant “she believed the jury had heard 

sufficient evidence so as not to convict [defendant] of first[-]degree murder and [his] testimony 

was not necessary.” Based on counsel’s advice, defendant elected not to testify after being 

admonished by the trial court the decision was his alone to make and statements had been 

previously made suggesting he was going to testify. 

¶ 31 On this record, we are not presented with a situation where a defendant who expressed a 

pretrial desire to testify simply changed his mind and choose not to testify when given the 

opportunity. Cf. People v. Gordon, 2016 IL App (1st) 134004, ¶ 43, 56 N.E.3d 467. Instead, 

we are presented with the situation where counsel, as a matter of trial strategy, changed course 

midtrial and advised defendant his testimony was not necessary, which defendant relied upon 

when electing not to testify. 
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¶ 32 Under the deficiency prong of Strickland, defendant asserts he made a substantial showing 

counsel’s decision to change course and advise him his testimony was not necessary was 

constitutionally inadequate. The State disagrees, asserting this court should presume counsel’s 

decision and advice was the result of sound trial strategy and, even taking defendant’s affidavit 

as true, the alleged basis of counsel’s decision and advice, that the jury had heard sufficient 

evidence so as not to convict him of first degree murder, was not objectively unreasonable. 

¶ 33 We reject the State’s suggestion we should presume at this stage trial counsel’s decision to 

change course and advise defendant his testimony was not necessary was the result of sound 

trial strategy. In support of its position, the State relies on Manning. In that case, the court was 

asked to evaluate on appeal from a conviction the merits of a claim of ineffective assistance 

based on a trial counsel’s failure to present promised testimony. Manning, 334 Ill. App. 3d at 

886. The court presumed counsel’s decision not to present the promised testimony was the 

result of trial strategy as the record failed to show whether counsel’s decision was due to 

defendant simply changing his mind and choosing not to testify, sound trial strategy, or 

incompetence. Id. at 893. In so presuming, the court explicitly declined to address matters 

outside the record. Id. at 893-94. Unlike Manning, defendant has pursued his claim through a 

postconviction proceeding, the type of proceeding where counsel’s basis for changing course 

and advising defendant not to testify can be developed. See People v. Talbert, 2018 IL App 

(1st) 160157, ¶ 53, 122 N.E.3d 739 (“Where the record is silent as to counsel’s strategy, the 

defendant’s ineffective assistance of counsel claim may be more appropriately raised in a 

collateral proceeding.”). At this stage in the postconviction proceedings, we will not presume 

counsel’s decision to change course and advise defendant his testimony was not necessary was 

the result of sound trial strategy. 

¶ 34 We also reject the State’s argument suggesting the alleged basis of trial counsel’s decision 

to change course and advise defendant his testimony was not necessary, that the jury had heard 

sufficient evidence so as not to convict him of first degree murder, was not objectively 

unreasonable as a matter of law. The determination of whether the alleged basis of counsel’s 

decision and advice was unreasonable turns on whether an unforeseeable event occurred at 

trial. See People v. Briones, 352 Ill. App. 3d 913, 918, 816 N.E.2d 1120, 1124 (2004) 

(“ ‘[W]hen the failure to present the promised testimony cannot be chalked up to unforeseeable 

events, the attorney’s broken promise may be unreasonable, for “little is more damaging than 

to fail to produce important evidence that had been promised in an opening.” ’ ” (quoting 

United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003), quoting Anderson 

v. Butler, 858 F.2d 16, 17 (1st Cir. 1988))); see also Ouber v. Guarino, 293 F.3d 19, 27 (1st 

Cir. 2002) (finding trial counsel’s opening statements, in conjunction with the decision to 

advise his client not to testify, was ineffective assistance “in the absence of unforeseeable 

events forcing a change in strategy”). Counsel did not provide any explanation at trial 

suggesting an unforeseeable event occurred to justify the change in strategy, nor do we find 

the occurrence of such an event in our review of the cold record. Had it been reasonably 

foreseeable that sufficient evidence would have been presented so as not to convict defendant 

of first degree murder at the time counsel waived the inquiry about the fourth Zehr principle 

and promised the jury they would hear from defendant, counsel’s later decision to change 

course and advise defendant his testimony was not necessary would be unsound. See Leibach, 

347 F.3d at 259 (“Making *** promises and then abandoning them for reasons that were 

apparent at the time the promises were made cannot be described as legitimate trial strategy.”). 
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At this stage in the postconviction proceedings, we find defendant made a substantial showing 

counsel’s decision to change course and advise him his testimony was not necessary was 

constitutionally inadequate.

¶ 35 Under the prejudice prong of Strickland, defendant asserts he made a substantial showing 

he was prejudiced by trial counsel’s decision to change course and advise him his testimony 

was not necessary. The State disagrees, asserting defendant’s testimony would have been 

cumulative and nothing in the record suggests the jury did not follow the jury instructions. 

¶ 36 We reject the State’s argument suggesting defendant’s testimony would have been entirely 

cumulative. In opening statement, defendant’s trial counsel told the jury defendant would 

testify and explain “why he lied” to the police. No evidence was introduced explaining why 

defendant “lied” to the police. Absent defendant’s testimony, the jury was left simply with trial 

counsel’s description of defendant as a liar. 

¶ 37 We also reject the State’s argument suggesting the jury instructions cured any prejudice 

suffered by defendant. While the giving of an instruction is “a factor to be considered in 

determining the prejudice to defendant,” it “is not always curative.” People v. Bunning, 298 

Ill. App. 3d 725, 729, 700 N.E.2d 716, 720 (1998). As a general proposition, “unfulfilled 

promises to present personal testimony from a criminal defendant are highly suspect under 

Strickland.” Barrow v. Uchtman, 398 F.3d 597, 607 (7th Cir. 2005); see also People v. Bryant, 

391 Ill. App. 3d 228, 242, 907 N.E.2d 862, 874-75 (2009) (noting the failure to present 

testimony from a defendant after promising to do so is “highly prejudicial”). This is because 

“ ‘[p]romising 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’s 

credibility.’ ” Briones, 352 Ill. App. 3d at 918 (quoting Leibach, 347 F.3d at 259); see also 

Ouber, 293 F.3d at 28 (“When a jury is promised that it will hear the defendant’s story from 

the defendant’s 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.”); People v. Winkfield, 

2015 IL App (1st) 130205, ¶ 1, 41 N.E.3d 641 (“As prosecutors and criminal defense attorneys 

know, few assertions can wreck one’s case more than an unfulfilled promise made to a jury in 

opening statements.”). In this case, trial counsel not only made a generalized promise to present 

testimony from defendant but promised the jury defendant would testify and explain “why he 

lied” to the police, that “he wasn’t in a gang,” and that he stabbed Howard while trying to get 

him to “ ‘[s]top’ ” and “ ‘[g]et back.’ ” While the jury had the benefit of the audio and video 

recording of the police interview, we find defendant’s testimony was critical in light of the 

closely balanced evidence on the question of whether he stabbed Howard based on an 

unreasonable belief in his need to exercise self-defense. Given the specific promises made by 

counsel and the fact the evidence of guilt was not overwhelming, we find defendant made a 

substantial showing he was prejudiced by counsel’s decision to change course and advise him 

his testimony was not necessary.

¶ 38 We find a third-stage evidentiary hearing is warranted to allow trial counsel to be called as 

a witness to develop a record concerning why she changed course midtrial and advised 

defendant his testimony was not necessary despite previously waiving defendant’s right to 

have the trial court ask prospective jurors whether they understood and accepted the fourth 

Zehr principle and promising the jury defendant would testify and explain “why he lied” to the 
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police, that “he wasn’t in a gang,” and that he stabbed Howard while trying to get him to 

“ ‘[s]top’ ” and “ ‘[g]et back.’ ”

¶ 39 III. CONCLUSION

¶ 40 We reverse the trial court’s judgment and remand for a third-stage evidentiary hearing.

¶ 41 Reversed and remanded.