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After a bench trial in the circuit court of Edwards County, the defendant, Kenneth R.Lemke, was found guilty of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2000)). Onappeal, the defendant raises the issue of whether his trial counsel's failure to present thedefense that the defendant had committed the lesser offense of involuntary manslaughterconstituted the ineffective assistance of counsel. We reverse and remand for a new trial.

The defendant was charged with two counts of first-degree murder and one count ofdomestic battery arising from the shooting death of his stepson, Lance Albertson. The matterproceeded to a bench trial.

The defendant testified in his own defense. The defendant testified that he had beenmarried to Albertson's mother for eight years until their divorce in 1988. After the divorce,he remained close with Albertson. Occasionally, Albertson would come to the defendant'sproperty to ride four-wheelers and play ball. On the date of the incident, Albertson and afriend, Rusty Heindselman, stopped by the defendant's property and borrowed a four-wheelerin order to go deer hunting. While the others were gone, the defendant cooked some food anddrank some beer. Upon Albertson and Heindselman's return, the defendant served them somefood and then left for a bar in Grayville, drinking on the way. The defendant testified that hehad "quite a few" beers before he left and also picked up some beer at a Huck's store on his wayto Grayville. At the bar, the defendant drank Jack Daniels and Coke and met with his girlfriend.

When the defendant returned home, Albertson and Heindselman were still there. Aftera while, Albertson left the house. The defendant thought Albertson was upset about a girl. Thedefendant then heard what he believed was Albertson banging things around in the barn. Thedefendant went outside and told Albertson to settle down. According to the defendant,Albertson "got real violent" and started kicking on an old vehicle that the defendant keptcovered up. The defendant told Albertson that he could not act like that and to settle down. Albertson then went wild and asked the defendant, "Do you want a piece of me?" The defendantand Albertson wrestled. Albertson took away a walking stick that the defendant had beencarrying, and the defendant crawled away. The defendant then yelled for Albertson to leave.

The defendant went back into his house. The defendant testified that at that time, he didnot know what to do because Albertson appeared "just out of it." The defendant got a pistol,went back outside, told Albertson that he had a gun, and told him to leave. Albertson yelledsomething unidentifiable back. Albertson stood on the seat of the four-wheeler and yelledsomething about the walking stick that he was still holding. The defendant testified that he thenfelt a sharp pain in his hip and started to fall backwards and heard a blasting sound above hishead.

The defendant testified that at that time, he did not realize how the gun had fired. Thedefendant had not cocked the gun. The defendant saw Albertson fall down. The defendant wentto check on Albertson and did not get a response. The defendant called an operator forassistance and tried CPR, to no avail. The defendant testified that the gun had not been cockedand he had not aimed it at Albertson. The defendant stated that he had not come out of thehouse with the intent to shoot Albertson and had not wanted to shoot him.

The defendant testified that he had suffered numerous injuries from 20 years' workingin the construction industry. The defendant stated he has a pinched nerve in his hip and suffersfrom carpal tunnel syndrome.

In addition to other witnesses, the defendant presented testimony from his personalphysician of the previous 20 years, Dr. Timothy Garrett. Dr. Garrett testified that he hadtreated the defendant for back pain, a sciatic nerve in the hip, and carpal tunnel syndrome. Thedefendant had reported numbness and tingling in his fingers due to the carpal tunnel syndrome. He also had spasms in his hip that could cause him to buckle and lose balance while walking.

Detective Richard Simer, an expert in the functioning of a firearm, from the City ofCentralia police department, testified that he had examined the .22-caliber Colt Peacemakerrevolver that had been involved in the incident. Simer also described the fanning and cockingmeasures of firing a shot. According to Simer, his examination revealed that the trigger pullwas very slight and hardly required any pressure at all to pull the trigger back if the hammer wasnot cocked. He testified that this model of handgun was developed in the late nineteenthcentury and is famous as the gun used by cowboys in the Old West. Simer testified that it waspossible on some occasions to strike the hammer and for the gun to go off by accident. According to Simer, when the firearm was first developed, the recommended procedure forcarrying the firearm was to always carry it on an empty cylinder, even when it was placed in aholster. The reasoning behind this recommendation was that if someone fell off his horse orotherwise fell down, the firearm would not fire because there would be no cartridge under thehammer.

The State also presented several witnesses. County Coroner Mark Curtis testified thathe participated in the autopsy on Albertson. Curtis testified that one shell had been fired andseveral shells remained in the handgun from which Albertson was shot. He stated that itappeared that the bullet which had struck Albertson was going upward at impact. According toa toxicology report, Albertson had methamphetamine, amphetamine, ephedrine, andpseudoephedrine in his blood.

Michael Cooper, a forensic scientist for the Illinois State Police, testified that he hadexamined the firearm that had been used in the incident. Cooper stated that it was a single-action revolver, which, in contrast to double-action revolvers, requires a person to bring thehammer back or cock the gun prior to shooting. Cooper described two methods for firing ashot: cocking and fanning. He stated that in cocking, the shooter sets the cock by bringing thehammer back and then fires by pulling the trigger and that in fanning, the shooter holds thetrigger down and pulls the hammer back and then releases it, as shown in movies about the OldWest.

The 9-1-1 call from the defendant after the incident was played. In the recording, thedefendant states, "[Albertson] jerked the gun out of my hand."

Rusty Heindselman testified that when the defendant returned home from Grayville, thedefendant immediately got into an argument with Albertson. According to Heindselman, boththe defendant and Albertson were in bad moods. He stated that Albertson was outside and thedefendant went outside to check what was wrong with Albertson. The defendant returned in afew minutes, apparently after getting into an argument, and stated, "He is not going to talk tome that way," and picked up a walking stick before returning outside to talk to Albertson. WhenHeindselman went outside to see what was going on, he observed the defendant and Albertsonon the ground wrestling near the barn door. Albertson apparently won the match and took thewalking stick away from the defendant. Albertson walked away and the defendant went backinside. The defendant then came back outside carrying a handgun. Heindselman asked thedefendant what he was doing and the defendant replied, "It's cocked and it's ready." Heindselman heard a gunshot and saw Albertson fall. Heindselman testified that the defendanttold him several times the shooting was an accident.

The court found the defendant guilty of one count of first-degree murder. At theconclusion of the trial, the court stated:

"The defendant left his house by way of the back door. The defendant walkedtowards [Albertson][,] who was at the four-wheeler. More words were exchanged. Thedefendant, in his statement to Agent Harms, stated that [Albertson] said, 'I'm going toleave.' The gun was cocked and in the air pointed in the direction of [Albertson]. Thedefendant announced, 'I've got a gun and it's loaded.' [Heindselman] says the defendantsaid, ['][I]t's cocked and loaded['] or [']ready.['] The defendant's finger was on thetrigger. The defendant knew not to put his finger on the trigger until it was ready toshoot. The gun was fired, and [Albertson] was shot. [Albertson] died from the gunshot. [Albertson] was defenseless, and this time could not walk away.

The defendant's testimony at trial is not consistent with prior statements madeon the 9-1-1 tape and statements to the police. The defendant had to know his actscreated a strong probability of death or great bodily harm by brandishing a loaded andcocked firearm with his finger on the trigger[] and firing the same in the direction ofLance Albertson. With the strong probability of death, he knowingly acted regardlessof the consequences."

The defendant filed this appeal.

The defendant contends that the evidence did not support a conviction for first-degreemurder. Instead, the defendant contends that he was guilty of the offense of involuntarymanslaughter. These two offenses are distinguished by the required mental state. First-degreemurder requires the intent to kill or do great bodily harm or knowledge that the actions wouldcause death or create a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(West 2000). In contrast, involuntary manslaughter only requires a person to recklesslyperform an act that is likely to cause death or great bodily harm to some individual. 720 ILCS5/9-3(a) (West 2000). Involuntary manslaughter may be an unintentional killing, and the onlymental state required is the conscious disregard of a substantial and unjustifiable risk. 720ILCS 5/9-3(a) (West 2000); People v. Hoover, 250 Ill. App. 3d 338, 351, 620 N.E.2d 1152,1161 (1993).

The Criminal Code of 1961 defines recklessness:

"Recklessness. A person is reckless or acts recklessly[] when he consciouslydisregards a substantial and unjustifiable risk that circumstances exist or that a resultwill follow, described by the statute defining the offense[,] and such disregardconstitutes a gross deviation from the standard of care which a reasonable person wouldexercise in the situation. An act performed recklessly is performed wantonly, withinthe meaning of a statute using the latter term, unless the statute clearly requires anothermeaning." 720 ILCS 5/4-6 (West 2002).

Pointing a gun at someone is a reckless act that may support a conviction forinvoluntary manslaughter. The defendant cites to several cases in which a person was foundguilty of involuntary manslaughter based upon the reckless conduct of pointing a firearm atsomeone. See Hoover, 250 Ill. App. 3d at 351, 620 N.E.2d at 1162; People v. Franklin, 189Ill. App. 3d 425, 430, 545 N.E.2d 346, 350 (1989); People v. Andersch, 107 Ill. App. 3d 810,818, 438 N.E.2d 482, 488 (1982); People v. Schwartz, 64 Ill. App. 3d 989, 994, 382 N.E.2d59, 64 (1978). It is considered settled law in Illinois that pointing a loaded firearm at anotherperson constitutes recklessness because that conduct is a gross deviation from the standard ofcare exercised by a reasonable person. Andersch, 107 Ill. App. 3d at 818, 438 N.E.2d at 488.

A review of the cases presented by the defendant shows that the defendant's actions fitwithin a pattern in which a person with a weapon confronts another and the weapon discharges. A primary example is People v. Hoover, 250 Ill. App. 3d 338, 350, 620 N.E.2d 1152, 1161(1993). In Hoover, the defendant testified that the victim had been stalking her because thedefendant was involved in a dalliance with the victim's husband. Hoover, 250 Ill. App. 3d at345, 620 N.E.2d at 1158. On the morning of the incident, the victim telephoned the defendantasking about the man in question. A few minutes after hanging up on the victim, the defendantheard the victim honking a car horn out in the street. The defendant placed a handgun in thepocket of her jacket and went outside to confront the victim. Hoover, 250 Ill. App. 3d at 346,620 N.E.2d at 1158. The defendant saw the victim sitting in a car. As the defendant wastalking, the victim rolled down her window and stated that she was not going to leave until herhusband came to see her. Words were exchanged and the victim reached out the window,grabbed the defendant with both hands, and pulled the defendant into the car. Hoover, 250 Ill.App. 3d at 346, 620 N.E.2d at 1158. A struggle ensued and the defendant tried to break loose. During the fight, the defendant placed the gun in her right hand and the gun went off. The trialcourt found the defendant guilty of involuntary manslaughter.

On review the appellate court rejected the argument that the incident was an accident. The fact the weapon was not fired voluntarily did not mean the defendant was not reckless. Thecourt began its analysis by noting that an accident is not the same as recklessness, in that anaccidental discharge of a firearm does not by itself support a conviction for involuntarymanslaughter. Hoover, 250 Ill. App. 3d at 351, 620 N.E.2d at 1161 (citing Franklin, 189 Ill.App. 3d at 429, 545 N.E.2d at 349). The court then stated that the determination of whetheran incident was an accident or the result of reckless conduct is a matter to be determined bythe trier of fact. Hoover, 250 Ill. App. 3d at 351, 620 N.E.2d at 1161 (citing Schwartz, 64 Ill.App. 3d at 993, 382 N.E.2d at 63):

"This court has held that pointing a loaded gun at another constitutesrecklessness because it is a gross deviation from the standard of care which areasonable person would exercise. [Citation.] Further, defendant's contention that thefiring of the weapon was accidental because she did not fire it voluntarily has beenpreviously rejected by this court. [Citation.] It is clear that defendant's acts of takinga loaded gun out to [the victim's] car to confront her, then grabbing [the victim's] hairand placing the gun at the back of [the victim's] head during the struggle, were recklessconduct. As such, defendant was proved guilty of involuntary manslaughter beyond areasonable doubt." (Emphasis added.) Hoover, 250 Ill. App. 3d at 351, 620 N.E.2d at1161-62.

In this case, the condition of the defendant and the handgun could also be seen assupporting a conviction for involuntary manslaughter. See Franklin, 189 Ill. App. 3d at 430,545 N.E.2d at 350 (handling a gun while intoxicated is reckless conduct); Andersch, 107 Ill.App. 3d at 818, 438 N.E.2d at 488 (the defendant acted recklessly in not checking thecondition of the weapon prior to the incident).

The State contends that it was neither impossible nor unreasonable for the trial courtto find the defendant guilty of murder. The State contends the fact that the single-actionrevolver used by the defendant required two separate movements for firing actually supportsa finding that the firing of the gun was intentional. It also argues that a fact finder could havefound that the shooting was the defendant's attempt to put an end to an escalating conflict. Inaddition, the State questions the defendant's assertion that he was intoxicated at the time of theshooting and otherwise calls into doubt his credibility. The State contends that from theevidence presented, a fact finder could determine that the defendant intended to shootAlbertson. See People v. Rodriguez, 275 Ill. App. 3d 274, 284, 655 N.E.2d 1022, 1029(1995). On appeal, we will not substitute our judgment for that of a trier of fact in cases wherethe facts could lead to either of two inferences, unless the inference accepted by the fact finderis inherently impossible or unreasonable. People v. Tharpe-Williams, 286 Ill. App. 3d 605,611, 676 N.E.2d 717, 721 (1997). The countervailing evidence in the record leaves open areasonable possibility that the fact finder could find that the defendant intentionally killedAlbertson. Thus, we do not mandate that the defendant's conviction for first-degree murder bereplaced with a conviction for involuntary manslaughter.

Nonetheless, we do find that the defendant was denied the effective assistance ofcounsel. In order to have a conviction set aside for the ineffective assistance of counsel, adefendant must demonstrate that (1) his counsel's performance fell below an objective standardof reasonableness and (2) counsel's deficient performance resulted in prejudice to thedefendant. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S.Ct. 2052, 2064 (1984). The competence of trial counsel is to be determined by the totalityof the counsel's conduct. People v. Morris, 335 Ill. App. 3d 70, 78, 779 N.E.2d 504, 510(2002). The effective assistance of counsel refers to competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168, 173, 601 N.E.2d 732, 734 (1992). Prejudice is establishedwhen there is a reasonable probability that, but for counsel's unprofessional errors, the resultof the proceeding would have been different. People v. Cloutier, 178 Ill. 2d 141, 163, 687N.E.2d 930, 940 (1997). " 'The benchmark for judging any claim of ineffectiveness must bewhether counsel's conduct so undermined the proper functioning of the adversarial process thatthe trial cannot be relied on as having produced a just result.' " People v. Albanese, 104 Ill. 2d504, 525, 473 N.E.2d 1246, 1255 (1984) (quoting Strickland, 466 U.S. at 686, 80 L. Ed. 2dat 692-93, 104 S. Ct. at 2064).

The State contends that defense counsel's action was a matter of trial strategy and thattrial counsel adopted an "all-or-nothing" approach. By not presenting the possibility of aconviction for involuntary manslaughter, defense counsel placed the trial court in the positionof either finding the defendant guilty of murder or finding the defendant not guilty because theshooting was an accident. By presenting the possibility of a conviction for involuntarymanslaughter, defense counsel would have ensured a felony conviction. Not presenting alesser-included offense has been found to be a valid strategy when it exposes a defendant toa compromise verdict. See People v. Barnard, 104 Ill. 2d 218, 231-32, 470 N.E.2d 1005,1009-10 (1984).

A strong presumption exists that trial counsel's conduct, if it involves strategy, fallswithin reasonable, professional judgment. People v. Cunningham, 191 Ill. App. 3d 332, 337,547 N.E.2d 765, 769 (1989). As a result, reviews of the competency of counsel usually donot extend to the exercise of the counsel's judgment, discretion, or trial tactics. People v.Spicer, 158 Ill. App. 3d 699, 704, 511 N.E.2d 235, 239 (1987). However, when a choice oftrial strategy is based upon a misapprehension of the law, the claim is reviewable and counselmay, in fact, have been ineffective. Cunningham, 191 Ill. App. 3d at 337, 547 N.E.2d at 769;People v. Wright, 111 Ill. 2d 18, 27, 488 N.E.2d 973, 977 (1986).

Given the defendant's testimony, the adoption of an all-or-nothing approach could onlyhave been based on a misapprehension of the law. The evidence presented by the defendantcould not have supported a finding of not guilty due to the shooting being an accident. Thedefendant's apparent theory was that the shooting occurred as a result of an unconscious actof the defendant while he was holding the handgun. An unconscious act of shooting would nothave supported a determination of innocence, given the context illustrated by the rest of thedefendant's testimony.

The accidental discharge of a weapon by itself does not constitute recklessness. Hoover, 250 Ill. App. 3d at 351, 620 N.E.2d at 1161. In situations where the handling of afirearm is not otherwise reckless, whether the discharge of the weapon creates the requisiteintent has been seen as a question of fact for the trier of fact. Hoover, 250 Ill. App. 3d at 351,620 N.E.2d at 1161; Franklin, 189 Ill. App. 3d at 430, 545 N.E.2d at 349. Such is not thescenario in this case. The assertion that the unconscious act of firing the weapon precludesguilt "confuses reckless conduct with the risks or results that are the natural products of suchacts." Andersch, 107 Ill. App. 3d at 818, 438 N.E.2d at 488.

In this case, the defendant's recklessness does not stem from his unsafe operation ofthe handgun but from his possession and directing of the weapon given the situation as hedescribed it. The defendant testified that he had been in a series of altercations with Albertson. By his own testimony, the defendant took the weapon outside as a part of an ongoing dispute. As in Hoover, the defendant's possession of the weapon in the situation as he described it was,at least, reckless. No reasonable trier of fact could have found that the defendant possesseda less-culpable state of mind. The defendant's pointing of a handgun in the direction ofAlbertson during an altercation cannot be seen as an accident.

This case is similar to Wright. In Wright, on a petition for postconviction relief, thecircuit court vacated judgments on murder counts and entered a judgment for involuntarymanslaughter. At the trial, the defense theory was that the shooting had been accidental andthat the defendant, therefore, had lacked the required intent for murder. Wright, 111 Ill. 2d at22, 488 N.E.2d at 975. The defendant testified that she had been sleeping upstairs when shewas awakened from an alcohol-induced sleep by noise in her kitchen. The defendant testifiedthat on the date of the incident, she had told a male friend of her daughter's to leave her housewhen she heard him swear at her daughter. Upon being awakened, the defendant walked witha gun to the top of the stairs in order to see who was downstairs. The defendant claimed thatshe had not remembered that her daughter was in the house. The defendant then saw herdaughter, and her daughter asked the defendant why she had a gun. The defendant testified thatshe had replied that it was her gun and that she would fire it when it pleased her. Wright, 111Ill. 2d at 22, 488 N.E.2d at 975. The gun then discharged, striking the daughter. The defendanttestified that she had thought the gun was pointed toward a wall and that she had not intendedto fire the weapon or shoot her daughter. The defendant was initially convicted of murder.

At the evidentiary hearing on the defendant's petition for postconviction relief, thedefendant's trial counsel testified that he had not raised the defense of voluntary intoxicationbecause his understanding was that the drunkenness would have to be to an extent that thedefendant recalled none of the facts of the incident. Additional evidence was presented on theeffect of taking medications combined with alcohol. There was also testimony that thedefendant, on another occasion after drinking, had fired a gun into the ceiling to stop a familyargument. After a hearing on the petition for postconviction relief, the trial court vacated thejudgments on the murder counts and entered a judgment for involuntary manslaughter. Wright,111 Ill. 2d at 24-25, 488 N.E.2d at 976.

The defendant in Wright was prejudiced by her counsel's failure to consider involuntarymanslaughter. The Illinois Supreme Court upheld the vacating of the murder counts in favorof a judgment for involuntary manslaughter. The court pointed out that trial counsel admittedto a fundamental misunderstanding of the law. Trial counsel erroneously placed exclusivereliance on the extent of the defendant's ability to recall the incident, in considering whetherintoxication could be a factor in reducing the charge from murder to involuntary manslaughter. Wright, 111 Ill. 2d at 30, 488 N.E.2d at 979. Defense counsel saw the only possible outcomesas an accident or a murder. The court described why counsel was ineffective:

"He considered only the question of the mental state for the crime of murder. He didnot consider that the action of the defendant could be regarded as reckless and thepossible legal effect of such conduct. He did not examine whether involuntarymanslaughter might be the offense involved as the court did after considering the totalevidence." Wright, 111 Ill. 2d at 30, 488 N.E.2d at 979.

The State's attempt to distinguish Wright misapprehends its relevance. The State firstcontends that the record contains no testimony from the defendant's trial counsel regarding amisunderstanding of the law and the voluntary intoxication defense. Testimony from the defendant's counsel is not necessary. Our review is predicated on the most cogent of defensecounsel's reasons for such an approach-an all-or-nothing strategy. This approach, however,is not a viable strategy.

It is important to note that this is not a case of invited error. Under the doctrine ofinvited error, a defendant may not request that his counsel proceed in one manner at the trialand then later contend on appeal that trial counsel acted in error. People v. Villarreal, 198 Ill.2d 209, 227-28, 761 N.E.2d 1175, 1184-85 (2001). There is no indication in the record thatthe defendant requested that an involuntary manslaughter defense not be presented. Nor isthere any indication that the defendant was informed of the lack of a basis for an all-or-nothingapproach, by either his counsel or the bench. Cf. People v. Carter, 208 Ill. 2d 309, 319, 802N.E.2d 1185, 1190 (2003).

In addition, the State contends that Wright is distinguishable because the record in thatcase conclusively established that the results of the proceeding would have been different. This distinction would be valid if we were mandating a finding of involuntary manslaughter. In essence, our decision coincides with the decision in Wright to review the postconvictionpetition. Upon remand, we are giving the trial court an opportunity to determine whether thedefendant's conduct was not intentional, but reckless.

In attempting to distinguish Wright, the State addresses the question of voluntaryintoxication but does not address the question of whether the defendant's conduct could beseen as less than reckless. In the cases cited to by the State distinguishing Wright, theevidence did not support a finding of recklessness. See People v. Smith, 195 Ill. 2d 179, 196-97, 745 N.E.2d 1194, 1205 (2000) (given the totality of circumstances, where the defendanthad been involved in a burglary and had given a police statement stating that "he must haveintended to kill" the victim, additional evidence of the ingestion of PCP was irrelevant); People v. Jaffe, 145 Ill. App. 3d 840, 862, 493 N.E.2d 600, 616 (1986) (distinguished Wrightbased on the fact that "evidence would not have supported a finding of recklessness").

If the trial court had been presented with the option of finding the defendant's conductto be reckless, there is a reasonable probability that a different result would have been reached. See People v. Patterson, 192 Ill. 2d 93, 122, 735 N.E.2d 616, 633 (2000) ("reasonableprobability" is a probability sufficient to undermine confidence in the outcome). There wasno reason for not presenting this argument at the trial. Viewing the evidence in the light mostfavorable to the defendant, a judge could not have found the shooting to be an accident. Uponremand, the trial court is to consider whether the defendant committed involuntarymanslaughter.

The defendant also raises issues concerning the lack of counsel at his preliminaryhearing. Because the judgment from the initial process is being reversed, we need not addressthat issue.

Accordingly, the judgment of the circuit court is hereby reversed, and the matter ishereby remanded for a new trial. Because we have concluded that the evidence at the first trialwas sufficient to support a conviction for first-degree murder, there is no double jeopardy barto a new trial. See People v. Porter, 168 Ill. 2d 201, 215, 659 N.E.2d 915, 922 (1995).

Reversed; cause remanded.

DONOVAN, J., concurs.

JUSTICE KUEHN, specially concurring:

I concur in the majority opinion. I write separately to underscore the absence of astrategy that can be deemed sound and to emphasize the importance of making a record whencounsel pursues a course that touches upon a decision that only the defendant can make.

Whether or not a lesser-included offense is submitted for decision is a defendant's call. People v. Brocksmith, 162 Ill. 2d 224, 229-30, 642 N.E.2d 1230, 1233 (1994). Thus, whenthe evidence would support the submission of lesser-included offenses for consideration yetan all-or-nothing strategy is pursued, it would seem to be good practice to make a record ofthe defendant's desire to forego decision on any of the lesser-included offenses. This isparticularly so when the charge is first-degree murder and the evidence will support a findingof involuntary manslaughter. The dissipation of criminal culpability, and its attendantpunishments, is nowhere greater than when dealing with a homicide committed recklessly, asopposed to being committed with knowledge that death or great bodily harm will ensue fromcertain acts.

When defense counsel tenders a defense that, if believed, constitutes involuntarymanslaughter, counsel fails to provide the kind of representation that the constitutioncontemplates, if he fails to make involuntary manslaughter a potential outcome, tendered fordecision. This is even more the case when the decision is left to a judge, schooled in the law. Presumably, a judge would know that what the defendant claimed to have occurred, as a matterof law, constitutes a crime.

The defendant's version of what happened simply does not absolve him of criminalresponsibility. Thus, the tendered defense left the judge with a certain decision, unclutteredby the possibility that the defendant committed involuntary manslaughter, recklesslydisregarding a substantial risk of harm by introducing a loaded gun into the affray, a gun thathe very well may have discharged accidently, rather than intentionally. The judge had noalternative but to convict the defendant of first-degree murder. On remand, the trier of factwill have the opportunity to find the defendant guilty of the crime that he claims to havecommitted.

For the reasons stated, I respectfully concur.