People v. Brown

Illinois Official Reports

Appellate Court

People v. Brown, 2015 IL App (1st) 131552

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BYRON BROWN, Defendant-Appellant.

District & No. First District, Third Division
Docket No. 1-13-1552

Filed June 30, 2015
Rehearing denied August 7, 2015

Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-14369
Review (02); the Hon. Steven J. Goebel, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Alan J. Goldberg, and Adrienne River, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg and
Gina DiVito, Assistant State’s Attorneys, of counsel), for the People.

Panel 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.
¶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.
¶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 sport utility
vehicle (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 pursuing rested against a light pole on the northeast corner. The

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 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 as 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
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.”
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.

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¶ 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.
¶ 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 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

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 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
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 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

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 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. at 470; 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
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 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”

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 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 pursuing fleeing burglars was
mistakenly shot and killed by another officer who mistook the pursuing 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 pursuing officer might be injured when
defendant chose to run from police in icy and snowy conditions).
¶ 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 defendants 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

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 instructions should not be misleading or confusing. People v. Bush, 157 Ill. 2d 248, 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 parties 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 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 was ineffective for failing to offer the pattern instruction

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 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’ ” 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.
¶ 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.

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¶ 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 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.

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