People v. Hudson

856 N.E.2d 1078, 222 Ill. 2d 392, 305 Ill. Dec. 927, 2006 Ill. LEXIS 1105

• Court: Illinois Supreme Court
• Decided: July 5, 2006
• Docket: 100033
• Status: Published

Opinions

JUSTICE FITZGERALD

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Garman and Karmeier concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion, joined by Justice Kilbride.

Justice McMorrow dissented, with opinion.

OPINION

Defendant, Lavelle Hudson, and a cofelon robbed a barbershop. Unbeknownst to the cofelons, a plainclothes off-duty policeman was inside receiving a haircut. In resisting the robbery, the policeman shot and killed the cofelon. Defendant was charged with, inter alia, first degree murder, under a felony-murder theory. 720 ILCS 5/9 — 1(a)(3) (West 2002). The parties tendered differing jury instructions regarding the proximate causation component of the offense to the circuit court of Cook County. The trial court accepted the State’s instruction. A jury thereafter convicted defendant, and the trial court sentenced him to 22 years’ imprisonment. The appellate court affirmed over a dissent. 354 Ill. App. 3d 648. The sole question in this appeal is whether the instruction sufficiently informed the jury of this state’s laws regarding proximate causation in a felony-murder case. We hold that the trial court did not abuse its discretion in giving this instruction, as it adequately stated the law of proximate cause. Accordingly, we affirm the defendant’s conviction and sentence.

BACKGROUND

On July 30, 1998, the 15-year-old defendant’s fellow gang members Chrispin Thomas and another man also named Lavelle picked up defendant in a maroon two-door Oldsmobile Cutlass Sierra. They told defendant that they were taking him to what they called a “lick,” to rob the Fresh Barbershop, located at 259 East 115th Street in Chicago. At approximately 4:45 p.m. that day, eight or nine people were in the barbershop: five barbers and three or four customers. One of the customers receiving a haircut was an off-duty police officer, Ricky Bean, who sat in a chair under a barber’s smock while in possession of his service revolver.

The defendant and Thomas entered the barbershop carrying guns, although defendant’s was inoperable because the trigger had been removed. While defendant remained near the front door, Thomas walked to the back of the barbershop. Thomas pointed his revolver at chest level and waved it from side to side in the air and announced, “This is a stick-up, throw your money on the floor.” After the barbers and patrons initially threw money on the floor, Thomas said “that’s not enough money” and continued waving and pointing the gun and again saying, “Hurry up, throw the money on the floor.” As the victims complied, defendant reached to pick money off the floor.

Bean did not initially throw his wallet on the floor because the wallet contained his badge. When Thomas turned his back, and defendant was retrieving money from the floor, Bean pulled out his service revolver, yelling “Police, drop the gun, police,” or “Freeze, police,” multiple times. Thomas turned and pointed his revolver at Bean from two feet away. Bean fired, striking Thomas in the upper right arm. Thomas transferred his gun from his right hand to his left hand. Bean moved closer and placed his gun on Thomas’ chest and said, “Man, drop the gun. Police. Drop the gun.”

Thomas tried to point his gun at Bean and the officer fired two more times at Thomas’ chest. He again told Thomas to drop the gun, and this time, Thomas complied. Bean then grabbed Thomas’ right arm to maintain control of him and make sure he would not try to pick the gun back up. Meanwhile, defendant continued to retrieve money from the floor. Bean said, “Police, drop the gun.” Defendant stood up and pointed the gun at the officer. Bean fired once at defendant, striking him in the leg. Defendant turned and ran out of the barbershop. Thomas died of multiple gunshot wounds.

Defendant was later apprehended at Roseland Hospital and later admitted to a substantially similar version of events in both an oral and written statement. Defendant was charged with multiple offenses, including first degree murder and attempted armed robbery. Prior to trial, the State nol-prossed all counts except for first degree murder. Defendant confirmed the events in the barbershop during his testimony at trial and also admitted to guilty pleas on two other convictions for armed robberies of barbershops that occurred in the weeks prior to the incident at Fresh Barbershop.

Both parties submitted modified versions of Illinois Pattern Jury Instructions, Criminal, No. 7.01 (4th ed. 2000) (IPI Criminal 4th) at the jury instructions conference. Defendant submitted the following instruction:

“A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbery and during *** the commission of that offense, the death of an individual is [the] direct and foreseeable consequence of the commission or attempt to commit that offense, and the defendant contemplated or should have contemplated that his actions could result in death.”

The instruction submitted by the State read:

“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 robheryt,] he sets in motion a chain of events which cause the death of an individual.

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.” The trial court used the State’s instruction as to proximate causation. After the jury returned a verdict of guilty on the sole count of first degree murder, the trial court sentenced defendant to 22 years’ imprisonment.

A majority of the appellate court affirmed defendant’s conviction, holding that the trial court did not abuse its discretion in giving the instruction. 354 Ill. App. 3d at 655. In so holding, the appellate court rejected defendant’s argument that his due process rights were violated because the phrase “direct and foreseeable consequence” was not mentioned in the instruction. 354 Ill. App. 3d at 649, 655. The appellate court noted 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.’ ” 354 Ill. App. 3d at 653, quoting People v. Lowery, 178 Ill. 2d 462, 467 (1997). The appellate court stated that the phrase “sets in motion a chain of events” provided part of the definition of proximate cause. 354 Ill. App. 3d at 654. The court then found that the second paragraph of the instructions, taken from the committee comments to section 9 — 1 of the Criminal Code of 1961 (720 ILCS Ann. 5/9 — 1, Committee Comments — 1961, at 15 (Smith-Hurd 2002)), completed the definition of proximate cause. 354 Ill. App. 3d at 654. The court therefore found that the given modified version of IPI Criminal 4th No. 7.01 sufficiently communicated the concept of proximate causation to the jury to enable it to apply the proper law to the facts. The appellate court also rejected the defendant’s tendered instruction because it contained too strict a foreseeability requirement. 354 Ill. App. 3d at 655. The court stated, “defendant is only required to ‘set[ ] in motion a chain of events which were or should have been within his contemplation.’ [Citations.] Defendant is not required to contemplate that his actions would result specifically in death.” 354 Ill. App. 3d at 655.

Presiding Justice Reid dissented, stating that the “instruction given to the jury merely requires that he set in motion the events leading up to the death.” 354 Ill. App. 3d at 658 (Reid, EJ., dissenting). Presiding Justice Reid stated that he would hold that the instruction should have specifically used the language “ ‘and the death is a direct and foreseeable consequence of the actions’ ” to communicate the concept of proximate cause to the jury. (Emphasis omitted.) 354 Ill. App. 3d at 659 (Reid, P.J., dissenting). Presiding Justice Reid did, however, agree with the majority’s rejection of defendant’s instruction as it “raises the ‘direct and foreseeable’ language to the level of an element of the offense.” 354 Ill. App. 3d at 659 (Reid, EJ., dissenting). We granted defendant’s petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

Defendant contends that his conviction for felony murder should be reversed because the trial court abused its discretion by improperly instructing the jury as to the causation element of the felony-murder count. Specifically, according to defendant, the instructions did not refer to an essential element of proximate causation— namely, foreseeability. Because the instruction excluded any mention of foreseeability, defendant claims his due process rights were violated because the State was not required to prove beyond a reasonable doubt every element of the crime of felony murder. The State responds that the trial court did not abuse its discretion in submitting the instruction to the jury because the instruction adequately stated the law. We agree with the State.

“ ‘The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence.’ ” People v. Ramey, 151 Ill. 2d 498, 535 (1992), quoting People v. Gambony, 402 Ill. 74, 81-82 (1948); see also People v. Fuller, 205 Ill. 2d 308, 343 (2002). “Our task is to determine whether the instructions given to the jury in the case at bar, ‘ “considered as a whole, fully and fairly announce the law applicable to the respective theories of the People and the defense.” ’ ” People v. Pollock, 202 Ill. 2d 189, 210 (2002), quoting People v. Terry, 99 Ill. 2d 508, 516 (1984), quoting People v. Kolep, 29 Ill. 2d 116, 125 (1963).

We first note that the trial court properly used a non-IPI jury instruction. Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) requires a trial court to instruct the jury pursuant to the IPI criminal instructions unless the trial court determines that the IPI instruction does not accurately state the law. Where there is no IPI jury instruction on a subject on which the court determines the jury should be instructed, the court has the discretion to give a non-IPI instruction. Ramey, 151 Ill. 2d at 536. Therefore, we will not disturb a trial court’s decision to instruct a jury using a non-IPI instruction absent an abuse of that discretion. Pollock, 202 Ill. 2d at 211.

Section 9 — 1(a)(3) of the Criminal Code of 1961 (720 ILCS 5/9 — 1(a)(3) (West 2002)) provides:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:

* * *

(3) he is attempting or committing a forcible felony other than second degree murder.”

Accordingly, the relevant IPI instruction on felony murder provides:

“A person commits the offense of first degree murder when he kills an individual [without lawful justification] if, in performing the acts which cause the death,

* * *

[4] he [(is attempting to commit) (is committing)] the offense of_.” IPI Criminal 4th No. 7.01.

Because defendant did not perform the acts which caused cofelon Thomas’ death, the parties agree this instruction does not accurately state the law applicable to the facts of this case. Therefore, the trial court properly exercised its discretion to give a non-IPI instruction.

We next determine whether the trial court’s instruction submitted to the jury properly stated the law. Whether the court has abused its discretion in giving a particular non-IPI instruction will depend on whether that instruction was an accurate, simple, brief, impartial, and nonargumentative statement of the applicable law. Pollock, 202 Ill. 2d at 211; 177 Ill. 2d R. 451(a). Preliminarily, we reject defendant’s argument that we should conduct a de novo review, as defendant’s sole case citation in support thereof, People v. Daniels, 187 Ill. 2d 301 (1999), did not consider jury instructions but, rather, the effect of double jeopardy protections. We therefore determine if the trial court abused its discretion in submitting the instruction to the jury.

In general, Illinois law provides that a defendant may be charged with murder pursuant to the “proximate cause” theory of felony murder. People v. Lowery, 178 Ill. 2d 462 (1997). The term “proximate cause” describes two distinct requirements: cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257-58 (1999). We have stated, “We believe that the analogies between civil and criminal cases in which individuals are injured or killed are so close that the principle of proximate cause applies to both classes of cases. Causal relation is the universal factor common to all legal liability.” Lowery, 178 Ill. 2d at 466. 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.” Galman, 188 Ill. 2d at 258. 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.” 1 W. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003). 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. Thus, the IPI civil jury instruction communicates the definition of “proximate cause,” as “[any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]” Illinois Pattern Jury Instructions, Civil, No. 15.01 (2005).

We 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:

“It is equally consistent with reason and sound public policy to hold 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. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions.” Lowery, 178 Ill. 2d at 467.

Thus, in Lowery, we held that the civil concepts of proximate cause are equally applicable to criminal cases.

Whether the instant fact situation can be charged as felony murder was answered by this court in People v. Dekens, 182 Ill. 2d 247 (1998). In Dekens, this court held that “liability attaches ‘for any death proximately resulting from the unlawful activity — notwithstanding the fact that the killing was by one resisting the crime.’ ” Dekens, 182 Ill. 2d at 249, quoting Lowery, 178 Ill. 2d at 465. Further, a defendant may be liable for murder where the one resisting the crime causes the death of the defendant’s cofelon. Dekens, 182 Ill. 2d at 252. We have affirmed our historical adherence to this form of liability in People v. Klebanowski, 221 Ill. 2d 538 (2006), in a parallel fact situation. In rejecting defendant’s request that we adopt Justice Bilandic’s dissent in Dekens (Dekens, 182 Ill. 2d at 254 (Bilandic, J., dissenting, joined by Me-Morrow, J.)), we stated, “In light of the thorough review of the proximate cause theory of liability contained in Dekens, the recency of the decision, and the principles of stare decisis [citations], we determine also that the proximate cause theory of liability is the theory applicable to the case at bar.” Klebanowski, 221 Ill. 2d at 554-55. We therefore consider whether the instruction in this matter sufficiently stated the law of proximate cause to allow the jury to correctly apply the facts adduced in defendant’s trial and arrive at a correct conclusion.

The parties do not dispute that the instruction adequately stated the cause-in-fact requirement, as the submitted instruction included the phrase “he sets in motion a chain of events which cause the death of an individual.” 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 — “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” — has long been integral to this state’s felony-murder proximate cause jurisprudence.

The proximate cause theory of liability was first set forth in People v. Payne, 359 Ill. 246 (1935). Dekens, 182 Ill. 2d at 250, citing People v. Payne, 359 Ill. 246 (1935). As we stated in Dekens, “Applying the proximate cause theory, the [Payne] court explained that the identity of the person who fired the shot that killed the decedent was immaterial to the murder charge.” Dekens, 182 Ill. 2d at 250. In finding that the jury had been properly instructed, the Payne court stated:

“The jury, however, would not misunderstand the instruction in that respect. 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.” Payne, 359 Ill. at 255.

We have previously noted that the drafters of section 9—1 of the Criminal Code of 1961 incorporated the holding of Payne. Dekens, 182 Ill. 2d at 250, citing People v. Allen, 56 Ill. 2d 536 (1974). The committee comments to the statute stated, in language identical to the instant jury instructions,

“It is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant [citations] or even by a third person trying to prevent the commission of the felony. People v. Payne, 359 Ill. 246, 194 N.E. 539 (1935).” 720 ILCS Ann. 5/9 — 1, Committee Comments — 1961, at 15 (Smith-Hurd 2002).

We have recognized that this proximate cause theory was thereafter reaffirmed in People v. Allen, 56 Ill. 2d 536 (1974), People v. Hickman, 59 Ill. 2d 90 (1974), and People v. Lowery, 178 Ill. 2d 462 (1997). Dekens, 182 Ill. 2d at 251-52.

Most recently, in People v. Dekens, 182 Ill. 2d 247 (1998), we addressed a parallel fact situation. The Dekens majority addressed the question of whether “a defendant may be charged with first degree murder, on a felony-murder theory, when the decedent is a cofelon who is killed by an intended victim of the defendant and cofelon.” Dekens, 182 Ill. 2d at 248. The parties stipulated that an undercover officer arranged to buy narcotics from defendant. Dekens, 182 Ill. 2d at 248. Prior to the meeting, the defendant and the cofelon formulated a plan to rob the officer, and during the transaction, defendant pointed a shotgun at the officer. Dekens, 182 Ill. 2d at 248. The officer fired several shots at the defendant, and, as the officer was leaving, the cofelon grabbed him. The officer shot and killed the cofelon. This court rejected the defendant’s attempt to employ an “agency theory” of liability. Dekens, 182 Ill. 2d at 249. The Dekens defendant also unsuccessfully argued that the indictment against him should have been dismissed because the “felony-murder doctrine should not apply when the person killed in the felony is an accomplice of the defendant.” Dekens, 182 Ill. 2d at 253.

The Dekens court reaffirmed our holdings in the previous proximate cause cases, stating:

“Although Lowery, Hickman, Allen, and Payne did not address the precise question raised in this appeal, we believe that our case law compels application of the felony-murder doctrine to the circumstances of this case. As Lowery noted, Illinois follows the proximate cause theory of felony murder, as opposed to the agency theory. Consistent with the proximate cause theory, liability should lie for any death proximately related to the defendant’s criminal conduct. Thus, the key question here is whether the decedent’s death is the direct and proximate result of the defendant’s felony. As our cases make clear, application of the felony-murder doctrine does not depend on the guilt or innocence of the person killed during the felony or on the identity of the person whose act causes the decedent’s death.” Dekens, 182 Ill. 2d at 252.

In concluding, the Dekens court returned to the committee comments of the Criminal Code:

“In explaining the intended scope of the doctrine in Illinois, the committee comments to section 9 — 1 of the Criminal Code of 1961 state:

Tt is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant *** or even by a third person trying to prevent the commission of the felony.’ 720 ILCS Ann. 5/9 — 1, Committee Comments — 1961, at 12-13 (Smith-Hurd 1993).

We believe that denying liability when the decedent is a cofelon would conflict with the legislature’s adoption of the proximate cause theory.” Dekens, 182 Ill. 2d at 254.

These committee comments are the same comments which the Allen court noted that the legislature had adopted in incorporating the holding of our 1935 decision in Payne. People v. Allen, 56 Ill. 2d 536, 545 (1974), citing Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments, at 9 (Smith-Hurd 1972).

Here, we read Dekens to stand for the proposition that the language adopted in the committee comments is tantamount to a definition of the legal-cause component of proximate cause, and therefore coextensive with foreseeability. In other words, we held the phrase “It is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant *** or even by a third person trying to prevent the commission of the felony” is integral to our proximate cause analysis in this state.

We return to the instructions which were tendered by the parties to the trial court regarding proximate causation. At the jury instruction conference, both parties submitted modified versions of IPI Criminal 4th No. 7.01. Defendant submitted the following instruction:

“A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbery and during *** the commission of that offense, the death of an individual is [the] direct and foreseeable consequence of the commission or attempt to commit that offense, and the defendant contemplated or should have contemplated that his actions could result in death.”

“A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbeiy, and during the course of the commission of the offense of attempt [to commit] armed robberyf,] he sets in motion a chain of events which cause the death of an individual.

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.”

Following argument, the trial court chose to give the State’s instructions.

In the present review of the propriety of the instruction, we agree with the appellate court majority, which stated:

“In the case at bar, we find that the modified version of IPI Criminal 4th No. 7.01 given sufficiently communicated the concept of proximate causation to the jury to enable it to apply the proper law to the facts. Although the phrase ‘ “direct and foreseeable consequence” ’ may have been a more precise way of defining the concept of proximate causation, the phrase 1 “sets in motion a chain of events” ’ has also been used by the supreme court in characterizing this concept. The second paragraph of the given instruction, apparently taken from the committee comments to section 9 — 1 of the Criminal Code of 1961 (Code) (720 ILCS Ann. 5/9 — 1, Committee Comments — 1961, at 15 (SmithHurd 2002)), completed the definition of proximate causation by providing examples to delineate when homicides committed by individuals other than the defendant would be considered foreseeable consequences of forcible felonies. Thus, the instruction given was not an incorrect statement of the law. See Dekens, 182 Ill. 2d at 254, 695 N.E.2d at 477-78; Lowery, 178 Ill. 2d at 467, 687 N.E.2d at 976. In addition, on the facts of the present case, these examples enabled the jury to properly apply the difficult concept of proximate cause to determine that Thomas’ homicide was a foreseeable result of defendant’s participation in the attempted armed robbery. We further find the instruction to have been simple, brief, impartial, and free from argument. See 177 Ill. 2d R. 451(a); Ramey, 151 Ill. 2d at 536, 603 N.E.2d at 534. Therefore, we cannot say that the circuit court abused its discretion in choosing between the two offered instructions and in giving the State’s instruction.” 354 Ill. App. 3d at 654-55.

We believe that is an adequate basis to resolve this case.

We would add that the answer to the issue here— whether the second part of the jury instruction based on the committee comments sufficiently informs the jury as to this state’s laws of proximate cause as do the phrases “should have been in his contemplation” or “foreseeable consequence” — is yes. The instruction mirrored the committee comments of the statute. As we have repeatedly held, this concept has been part and parcel of our felony-murder jurisprudence on proximate cause since 1935. The jury was not instructed that a mere chain reaction was sufficient to convict, but rather that a killing by a third party resisting the robbery could also be a proximate cause. Therefore, the trial court did not abuse its discretion in so instructing the jury. Accordingly, defendant’s due process rights were not violated, as the State was required to prove beyond a reasonable doubt all the elements of the offense.

Finally, while we hold that the instruction was adequate and that the trial court did not abuse its discretion, in an effort to aid the bench and bar in future cases, we also note that the instruction could have stated the law of proximate cause more precisely. For example, an instruction stating that:

“A person commits the offense of first degree murder when he commits the offense of attempt to commit armed robbery 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 attempt to commit armed robbery.

It is immaterial whether the killing is intentional or accidental, or committed by a confederate without the connivance of the defendant or by a third person trying to prevent the commission of the offense of attempt to commit armed robbery,”

would have simply and concisely stated the law on proximate cause as set forth in People v. Lowery, 178 Ill. 2d 462, 467 (1997), and as it applies to this case.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the appellate court affirming the judgment of the trial court.

Affirmed.