People v. Brown

2015 IL App (1st) 131552, 35 N.E.3d 1207

Opinion

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.

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¶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

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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."

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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.

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¶ 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

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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

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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

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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

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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

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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).

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¶ 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,

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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

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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'

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" 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.

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¶ 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

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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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