                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Jones, 2012 IL App (2d) 110346




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GEORGE R. JONES, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0346


Filed                      December 19, 2012


Held                       In a prosecution for aggravated battery of a police officer, the trial court
(Note: This syllabus       did not abuse its discretion in amending the indictment to correctly name
constitutes no part of     the officer who was the victim, since defendant was not surprised or
the opinion of the court   prejudiced and the amendment was formal, and defendant’s counsel was
but has been prepared      not ineffective in failing to strike a biased juror or in waiting until
by the Reporter of         surrebuttal to call defendant’s girlfriend as a witness, because defendant
Decisions for the          did not overcome the presumption that his counsel’s decisions were
convenience of the         matters of trial strategy.
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 08-CF-2933; the
Review                     Hon. Timothy Q. Sheldon, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Thomas A. Lilien and Christopher McCoy, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.

                            Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                            Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                            Justices Hudson and Birkett concurred in the judgment and opinion.



                                               OPINION

¶1          Following a jury trial, defendant, George R. Jones, was convicted of aggravated battery
        (720 ILCS 5/12-4(a) (West 2008)) and sentenced to 4½ years’ imprisonment. In this direct
        appeal, defendant argues that: (1) the State improperly amended the indictment on the first
        day of trial and (2) his trial counsel was ineffective for failing to strike a juror and for waiting
        until surrebuttal to call a witness, who was not allowed to testify. We affirm.

¶2                                         I. BACKGROUND
¶3                                              A. Pretrial
¶4                                             1. Indictment
¶5          A transcript of the grand jury proceedings on October 16, 2009, is part of the record. The
        transcript reflects that the State asked the grand jury to return a three-count indictment:
        “count one, disarming a peace officer; count two, aggravated battery; count three, resisting
        a peace officer.” Carpentersville police detective Paul Brandt, who was not present during
        the incident involving defendant, was the only witness to testify. Detective Brandt’s
        testimony was based on his review of police reports.
¶6          According to the reports, Officers Joseph Gutierrez, Edward Acot, and Robert Drews
        were dispatched to a reported domestic disturbance at Foxview Apartments on October 15,
        2008, around 11:15 p.m. Defendant was being belligerent and not allowing his girlfriend,
        Amanda Perkins, to speak with the officers. The officers advised defendant that they needed
        to make sure Amanda was all right. Defendant replied that she was fine and denied them
        access into the apartment. Officer Gutierrez asked defendant to step outside of the apartment
        to talk. Defendant refused to exit and stated that Officer Gutierrez could come inside if he
        took off his vest, gun, and belt. After Officer Gutierrez told defendant that that was not going
        to happen, defendant reached out and grabbed Officer Gutierrez’s arm. Officer Gutierrez told
        defendant not to grab him and that he was under arrest. Officer Gutierrez reversed
        defendant’s grip on his arm, and Officers Drews and Gutierrez tried to lift defendant through

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       the door to place him under arrest. Defendant fought the whole way and grabbed Officer
       Acot’s gun and tried to unholster it. Defendant continued to fight with the officers and was
       taken to the ground and tased.
¶7          The grand jury returned a three-count indictment charging defendant with disarming a
       peace officer, aggravated battery, and resisting a peace officer. All three counts identified
       Officer Acot as the victim. The disarming count alleged that defendant knowingly disarmed
       or attempted to disarm Officer Acot by taking or attempting to take his firearm. The
       aggravated battery count alleged that defendant knowingly made contact of an insulting or
       provoking nature with Officer Acot in that he struck him about the body. The resisting count
       alleged that defendant knowingly resisted his arrest in that he struck and resisted Officer
       Acot.1
¶8          A jury trial commenced on July 12, 2010. On the day of trial, the State advised the court
       that, the night before, it had become aware that the aggravated battery count contained a
       “scrivener’s error.” Although that count referred to Officer Acot as the victim, the grand jury
       transcript testimony and police reports indicated that defendant committed the aggravated
       battery against Officer Gutierrez. The amended count alleged that defendant knowingly made
       contact of an insulting nature with Officer Gutierrez in that he struck him about the body.
¶9          Defense counsel responded to the State’s motion by arguing as follows. Changing the
       victim’s name did not constitute correcting a scrivener’s error or a formal defect; instead, it
       amounted to a “material change” to the indictment. Officer Acot was known to have been
       involved in the arrest yet the State waited two years, until the day of trial, to change the name
       of the victim. At this point, the court asked defense counsel whether he agreed that the grand
       jury transcript set forth Officer Gutierrez as the victim. Defense counsel replied that the
       grand jury transcript set forth allegations concerning both Officers Gutierrez and Acot.
       However, he argued, the aggravated battery charge of insulting or provoking contact could
       be “anything,” even breathing on the officer in an insulting or provoking way. Defense
       counsel reiterated that the name of the victim could not be changed on the day of trial.
¶ 10        The court allowed the amendment for two reasons: first, defense counsel’s
       acknowledgment that there was reference to Officer Gutierrez in the grand jury transcript;
       and second, the liberal case law regarding “how late in the proceedings” the State is allowed
       to move for such an amendment. Nevertheless, the court gave defense counsel the option of
       a continuance if the amendment was a surprise in terms of his trial strategy. Defense counsel
       asked the court to clarify whether it was ruling that the amendment addressed a formal defect
       in the indictment, to which the court responded affirmatively. Defense counsel then conferred
       with defendant and opted to proceed to trial.

¶ 11                                    2. Jury Selection
¶ 12      During voir dire, one of the potential jurors, Jolynn Williams, stated that her uncle had
       been a police officer. When defense counsel asked if she would give more credibility to a


               1
                   Prior to trial, the State nol-prossed the resisting arrest count.

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       police officer’s testimony than defendant’s testimony, she said she would. Defense counsel
       then questioned another potential juror, Jerry Glees, and the following colloquy occurred.
               “Q. And again, I understand all of us are favor–or very favorable, may have very
           favorable experiences with police officers, I’m not saying anything bad about a police
           officer but would you give a police officer any more credibility, his testimony, right off
           Jump Street?
               A. I think I would, just because being taught that they’re to uphold the law and
           they’re to be honest and credible witnesses.
               Q. Now anything an officer said, would you just assume that that is true?
               A. I would not say that I might assume it, I would like to think that I would listen to
           all of the facts and make a decision bassed [sic] on that.
               Q. You said that you would like to think?
               A. Well, I would have to go through the trial and see what happens. I’m just saying
           that police officers are–they’re to uphold the law and [sic] gives them credence.
               Q. Just like all of us here?
               A. Yes.
               Q. So you are more likely to give credibility after the fact, would you say that you
           would be more likely to give a police officer’s testimony than any other citizen?
               A. I am saying I would believe they would be more credible.
               Q. Okay.”
       Immediately after this exchange, a sidebar conference occurred. Defense counsel indicated
       that he was “going to show cause,” and the court stated that it would ask some follow-up
       questions. To Williams (and not Glees), the court noted that she was related to a police
       officer and believed an officer’s testimony to be “most credible.” The court asked if she
       could be fair and impartial in this case, and she said no. The court excused Williams for
       cause and told defense counsel to continue. Defense counsel said, “Oh, I guess–I’m sorry,”
       and then began questioning the replacement juror. The replacement juror and Glees were
       accepted as jurors in the next panel. During the remainder of jury selection, defense counsel
       excused one more juror on a peremptory challenge.

¶ 13                                            B. Trial
¶ 14       During opening argument, the State maintained that defendant was drunk, belligerent,
       and refusing to let the police officers check on Amanda. When the officers asked him to step
       outside of his apartment, defendant refused, telling Officer Gutierrez to take off his vest, gun,
       and belt and come inside and fight him. Officer Gutierrez refused, and defendant grabbed the
       officer’s arm and attempted to pull him into the apartment. As Officer Acot tried to help
       Officer Gutierrez free himself from defendant’s grip, defendant grabbed at Officer Acot’s
       gun. Officer Acot then shouted to Officer Drews, who helped get defendant to the ground.
       Defendant continued to struggle and grab at Officer Acot’s gun, until he was tased and
       handcuffed.


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¶ 15       Defense counsel countered the State’s theory by arguing as follows. The officers asked
       Amanda, “the woman that [the jury] will be hearing from,” if she was fine, and she said yes.
       The officers shined a flashlight on her and saw no bruises or marks. Yet, they still wanted
       to come inside defendant’s apartment. So, they grabbed defendant from inside of his home
       and dragged him through the top of the screen door, which was possible because the screen
       was not intact with the door. Defense counsel explained that defendant did not commit the
       offenses he was charged with; all of the violence came from the officers. He also argued that
       the officers had to justify their use of a Taser even though no charges were pending against
       defendant at the time they questioned him. Defense counsel continued that the jury would
       hear the officers testify and “hear from Amanda” and “probably” from defendant to see what
       happened in the case.
¶ 16       Officer Gutierrez testified first, on behalf of the State. Officer Gutierrez had been
       employed as a police officer by the Village of Carpentersville for four years and was on
       patrol the night of the incident. He was dispatched to defendant’s apartment around 11 p.m.
       regarding a possible disturbance. Officers Acot and Drews and two personnel from Fox
       Valley security were also at the scene. Defendant’s apartment was partly underground with
       stairs leading down to the front door. The officers knocked on the door, and defendant
       eventually appeared.
¶ 17       Officer Gutierrez described defendant’s demeanor as belligerent. The officers told
       defendant that they were there to make sure Amanda was okay. Defendant, shirtless and
       smelling of alcohol, replied that Amanda was fine and refused to let the officers inside the
       apartment. At this point, Amanda came and stood behind defendant. It was dark, and Officer
       Gutierrez could not see her even when using his flashlight, although he could hear her.
       Defendant was yelling at the officers, telling Officer Gutierrez that he was “ ‘in shit’ ” and
       did not have a right to be there.
¶ 18       The front door was open and defendant was standing behind the screen door. He was
       poking his head and upper torso out of the screen, which was not intact with the door.
       Defendant said that Officer Gutierrez could come inside if he removed his vest, gun, and
       belt, but Officer Gutierrez said that that was not going to happen. Defendant did not directly
       mention fighting, but that was what Officer Gutierrez inferred. As Officer Gutierrez
       explained that they wanted simply to make sure Amanda was all right, defendant reached out
       through the screen and grabbed his left arm. Officer Gutierrez was “startled, stunned.”
       Officer Gutierrez told defendant that defendant was not allowed to touch him, and he
       reversed the grip, putting defendant in a wrist lock and pulling him forward. Defendant began
       to fall forward through the screen door. Officer Gutierrez tried to hold defendant back with
       defendant’s other arm, and Officer Acot tried to assist in bringing defendant down to the
       ground. Defendant continued to fight.
¶ 19       Officer Drews then came down the stairs and tried to lift up defendant’s legs so that they
       would come through the screen. At this point, Officer Acot yelled that defendant had grabbed
       for his gun and was pulling at it. Defendant was told to stop resisting and eventually Officer
       Drews used a Taser. Defendant was handcuffed and taken to the police station. When
       defendant asked why he was under arrest, Officer Gutierrez told him he was being arrested
       for aggravated battery, based on contact with Officer Gutierrez, and resisting arrest.

                                                -5-
¶ 20        On cross-examination, Officer Gutierrez testified that he told defendant that the officers
       needed to come inside his apartment to make sure Amanda was all right. When he asked if
       Amanda was all right, she answered that she was okay. At this point, Officer Gutierrez
       shined his flashlight in the apartment and could see “parts” of Amanda. The officers did not
       leave and continued to investigate what was going on. Officer Gutierrez had been trained
       how to deal with drunk and belligerent people. Still, he was “shocked” when defendant
       grabbed his arm. Officer Gutierrez reversed the grip, and Officer Acot grabbed defendant by
       the waist to get him through the doorway. Defendant’s feet were still inside his apartment
       but he was leaning outside of the doorway. Then, the screen door opened and defendant’s
       legs were suspended in the air. Officer Drews tried to grab defendant’s legs. When all three
       officers had different parts of defendant’s body, and he was suspended in the air, he grabbed
       at Officer Acot’s gun. Officer Gutierrez admitted that he did not know defendant’s intentions
       behind this action. Eventually, defendant was brought to the ground. None of the officers
       were injured.
¶ 21        On redirect, Officer Gutierrez testified that defendant was under arrest right after he
       touched the officer’s arm; no injury was required for an arrest. When defendant told him to
       remove his equipment, his tone was suggestive, “like we were going to fight.” In addition,
       even though Amanda said she was okay, her voice was quivering and she seemed like she
       was afraid.
¶ 22        On recross, Officer Gutierrez admitted that he could not see defendant’s hand on Officer
       Acot’s gun. He also said that defendant was still grabbing at Officer Acot’s gun from the
       ground and that defendant was not committing a crime and was not under arrest until he
       grabbed Officer Gutierrez’s arm.
¶ 23        Officer Acot, who had also served on the police force for four years, testified next as
       follows. For the most part, his testimony was consistent with that of Officer Gutierrez. After
       defendant grabbed Officer Gutierrez, and Officer Gutierrez reversed the grip, defendant was
       under arrest. Defendant tried to stay in his apartment but Officer Acot assisted in pulling
       defendant out because he was resisting arrest. At this time, Officer Acot felt a tug on his duty
       holster and saw defendant’s left hand on his weapon, which was located on his right side.
       Defendant’s hand clamped down directly on top of his gun grip. To minimize defendant’s
       movement, Officer Acot used his hands to press down on defendant’s left hand and grab his
       left forearm. After that, Officer Acot placed his left arm around defendant’s head and told
       the other officers that defendant was attempting to take his gun. Officer Drews then lifted
       defendant’s legs through the door. Defendant’s hand remained on Officer Acot’s weapon
       until he was tased.
¶ 24        On cross-examination, Officer Acot testified that defendant told Officer Gutierrez to take
       off his equipment and come inside so that they could fight; defendant used the words “ ‘to
       fight him.’ ” The officers asked defendant several times whether they could come inside.
       Officer Acot never heard Amanda say that she was okay. He could see her in the background;
       she did not appear injured. After Officer Gutierrez reversed defendant’s grip on his arm, he
       continued to hold defendant’s arm, and defendant used his other hand to try to grab Officer
       Acot’s gun. Officer Acot never grabbed defendant’s torso; he used his right hand to prevent
       defendant from taking his gun and then his left arm went around defendant’s head.

                                                 -6-
¶ 25       Kalim Khan, a security guard at Foxview Apartments, testified consistently with Officers
       Gutierrez and Acot with one exception. Khan testified that defendant grabbed Officer
       Gutierrez twice. Officer Gutierrez warned defendant the first time he did it, and the second
       time he told defendant he was under arrest for grabbing a police officer. Khan also saw
       defendant grab Officer Acot’s gun and not release his grip even when down on the ground.
¶ 26       On cross-examination, Khan testified that he knew Officers Gutierrez, Acot, and Drews.
       He had worked with them on other incidents and continued to work with them. Khan wrote
       a statement for police shortly after the incident. He admitted that, in his report, he never
       mentioned defendant grabbing Officer Acot’s gun or Officer Acot yelling that defendant had
       grabbed his gun.
¶ 27       Officer Drews, who had worked as a police officer for seven years, testified as follows.
       Officer Drews remained on the sidewalk and spoke with security personnel while Officers
       Acot and Gutierrez were trying to make contact with defendant. Defendant was very
       uncooperative and was exchanging words with Officer Gutierrez. Defendant reached his arm
       out through his screen door, but Officer Drews did not see defendant make physical contact
       with Officer Gutierrez. At this point, Officer Drews was on the top step. Officer Drews came
       down the stairs to assist when he heard Officer Gutierrez tell defendant that he was under
       arrest. Officer Acot yelled that defendant was trying to grab his gun. At this point, defendant
       was halfway out but his feet were caught up on the screen door. Officer Drews did not see
       defendant grab Officer Acot’s gun, “with everything going on”; he concentrated on grabbing
       defendant’s feet. Once defendant was on the ground, Officer Acot again said that defendant
       was trying to get his gun. Five or six times, the officers tried to put defendant’s hands behind
       his back, and they told defendant he would be tased. Defendant refused to comply, so Officer
       Drews administered a dry stun to his back.
¶ 28       On cross-examination, Officer Drews testified that he did not see defendant grab Officer
       Gutierrez, because it was dark and because he was at the top of the stairs talking to “Bill,”
       one of the security guards. Officer Drews did not recall where Khan was standing during the
       incident. Defendant was tased because he repeatedly refused to put his hands behind his
       back. Officer Drews completed a report after the incident. In describing the nature of the
       incident, Officer Drews checked the “Resistance” box as opposed to the “Assaultive” box.
¶ 29       At the close of the State’s evidence, defense counsel made a motion for a directed
       verdict, which the trial court denied. The case was continued to the next day, and defense
       counsel told the court that he had “potentially two witnesses.”
¶ 30       Defendant testified as follows. Defendant, age 26, and Amanda had two children
       together. On the night of the incident, defendant drank 1½ cups of tequila, and he and
       Amanda had a “little argument.” Defendant did not strike Amanda that night and had never
       struck her. Defendant and Amanda were watching television in the bedroom when they heard
       a knock on the door around 11 p.m. Defendant was annoyed and hoped the person would go
       away. Finally, he went to the door and saw that it was the police. Defendant was not happy
       to see the police, due to an earlier “incident.”
¶ 31       The police said that they were there for a disturbance, and defendant replied that there
       was no disturbance in the apartment. Several times, the police asked to come inside the


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       apartment, but defendant refused because there was no need. The police asked to see
       Amanda, and defendant called her out of the bedroom. She came and stood beside defendant.
       The police asked if she was okay, and Amanda said that she was fine. The police continued
       to ask about coming inside and shined a flashlight on Amanda. She had no bruises, scratches,
       broken bones, or other injuries, because defendant never struck Amanda that night.
¶ 32       Defendant admitted having an exchange with one of the officers and cussing at him. The
       officer told defendant that, if he were not on duty, he would come inside defendant’s
       apartment and “kick” defendant’s “butt.” Defendant replied that the officer could take off his
       gun and badge and vest and come inside, but the officer said “ ‘I can’t do that.’ ” Though the
       officers had shined the light on Amanda and asked if she was fine, they continued to stand
       there and “taunt” defendant. Defendant admitted that he was not polite in telling them to
       leave.
¶ 33       Defendant walked toward the screen door to lock it. As he locked it, Officer Gutierrez
       grabbed his wrist and pulled him halfway through the screen door. Defendant denied having
       his whole torso outside of the screen window before the police pulled him through the door.
       Defendant pulled back because he did not know why they were grabbing him. Then, Officer
       Acot grabbed defendant and said that defendant was trying to grab his gun. Defendant denied
       knowingly grabbing Officer Acot’s gun. Defendant thought that, when the officers pulled
       defendant and he pulled back, he “might have touched [the] gun belt or grabbed [the] gun
       belt.” Defendant said that he had no balance and that he did not recall grabbing Officer
       Acot’s gun. Officer Drews assisted, and all three officers pulled him completely through the
       screen door to the ground. Defendant was then tased.
¶ 34       On cross-examination, defendant testified that the apartment belonged to his sister.
       Defendant admitted that he wanted to fight Officer Gutierrez based on what Officer Gutierrez
       said to him. Officer Gutierrez never told defendant that he was under arrest for grabbing him,
       and defendant never grabbed anyone. Defendant said that, with three officers grabbing and
       pulling him, it was possible that he touched Officer Acot’s duty belt. Defendant was not told
       that he was under arrest until he was cuffed and taken to the squad car.
¶ 35       On redirect, defendant testified that he had been living in his sister’s apartment for three
       or four months. It was his residence at the time; he had mail delivered there. Defendant never
       intended to grab the officer’s gun; he was suspended over the screen door and trying to regain
       his balance.
¶ 36       When the court advised defense counsel to call his next witness, defense counsel asked
       for a brief recess. The court asked the purpose of the recess. In a sidebar conference, defense
       counsel responded, “I’m not sure, could I have a second to talk to [defendant]?” The court
       granted the recess, which was followed by a jury instruction conference. After the jury
       instruction conference, the court asked defense counsel if he had any more witnesses, and
       defense counsel rested.
¶ 37       As a rebuttal witness, the State called Officer Acot, who testified as follows. Neither he
       nor Officer Gutierrez threatened defendant during the incident. Defendant reached through
       the broken screen door and grabbed Officer Gutierrez; no officer touched defendant. Once
       defendant grabbed Officer Gutierrez, he was told that he was under arrest. Defendant did not


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       merely brush or bump his gun; he grabbed it.
¶ 38        On cross-examination, Officer Acot testified that, within a second or two of defendant
       putting his hand on his gun, he clamped down his hand on defendant’s hand.
¶ 39        On redirect, Officer Acot testified that defendant did not release his hand from the gun
       because Officer Acot clamped down with his arm. Defendant released the gun after he was
       tased.
¶ 40        The second and final rebuttal witness, Officer Gutierrez, testified as follows. He never
       threatened defendant and never heard any other officer do so. Defendant reached through the
       screen and grabbed him. Prior to that, none of the officers had touched defendant. After
       defendant grabbed him, Officer Gutierrez told defendant that he was not allowed to grab him
       and that he was under arrest. When defendant touched him, he felt surprised, shocked, and
       insulted.
¶ 41        On cross-examination, Officer Gutierrez testified that he asked multiple times to come
       inside defendant’s apartment. He denied being frustrated; the police dealt with drunk people
       all the time. Officer Gutierrez agreed that, as part of his policing duties, he had to deal with
       people who were drunk, salty, and violent; he was trained to deal with those people.
¶ 42        The State rested, and defense counsel stated that he had a surrebuttal witness. The court
       called a sidebar conference and the following exchange occurred:
                “THE COURT: I don’t think so.
                MR. CAMPBELL [Defense counsel]: No–what?
                THE COURT: No Surrebuttal. We end after Rebuttal.
                MR. CAMPBELL: I get a chance to rebut what they said.
                THE COURT: No, you don’t.
                MR. CAMPBELL: Can we have all of this on the record, please.”
¶ 43        The parties delivered their closing arguments, and the jury retired to deliberate. At this
       time, the court addressed defense counsel’s attempt to call a witness on surrebuttal. Defense
       counsel advised the court that he had planned to call Amanda as a surrebuttal witness. The
       court advised defense counsel that “most likely” she should have been called as a defense
       witness, because the State had the last word, and the only issues on rebuttal were the
       touching or the grabbing of the gun and who grabbed whom first.
¶ 44        At this point, the jury submitted a letter to the court, asking the “Legal definition of
       insulting nature.” With the parties’ agreement, the court responded to the jury that “[t]he
       word ‘insulting’ is a commonly used word that is neither vague nor difficult for the average
       person to define. We hold that this definition is adequately specific.” The jury found
       defendant guilty of aggravated battery and not guilty of disarming a peace officer.
¶ 45        Defendant filed a motion in arrest of judgment and a motion for a new trial. The
       overlapping claim in both motions was that the trial court erred by permitting the State to
       amend the indictment on the day of trial, because the amendment did not cure a formal
       defect. Defendant admitted that the grand jury transcript referred to an improper grabbing or
       aggravated battery of Officer Gutierrez. Nevertheless, defendant argued, grabbing Officer
       Acot’s gun also constituted an aggravated battery, and Officer Acot was the only victim

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       specified by the grand jury.
¶ 46        Defendant also argued in his motion for a new trial that the court erred by failing to allow
       him to present Amanda as a surrebuttal witness. Defendant contended that new evidence was
       presented during the rebuttal testimony of Officers Gutierrez and Acot. First, Officer Acot
       offered different testimony regarding defendant’s actions in grabbing his gun. Second,
       Officer Gutierrez said that he felt “insulted” by the contact from defendant, which was the
       first time he had testified to an element of the offense. Defendant argued that he could not
       have presented Amanda’s testimony during his case-in-chief, because her testimony as to the
       “insulting” nature of defendant’s actions would have been irrelevant and “perhaps drawn
       undue attention to an as-yet unsubstantiated element of the offense.”
¶ 47        The court denied defendant’s motions. Regarding the amendment, the court found that
       defendant had adequate discovery and was on notice of the issues; both Officers Gutierrez
       and Acot were involved in the incident; and defendant did not take up the court’s offer of a
       continuance.
¶ 48        Following a sentencing hearing, defendant was sentenced to 4½ years’ imprisonment.
       Defendant timely appealed.

¶ 49                                        II. ANALYSIS
¶ 50                                A. Amendment of Indictment
¶ 51        Defendant first argues that the State’s amendment to the indictment was substantive and
       not simply the correction of a formal defect. By changing the name of the victim from
       Officer Acot to Officer Gutierrez, defendant concludes, the State broadened the charge
       against him to include conduct not previously charged.
¶ 52        Where a prosecution is brought by indictment, the grand jury has found the existence of
       probable cause, and no preliminary hearing is held. People v. White, 221 Ill. 2d 1, 9 (2006).
       Once the grand jury has returned an indictment, it may not be broadened through amendment
       except by the grand jury itself. Id. at 9-10. The reason for this rule is to ensure that
       individuals’ rights are not at the mercy or control of a prosecutor. People v. Ross, 395 Ill.
       App. 3d 660, 667 (2009); see also People v. Glass, 232 Ill. App. 3d 136, 147 (1992) (an
       indictment may not be broadened by amendment except by the grand jury, in order to protect
       individuals from being prosecuted for a different offense than the one charged).
¶ 53        However, an exception to this rule provides that an indictment may be amended on
       motion of the prosecutor or the defendant for the purpose of correcting formal defects if no
       surprise or prejudice to the defendant results. White, 221 Ill. 2d at 10. Section 111-5 of the
       Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-5 (West 2008)) provides a list
       of formal defects, such as “[a]ny miswriting, misspelling or grammatical error,” though the
       list is not exclusive (People v. Milton, 309 Ill. App. 3d 863, 866 (1999)).
¶ 54        Formal defects are distinguished from substantive changes that alter the nature and
       elements of the offense charged. Ross, 395 Ill. App. 3d at 668. The First District has held that
       an amendment is substantive and therefore improper if (1) it materially alters the charge, and
       (2) it cannot be determined whether the grand jury intended the alteration. Id. When


                                                 -10-
       reviewing the trial court’s decision to allow or deny an amendment to the indictment, we
       apply an abuse-of-discretion standard. People v. Edmonds, 325 Ill. App. 3d 439, 444 (2001).
¶ 55        In this case, defendant argues that both factors stated above exist here. First, he maintains
       that the amendment materially altered the charge because the identity of the victim is an
       essential element of an aggravated battery. Second, he argues that it cannot be determined
       whether the grand jury intended to indict defendant for aggravated battery against Officer
       Gutierrez or Officer Acot.
¶ 56        Regarding defendant’s first argument, we find People v. Jones, 53 Ill. 2d 460 (1973), and
       Ross instructive. In Jones, the sole issue on appeal was whether the misidentification of the
       armed-robbery victim constituted a formal defect under section 111-5 of the Code. Id. at 462.
       The indictment named Charles Mundy as the victim instead of his father, Delbert Mundy,
       and the State moved to amend the indictment on the morning of trial. Id. Defense counsel
       objected to the amendment, but the trial court allowed it. Id. On appeal, the State argued that
       the armed-robbery victim’s name was not an essential element of the offense, thereby
       rendering the error a formal defect. Id. at 462-63. Significantly, the supreme court rejected
       this argument and held that the identity of the armed-robbery victim was an essential element
       of the offense. Id. at 463. Nevertheless, the supreme court did not find that conclusion
       dispositive of whether the misstatement of identity was a formal or substantial defect. Id. at
       463-64. In fact, the court found the name change of the victim to be a mere formality. Id. at
       464. The court reasoned:
                 “The liberalization of criminal pleading also reflects a lessening in importance of the
            indictment’s secondary functions. The indictment as a means of informing defendants
            of particulars concerning the case is now far overshadowed by the array of discovery
            procedures available to the defense. Similarly, the time when an indictment defined the
            limits of jeopardy has passed and a prior prosecution on the same facts may be proved
            by resort to the record. [Citation.] The primary safeguard of indictment by grand jury
            which remains secured to criminal defendants, is to protect individuals from the caprice
            of the public prosecutor. ***
                 We believe that this constitutionally required protection has been afforded this
            defendant and that the particular facts in this case demonstrate the amendment of the
            victim’s first name to be a mere formality. Where, as here, no hint of surprise or
            prejudice to the defendant is shown, allowance of such an amendment is not error.” Id.
            at 464-65.
¶ 57        A much more recent case, Ross, decided in 2009, also considered whether the State’s
       amendment to an indictment was formal or substantive. In Ross, the indictment alleged
       criminal sexual assault, and the proposed amendment changed the name of the victim from
       G.W. to C.C. and changed the type of sexual contact. Ross, 395 Ill. App. 3d at 663. Citing
       Jones, the court noted that it was permissible to revise the indictment when the victim of a
       crime has been misidentified, and it found the amendment to be formal. Id. at 668, 673.
       These cases show that an amendment correcting the misidentification of a victim, even when
       it is an essential element of the offense, can be formal.
¶ 58        Defendant’s second argument is that it is impossible to know whether the grand jury


                                                 -11-
       intended to indict defendant for an aggravated battery against Officer Gutierrez. According
       to defendant, the grand jury heard testimony that defendant touched both Officers Gutierrez
       and Acot, and defendant’s touching of Officer Acot’s belt and gun constituted aggravated
       battery. In addition, defendant points out that the grand jury heard testimony that, once he
       was on the ground, he continued to fight with the officers, meaning that he could have made
       insulting or provoking contact with Officer Acot at this time.
¶ 59        Regarding what transpired before the grand jury, the State is correct that the testimony
       consisted of only a very brief summary given by Detective Brandt. Though the grand jury
       was asked to charge defendant with three counts (disarming a peace officer, aggravated
       battery, and resisting a peace officer), the names of the victims appearing on the indictment
       were not specified verbally during the proceeding. Then, the State waited two years, until the
       day of trial, to move to amend the indictment by changing the officer’s name on the
       aggravated battery charge. While we determine that the grand jury transcript supported the
       State’s amendment, as we discuss below, we caution the State that its actions in this case
       rivaled the “sloppy” amendment that occurred in Ross. See id. at 663 (where the trial court
       chastised the State for not catching its mistakes sooner and characterized its actions as
       “sloppy”).
¶ 60        As far as discerning the intentions of the grand jury, defendant argues that Jones and Ross
       are distinguishable on this very basis. First, he argues that the amendment in Jones was
       formal “not because it did not materially alter the charge, but because it could be determined
       that the change reflected the intention of the grand jury.” Defendant points out that, unlike
       in this case, where the grand jury transcript supported a charge of aggravated battery of either
       Officer Acot or Officer Gutierrez, there was no evidence in Jones suggesting that the offense
       had been committed against the victim’s son. Second, he argues that the court in Ross noted
       that the grand jury transcript supported the State’s argument in terms of altering the victim’s
       name and that defense counsel did not dispute that the amendment conformed with the
       intentions of the grand jury. See id.
¶ 61        We agree with defendant that the case at bar is not on all fours with Jones and Ross in
       that neither of those cases involved multiple victims. Yet, this does not change the fact that
       the grand jury transcript in this case envisioned an aggravated battery charge with Officer
       Gutierrez as the victim. As in Ross, defense counsel here agreed that the grand jury transcript
       referred to an aggravated battery of Officer Gutierrez. Indeed, the grand jury transcript
       indicated that defendant reached out and grabbed hold of Officer Gutierrez’s arm and that
       Officer Gutierrez told defendant not to grab him and that he was under arrest. Though
       defendant is correct that grabbing Officer Acot’s gun and belt or resisting arrest could also
       constitute an aggravated battery, the most direct evidence specific to a charge of aggravated
       battery pertained to Officer Gutierrez. Because the grand jury transcript clearly supports the
       inference that the grand jury intended to charge defendant with aggravated battery for
       grabbing the arm of Officer Gutierrez, we reject defendant’s argument to the contrary.
¶ 62        Defendant’s final attack on the amendment is that “prejudice is not relevant to this
       inquiry,” because requiring a prejudice showing for substantive changes would eliminate the
       distinction between substantive and formal amendments. This argument is easily dispensed
       with, as it is not supported by the case law. See People v. Martin, 266 Ill. App. 3d 369, 373

                                                -12-
       (1994) (a defendant’s lack of surprise by the amendment strengthens the finding that the
       amendment is merely technical; where the defendant is neither surprised nor prejudiced, the
       trial court commits no error in allowing the State to amend the charging instrument); see also
       People v. House, 202 Ill. App. 3d 893, 905 (1990) (same).
¶ 63        In fact, this court’s recent decision in People v. Shipp, 2011 IL App (2d) 100197, shows
       that the surprise/prejudice component is directly intertwined with the formal/substantive
       distinction. In Shipp, this court stated that “[c]ourts have typically found amendments to be
       material only where a defendant was surprised by an amendment.” Id. ¶ 23. Examples of
       cases in which the defendant was surprised included People v. Patterson, 267 Ill. App. 3d
       933, 939 (1994), where the amendment was material because the change in the quantity of
       the controlled substance possessed by the defendant affected both the crime and the
       punishment, and People v. Betts, 78 Ill. App. 3d 200, 203-04 (1979), where the amendment
       changed the very offense with which the defendant was charged and also the range of
       penalty. Shipp, 2011 IL App (2d) 100197, ¶¶ 23-24.
¶ 64        On the other hand, this court noted in Shipp that “courts that have found amendments to
       be formal normally found that the change did not surprise the defendant.” Id. ¶ 25. This is
       the situation here. As previously stated, defendant acknowledged to the trial court that the
       aggravated battery of Officer Gutierrez was referenced in the grand jury transcript.
       Presumably because of this awareness, defendant declined the opportunity for a continuance,
       which the trial court offered to ensure that there was no impact on the defense strategy. See
       People v. Alston, 302 Ill. App. 3d 207, 211 (1999) (the “[d]efendant’s nonspecific allegations
       of prejudice are belied by the fact that he did not seek a continuance of the trial to prepare
       his defense”). Therefore, the fact that defendant did not claim surprise or seek a continuance
       is not irrelevant, as he asserts, but rather it strengthens the finding that the amendment was
       merely technical.
¶ 65        Given that Jones and Ross allow for an indictment to be amended based on the
       misidentification of the victim, that the grand jury transcript supported an aggravated battery
       charge against defendant for grabbing Officer Gutierrez, and that defendant was not surprised
       or prejudiced by changing the officer’s name, we agree with the trial court that the
       amendment was formal. Accordingly, the trial court did not abuse its discretion in allowing
       it.

¶ 66                           B. Ineffective Assistance of Counsel
¶ 67       Defendant’s remaining two arguments are that defense counsel was ineffective. First, he
       argues that his counsel was ineffective for failing to strike a juror who was biased. Second,
       he argues that his counsel was ineffective for waiting until surrebuttal to call Amanda as a
       witness.
¶ 68       The two-prong test for assessing whether trial counsel was ineffective is articulated in
       Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that counsel’s
       performance was deficient in that it fell below an objective standard of reasonableness;
       second, he must show that the deficient performance prejudiced him in that, but for counsel’s
       deficient performance, there is a reasonable probability that the result would have been

                                                -13-
       different. People v. Houston, 226 Ill. 2d 135, 144 (2007). “In demonstrating, under the first
       Strickland prong, that his counsel’s performance was deficient, a defendant must overcome
       a strong presumption that, under the circumstances, counsel’s conduct must be considered
       sound trial strategy.” Id. Under the second prong, a reasonable probability that the result
       would have been different is a probability sufficient to undermine confidence in the outcome.
       Id.

¶ 69                                       1. Jury Selection
¶ 70       With respect to selecting the jury, defendant argues that defense counsel was ineffective
       for failing to seek the removal of Glees. Defendant argues that this case boiled down to a
       credibility contest between the testimony of defendant and the testimony of Officers
       Gutierrez and Acot regarding whether he grabbed Officer Gutierrez’s arm. On the one hand,
       Officers Gutierrez and Acot testified that defendant initiated the physical confrontation by
       grabbing Officer Gutierrez’s arm. On the other hand, defendant disputed this version of
       events and testified that Officer Gutierrez initiated contact by grabbing his wrist and pulling
       him halfway through the screen door. Defendant points out that defense counsel failed to use
       a for-cause challenge or a peremptory challenge for Glees, even though he “repeatedly
       acknowledged he would give more credibility to a police officer’s testimony than that of a
       lay person.” Compounding matters, Glees became the jury foreperson. According to
       defendant, no reasonable defense attorney would have allowed Glees to serve as a juror,
       because he was biased against defendant in the most crucial aspect of the trial. This is
       especially true, defendant argues, given that, when he questioned Glees, defense counsel had
       not used any of his peremptory challenges and used only one such challenge during the
       entirety of voir dire.
¶ 71       A fair trial is one in which evidence subject to adversarial testing is presented to an
       impartial tribunal for resolution of issues defined prior to the proceeding. People v. Manning,
       241 Ill. 2d 319, 330 (2011). “Voir dire is conducted to assure the selection of an impartial
       jury, free from bias or prejudice, and grant counsel an intelligent basis on which to exercise
       peremptory challenges.” People v. Dixon, 382 Ill. App. 3d 233, 243 (2008). In general,
       counsel’s actions during jury selection are considered a matter of trial strategy, and counsel’s
       strategic choices are virtually unchallengeable. Manning, 241 Ill. 2d at 333. Attorneys
       consider many factors in making their decisions about which jurors to challenge and which
       jurors to accept, and reviewing courts should hesitate to second-guess counsel’s strategic
       decisions, even where those decisions seem questionable. Id. at 335.
¶ 72       We briefly summarize what transpired in the context of defense counsel’s questioning
       of Glees. Another potential juror, Williams, had just stated that her uncle had been a police
       officer and that she would give more credibility to a police officer’s testimony than
       defendant’s testimony. Defense counsel then questioned Glees:
                “Q. And again, I understand all of us are favor–or very favorable, may have very
           favorable experiences with police officers, I’m not saying anything bad about a police
           officer but would you give a police officer any more credibility, his testimony, right off
           Jump Street?


                                                -14-
                A. I think I would, just because being taught that they’re to uphold the law and
           they’re to be honest and credible witnesses.
                Q. Now anything an officer said, would you just assume that that is true?
                A. I would not say that I might assume it, I would like to think that I would listen to
           all of the facts and make a decision bassed [sic] on that.
                Q. You said that you would like to think?
                A. Well, I would have to go through the trial and see what happens. I’m just saying
           that police officers are–they’re to uphold the law and [sic] gives them credence.
                Q. Just like all of us here?
                A. Yes.
                Q. So you are more likely to give credibility after the fact, would you say that you
           would be more likely to give a police officer’s testimony than any other citizen?
                A. I am saying I would believe they would be more credible.
                Q. Okay.”
       At a sidebar conference, defense counsel indicated that he was “going to show cause.” The
       court stated that it would ask some follow-up questions, and it posed them to Williams. After
       confirming that Williams could not be fair and impartial in this case, the court excused
       Williams for cause. Defense counsel then began questioning the replacement juror, and the
       replacement juror and Glees were accepted as jurors in the next panel. Based on this record,
       defendant argues that defense counsel’s failure to remove Glees was not “strategy” but
       forgetfulness due to his questioning of a replacement juror after Williams was removed for
       cause. We disagree for several reasons.
¶ 73       First, we note that defendant’s argument focuses primarily on Glees’s last response,
       which he argues shows that Glees “definitely” would find police officers more credible.
       However, by isolating Glees’s final answer, defendant inflates its significance and takes it
       out of context. Contrary to defendant’s approach, the entire voir dire must be considered,
       meaning that it is improper to focus on one answer or a “few answers” that skew the analysis
       of whether defense counsel was deficient. See Manning, 241 Ill. 2d at 334. The voir dire of
       Glees in its entirety reveals that he said that he would not assume that anything a police
       officer said was true; he would like to think he would listen to all of the facts of the case and
       make a decision based on that; and he would have to go through the trial and see what
       happened. Overall, Glees stated that while he “would believe” that police officers would be
       more credible based on their duty to uphold the law, he would not assume that they were
       truthful and would have to see what transpired at trial. Because the totality of Glees’s
       responses showed that he could be fair and impartial, it was a matter of trial strategy for
       defense counsel to accept him as a juror.
¶ 74       Second, other cases have found defense counsel’s failure to remove a juror to be a matter
       of trial strategy even when the juror made considerably stronger statements about their
       potential inability to be impartial than Glees made here. For example, in Manning, the juror
       A.C. gave conflicting answers regarding his impartiality by first saying that sex offenders
       should be locked up for life; by then saying that he could listen to a case and render a

                                                 -15-
       judgment on a case that was separate and distinct from a sex offender case; and then by
       concluding that he could not be fair in the case. Manning, 241 Ill. 2d at 322-23, 336. The
       court determined that, in considering the entire voir dire of A.C. in context, it was possible
       that defense counsel decided that A.C. was not unequivocally biased. Id. at 335.
¶ 75        Prior to Manning, the supreme court decided People v. Metcalfe, 202 Ill. 2d 544 (2002),
       where the State questioned juror Grevus about a crime to which she was a witness. Id. at 549.
       Grevus explained that, though she had positively identified the perpetrator, he “ ‘got off
       because of a technicality.’ ” Id. Defense counsel then asked if the result of that case would
       bias her in the instant case, and she said that she “ ‘would have to answer yes.’ ” Id. at 550.
       Grevus expounded, stating that she felt like the criminal in the prior case, because she was
       discredited as a witness even though the perpetrator was clearly guilty. Id. Defense counsel
       asked if that experience would affect her ability to be fair, and she again replied “ ‘Yes. You
       ever had something like that to happen to you, it’s hard not to feel that way.’ ” Id. Despite
       her responses that she could not be impartial, the supreme court concluded that defense
       counsel’s decision not to seek her removal was a matter of trial strategy. Id. at 562. The court
       reasoned that it was possible that defense counsel considered that Grevus’s bias toward the
       system might be directed against the State rather than the defendant. Id.
¶ 76        Later, in People v. Begay, 377 Ill. App. 3d 417 (2007), the defendant argued that defense
       counsel was ineffective for failing to remove juror Mendoza, who stated during voir dire that
       she could not be fair and impartial. Id. at 422. Mendoza’s mother had been assaulted at knife
       point during a robbery five years before. Id. Mendoza was not a witness to the incident but
       went to court regarding the case. Id. at 422-23. When asked if that experience affected her
       ability to be fair and impartial in the instant case, she replied, “ ‘Yes.’ ” Id. at 423. When
       asked if she “ ‘wouldn’t be fair, either,’ ” she said, “ ‘No.’ ” Id. In determining that defense
       counsel’s decision not to challenge Mendoza was a matter of trial strategy, the court reasoned
       that defense counsel may have believed that Mendoza would sympathize with the defendant,
       a woman who like her mother claimed to have been fighting back against an attacker who
       had assaulted her at knife point. Id.
¶ 77        Defendant distinguishes Metcalfe and Begay on the basis that there were strategic reasons
       for not removing those jurors, as compared to Glees, whose pro-police bias would only hurt
       the defense. However, defendant cannot distinguish Manning. Whereas Williams, because
       her uncle was a police officer, unequivocally stated that she could not be fair, defense
       counsel could have determined that Glees’s answers overall showed that he would take the
       trial seriously and truly consider the evidence before reaching a decision. Rather than giving
       “rote” or “safe” answers, defense counsel could have found, Glees was particularly
       forthright, humble, and honest and was not unequivocally biased.
¶ 78        Finally, defendant’s reliance on People v. Defyn, 222 Ill. App. 3d 504 (1991), and People
       v. Ford, 113 Ill. App. 3d 659 (1983), is unpersuasive. Neither of those cases involved jury
       selection. Rather, they focused on the prosecutor’s statements during closing argument that
       improperly bolstered the credibility of the police officers who had testified. See Defyn, 222
       Ill. App. 3d at 513-14; Ford, 113 Ill. App. 3d at 662.
¶ 79        In sum, the cases illustrate that defendant bears a heavy burden to overcome the


                                                -16-
       presumption that counsel’s decisions during jury selection, even if questionable, were a
       matter of trial strategy. We find that defense counsel was not deficient in this respect.

¶ 80                                  2. Failure to Call Amanda
¶ 81        Defendant’s next argument is that defense counsel was ineffective for waiting until
       surrebuttal to call Amanda as a witness. According to defendant, Amanda’s testimony would
       have corroborated defendant’s version of events; she was present and ready to testify at trial;
       and during opening argument defense counsel told the jury that she would testify. Because
       a reasonable attorney would have known that Amanda might not be able to testify on
       surrebuttal, defendant argues that, rather than being a sound strategy, it was a “procedural
       mistake.”
¶ 82        “Matters such as whether to put a witness on the stand at trial are generally matters of
       trial strategy.” People v. Eggleston, 363 Ill. App. 3d 220, 226 (2006). “[A] reviewing court
       must indulge in a strong presumption that counsel’s 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.” (Internal
       quotation marks omitted.) People v. Bryant, 391 Ill. App. 3d 228, 238 (2009). A defendant
       can overcome the strong presumption that defense counsel’s choice of strategy was sound
       if his or her decision appears so irrational and unreasonable that no reasonably effective
       defense attorney, facing similar circumstances, would pursue such a strategy. Id. For
       instance, defense counsel can be deemed ineffective for failure to present exculpatory
       evidence of which he or she is aware, including the failure to call witnesses whose testimony
       would support an otherwise uncorroborated defense. Id.
¶ 83        Still, defense counsel’s failure to present testimony promised during opening argument
       is not ineffective assistance of counsel per se. People v. Wilborn, 2011 IL App (1st) 092802,
       ¶ 80. Defense counsel’s decision to abandon a trial strategy during trial might be reasonable
       under the circumstances and the decision not to present promised testimony might be
       warranted by unexpected events. Id.; see also Bryant, 391 Ill. App. 3d at 239 (abandoning
       or changing a defense during trial can be a plausible strategic decision). Moreover, neither
       mistakes in strategy nor the fact that another attorney with the benefit of hindsight would
       have handled the case differently indicates that defense counsel was incompetent. People v.
       Jones, 323 Ill. App. 3d 451, 457 (2001).
¶ 84        In analyzing defendant’s argument, we review the sequence of events at trial. During
       opening argument, defense counsel stated that, even after hearing that Amanda was fine and
       shining the light on her, the officers still wanted to go inside defendant’s apartment. Defense
       counsel argued that they dragged defendant through the top of his screen door and that any
       violence stemmed from them. Twice, defense counsel said that the jury would hear from
       Amanda, and he said that they would hear from the officers and “probably” defendant.
       During the State’s case-in-chief, Officer Gutierrez testified that when defendant grabbed his
       arm he was “startled, stunned,” but he never used the word “insulted.” After the State rested,
       defendant testified and the court advised defense counsel to call his next witness. At this
       point, defense counsel requested a recess to talk to defendant, which the court granted. After


                                                -17-
       this recess, defense counsel rested. The State then called Officer Gutierrez (and Officer Acot)
       in rebuttal. During Officer Gutierrez’s rebuttal testimony, he said that when defendant
       touched him he felt surprised, shocked, and “insulted.” After this testimony, defense counsel
       tried to call Amanda as a surrebuttal witness. The court denied defense counsel’s request,
       however, stating that Amanda should have been called as a defense witness.
¶ 85        Fortunately, we have the benefit of defense counsel’s motion for a new trial to illustrate
       his trial strategy. In his motion, defense counsel argued that the court erred by failing to allow
       him to present Amanda as a surrebuttal witness, because both officers presented new
       evidence during rebuttal. With respect to Officer Gutierrez in particular, defense counsel
       pointed out that he testified that he felt “insulted” by the contact from defendant, which was
       the first time he had testified to an element of the offense. According to defense counsel, he
       could not have presented Amanda as a defense witness, because her testimony as to the
       “insulting” nature of defendant’s actions would have been “irrelevant” and “perhaps drawn
       undue attention to an as-yet unsubstantiated element of the offense.”
¶ 86        Based on this record, defense counsel’s decision not to call Amanda as a defense witness
       amounted to a sound strategy and not a procedural mistake. Clearly, defense counsel initially
       planned to call her, as evidenced by his statements during opening argument. However,
       defense counsel changed his mind after Officer Gutierrez stated only that he was “startled,
       stunned” by defendant’s contact with him. Perceiving the State’s case as weak or lacking in
       proof on the issue of contact of an “insulting nature,” defense counsel chose to forgo calling
       Amanda and thus possibly alerting the State to its weakness. As the State argues, while
       “insulting” contact can be proven by inference rather than by a witness’s specific use of the
       term, the defense case would have been stronger if defense counsel could have argued that
       Officer Gutierrez never actually said that he was “insulted.” Rather than have Amanda
       provide a narrative that probably would have duplicated defendant’s version of events,
       defense counsel chose to exploit a weakness in the State’s case on this crucial element of the
       offense of aggravated battery. Consequently, defense counsel conferred with defendant when
       it was time to call Amanda as a defense witness, and defendant apparently agreed that it was
       best not to call her. See Wilborn, 2011 IL App (1st) 092802, ¶ 82 (defense counsel’s decision
       not to call a witness whom during opening argument he promised would testify appeared to
       be the product of sound trial strategy, a strategy the defendant agreed with).
¶ 87        The cases relied on by defendant to compel an opposite result are unpersuasive. In
       Bryant, defense counsel promised the jury that it would hear evidence supporting the
       defense. Bryant, 391 Ill. App. 3d at 239-40. However, defense counsel failed to call any
       witnesses and unsuccessfully attempted to elicit evidence in support of his theory through
       the cross-examination of State witnesses. Id. at 240-41. In finding defense counsel deficient,
       the court stated that it appeared that defense 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. Id. at 241. Here, unlike in Bryant, defense counsel did not fail to present a defense; he
       merely changed strategies with respect to calling Amanda, after perceiving a weakness in the
       State’s case. In People v. York, 312 Ill. App. 3d 434 (2000), defense counsel was found
       ineffective for failing to present DNA testing that showed that there was no semen from the
       defendant on the victim, which supported his theory that the defendant did not participate in

                                                 -18-
       the assault. Id. at 437-38. Again, defense counsel made no such error in this case, where his
       decision not to call Amanda was a matter of trial strategy.

¶ 88                            3. Prejudice and Cumulative Error
¶ 89       Defendant’s final argument is that the cumulative effect of defense counsel’s errors
       resulted in prejudice. However, even if we were to assume, arguendo, that defense counsel
       was deficient in one or both of the ways alleged by defendant, he cannot establish prejudice.
       Overall, the record shows that defense counsel argued plausible theories to counter both
       charges against defendant; he succeeded in obtaining a not-guilty verdict on the charge of
       disarming a peace officer (a Class 2 felony, like the aggravated battery charge); he thoroughly
       cross-examined the State’s witnesses; and he successfully raised a question in the jury’s mind
       as to whether defendant’s contact with Officer Gutierrez was of an insulting nature, as
       evidenced by the jury’s question to the court. Therefore, defendant cannot establish prejudice
       under Strickland or under a cumulative-error theory. See People v. Perry, 224 Ill. 2d 312,
       356 (2007) (in rejecting every claim of error by the defendant that defense counsel was
       ineffective, cumulative-error analysis was not necessary).

¶ 90                                III. CONCLUSION
¶ 91       For the aforementioned reasons, the judgment of the Kane County circuit court is
       affirmed.

¶ 92      Affirmed.




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