specially concurring:
I agree with the majority that defendant, Lavelle Hudson, can be held responsible for the death of his cofelon, Chrispin Thomas. The death occurred as defendant and Thomas attempted to rob a barbershop. The off-duty police officer, a patron of the barbershop, shot and killed Thomas when Thomas, ignoring warnings to drop his gun, pointed the gun at the officer. “Those who commit forcible felonies know they may encounter resistance, both to their affirmative actions and to any subsequent escape.” People v. Hickman, 59 Ill. 2d 89, 94 (1974). Thus, under the felony-murder rule, a defendant may be held responsible for a death occurring during the commission of a felony whether the fatal shot is fired by a cofelon in furtherance of the felony or by a police officer in opposition to the felony. People v. Allen, 56 Ill. 2d 536 (1974).
I write separately, however, to explain my views on the instruction the trial court gave to the jury. I believe the court did not properly instruct the jury on the issue of proximate cause. In my opinion, the trial court’s instruction did not give suitable guidance to the jury as to the findings it needed to make to convict defendant of felony murder. The instruction was incomplete and failed to convey clearly the theory of proximate cause as it has developed in our jurisprudence over the years.
This court has consistently held that “when a felon’s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.” (Emphasis added.) People v. Lowery, 178 Ill. 2d 462, 467 (1997). In its holding, the majority does away with the foreseeability requirement of proximate cause, while introducing new terms into the lexicon of felony murder and proximate cause. At the same time, however, the majority acknowledges the difficulty presented by its holding and inserts dicta in its opinion offering an alternative instruction which harkens back to the traditional language of proximate cause. With its ruling in this case, the majority brings confusion to an established area of law.
It is my view that the better approach in analyzing the issue presented by this appeal is to acknowledge that the instruction given to the jury in this cause is defective and then engage in harmless error analysis. This court has previously held that “an error in a jury instruction is harmless if it is demonstrated that the result of the trial would not have been different had the jury been properly instructed.” People v. Pomykala, 203 Ill. 2d 198, 210 (2003). It is my position that the evidence of defendant’s guilt was so clear and convincing that no jury could have reasonably found defendant not guilty. I therefore agree with the State that because defendant suffered no prejudice as a result of the improper instruction, relief should not be granted.
ANALYSIS
As explained in Lowery, 178 Ill. 2d 462, Illinois follows the proximate cause theory for imposition of liability under the felony-murder rule. See also People v. Klebanowski, 221 Ill. 2d 538 (2006); People v. Dekens, 182 Ill. 2d 247 (1998). Although the court has borrowed the concept of proximate cause from the law of torts, we have refrained, to date, from defining the concept in terms of cause-in-fact and legal cause. Instead, the court has uniformly explained the proximate cause theory in terms of a chain of events which by direct and almost inevitable sequence results in the death for which liability is sought to be imposed. Thus, in People v. Payne, 359 Ill. 246 (1935), the court affirmed the defendant’s conviction for felony murder where the defendant, although not present at the scene of the robbery, had previously informed his cofelons that the victim had a large sum of money which could be obtained easily, showed the cofelons the location of the victim’s home, and told the cofelons that he expected to receive $500 from the proceeds of the robbery. The court noted first that where “several persons conspire to do an unlawful act and another crime is committed in the pursuit of the common object all are alike guilty of the crime committed if it is a natural and probable consequence of the execution of the conspiracy.” Payne, 359 Ill. at 254. The court also rejected the defendant’s theory that he was only guilty of involuntary manslaughter if the victim was killed by a bullet fired by another victim in resisting the robbery. The court reasoned it “reasonably might be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot either by himself or someone else in attempting to prevent the robbery, and those attempting to perpetrate the robbery would be guilty of murder. *** A killing which happens in the prosecution of an unlawful act which in its consequences naturally tends to destroy the life of a human being is murder.” Payne, 359 Ill. at 255.
Likewise, in Hickman, 59 Ill. 2d at 95, the court affirmed the defendant’s felony-murder conviction. Police officers were conducting surveillance at a warehouse. Three conspirators accessed the warehouse by removing a panel and a lock from the side door. When they exited the warehouse, the officers closed in. The conspirators fled upon seeing the officers. In the ensuing pursuit, one officer shot and killed another, mistakenly believing that the victim was one of the conspirators. The jury found two of the conspirators guilty of burglary and murder. The trial court, however, entered an order arresting the judgment of murder. The appellate court reversed. In affirming the judgment of the appellate court, this court reasoned;
“Here defendants planned and committed a burglary, which is a forcible felony under Illinois law. [Citation.] One of them was armed. It was their conduct which occasioned the presence of the police. When confronted by approaching officers, the defendants elected to flee. We have previously held that the period of time and activities involved in escaping to a place of safety are part of the crime itself. [Citation.] The defendants were repeatedly told to halt and the police identified themselves, but the defendants continued their attempt to escape. The commission of the burglary, coupled with the election by defendants to flee, set in motion the pursuit by armed police officers. The shot which killed Detective Loscheider was a shot fired in opposition to the escape of the fleeing burglars, and it was a direct and foreseeable consequence of defendants’ actions. The escape here had the same effect as did the gunfire in [People v. Allen, 56 Ill. 2d 536 (1974)], in that it invited retaliation, opposition and pursuit. Those who commit forcible felonies know they may encounter resistance, both to their affirmative actions and to any subsequent escape. As we indicated in a recent felony-murder case, ‘It is unimportant that the defendants did not anticipate the precise sequence of events that followed upon his entry into the apartment of Judy Tolbert. His unlawful acts precipitated those events, and he is responsible for the consequences.’ People v. Smith, 56 Ill. 2d 328, 333-334.” Hickman, 59 Ill. 2d at 94.
See also Dekens, 182 Ill. 2d at 254 (explaining that “the focus of the proximate cause theory is on the chain of events set in motion by the defendant”); Allen, 56 Ill. 2d at 545; People v. Johnson, 55 Ill. 2d 62, 69 (1973); People v. Golson, 32 Ill. 2d 398, 408-09 (1965).
As defined by this court in the cases discussed above, proximate cause encompasses the concept of foreseeability. The defendant is not liable for any and all deaths that occur concomitantly with the felony, but rather the defendant is liable when he has set in motion a chain of events which were or should have been within his contemplation when the motion was initiated, and which by direct and almost inevitable sequence results in the death. Liability is imposed precisely because those who commit forcible felonies know that they may encounter resistance, both to their affirmative actions and to any subsequent escape.
Looking to the instruction at issue in the present case, it is clear that the instruction was overly broad and did not convey the concept of foreseeability to the jury. In the first part of the instruction, the jury was told that:
“A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbery, and during the course of the commission of the offense of attempt [to commit] armed robbery[,] he sets in motion a chain of events which cause the death of an individual.”
In the second part of the instruction, the jury was told that the killing may be “intentional or accidental, committed by a confederate without the connivance of the defendant or even by a third person trying to prevent the commission of the felony.” The problem, however, is that the “examples” contained in the second part of the instruction did not serve to limit the killings for which a defendant may be held liable beyond the requirement in the first part of the instruction that the defendant have set in motion a chain of events which causes the death.
The following illustration highlights the troublesome aspect of the instruction. Defendant X robs an individual at gunpoint. During the robbery, defendant X accidentally discharges the gun. At the forest preserve two blocks away, the victim is riding a horse. The horse bolts at the sound of the gunshot, crosses a busy street, and throws the victim to the ground. An oncoming car cannot stop in a timely fashion and runs over the victim, inflicting the injuries that result in the death. The victim’s death occurred during the course of the robbery. Indeed, the victim’s death was the result of a chain of events initiated by defendant X. Thus, under the first part of the instruction, defendant X may be held hable for the death. Looking to the second part of the instruction, is there any limitation imposed upon the killing for which defendant X may be liable? Hardly. We are simply told that the death may be accidental or intentional, committed by a confederate or by a third party. Indeed, in my example, the death was accidental and was the result of a chain of events set into motion by defendant X.
Presiding Justice Reid, in dissent from the appellate court opinion, proffered the following instruction for consideration:
“ ‘A person commits the offense of first degree murder when he commits the offense of attempt armed robbery and during the course of the commission of the offense of attempt armed robbery he sets in motion a chain of events which causes the death of an individual and the death is a direct and foreseeable consequence of the actions. It is immaterial whether the killing in such a case is intentional or accidental or committed by a confederate without the connivance of the defendant or even by a third person trying to prevent the commission of the felony. To sustain the charge of first degree murder, the State must prove *** that the defendant, or one for whose conduct he is legally responsible, was committing the offense of attempt armed robbery; and, second, that during the course of the commission of the offense of attempt armed robbery, the defendant, or one for whose conduct he is legally responsible, set in motion a chain of events that, as a direct and foreseeable consequence thereof, caused the death of Chrispin Thomas. And, third, that the defendant did not act under compulsion. If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.’ ” (Emphasis omitted.) 354 Ill. App. 3d at 659 (Reid, EJ., dissenting).
I agree with Presiding Justice Reid that such an instruction provides appropriate guidance for the just application of the proximate cause theory of felony murder and the core concept of foreseeability. I note that, in affirming defendant’s conviction, the appellate court majority candidly admitted that “based on the supreme court’s rationale in Lowery, the best wording for an instruction on proximate causation in felony murder would include either the phrase ‘direct and foreseeable consequence’ or, alternatively, the phrase ‘sets into motion a chain of events which were or should have been within his contemplation when his actions were initiated.’ ” 354 Ill. App. 3d at 655.
Rather than analyze the instruction at bar in light of our established precedent on proximate cause, the majority introduces new terms into the lexicon of felony murder, bringing confusion to an established area of law. The majority informs us that “[t]he term ‘proximate cause’ describes two distinct requirements: cause in fact and legal cause.” 222 Ill. 2d at 401. The majority then states:
“Legal cause ‘is essentially a question of foreseeability’; the relevant inquiry is ‘whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct.’ [Citation.] Foreseeability is added to the cause-in-fact requirement because ‘even when cause in fact is established, it must be determined that any variation between the result intended *** and the result actually achieved is not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.’ [Citation.] Although foreseeability is a necessary component of a proximate cause analysis, it need not be specifically mentioned in a jury instruction to communicate the idea of ‘proximate’ to a jury.” 222 Ill. 2d at 401.
Having laid the foundation for a discussion of cause in fact and legal cause, the majority tells us that the court “set forth the general parameters of the law of proximate cause in a felony-murder case in Lowery, albeit without the specific mention of the cause-in-fact and legal-cause components.” 222 Ill. 2d at 402. There follows a discussion of proximate cause, devoid of the terms cause in fact and legal cause. 222 Ill. 2d at 402-03. The majority then informs us the parties do not dispute that the first part of the instruction establishes the cause in fact requirement. 222 Ill. 2d at 403.
Turning to the concept of legal cause, the majority states:
“As for whether the instruction indicated that the cause must also be ‘proximate,’ a review of the law in this state concerning proximate cause since 1935 demonstrates that the disputed language in the instant case [the language of the second part of the instruction] has long been integral to this state’s felony-murder proximate cause jurisprudence.” 222 Ill. 2d at 403.
The majority launches into a second discussion of proximate cause, once more devoid of the terms cause in fact and legal cause, and concludes that the language of the second part of the instruction “is tantamount to a definition of the legal-cause component of proximate cause, and therefore coextensive with foreseeability” 222 Ill. 2d at 406.
I do not dispute that the language of the second part of the instruction has been part of the discussion of proximate cause in previous cases. These cases nowhere intimated, however, that the language was “tantamount to a definition of the legal-cause component of proximate cause.” Indeed, no other Illinois case has ever discussed the proximate cause theory of felony murder in terms of cause in fact and legal cause. Nor has any case indicated that the language at issue was intended to limit the circumstances under which a defendant may be held liable for felony murder to those circumstances which are foreseeable.
To add to the confusion, the majority proffers as the rationale for its holding the reasoning of the appellate court majority. 222 Ill. 2d at 407. Although the appellate court majority found the instruction to be a proper statement of the law, the appellate court majority nowhere explained its ruling in terms of cause in fact and legal cause. As noted above, it is the present majority which introduces the terms cause in fact and legal cause into the fabric of the proximate cause theory of felony murder. To support the new verbiage, the majority relies on an opinion which nowhere discusses the terminology at issue.
More importantly, the present majority, while acknowledging the concept of foreseeability, approves an instruction which provides no limits and no guidance to a juror regarding foreseeability. As the majority notes: “Foreseeability is added to the cause-in-fact requirement because ‘even when cause in fact is established, it must be determined that any variation between the result intended *** and the result actually achieved is not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.’ ” 222 Ill. 2d at 401, quoting 1 W LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003). Looking again at the instruction, what part of the instruction limits the defendant’s accountability to a death of which he is the “legal cause”? The second part of the instruction did not state that only killings under the circumstances described are attributable to a defendant. It provided examples but no limitations on the “cause-in-fact” element.
As stated, the majority initially informs the bench and bar that the jury instruction given in this matter is a correct restatement of the theory of proximate cause and the core concept of foreseeability, declaring that the language used in the instruction is “tantamount to a definition of the legal-cause component of proximate cause, and therefore coextensive with foreseeability.” 222 Ill. 2d at 406. However, having just proclaimed that the given instruction provides a definitive statement of proximate cause and foreseeability, the majority only a few paragraphs later appears to retreat from its initial position of confidence and states that the instruction given in this cause was merely “adequate.” 222 Ill. 2d at 407. In what appears to be an acknowledgment that its holding in this cause is problematic, the majority believes it necessary to “aid the bench and bar in future cases” by noting that “the instruction could have stated the law of proximate cause more precisely.” 222 Ill. 2d at 408. Despite holding that the given instruction did not violate defendant’s rights to due process in the matter at bar, the majority nevertheless deems it appropriate to insert dicta in its opinion to guide future cases. The majority offers alternative language for the instruction which “would have simply and concisely stated the law on proximate cause *** as it applies to this case.” 222 Ill. 2d at 408.I note that the language proffered by the majority harkens back to the traditional language of proximate cause and mirrors the language advocated by defendant in his brief to this court. Although the majority states that its dicta will assist the bench and bar in future cases, I disagree. The majority’s suggestion of an alternative instruction after having upheld the given instruction sends mixed signals to our courts and practitioners, and will engender confusion and additional litigation.
It is my position that the majority could have avoided engaging in this contrarian exercise by simply holding that the jury instruction given in this case was deficient and then applying a harmless error analysis to determine whether the result of the trial would have been different had the jury been properly instructed. Pomykala, 203 Ill. 2d at 210; People v. Johnson, 146 Ill. 2d 109, 137 (1991). In its brief to this court, the State contends that even if the instruction proffered to the jury in this case was erroneous, any error is harmless on the facts presented, as defendant’s guilt is clear. I agree. Based upon the facts in the cause at bar, the outcome of the trial would have been the same, and, accordingly, defendant suffered no prejudice. In other words, the evidence of defendant’s guilt was so clear and convincing as to render the error harmless beyond a reasonable doubt. Pomykala, 203 Ill. 2d at 210.
CONCLUSION
As this court explained in People v. Dennis, 181 Ill. 2d 87, 105 (1998):
“Felony murder seeks to deter persons from committing forcible felonies by holding them responsible for murder if a death results. [Citation.] Because of the extremely violent nature of felony murder, we seek the broadest bounds for the attachment of criminal liability. For that reason, in felony murder, *** [a] defendant may be found guilty of felony murder regardless of a lack either of intent to commit murder [citation], or even connivance with a codefendant [citation]. Our continued adherence to a proximate cause approach is further exemplary of how broadly we seek to extend the reaches of criminal liability in the case of felony murder.”
While I agree that liability should be imposed under the theory of proximate cause for the killing at issue, I also suggest that the theory of proximate cause does not impose liability for any and every death that occurs concomitantly with a felony. As this court has repeatedly held, a defendant may be held liable only where he has set in motion a chain of events which were or should have been within his contemplation when the motion was initiated, and which by direct and almost inevitable sequence results in the death. See Lowery, 178 Ill. 2d at 467. It is precisely because the theory of proximate cause is intended to cast a broad net that I believe it must be tempered by judicious application of instructions properly conveying the theory of proximate cause and its core element of foreseeability.
In the present case, liability is imposed on defendant for the death of his cofelon Thomas at the hands of the off-duty police officer. The instruction, however, failed to limit defendant’s liability to a death proximately caused by his actions. Although I agree with the result reached by the majority, based upon the weight of the evidence at defendant’s trial, I cannot agree with the majority’s rejection of the salutary limits provided by the concept of foreseeability in its holding, and cannot countenance the confusion it engenders by its dicta which appears contrary to its holding.
JUSTICE KILBRIDE joins in this special concurrence.