2015 IL App (1st) 131552
No. 1-13-1552
Opinion filed June 30, 2015.
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 09 CR 14369 (02)
)
BYRON BROWN, )
) The Honorable
Defendant-Appellant. ) Steven J. Goebel,
) Judge, presiding.
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Byron Brown was convicted of felony murder based on
a fatal traffic accident that occurred while he and his co-offender, Rodney Jones, fled from the
scene of a residential burglary. Brown contends the State did not prove him guilty beyond a
reasonable doubt because he could not have foreseen that his codefendant's "irrational and
dangerous" driving during their escape would result in the victim's "almost inevitable" or "likely"
death. We affirm.
No. 1-13-1552
¶2 The jury properly found Brown guilty of felony murder where the evidence showed he
committed a residential burglary and then, with his codefendant at the wheel, sped away from the
police. Jones failed to stop at intersections, which resulted in a fatal traffic accident. During the
commission of the residential burglary, Brown and Jones set in motion a chain of events that
caused the death.
¶3 During deliberations, the jury requested a definition of foreseeability. After defense
counsel agreed the court should not provide the jury with a definition, the jury was instructed to
continue deliberating. Brown argues that because foreseeability was a "sharply disputed issue at
trial, and the key to acquittal," defense counsel was ineffective for failing to provide a definition
to the jurors when they requested one. But, the jury received instructions that fairly and
accurately stated the applicable law. Defense counsel's decision to offer no definition of
foreseeability to the jury's question during deliberations was trial strategy and, therefore, cannot
serve as a basis for an ineffective assistance of counsel claim. Counsel spent the majority of his
closing argument defining foreseeability to fit the defense theory.
¶4 BACKGROUND
¶5 The evidence at trial showed that on July 3, 2008, a burglary occurred at the single family
bungalow on South Langley, Chicago, where Anthony Shaw and Jocelyn Hunter lived. Hunter
ran a club about a mile away from her home, and on the date of the burglary, Shaw arrived at the
club around 3:30 p.m. to help her clean and stock. When Shaw and Hunter left their house, it was
locked and undamaged. Around 6 p.m., a friend of Shaw's came into the club to tell Hunter and
Shaw that someone had broken into their home and was still there. Shaw tried to call the police
but was unsuccessful.
-2-
No. 1-13-1552
¶6 Shaw and his friend left the club and went to the home. As Shaw looked down the alley
toward his house, he saw "some guys" standing against a neighbor's garage. Shaw drove toward
78th Street and flagged down the marked police car of Officer John Kennedy and his partner,
Officer Passerelli. Shaw told them about the burglary and pointed down the alley in the direction
of his house. Coming toward them from the alley was a white Suburban SUV. The SUV did not
stop as it came out of the alley and drove the wrong direction on 78th Street. The officers
activated their lights and sirens and pursued the SUV which increased its distance from the
police car by failing to slow down at any intersections, as the police car did. Officer Kennedy
broadcast a radio description of the SUV and its direction to alert fellow officers. When the SUV
turned right, Officer Kennedy was four blocks behind it on 78th Street.
¶7 When the officers arrived at the intersection of 76th and State, they saw an accident
ahead. The SUV they had been pursing rested against a light pole on the northeast corner. The
officers pulled behind the SUV. Officer Kennedy did not see anyone inside the SUV. Those
gathered nearby pointed east and said three men from the SUV had run in that direction. Officer
Kennedy ran in that direction toward an alley. He radioed to let other responding officers know
that the suspects were on foot and which direction they went. At the time, Officer Kennedy did
not know that another vehicle was involved in the accident.
¶8 When Officer Kennedy returned, he learned another car, a Cadillac, had been involved
and came to a halt farther north on State Street against a fence. Officer Kennedy saw people
trying to help the woman inside, who was later identified at Tommye Freeman. She died from
her injuries at a hospital.
¶9 Officer Johnson received Officer Kennedy's radio broadcast alerting him that a white
SUV "used in a burglary" had crashed at 76th and State. Officer Johnson arrived there, saw an
-3-
No. 1-13-1552
accident had happened and received the radio transmission that three African-American males
had run east from the SUV. Officer Johnson began looking for the suspects on foot. He entered
the rear yard at 7532 South Michigan, where he saw Brown crouching alone in the basement
stairwell.
¶ 10 After Shaw identified Brown as someone he believed had been in the SUV, Brown was
transported to the 6th district police station. During a custodial search, police found on Brown
two yellow bracelets, a checkbook, and a cross. Officer Johnson looked inside the SUV and
noticed several large items he believed were proceeds from the burglary—two televisions, 32
and 50 inches, and two laptops, one gray and one silver. Officer Johnson removed the items from
the SUV and inventoried them at the 6th district police station.
¶ 11 Officer Kennedy learned that the BP gas station on the northwest corner of 76th and State
had video surveillance equipment recording the intersection. Officer Kennedy obtained the
videotape that showed the accident. The recording was played for the jury.
¶ 12 When Shaw entered his house, he found his bedroom had been ransacked and numerous
items taken, including a 32-inch television, a 50-inch television and some tools. Later that night,
when Hunter returned home, she noticed her son's checkbook was missing, as well as her tennis
bracelet and other jewelry. Shaw went to the police station and identified the property the
officers had recovered as items from his home.
¶ 13 Officers Johnson and Vivanco interviewed Brown around 7:30 p.m., after Officer
Johnson gave him his Miranda warnings. Officer Vivanco testified at trial that in response to his
question to Brown about how he was involved in the car accident and burglary, Brown replied:
"Man, you know I was there. Everyone knows I was there. There were people out
there. They have cameras at the gas station."
-4-
No. 1-13-1552
Vivanco testified that Brown told him he ran because "he was scared." Vivanco further testified
Brown stated:
"He knew he was going to be—something bad was gonna happen. The two guys
that he was with, they knew that the victim had a lot of TVs and computer at his
house, he just went along with them but he knew something bad was gonna
happen."
¶ 14 Evidence technician officer Steven O'Connell processed and photographed the crime
scene of the residential burglary. He recovered fingerprints. After the burglary division learned
Tommye Freeman had died from her injuries, they notified the homicide detective division and
Detective Wade Golab was assigned to the case. Detectives recovered a hat from the scene of the
accident that looked like it could have come from one of the suspects.
¶ 15 Evidence technician Edward Grabarek took a buccal swab from Rodney Jones on
September 10, 2008. Jones's DNA matched the DNA found on the driver's side airbag of the
white SUV; Jones was arrested and charged with Freeman's murder.
¶ 16 In late 2008, Detective Brogan contacted Detective Golab and told him he had
information about a phone call Brown placed to Ronesha Foots; Golab received a copy of a
recording of the call. Foots testified Brown was the father of her daughter and they were dating
in July 2008. On July 3, 2008, she said Brown was with her, but he left when he received a call
from Jones and Pierre Skipper. Later that day, Foots got a call that police had arrested Brown.
¶ 17 Evidence technician officer Edward McCartan collected evidence from the white SUV.
He recovered blood from the outside doors and recovered the following from inside the vehicle:
a cigarette butt, chapstick, a water bottle, a CD, a red T-shirt, an airbag, and a pair of gym shoes.
The items were inventoried and sealed.
-5-
No. 1-13-1552
¶ 18 Deborah McGarry, a forensic scientist and an expert in the field of latent fingerprint
examination and analysis, examined the fingerprint samples. She compared latent prints lifted
from the residential burglary scene to the prints of Jones and Brown and found them to match.
¶ 19 Forensic evidence determined that the DNA found on the SUV's driver's side door and
airbag matched Jones's DNA. The DNA from the recovered cigarette found inside the SUV and
the baseball hat recovered at the scene after the accident matched Brown.
¶ 20 At the conclusion of the State's case, Brown moved for a directed verdict, which the court
denied. The defense rested and the parties presented closing arguments.
¶ 21 Jury Instructions and Deliberations
¶ 22 The parties extensively argued jury instructions. The trial court ultimately determined
that a modified version of Illinois Pattern Jury Instructions, Criminal No. 7.15A (IPI) would be
given.
"A person commits the offense of first degree murder when he commits the
offense of residential burglary and the death of an individual results as a direct
and foreseeable consequence of a chain of events set into motion by his
commission of the offense of residential burglary. It is immaterial whether the
killing is intentional or accidental or committed by a confederate without the
connivance of the defendant. A person may be held responsible for a death that
occurs during an escape following the commission of residential burglary."
The court added the last sentence, which defense counsel objected to.
¶ 23 During deliberations, the jury sent out a note, "Is there a legal or more complete
definition of the term foreseeable?" As the parties debated how to respond to the jury question,
defense counsel stated that he was "not aware of any definition we could give them." The State
-6-
No. 1-13-1552
could not find a definition in the IPI and agreed with defense counsel. Defense counsel suggested
they could use a dictionary definition and a discussion ensued regarding using civil jury
instructions. Although a definition of foreseeability was found in Black's Law Dictionary, the
parties agreed the court should tell the jurors to continue deliberations. The jury was told, "You
have heard all of the evidence and you have all of the instructions. Please continue to deliberate."
¶ 24 The jury returned a guilty verdict of first degree murder. Brown filed a posttrial motion
for a new trial or judgment notwithstanding the verdict, arguing the court erred in failing to
instruct the jury that a felon is responsible for those deaths which occur during a felony and
which are the foreseeable consequence of the initial criminal act and that the trial court should
have provided a definition of "foreseeable" in response to the jury's question. The trial court
denied Brown's posttrial motion. The court sentenced Brown to 25 years' imprisonment and
denied his motion to reconsider the sentence.
¶ 25 ANALYSIS
¶ 26 Brown contends the State failed to prove him guilty beyond a reasonable doubt of felony
murder because he could not have foreseen that his codefendant's "irrational and dangerous"
driving during their escape from committing residential burglary would "likely" or "almost
inevitably" result in the victim's death.
¶ 27 Sufficiency of the Evidence of Felony Murder
¶ 28 The relevant inquiry when faced with a challenge to the sufficiency of the evidence
involves, after viewing the evidence in the light most favorable to the prosecution, whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). As a reviewing court, we will not
substitute our judgment for that of the trier of fact on questions concerning the weight of the
-7-
No. 1-13-1552
evidence or the credibility of the witnesses. Id. at 375. We will not reverse a criminal conviction
unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable
doubt of the defendant's guilt. Id.
¶ 29 The jury convicted Brown of felony murder predicated on residential burglary. A person
commits first degree murder when he or she "kills an individual without lawful justification ***
if, in performing the acts which cause the death: *** he [or she] is attempting or committing a
forcible felony." 720 ILCS 5/9-1(a)(3) (West 2008). The forcible felony was the residential
burglary. 720 ILCS 5/2-8 (West 2008).
¶ 30 Illinois adheres to the "proximate cause" theory of liability for felony murder, meaning
"liability attaches under the felony-murder rule for any death proximately resulting from the
unlawful activity." People v. Lowery, 178 Ill. 2d 462, 465 (1997). "A felon is liable for those
deaths which occur during a felony and which are the foreseeable consequence of his [or her]
initial criminal acts." Id. at 470. Additionally, a defendant may properly be held responsible for a
death that occurs during an escape following the commission of a forcible felony. People v.
Klebanowski, 221 Ill. 2d 538, 549 (2006); see also People v. Hickman, 59 Ill. 2d 89, 94 (1974)
(time and activities involved in escaping to a place of safety are part of crime).
¶ 31 Brown argues that as a passenger in the SUV during the escape he could not reasonably
have foreseen that Jones would drive in an "irrational and dangerous" manner and, accordingly,
cannot be held responsible for Freeman's unforeseeable death. As further support for his position,
Brown offers the fact that neither he nor Jones carried weapons during the commission of the
residential burglary. Brown argues this fact shows they had no intention of using force to escape,
and from this, he contends the victim's death could not be a foreseeable consequence of his
actions in carrying out the residential burglary because he never contemplated the use of force or
-8-
No. 1-13-1552
violence. According to Brown, Jones did not merely lose control of the car while speeding
during their escape, but "made the unexpected and irrational decision to ignore the stoplight and
drive directly into heavy traffic in an intersection—conduct that impeded escape and put himself
and his passengers at the risk of death and injury." Brown maintains that the State failed to show
how the accident was the "almost inevitable" result of the burglary, making the victim's death
reasonably foreseeable.
¶ 32 To sustain a conviction for felony murder, the State need not prove the defendant
contemplated "that his actions would result specifically in death," only that he or she intended to
commit the underlying felony. People v. Hudson, 354 Ill. App. 3d 648, 655 (2004) (citing People
v. Causey, 341 Ill. App. 3d 759, 769 (2003)). To sustain its burden, the State must prove the
defendant "set in motion a chain of events which were or should have been within his
contemplation." Lowery, 178 Ill. 2d at 467. Moreover,"[i]t is unimportant that defendant did not
anticipate the precise sequence of events that followed [the forcible felony]." Id.; see also People
v. Brackett, 117 Ill. 2d 170, 180-81 (1987) (defendant did not have to foresee victim would die of
asphyxiation while being fed in nursing home following rape and beating to sustain felony
murder conviction).
¶ 33 The facts presented establish Brown's guilt for the residential burglary and the murder of
an innocent victim during his escape from the burglary. Although Brown did not perform the acts
that caused Freeman's death—"irrational and dangerous" driving—he did participate in the
residential burglary and the escape that culminated in Freeman being the victim in a fatal car
accident. Brown's participation in the forcible felony set in motion a chain of events that led to
Freeman's foreseeable death. It was sufficient for Brown to have contemplated that, to avoid
liability, his actions would require escape from the home without capture. Freeman's death
-9-
No. 1-13-1552
directly resulted from Brown's actions in committing the residential burglary and attempting to
escape capture.
¶ 34 The evidence presented to the jury showed that on July 3, 2008, a burglary at Hunter and
Shaw's home and the removal of personal items occurred. A friend told Shaw about the burglary
and that the burglars remained at the home. He immediately went home and as he approached,
Shaw saw a group of men in the alley. Shaw flagged a nearby police car. As Shaw explained
what had transpired, he pointed in the direction of his house and then both Shaw and the officers
saw a white Suburban SUV coming toward them down the alley from Shaw's house. The SUV
did not stop as it came out of the alley and proceeded in the wrong direction down 78th Street.
The police pursued the SUV with sirens and lights activated, but the SUV did not slow down or
brake. Instead, the SUV increased the distance between it and the police car by failing to stop as
it crossed intersections. When the SUV turned, the police car was four blocks behind. When the
officers arrived at the intersection of 76th and State, they could see the SUV resting against a
light pole on the northeast corner having been in an accident. Brown, who had run, was found
hiding in a basement stairwell behind a nearby home. When the police questioned Brown about
the events, he said he "knew something bad was gonna happen." Neither Brown nor Jones
carried weapons during the burglary and none were found at the location of the accident.
¶ 35 Brown argues that because the absence of weapons during the resident burglary
establishes that he and Jones never contemplated the potential use of violence, "it was even less
foreseeable to a reasonable person in Brown's position that codefendant would recklessly
endanger lives of other drivers during flight from the police." In support for his position, Brown
cites People v. Belk, 203 Ill. 2d 187, 192 (2003), and argues the State offered no evidence that he
could reasonably foresee that Jones would endanger lives should police pursue them. He also
-10-
No. 1-13-1552
relies on language from Lowery and Hudson in arguing the State could not show Freeman's death
was "almost inevitable" (Lowery, 178 Ill. 2d at 467) and "likely" from his actions ((internal
quotation marks omitted) People v. Hudson 222 Ill. 2d 392,401 (2006)).
¶ 36 Our supreme court has determined that a defendant does not have to anticipate the precise
sequence of events leading to the fatality. Lowery, 178 Ill. 2d at 470. In People v. Dekens, 182
Ill. 2d 247, 254 (1998), the supreme court reaffirmed this principle, explaining that "the focus of
the proximate cause theory is on the chain of events set in motion by the defendant." Focusing on
the chain of events Brown's actions set in motion, we agree with the State that liability for
Freeman's death is warranted as a foreseeable consequence.
¶ 37 We find People v. Hickman, 59 Ill. 2d 89 (1974), cited by the State, more in line with the
facts than the cases cited by Brown. In Hickman, a police officer pursing fleeing burglars was
mistakenly shot and killed by another officer who mistook the pursing officer as one of the
burglars. Id. at 94. In finding the defendant guilty of felony murder, our supreme court noted that
"commission of the burglary, coupled with the election by defendants to flee, set in motion the
pursuit by armed police officers." Id. The shot that killed the officer responded to the escape of
the fleeing burglars and, therefore, constituted a direct and foreseeable consequence of the
defendant's commission of the crime. Id. Relying on Hickman, the State argues the application of
the felony murder doctrine does not depend on the identity of the person whose physical action
specifically caused the decedent's death but, instead, on whether the fatality was a foreseeable
consequence of the defendant's forcible felony. See also People v. Cervantes, 408 Ill. App. 3d
906 (2011) (discussing foreseeable conduct in context of resisting police officer, court held it
reasonably foreseeable that pursing officer might be injured when defendant chose to run from
police in icy and snowy conditions).
-11-
No. 1-13-1552
¶ 38 Brown's participation in the residential burglary, coupled with his choice to escape the
consequences of his actions by fleeing with Jones, set in motion the circumstances that
concluded in the fatal accident. Put another way, had Brown not participated in the residential
burglary and then fled, Freeman would not have been killed. That Brown claims he and Jones
were unarmed during the forcible felony is irrelevant. As our supreme court has indicated, " '
"[i]t is unimportant that the defendant did not anticipate the precise sequence of events that
followed *** His unlawful acts precipitated those events, and he is responsible for the
consequences." ' " People v. Klebanowski, 221 Ill. 2d 538, 548 (2006) (quoting Hickman, 59 Ill.
2d at 94 (quoting People v. Smith, 56 Ill.2d 328, 333-34 (1974))).
¶ 39 After considering the evidence in the light most favorable to the State, we affirm Brown's
conviction. Any rational trier of fact could have found Brown guilty beyond a reasonable doubt.
As a matter of law, Brown is responsible for Freeman's death, which occurred during his escape
from the commission of the residential burglary. Brown's participation in the burglary set in
motion a chain of events that ultimately caused the death.
¶ 40 Ineffective Assistance of Counsel
¶ 41 To establish ineffective assistance of counsel, a defendant must show both a deficient
performance by counsel that falls below an objective standard of reasonableness and prejudice,
meaning a reasonable probability that absent counsel's error, the result would have been
different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to satisfy either prong
dooms the claim. People v. Givens, 237 Ill. 2d 311, 331 (2010).
¶ 42 Jury instructions convey to the jury the law that applies to the evidence presented.
People v. Herron, 215 Ill. 2d 167, 187 (2005) (citing People v. Fuller, 205 Ill. 2d 308, 343
(2002)). Jury instructions should not be misleading or confusing. People v. Bush, 157 Ill. 2d 248,
-12-
No. 1-13-1552
254 (1993). "[T]he general rule is that the trial court has a duty to provide instruction to the jury
where it has posed an explicit question or requested clarification on a point of law arising from
facts about which there is doubt or confusion." People v. Childs, 159 Ill. 2d 217, 228-29 (1994).
The trial court, however, may properly exercise its discretion to "decline to answer a jury's
inquiries where the instructions are readily understandable and sufficiently explain the relevant
law, where further instructions would serve no useful purpose or would potentially mislead the
jury, when the jury's inquiry involves a question of fact, or if the giving of an answer would
cause the court to express an opinion which would likely direct a verdict one way or another." Id.
at 228. How the trial court responds to a jury question during deliberations ordinarily falls within
the discretion of the trial court "so that the trial court's decision will be disturbed on appeal only
if that decision constituted an abuse of discretion." People v. Falls, 387 Ill. App. 3d 533, 537
(2008).
¶ 43 In response to the jury's note asking for the definition of "foreseeable," both parties
indicated they were inclined to tell the jury to continue deliberating. The State informed the court
it had briefly looked for a definition in the IPI, but had not found one. The court personally asked
Brown if he agreed with instructing the jury to continue deliberating and he did. Defense counsel
then stated:
"Judge, if I can throw something out there? I know there is an alternative of
getting a definition from a source other than the IPI, a regular dictionary ***. I
don't have a definition here."
The court then inquired whether the parities had a way to access the civil IPI. Defense counsel
indicated he could use the Internet; the State expressed its hesitation to look to civil instructions,
but reserved opinion on the matter. The trial judge retired to chambers and consulted Black's
-13-
No. 1-13-1552
Law Dictionary for the definition of "foreseeability." The court read aloud the definition, "the
ability to see or know in advance hence the reasonable anticipation that harm or injury is a likely
result of acts or omissions." The court then took a brief recess.
¶ 44 Back on the record, the State indicated it could not find a definition in the civil IPI.
Defense counsel stated he did not feel comfortable with the parties drafting anything in response
to the jury question and suggested instructing the jury to continue deliberating. With no objection
from either party, the court instructed the jury it had heard all of the evidence and had the
instructions, so it was to continue deliberations.
¶ 45 Brown argues Illinois Supreme Court authority or the Black's Law Dictionary definition
of foreseeability could have easily been incorporated into a response to the jury's note. Brown
suggests the jury's note shows the jury struggling with how foreseeable Freeman's death had to
be to support a felony murder conviction. Brown contends defense counsel's failure to propose a
response defining "foreseeable" was objectively unreasonable, leaving the jury with no guidance
on how likely the victim's death needed to be to find Brown guilty of felony murder. Brown
maintains that a "properly instructed" jury would have concluded that because Brown and Jones
did not arm themselves before the burglary, "they did not plan to avoid potential apprehension
with violence" and, therefore, the fact that someone could be killed by their actions was not
reasonably foreseeable. Brown insists that Jones' "irrational behavior" caused Freeman's death,
an unforeseeable consequence of the residential burglary.
¶ 46 As support, Brown cites People v. Lowry, 354 Ill. App. 3d 760, 766-67 (2004), in which
this court determined trial counsel ineffective for failing to offer the pattern instruction defining
"knowledge" in response to the jury's question. The defendant was charged with aggravated
battery and armed robbery. Id. at 761. During deliberations, the jury asked whether " 'knowingly'
-14-
No. 1-13-1552
" implied " 'that it wasn't an accident, or can it be accidental and knowing?' " Id. at 762. The
attorneys and the court agreed to respond that the jury had been instructed on the law, heard all
of the evidence, and should keep deliberating. Id. On appeal, we reversed and remanded for a
new trial. We held that because the jury's question expressed confusion about the meaning and
application of the term "knowingly," the question should have been answered with the pattern
instruction and, therefore, trial counsel was ineffective for failing to request the instruction. Id. at
765-66, 768.
¶ 47 Brown contends that, just as in Lowry, defense counsel should have asked the court to
respond to the jury's note because the jury sought clarification on an important point of law and
counsel's failure to do so constitutes ineffective assistance. See also People v. Coots, 2012 IL
App (2d) 100592, ¶¶ 46-52 (counsel's acquiescence in trial court's decision not to answer jury's
question for definition of "delivery," in drug-induced homicide case, was objectively
unreasonable).
¶ 48 Unlike in Lowry, the trial court's refusal to define foreseeability for the jury did not create
"a serious danger that the jury would (and did) convict defendant based on facts that were legally
insufficient to establish [the crime]." Id. ¶ 51.
¶ 49 The State relies on People v. Hicks, 2015 IL App (1st) 120035, in which we held that the
trial court in a robbery prosecution need not define "force" when the jury requested a definition.
In holding as it did, the Hicks court cited to People v. Bradley, 192 Ill. App. 3d 387, 393 (1989),
which held that words with a "commonly understood meaning" need not be defined for the jury.
Hicks, 2015 IL App (1st) 120035, ¶ 54. We find unpersuasive Brown's contention that Hicks was
wrongly decided.
-15-
No. 1-13-1552
¶ 50 The instructions tendered to the jury accurately state the applicable law concerning felony
murder. See People v. Hudson, 222 Ill. 2d 392, 408 (2006) (same language used to instruct jury
here "simply and concisely stated the law on proximate cause"). Thus, the claim of ineffective
assistance of counsel fails—the trial court made the appropriate decision in declining to provide
the jury with a definition of "foreseeable" because the jury instructions correctly stated the law.
¶ 51 Moreover, during closing arguments, defense counsel contended that the fatal car
collision was not a foreseeable result of Brown's actions. Counsel urged the jury to pay attention
to the language of the jury instruction, specifically foreseeability. Counsel defined foreseeability
for the jury as "was it planned, contemplated, did they consider this was going to happen. Those
are ways of talking about foreseeability." Defense counsel's argument encouraged the jury to
adopt a "common sense" interpretation of foreseeability that fit the defense theory. Brown's
counsel argued the evidence showed Brown did not foresee getting into a car and putting anyone
in danger. Defense counsel told the jury:
"So what is foreseeable? What evidence or lack of evidence can help you make a
decision as to whether or not this was foreseeable? Well, there is one big and
obvious answer for that. If you foresee violence as being the result of the
residential burglary that you are admittedly part of, do you foresee that? What
might you being with you? A weapon. A gun. A knife."
Counsel implored the jury to use "common sense" concerning what the State needed to prove to
show the victim's death as foreseeable. Defense counsel asked the jury to consider Brown's lack
of a weapon as evidence Brown did not foresee violence resulting from his actions.
¶ 52 Notably, counsel's decision to stand on the instructions provided to the jury constitutes
reasonable trial strategy. Providing the jury with an additional dictionary definition or one from
-16-
No. 1-13-1552
case law would have undermined defense counsel's instruction to the jurors that they should rely
on their own "common sense" definition of foreseeability.
¶ 53 We reiterate that to support an ineffective assistance claim, a defendant must show both
counsel's representation fell below an objective standard of reasonableness and also that the case
was prejudiced as a result; failure to meet either prong precludes a finding of ineffective
assistance of counsel. Strickland, 466 U.S. at 687. Defense counsel's decision as to what jury
instructions to tender involves a matter of trial strategy that is generally immune from ineffective
assistance claims. See People v. Douglas, 362 Ill. App. 3d 65, 75 (2005).
¶ 54 The trial court properly instructed the jury on the law and, under the circumstances
presented, defense counsel acted reasonably in going along with the court's instruction to the jury
to continue deliberating without the aid of a definition of foreseeable. Brown had competent
representation.
¶ 55 CONCLUSION
¶ 56 The State introduced sufficient evidence from which a reasonable trier of fact could find
Brown guilty of felony murder beyond a reasonable doubt. During the course of the commission
of the residential burglary, Brown set in motion a chain of events that led to a fatal car accident
while he tried to evade police capture. We affirm Brown's conviction.
¶ 57 Defense counsel's decision not to provide a definition of foreseeability to the jury at its
request constitutes sound trial strategy in the face of a legally sufficient jury instruction and
defense counsel's theory that the jury rely on "common sense." Thus, the ineffective assistance of
counsel claim must fail.
¶ 58 Affirmed.
-17-