Third Division
May 14, 2003

No. 1-00-1483

JUSTICE HALL delivered the opinion of the court:

Defendant, Anthony Rosemond, was charged by information with first-degreemurder, aggravated arson and intimidation. Codefendant Christopher Mosely wastried separately and is not a party to this appeal. A third codefendant, 13-year-old Matthew Wilson, was also charged with these offenses. Following ajoint transfer hearing, the trial court ruled that Wilson would remain injuvenile court, while defendant, who was 14 years old, would be tried as anadult.

Following a jury trial, defendant was found guilty of first-degree murderand aggravated arson. On April 18, 2000, he was sentenced to concurrent termsof 26 years' imprisonment for first-degree murder and 10 years' imprisonmentfor aggravated arson. On the same date, defendant filed his timely notice ofappeal.

On appeal, defendant contends that: (1) the trial court erred inadmitting the polygraph evidence; and (2) he was denied his sixth amendmentright to effective assistance of counsel. For the reasons that follow, wereverse and remand.

FACTUAL BACKGROUND

Defendant's conviction arose from the death of Zulean Wilson, who died ofsmoke inhalation resulting from a fire that was set in a three-story buildingshe lived in, located at 7108 S. Rhodes Avenue, Chicago, Illinois. The fire,which was ruled an arson, occurred on August 15, 1997, at approximately 10 p.m.

Prior to trial, the trial court denied defendant's motion to suppressoral and written statements he gave during his police interrogation the dayafter the fire. In addition, just prior to opening statements, the trial courtheard arguments on the State's motion in limine to admit gang evidence. TheState claimed that defendant's written statement indicated that codefendantsMosely and Wilson were members of the Gangster Disciples street gang and thatthe building was set afire to retaliate against Marlo Fernando, a resident ofthe building, who repeatedly called the police to report the gang's drug-selling activities that occurred outside the building. According to theState's offer of proof, Fernando would testify that defendant is a member ofthe Gangster Disciples (GDs) and that the defendant, along with codefendantMosely, regularly sold illegal narcotics outside the building.

The trial court ruled that evidence that defendant was affiliated withthe GDs would be admissible to establish his motive for following Mosely'sdemand to set fire to the building. The trial court also ruled that evidenceof illegal narcotics sales was admissible as a possible motive, if the Stateproved that defendant was selling narcotics outside the building or was in thecompany of Mosely when he sold illegal narcotics. In addition, the trial courtgranted the State's request to admit threatening statements Mosely made toFernando immediately before and just after the fire was set. The statementswere admitted under the coconspirator exception to the hearsay rule.

At trial, the State's evidence established that the three-story buildingthat was set afire had stores on the first floor and apartments on the secondand third floors. State witness Fernando, who lived in a second-floorapartment, testified that approximately two weeks before the fire, some ofMosely's fellow gang members intentionally broke a window of her parked car. When the gang members refused to pay for the window, as Mosely had promised,Fernando began calling the police whenever she saw gang members selling drugsoutside her building.

Fernando testified that on the night of the fire, she was in herapartment talking to her friend Leila Ledbetter when she heard, through heropen window, a voice she recognized as Mosely's yell three times, "burn thismotherf---er down." Fernando looked out her window and saw Mosely standing onthe sidewalk under the window. Fernando then opened her front door, which wassecured by accordion-type security bars, and saw defendant and Wilson runningpast the door and down a smoke-filled hallway. Fernando and Ledbetter left thebuilding and exited into an alley.

Fernando testified that when she reached the alley, she saw Wilsonstanding in the alley laughing. Fernando and Ledbetter went back inside thebuilding to help a woman and her child escape from the building. Fernandotestified that when she returned to the alley, Mosely approached and told herthat the fire was a GD hit, called her a "b---h," and threatened her life. Fernando testified that after she informed a fireman about Mosely's remarks,the fireman passed the information on to a policeman on the scene, and thepoliceman took Fernando's name and told her that she would be contacted.

State witness Sergeant Peggy Johnson, an investigator for the Chicagopolice department's arson investigation unit, testified that based on herinterviews with Fernando and Ledbetter, which occurred the day after the fire,she traveled to defendant's home in order to bring him into the police stationfor questioning regarding the fire. Johnson and a detective transporteddefendant to police headquarters. Defendant's father, James Rosemond, followedin his own vehicle.

Johnson testified that once they arrived at the police station, defendantwas taken to a room in the arson unit and read his Miranda rights. JamesRosemond arrived about 10 minutes later and defendant was again read his rightsin front of his father. At approximately 10:30 a.m., Johnson began questioningdefendant about the circumstances surrounding the fire. Defendant's father andhomicide detective Paul Bernatek were both present in the interview room duringthis questioning. Johnson testified that she asked defendant what hisinvolvement was with the fire and informed him that witnesses had implicatedhim. Defendant responded that he knew nothing about the fire.

Johnson testified that she continued to speak with defendant and hisfather intermittently from about 10:30 a.m. to 3:30 p.m. At 3:30 p.m.,defendant and his father were taken to a second investigative unit. About 30minutes later, Johnson received word to come to the second investigative unitand get defendant and his father. Defendant and his father were then broughtback to the arson unit whereupon Johnson explained to them what the "resultswere."⁽¹⁾ Defendant and his father were then left alone for approximately half anhour. When the interviewing resumed, defendant admitted his involvement withthe fire. Defendant's admission occurred at about 4:30 p.m. or 5 p.m. Johnsontestified that she then contacted the State's Attorney's office.

Johnson testified that Assistant State's Attorney (ASA) Paul Pavlusarrived at the police station at about 6:30 p.m., as did youth officer Golden. At approximately 7 p.m., in front of Johnson, Detective Bernatek, youth officerGolden, ASA Pavlus, and his father, defendant again confessed to hisinvolvement in the fire. Johnson testified that defendant stated that he andWilson retrieved a gas can that was nearly full of gas and used the gas to setthe building on fire. Defendant stated that he acted as lookout and that thefire was a GD hit and was set to retaliate against one of the tenants in thebuilding. Defendant's father left the police station at about 9:30 p.m., anddefendant's statement was reduced to writing at approximately 11 p.m.

On cross-examination, Johnson acknowledged that defendant's statement wasreduced to writing after defendant's father left the police station. Shetestified that defendant's statement was reduced to writing at that timebecause ASA Pavlus interviewed other individuals before writing out defendant'sstatement.

After Johnson finished testifying, a sidebar was held at the prosecutor'srequest. During the sidebar, the prosecutor argued that the tenor of defensecounsel's cross-examination of Johnson left the impression that defendant'sconfession resulted from the duration of the interrogation and the fact thathis father left the police station and not from the fact that defendantconfessed after being confronted with the results of his polygraph test. Theprosecutor argued that he should therefore be allowed to rebut this impressionand explain to jurors the real reason defendant gave the statement. The trialcourt responded that the prosecutor could bring up the issue in rebuttal if thedefendant testified or if "it's brought out through the questioning of thefather in some fashion if the father testifies."

ASA Pavlus testified that he interviewed defendant sometime between 7:30p.m. and 8 p.m. Defendant was with his father. Also present were Johnson,Detective Bernatek, and youth officer Golden. After defendant waived hisrights, he gave an oral statement regarding his involvement with the fire. ASAPavlus testified that before defendant's statement was reduced to writing, heasked defendant how he had been treated by the police. ASA Pavlus askeddefendant this question in the presence of defendant's father and a second timeout of the father's presence. On both occasions defendant stated that he hadbeen treated fine. Defendant stated that he had been given something to eatand drink, and that he was not threatened or promised anything in exchange forhis statement. Defendant also stated that his father did not pressure him intomaking the statement. ASA Pavlus testified that he spoke with defendant'sfather alone outside the interview room and asked him how the police hadtreated his son. James Rosemond responded that his son had been treated fine.

ASA Pavlus testified that from 9 p.m. to 11 p.m., he interviewed variouswitnesses as well as two individuals who might have participated in the arson. Afterwards, he took defendant's written statement at about 11 p.m. Defendantsigned the statement and initialed changes made to the statement. The writtenstatement was read to the jury.

On cross-examination, ASA Pavlus testified that when he receivedinformation that James Rosemond was planning to leave the police station, hetried to convince Rosemond to stay at the station. ASA Pavlus testified thathe informed Rosemond that he was going to take his son's written statement andthat it would be in his son's best interest if he remained at the policestation. According to ASA Pavlus, Rosemond responded that he needed to leavethe police station to check on his other children.

Testifying for the defense, Rosemond testified that on August 15, 1997,at approximately 8:10 p.m., he received a telephone call from an officer at thethird district police station asking him to come to the station to pick updefendant. Rosemond testified that he arrived at the police station at about8:55 p.m., and after approximately 10 minutes, defendant was released into hiscustody without any charges. Rosemond testified that he and defendant thenreturned home. Defendant played cards with his brothers, while he sat on hisfront porch. Rosemond testified that defendant did not leave his house thatnight. Shortly before 10 p.m., Rosemond heard sirens on 71st Street and laterthat night traffic was rerouted past his home. Rosemond's house is four blocksfrom where the fire occurred.

The following morning, at approximately 8:30 a.m., four police officerscame to Rosemond's home looking for defendant. Rosemond testified that theofficers told him and his wife that they wanted to talk to defendant concerninga fire that occurred the previous night. The police officers transporteddefendant to the police station and Rosemond drove to the station in his ownvehicle. Rosemond testified that a male detective started questioningdefendant by asking him what his standing was in the gang. Defendant respondedthat he was not in a gang. Rosemond testified that the detective then stood upin front of defendant, popped his fingers in defendant's face and stated thathe hated the GDs. Defendant again responded that he was not in a gang. Rosemond testified that the detective told defendant that he was going to findout if defendant was a GD.

The detective then asked defendant where he was on the night of the fire. Defendant responded that he was at home with his dad. The detective askeddefendant if he knew that someone died in the fire. Defendant responded no. Rosemond testified that during the time he was with defendant at the policestation, defendant never made any admissions regarding the fire. He alsotestified that during defendant's interrogation, he asked for an attorney fourtimes but was told that the matter was not serious enough. Rosemond testifiedthat when he left the police station, no one tried to encourage him to remainat the station. He also testified that he never told anyone that he wasleaving the police station to check on his other children. He testified thathe left the station because it was a Saturday and he figured most attorneys'offices were closed, so he went home to get his phone book to contact twoattorneys he knew.

After Rosemond's direct examination, the prosecutor requested a sidebar. The prosecutor sought permission to cross-examine Rosemond with the fact thatdefendant made an admission after he was confronted with the results of hispolygraph test. After hearing arguments on the issue, the trial courtdetermined that the State could present the polygraph evidence in rebuttal,based upon the court's conclusion that defense counsel's direct examination ofRosemond suggested to jurors that defendant's statement resulted from aprolonged interrogation.

On cross-examination, Rosemond testified that Detective Bernatek, notJohnson, conducted all the questioning of defendant. Rosemond acknowledgedthat Detective Bernatek acted in a threatening manner when he popped his handsin defendant's face. He also testified that defendant started crying when thedetective called him a "piece of s--t." Rosemond also testified that while hewas with defendant at the police station, defendant never admitted to beinginvolved with the fire.

In rebuttal, Detective Bernatek testified that Rosemond never requestedan attorney. The detective denied that he approached defendant in athreatening manner, popped his knuckles in defendant's face or told defendantthat he hated GDs. Detective Bernatek also gave testimony regarding thepolygraph test. He testified that defendant was given a polygraph examinationthat lasted for approximately 45 minutes. Detective Bernatek testified thatafter defendant and his father were given the results of defendant's polygraphtest, they were left alone in the interview room for approximately half an hourand afterwards defendant gave his oral statement admitting his involvement inthe arson. The oral statement was reduced to writing at 11 p.m.ANALYSIS

I. Polygraph Evidence

Defendant contends that the trial court erred in admitting the polygraphevidence. In addition, he asserts that even if the polygraph evidence wasproperly admitted, the erroneous limiting instruction regarding this evidenceand the State's improper use of the evidence in closing argument denied him afair trial.

The State responds that the trial court correctly admitted this evidenceto rebut defendant's inference that his statement was coerced. The State alsomaintains that the trial court's instruction to the jury regarding thepolygraph evidence was proper, because the language in the instruction wasbased on the same language found proper in People v. Melock, 149 Ill. 2d 423,599 N.E.2d 941 (1992), pertaining to polygraph evidence.

The general rule in Illinois is that evidence regarding polygraphexaminations as well as the results of those examinations is inadmissible asproof of a defendant's guilt or innocence. People v. Baynes, 88 Ill. 2d 225,240, 430 N.E.2d 1070 (1981); People v. Taylor, 101 Ill. 2d 377, 391-92, 462N.E.2d 478 (1984); People v. Melock, 149 Ill. 2d 423, 459, 599 N.E.2d 941(1992); People v. Gard, 158 Ill. 2d 191, 201, 632 N.E.2d 1026 (1994). Thereason is twofold. First, the results of polygraph examinations are notsufficiently reliable to be used to prove guilt or innocence. Second, thequasi-scientific nature of the examination may lead jurors to give thepolygraph evidence undue weight despite its lack of reliability. Taylor, 101Ill. 2d at 391-92; People v. Jefferson, 184 Ill. 2d 486, 493, 705 N.E.2d 56(1998).

Polygraph evidence is generally inadmissible not only to prevent unfairprejudice to a defendant, but also to protect the integrity of the judicialprocess. People v. McClellan, 216 Ill. App. 3d 1007, 1012, 576 N.E.2d 481(1991), citing Baynes, 88 Ill. 2d at 244. Nonetheless, our supreme court hascarved out a narrow exception to this broad prohibition against the admissionof polygraph evidence. The State is allowed to present polygraph evidence toexplain the circumstances surrounding a defendant's inculpatory statement topolice when this evidence is used to refute a claim by defendant that hisstatement was obtained by coercion. Jefferson, 184 Ill. 2d at 496.

For example, in Jefferson, the defendant claimed that she had beencoerced into confessing when the police promised her that if she gave astatement she would be released from custody to see her child, whom she hadbeen told had only hours to live. To rebut defendant's claim of coercion, theState was allowed to present evidence, elicited from defendant on cross-examination and presented through a rebuttal witness, that defendant agreed toundergo a polygraph examination, but before the test could be administered, shetold authorities that she wanted to tell the truth and then gave an inculpatorystatement. The Jefferson court held that the evidence of the impendingpolygraph examination became admissible to explain the circumstancessurrounding defendant giving the inculpatory statement after she testified thather statement was induced by the promise of lenient treatment. Jefferson, 184Ill. 2d at 496.

In the present case, defendant contends that he did not offer sufficientevidence of coercion to open the door to admission of the polygraph evidenceunder the narrow exception announced in Jefferson. The State counters thatdefense counsel elicited direct testimony from Rosemond which suggested thatdefendant's statement was coerced. Specifically, the State asserts thatdefendant opened the door for the prosecutor to present the polygraph evidencewhen Rosemond testified that Detective Bernatek interrogated defendant bypopping his fingers in defendant's face, stated that defendant was a GD andthat he hated GDs. The State also points to Rosemond's testimony wherein hetestified that he was with defendant at the police station from approximately9:30 a.m. to 7 p.m., and that during this time period defendant never admittedthat he was involved with the fire. The State claims that this testimonycreated the inference that defendant's confession resulted from the duration ofthe interrogation and the fact that Rosemond left defendant at the policestation.

It is well settled that the admissibility of a confession that ischallenged on the ground that it is involuntary is a matter for the trial courtto determine outside the presence of the jury. See People v. Gilliam, 172 Ill.2d 484, 512, 670 N.E.2d 606 (1996). Once a defendant's confession is admittedinto evidence, a defendant, at trial, still has the right to present evidenceaffecting the credibility or weight to be given the confession. Gilliam, 172Ill. 2d at 512-13.

A problem arises, however, when the State characterizes such evidence asevidence of coercion or evidence that creates the inference of coercion andthen goes on to argue that it should be allowed to present polygraph evidenceto rebut these alleged charges of coercion. The problem lies in the fact thatat trial, unlike a suppression hearing, the issue is the guilt or innocence ofthe defendant.

However, polygraph evidence introduced at trial may not only serve torebut charges of coercion; it also purports to measure truthfulness anddeception, the very essence of the jury's role, even though the truthfulness orreliability of a confession is not relevant in determining whether theconfession was voluntary. See People v. Kincaid, 87 Ill. 2d 107, 117, 429N.E.2d 508 (1981) (stating that truthfulness or reliability of a confession isirrelevant in determining whether it was voluntarily made). In light of theseissues, we believe that a solution can be found in a trial court's substantialdiscretion in determining whether to admit evidence.

When assessing the admissibility of polygraph evidence, a trial courtshould be aware that there are no scenarios in which the potential forprejudice would not exist. See Baynes, 88 Ill. 2d at 244 (stating thatprejudicial effects of polygraph evidence substantially outweigh the probativevalue of admitting such evidence); People v. Jackson, 202 Ill. 2d 361, 373, 781N.E.2d 278 (2002) (finding that, even in a bench trial, it is plain error fortrial court to allow the State to introduce polygraph evidence in anticipationof defendant presenting evidence that would open the door to admission of thisotherwise inadmissible evidence); People v. Yarbrough, 93 Ill. 2d 421, 427, 444N.E.2d 493 (1982) (holding that evidence that a polygraph test was offered toor refused by a defendant was not admissible).

The danger of prejudice is so substantial that exposure of a potentialjuror to the fact that a polygraph test was administered requires that thejuror be excused. People v. Taylor, 101 Ill. 2d 377, 391-93, 462 N.E.2d 478(1984). Therefore, before a trial court allows the State to introducepolygraph evidence at trial under the Jefferson exception, the trial courtshould apply enhanced scrutiny to ensure that any references to a polygraph arenecessary and of minimal prejudicial impact and that no other appropriatealternative impeachment evidence is available to the State. In addition, thetrial court must formulate a clear cautionary instruction for the jury.

In the present case, the State alleges that defendant presented twoinstances in which he was subjected to undue police pressure. First, the Statepoints to Rosemond's direct testimony in which he testified that DetectiveBernatek intimidated defendant by popping his fingers in defendant's face andstating that defendant was a GD and that he hated GDs. If the actionsattributed to Detective Bernatek were the worst-case scenario experienced bydefendant during the interrogation, we do not believe that these actionsamounted to coercion that could be characterized as sufficient to open the doorto admission of the polygraph evidence under the narrow Jefferson exception. Despite Rosemond's direct testimony, the jury could have easily concluded thatdefendant's confession was reliable and voluntary based on facts impartedthrough the testimony of the State's witnesses and on physical evidence, suchas the gasoline cans recovered at the scene of the fire, without theintroduction of the polygraph evidence.

More importantly, the majority of the evidence that the Statecharacterized as coercive was not presented by a defense witness on directexamination, but was elicited by the State itself, during the prosecutor'scross-examination of defense witness Rosemond. For example, regarding theconduct of Detective Bernatek, the prosecutor elicited the following testimony:

"Q. [Prosecutor]: The police acted sort of in a threatening mannerwhen they extended their hand in front of your son's face?

A. His hands. Plus

THE COURT: Finish your answer.

A. Plus he called him a piece of sh-t. You ain't nothing but apiece of sh-t. Then the boy started crying. Then he told Ms. Johnsononly time she did anything. Was to get him a drink of water. Said getthis garbage a drink of water. She got up and gave him some water. Thenhe continued talking.

Q. [Prosecutor]: So you were concerned about how your son was beingtreated there at the police station?

A. Yes.

Q. [Prosecutor]: You were worried about his welfare?

A. Yes."

Thus, the record shows that it was the State, not defense counsel, thatelicited details about defendant's emotional reaction to Detective Bernatek'sbehavior. The State is not entitled to erect a strawman of coercion and thenburn it with the fire of polygraph evidence. See, e.g., Jackson, 202 Ill. 2d at371 (concluding that it is improper for the State to use polygraph evidence"affirmatively as a sword to advance its own case"). It was improper for thetrial court to permit the State to elicit evidence of coercion and then allowthe State to present polygraph evidence to rebut this evidence of coercion.

The second claim of coercion set forth by the State and agreed upon bythe trial court was the duration of the interrogation. The State points toRosemond's testimony where he testified that during the time he was withdefendant at the police station, defendant never made any admissions regardingthe fire. The trial court agreed with the State's contention that Rosemond'stestimony suggested to jurors that defendant's confession resulted from theduration of his interrogation. However, even if this were so, Rosemond'stestimony in this regard was rebutted by the testimonies of both Johnson andASA Pavlus, who provided explanations for why defendant's statement wasobtained at such a late hour.

For example, Johnson testified that defendant's questioning wasinterspersed with breaks and was not continuous. She also testified thatdefendant's statement was reduced to writing after defendant's father left thepolice station, because ASA Pavlus interviewed other individuals before writingout defendant's statement. ASA Pavlus testified that from 9 p.m. to 11 p.m.,he interviewed various witnesses as well as two individuals who might haveparticipated in the arson. Afterwards, he took defendant's written statementat about 11 p.m. ASA Pavlus also gave uncontested testimony that during thetime defendant was at the police station he was given food and something todrink. The facts in this case indicate that there is little basis to concludethat defendant's statement resulted from the duration of his interrogation. The prosecutor could have rebutted any suggestions otherwise, without everreferring to defendant's polygraph examination, by presenting the testimoniesof Johnson and ASA Pavlus. See People v. Daniels, 272 Ill. App. 3d 325, 343-45,650 N.E.2d 224 (1994) (concluding that it is improper for the State to usepolygraph evidence to rebut a defendant's assertion that her confession was theproduct of a protracted detention).

Rebuttal evidence is evidence which is presented by the prosecution toexplain, repel, contradict or disprove evidence presented by a defendant.People v. Williams, 209 Ill. App. 3d 709, 723, 568 N.E.2d 388 (1991). Thetrial court has the discretion to admit or exclude rebuttal evidence, and areviewing court will not disturb the trial court's decision absent an abuse ofthat discretion. Williams, 209 Ill. App. 3d at 723. In the present case, weconclude that the trial court abused its discretion in admitting the polygraphevidence because the State's claims of coercion were not sufficient to triggerthe admission of polygraph evidence under the narrow Jefferson exception.

In addition, the record indicates that the trial court's error inadmitting the polygraph evidence was exacerbated by its jury instructionsregarding this evidence. The challenged instruction advised the jury asfollows:

"You have heard testimony concerning a polygraph test. The results ofany polygraph examination are not admissible as evidence and should notbe considered by you in any way. You should not speculate upon thenonexistence of results on the issue of defendant's guilt or innocence. The evidence is to be considered solely for the purpose of determiningthe credibility and reliability of any subsequent statements."

Defendant contends that the trial court incorrectly instructed the juryto consider the polygraph evidence in determining his guilt or innocence. TheState responds that the instruction was properly given since it instructed thejury to consider the polygraph evidence in determining the reliability andcredibility of defendant's confession. The State also maintains that theinstruction was proper because the language in the instruction is equivalent tothe language of the instruction set forth in Melock.

In Melock, the primary issue was whether the exclusion of evidence of thecircumstances surrounding defendant's polygraph examination constitutedreversible error where this evidence was offered on the issue of thereliability of the confession. Melock, 149 Ill. 2d at 457. In Melock, thedefendant confessed after the polygraph examiner falsely told him that he hadfailed the test. The Melock court determined that even though defendant wasdeceived, based on the totality of the circumstances, this deception did notimpair the voluntariness of the confession since defendant's will was not sooverborne as to render his confession incompetent. In regard to the "greaterissue" of whether defendant was denied a fair trial as a result of the trialcourt's preclusion of the polygraph evidence, the Melock court stated:

"We are aware that the term 'polygraph evidence,' broadlyconstrued, may include every aspect concerning polygraphy, includingresults. However, defendant's contention on appeal confines our reviewto a limited aspect of polygraph evidence, viz., the admissibility of thefact and the circumstances of the polygraph examination. It bearsrepeating that, in this case, defendant's polygraph examination yieldedno results." Melock, 149 Ill. 2d at 458.

Unlike Melock, in the present case, defendant's polygraph examination didyield results. In addition, in this case, unlike Melock, there was no issueregarding whether defendant's confession was voluntary; the trial court hadalready determined that issue against defendant at the suppression hearing. And unlike Jefferson, defendant in this case never alleged that coercive policeconduct impaired the reliability or truthfulness of his statement. Therefore,it was improper for the jury to be instructed to consider the polygraphevidence in determining the reliability and credibility of defendant'sstatement.

Finally, defendant asserts that the prosecutor's closing arguments putbefore the jury improper evidence that defendant had failed the polygraphexamination. Defendant has waived this issue for review by failing to objectto the challenged statement at trial. To preserve an issue for review, adefendant is required to object at trial and file a posttrial motion regardingthe issue. People v. Enoch, 122 Ill. 2d 176, 185-87, 522 N.E.2d 1124 (1988).

In sum, we conclude that the trial court abused its discretion inadmitting the polygraph evidence because the State's claims of coercion werenot sufficient to trigger the admission of polygraph evidence under the narrowJefferson exception.

II. Ineffective Assistance of Counsel

Defendant next contends that he was denied effective assistance ofcounsel when defense counsel elicited prejudicial testimony from Fernandoregarding defendant's alleged gang affiliation and failed to expose Fernando'sbias with impeaching evidence that she sold drugs in the building that was setafire. The State responds that defense counsel's assistance was notineffective, since counsel's conduct in cross-examining Fernando was based onsound trial strategy.

Basically, we must determine whether defense counsel's cross-examinationof Fernando fell below an objective standard of reasonableness as required tosupport a claim of ineffective assistance of counsel. A trial counsel'sdecisions regarding how to cross-examine a witness involve the exercise ofprofessional judgment and are entitled to substantial deference from areviewing court. People v. Pecoraro, 175 Ill. 2d 294, 326-27, 677 N.E.2d 875(1997). Thus, a trial counsel's approach to cross-examination supports a claimof ineffective assistance of counsel only if that approach is objectivelyunreasonable. Pecoraro, 175 Ill. 2d at 327. The record indicates that defensecounsel's primary strategy was to challenge Fernando's credibility.

Fernando was the State's only occurrence witness. In an effort topersuade the trial court to admit gang evidence and the hearsay statements ofcodefendant Mosely, the State proffered that Fernando would testify thatdefendant was a member of the GDs and that he and Mosely sold drugs outside thebuilding with other gang members. Based on this offer of proof, the trialcourt determined that the State could introduce evidence related to gangs andillegal narcotics sales to show motive. Evidence indicating a defendant was amember of a gang or was involved in gang-related activity is admissible to showcommon purpose or design, or to provide a motive for an otherwise inexplicableact. People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900 (1990). However, gangevidence is only admissible where there is sufficient proof that suchmembership or activity is related to the crime charged. Smith, 141 Ill. 2d at58.

In the instant case, the State undertook to demonstrate that defendantwas a member of the GDs and that he set the fire on behalf of Mosely and theGDs in retaliation for Fernando reporting on the gang's drug activities outsideand around the building. The major pieces of evidence admitted in support ofthis theory were defendant's confession and Fernando's testimony.

On cross-examination, defense counsel elicited testimony from Fernandothat defendant was arrested for selling drugs outside the building, heregularly used illegal drugs, he was under Mosely's influence, and that someonetold her that the arson was a test for defendant to become a gang member or toadvance in the gang hierarchy. The State argues that these disclosures were amatter of trial strategy not subject to a claim of ineffective assistance ofcounsel. The State also contends that it was trial strategy for defensecounsel not to impeach Fernando with evidence that she sold drugs in thebuilding.

Trial strategies must be shown to be more than unsuccessful to overcomethe presumption of soundness. People v. Faulkner, 292 Ill. App. 3d 391, 394,686 N.E.2d 379 (1997). However, the presumptive soundness of a criminaldefense attorney's performance gives way to a finding of deficientrepresentation when no reasonably effective defense attorney, facing similarcircumstances, would pursue such strategies. Faulkner, 292 Ill. App. 3d at 394. Sound trial strategy embraces the use of established rules of evidence andprocedures to avoid, when possible, the admission of incriminating statements,harmful opinions and prejudicial facts. People v. Moore, 279 Ill. App. 3d 152,159, 663 N.E.2d 490 (1996).

In the present case, assuming that defense counsel's elicitation of thechallenged evidence was a matter of trial strategy, it is doubtful that suchstrategy was sound. The revelation that defendant used illegal drugs wasinadmissible other crimes evidence that had no relevance to any issues in thecase. Moreover, defense counsel elicited inadmissible hearsay from Fernandothat someone told her that the arson was a test for defendant to become a gangmember or to advance in the gang hierarchy. It is doubtful that a reasonabledefense attorney facing similar trial circumstances would have engaged in suchstrategies.

Nonetheless, in order to succeed on a sixth amendment claim ofineffective assistance of counsel, the defendant must not only show thatcounsel's performance was deficient, he must also establish that he wasprejudiced by the deficient performance. Here, defendant fails to establishthe prejudice prong. In order to satisfy this second prong of the Stricklandtest, defendant must show that there is a reasonable probability that, but forcounsel's unprofessional errors, the result of the proceeding would have beendifferent. Strickland v. Washington, 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698,104 S. Ct. 2052, 2068-69 (1984); People v. Albanese, 104 Ill. 2d 504, 473N.E.2d 1246 (1984). A reasonable probability means a probability sufficient toundermine confidence in the outcome. Strickland, 466 U.S. at 687, 80 L. Ed. 2dat 693, 104 S. Ct. at 2064. The question is not whether defendant would morelikely than not have received a different result without counsel's professionalerrors, but whether, with their presence, he received a fair trial, a trialresulting in a verdict worthy of confidence. Moore, 279 Ill. App. 3d at 159.

In the present case, even if this court were to find that defensecounsel's cross-examination of Fernando was objectively unreasonable, defendantwas not prejudiced by the evidence elicited by counsel on cross-examination. Fernando testified on direct examination that defendant was a member of the GDsand that she saw defendant, Mosely, and other gang members regularly sell drugsoutside the building. She also testified that after she heard Mosely yell toburn the building down, she saw defendant and Wilson run past her apartmentdoor and down the smoke-filled hallway. Fernando's testimony on directexamination independently corroborated defendant's statement that Mosely yelledthree times to burn the building down. In addition, the gasoline cansrecovered from the scene of the fire corroborated defendant's statementconcerning how the fire was started. Consequently, defendant is unable tosatisfy the prejudice prong of the Strickland test.

Accordingly, for the reasons set forth above, because there wassufficient evidence in the record to support defendant's conviction (People v.Taylor, 76 Ill. 2d 289, 309-10, 391 N.E.2d 366 (1979)), defendant's convictionis reversed and the cause is remanded to the circuit court of Cook County for anew trial.

Reversed and remanded.

SOUTH, P.J., and WOLFSON, J., concur.

1. At this point, the trial court denied defense counsel's motion for amistrial based on Johnson's reference to "what the results were." Outside thejury's presence, the trial court admonished Johnson to avoid making anyreferences to results, examinations, or polygraphs.