dissenting:
I dissent. “Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) requires a trial court to instruct the jury pursuant to the pattern criminal instructions, unless the trial court determines that the pattern instruction does not accurately state the law. [Citation.] Although a trial court should use a pattern instruction if an appropriate one exists, the decision whether to give a nonpattern instruction remains a matter within the sound discretion of the trial court.” People v. Goodman, 347 Ill. App. 3d 278, 290 (2004), citing People v. Nutall, 312 Ill. App. 3d 620, 633 (2000). Therefore, “[t]he standard of review in determining whether a trial court’s submission of an appropriate instruction is erroneous is an abuse of discretion.” People v. Hall, 347 Ill. App. 3d 429, 430 (2004), citing People v. Garcia, 188 Ill. 2d 265, 283 (1999). I agree with the majority that the test of whether the trial court has abused its discretion “will depend on whether that instruction was an accurate, simple, brief, impartial, and nonargumentative statement of the law.” 354 Ill. App. 3d at 651, citing 177 Ill. 2d R. 451(a), and Pollock, 202 Ill. 2d at 211, 780 N.E.2d at 682. It is undisputed that the pattern instructions do not fit this particular factual situation. The dispute between Hudson and the State involves which proffered instruction was appropriate. I say neither was appropriate.
This is a “reverse” felony murder case where a cofelon was killed by a would-be victim. Without judicial precedent, it would seem that the felony murder statute does not apply. “Section 9—1(a)(3) of the Criminal Code of 1961 (Code) provides that ‘[a] person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death *** he is attempting or committing a forcible felony other than second degree murder.’ ” People v. Belk, 203 Ill. 2d 187, 192 (2003), quoting 720 ILCS 5/9—1(a)(3) (West 1996). “Illinois adheres to a proximate cause approach to felony-murder liability.” People v. Johns, 345 Ill. App. 3d 237, 242 (2003), citing People v. Lowery, 178 Ill. 2d 462 (1997). By that, “a felon is responsible for the direct and foreseeable consequences of his actions.” Belk, 203 Ill. 2d at 192, citing Lowery, 178 Ill. 2d at 470. “The purpose behind the felony-murder statute is to limit the violence that accompanies the commission of forcible felonies, so that anyone engaged in such violence will be automatically subject to a murder prosecution should someone be killed during the commission of a forcible felony.” Belk, 203 Ill. 2d at 192, citing People v. Shaw, 186 Ill. 2d 301, 322 (1998), citing People v. Dennis, 181 Ill. 2d 87, 105 (1998). While mere presence at the scene of an offense is not culpable, proof that the defendant was present during the commission of a crime without opposing or disapproving it, that he maintained a close affiliation with the principal afterwards, and that he failed to report the crime are all factors that may be considered in determining legal accountability. Belk, 203 Ill. 2d at 192, citing People v. Shaw, 186 Ill. 2d 301, 322 (1998), citing People v. Dennis, 181 Ill. 2d 87, 105 (1998). “When a defendant’s specific intent to aid a crime is proven, he is accountable for any crime that happens as a consequence of the intended crime.” People v. Jackson, 333 Ill. App. 3d 962, 967 (2002), citing People v. O’Reilly, 250 Ill. App. 3d 622 (1993).
The Illinois Supreme Court explained in Lowery that “[i]t is unimportant that defendant did not anticipate the precise sequence of events that followed his robbery attempt. We conclude that defendant’s unlawful acts precipitated those events, and he is responsible for the consequences.” Lowery, 178 Ill. 2d at 470, citing People v. Chandler, 129 Ill. 2d 233, 248 (1989), and People v. Smith, 56 Ill. 2d 328, 333-34 (1974).
“The function of jury instructions is to convey to the jurors the law that applies to the facts so they can reach a correct conclusion.” People v. Hopp, 209 Ill. 2d 1, 8 (2004), citing People v. Fuller, 205 Ill. 2d 308, 343 (2002). Courts of review have “reversed defendant’s conviction because an omitted jury instruction ‘removed from the jury’s consideration a disputed issue essential to the determination of defendant’s guilt or innocence.’ ” Hopp, 209 Ill. 2d at 8, quoting People v. Ogunsola, 87 Ill. 2d 216, 223 (1981).
There is no question that Hudson attached himself to Thomas in terms of them both being culpable for the robbery. Both men entered the barbershop, armed with handguns, intending to commit robbery. Though he did not, and in fact could not have, used his gun, Hudson is accountable for the direct and foreseeable consequences of the crime. However, the instruction given to the jury merely requires that he set in motion the events leading up to the death. The Illinois Supreme Court has upheld a conviction where a shot fired by a police officer while attempting to apprehend a defendant during a burglary struck and killed another officer, where the commission of the burglary and the flight therefrom set in motion the pursuit by the armed police officers. People v. Hickman, 59 Ill. 2d 89 (1974). However, Hickman also said that the fatal shot fired in opposition to the escape was a “ ‘direct and foreseeable consequence of defendants’ actions.’ ” People v. Davis, 173 Ill. App. 3d 300, 309 (1988), quoting Hickman, 59 Ill. 2d at 94. The Davis court explained that “[i]t did not say that death as a direct and foreseeable consequence of the defendants’ act was an element of the offense.” Davis, 173 Ill. App. 3d at 309 (“We do not believe that the factual observation made by the Hickman court that the killing in that case was, in fact, ‘a direct and foreseeable action’ may be raised to the stature of a pronouncement of what is an essential element to be proved”). In fact, the Illinois Supreme Court has historically held that “it was immaterial whether the killing was unintentional or accidental.” Davis, 173 Ill. App. 3d at 309, citing Smith, 56 Ill. 2d at 333-34. This would tend to lend support for the trial court’s decision to go with the State’s proffered instruction instead of Hudson’s. The version Hudson submitted raises the “direct and foreseeable” language to the level of an element of the offense. I believe the trial court was correct when it rejected the Hudson version on that basis. However, the State’s version suffers from its own infirmities and, therefore, likewise should not have been used. The State’s version failed to incorporate the language “direct and foreseeable consequence.” I would be inclined to support a version of the subject instruction reading as follows:
“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.”
The majority concludes that even though the tendered instruction was not necessarily the most precise way to define the concept of proximate causation, it was sufficient. I disagree. A defective instruction is a defective instruction. Courts simply cannot overlook jury instruction defects that go to the heart of the case. The constitutional rights to trial by jury and due process of law cannot be ignored. I would reverse and remand this matter for a new trial with a proper “reverse” felony murder rule instruction as suggested above.