People v. Hudson ( 2006 )

Docket No. 100033.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
LAVELLE HUDSON, Appellant.
Opinion filed July 5, 2006.
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 plain-clothes 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 5/9B1(a)(3) (West 2002). The
parties tendered differing jury instruction 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 Alick,@ 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, AThis is a stick-up, throw
your money on the floor.@ After the barbers and patrons initially
threw money on the floor, Thomas said Athat=s not enough
money@ and continued waving and pointing the gun and again
saying, AHurry 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 APolice, drop the gun,
police,@ or AFreeze, 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, AMan, 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, APolice, 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:
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AA 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:
AA person commits the offense of first degree murder
when he commits the offense of attempt [to commit]
armed robbery, and during the course of the
commission of the offense of attempt [to commit] armed
robbery[,] he sets in motion a chain of events which
cause the death of an individual.
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 Adirect
and foreseeable consequence@ was not mentioned in the
instruction. 354 Ill. App. 3d at 649, 655. The appellate court
noted that A >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
-4-
Asets 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 9B1 of the Criminal Code
of 1961 (720 ILCS Ann. 5/9B1, Committee CommentsB1961, 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,
Adefendant 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
Ainstruction 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, P.J., dissentig). Presiding Justice Reid stated that
he would hold that the instruction should have specifically used
the language A >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 Araises the >direct and foreseeable= language to
the level of an element of the offense.@ 354 Ill. App. 3d at 659
(Reid, P.J., 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
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proximate causationBnamely, 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.
A >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). AOur task is to determine whether
the instructions given to the jury in the case at bar,
> Aconsidered 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 9B1(a)(3) of the Criminal Code of 1961 (720 ILCS
5/9B1(a)(3) (West 2002)) provides:
AA person who kills an individual without lawful
justification commits first degree murder if, in performing
the acts which cause the death:
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***
(3) he is attempting or committing a forcible
felony other than second degree murder.@
Accordingly, the relevant IPI instruction on felony murder
provides:
AA 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 Aproximate cause@ theory
of felony murder. People v. Lowery, 178 Ill. 2d 462 (1997). The
term Aproximate 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, AWe
believe that the analogies between civil and criminal cases in
which individuals are injured or killed are so close that the
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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 Ais essentially
a question of foreseeability@; the relevant inquiry is Awhether
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 Aeven 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 Aproximate@ to a jury. Thus, the IPI civil jury instruction
communicates the definition of Aproximate cause,@ as A[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:
AIt 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
-8-
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 Aliability
attaches >for any death proximately resulting from the unlawful
activityBnotwithstanding 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, No. 100257 (May 18, 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 McMorrow, J.)), we
stated, AIn 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, slip op. at
14. 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 Ahe 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
Aproximate,@ a review of the law in this state concerning
proximate cause since 1935 demonstrates that the disputed
language in the instant caseBAit 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
-9-
felony@Bhas 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, AApplying 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:
AThe 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 9B1 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,
AIt 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. 5/9B1, Committee
CommentsB1961, 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 Aa 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
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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 Aagency 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 Afelony-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:
AAlthough 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:
AIn explaining the intended scope of the doctrine in
Illinois, the committee comments to section 9B1 of the
Criminal Code of 1961 state:
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>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.= 720 ILCS Ann. 5/9B1,
Committee CommentsB1961, 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. 9B1, 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 AIt 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:
AA 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:
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AA person commits the offense of first degree
murder when he commits the offense of attempt [to
commit] armed robbery, and during the course of the
commission of the offense of attempt [to commit] armed
robbery[,] he sets in motion a chain of events which
cause the death of an individual.
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:
AIn 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 > Adirect and foreseeable
consequence@ = may have been a more precise way of
defining the concept of proximate causation, the phrase
> Asets 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 9B1 of
the Criminal Code of 1961 (Code) (720 ILCS Ann.
5/9B1, Committee CommentsB1961, at 15 (Smith-Hurd
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
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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 hereBwhether
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 Ashould have been in his
contemplation@ or Aforeseeable consequence@Bis 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:
AA 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
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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.
JUSTICE FREEMAN, specially concurring:
I agree with the majority that defendant, Lavelle Hudson,
can be held responsible for the death of his cofelon, Chrispin
Thomas. The death occurred as defendant and Thomas
attempted to rob a barbershop. The off-duty police officer, a
patron of the barbershop, shot and killed Thomas when
Thomas, ignoring warnings to drop his gun, pointed the gun at
the officer. AThose who commit forcible felonies know they may
encounter resistance, both to their affirmative actions and to
any subsequent escape.@ People v. Hickman, 59 Ill. 2d 89, 94
(1974). Thus, under the felony-murder rule, a defendant may
be held responsible for a death occurring during the
commission of a felony whether the fatal shot is fired by a
cofelon in furtherance of the felony or by a police officer in
opposition to the felony. People v. Allen, 56 Ill. 2d 536 (1974).
I write separately, however, to explain my views on the
instruction the trial court gave to the jury. I believe the court did
not properly instruct the jury on the issue of proximate cause.
In my opinion, the trial court=s instruction did not give suitable
guidance to the jury as to the findings it needed to make to
convict defendant of felony murder. The instruction was
incomplete and failed to convey clearly the theory of proximate
cause as it has developed in our jurisprudence over the years.
This court has consistently held that Awhen a felon=s
attempt to commit a forcible felony sets in motion a chain of
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events which were or should have been within his
contemplation when the motion was initiated, he should be held
responsible for any death which by direct and almost inevitable
sequence results from the initial criminal act.@ (Emphasis
added.) People v. Lowery, 178 Ill. 2d 462, 467 (1997). In its
holding, the majority does away with the foreseeability
requirement of proximate cause, while introducing new terms
into the lexicon of felony murder and proximate cause. At the
same time, however, the majority acknowledges the difficulty
presented by its holding and inserts dicta in its opinion offering
an alternative instruction which harkens back to the traditional
language of proximate cause. With its ruling in this case, the
majority brings confusion to an established area of law.
It is my view that the better approach in analyzing the issue
presented by this appeal is to acknowledge that the instruction
given to the jury in this cause is defective and then engage in
harmless error analysis. This court has previously held that Aan
error in a jury instruction is harmless if it is demonstrated that
the result of the trial would not have been different had the jury
been properly instructed,@ People v. Pomykala, 203 Ill. 2d 198,
210 (2003). It is my position that the evidence of defendant=s
guilt was so clear and convincing that no jury could have
reasonably found defendant not guilty. I therefore agree with
the State that because defendant suffered no prejudice as a
result of the improper instruction, relief should not be granted.
ANALYSIS
As explained in Lowery, 178 Ill. 2d 462, Illinois follows the
proximate cause theory for imposition of liability under the
felony-murder rule. See also People v. Klebanowski, No.
100257 (June 22, 2006); People v. Dekens, 182 Ill. 2d 247
(1998). Although the court has borrowed the concept of
proximate cause from the law of torts, we have refrained, to
date, from defining the concept in terms of cause-in-fact and
legal cause. Instead, the court has uniformly explained the
proximate cause theory in terms of a chain of events which by
direct and almost inevitable sequence results in the death for
which liability is sought to be imposed. Thus, in People v.
Payne, 359 Ill. 246 (1935), the court affirmed the defendant=s
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conviction for felony murder where the defendant, although not
present at the scene of the robbery, had previously informed
his cofelons that the victim had a large sum of money which
could be obtained easily, showed the cofelons the location of
the victim=s home, and told the cofelons that he expected to
receive $500 from the proceeds of the robbery. The court
noted first that where Aseveral persons conspire to do an
unlawful act and another crime is committed in the pursuit of
the common object all are alike guilty of the crime committed if
it is a natural and probable consequence of the execution of
the conspiracy.@ Payne, 359 Ill. at 254. The court also rejected
the defendant=s theory that he was only guilty of involuntary
manslaughter if the victim was killed by a bullet fired by another
victim in resisting the robbery. The court reasoned it
Areasonably might be anticipated that an attempted robbery
would meet with resistance, during which the victim might be
shot either by himself or someone else in attempting to prevent
the robbery, and those attempting to perpetrate the robbery
would be guilty of murder. *** A killing which happens in the
prosecution of an unlawful act which in its consequences
naturally tends to destroy the life of a human being is murder.@
Payne, 359 Ill. at 255.
Likewise, in Hickman, 59 Ill. 2d at 95, the court affirmed the
defendant=s felony-murder conviction. Police officers were
conducting surveillance at a warehouse. Three conspirators
accessed the warehouse by removing a panel and a lock from
the side door. When they exited the warehouse, the officers
closed in. The conspirators fled upon seeing the officers. In the
ensuing pursuit, one officer shot and killed another, mistakenly
believing that the victim was one of the conspirators. The jury
found two of the conspirators guilty of burglary and murder.
The trial court, however, entered an order arresting the
judgment of murder. The appellate court reversed. In affirming
the judgment of the appellate court, this court reasoned.
AHere defendants planned and committed a burglary,
which is a forcible felony under Illinois law. [Citation.]
One of them was armed. It was their conduct which
occasioned the presence of the police. When
confronted by approaching officers, the defendants
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elected to flee. We have previously held that the period
of time and activities involved in escaping to a place of
safety are part of the crime itself. [Citation.] The
defendants were repeatedly told to halt and the police
identified themselves, but the defendants continued
their attempt to escape. The commission of the
burglary, coupled with the election by defendants to
flee, set in motion the pursuit by armed police officers.
The shot which killed Detective Loscheider was a shot
fired in opposition to the escape of the fleeing burglars,
and it was a direct and foreseeable consequence of
defendants= actions. The escape here had the same
effect as did the gunfire in [People v. Allen, 56 Ill. 2d
536 (1974)], in that it invited retaliation, opposition and
pursuit. Those who commit forcible felonies know they
may encounter resistance, both to their affirmative
actions and to any subsequent escape. As we indicated
in a recent felony-murder case, >It is unimportant that
the defendants did not anticipate the precise sequence
of events that followed upon his entry into the apartment
of Judy Tolbert. His unlawful acts precipitated those
events, and he is responsible for the consequences.=
People v. Smith, 56 Ill. 2d 328, 333-334.@ Hickman, 59
Ill. 2d at 94.
See also Dekens, 182 Ill. 2d at 254 (explaining that Athe focus
of the proximate cause theory is on the chain of events set in
motion by the defendant@); Allen, 56 Ill. 2d at 545; People v.
Johnson, 55 Ill. 2d 62, 69 (1973); People v. Golson, 32 Ill. 2d
398, 408-09 (1965).
As defined by this court in the cases discussed above,
proximate cause encompasses the concept of foreseeability.
The defendant is not liable for any and all deaths that occur
concomitantly with the felony, but rather the defendant is liable
when he has set in motion a chain of events which were or
should have been within his contemplation when the motion
was initiated, and which by direct and almost inevitable
sequence results in the death. Liability is imposed precisely
because those who commit forcible felonies know that they
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may encounter resistance, both to their affirmative actions and
to any subsequent escape.
Looking to the instruction at issue in the present case, it is
clear that the instruction was overly broad and did not convey
the concept of foreseeability to the jury. In the first part of the
instruction, the jury was told that:
AA person commits the offense of first degree murder
when he commits the offense of attempt [to commit]
armed robbery, and during the course of the
commission of the offense of attempt [to commit] armed
robbery[,] he sets in motion a chain of events which
cause the death of an individual.@
In the second part of the instruction, the jury was told that the
killing may be Aintentional or accidental, committed by a
confederate without the connivance of the defendant or even
by a third person trying to prevent the commission of the
felony.@ The problem, however, is that the Aexamples@
contained in the second part of the instruction did not serve to
limit the killings for which a defendant may be held liable
beyond the requirement in the first part of the instruction that
the defendant have set in motion a chain of events which
causes the death.
The following illustration highlights the troublesome aspect
of the instruction. Defendant X robs an individual at gunpoint.
During the robbery, defendant X accidentally discharges the
gun. At the forest preserve two blocks away, the victim is riding
a horse. The horse bolts at the sound of the gunshot, crosses a
busy street, and throws the victim to the ground. An oncoming
car cannot stop in a timely fashion and runs over the victim,
inflicting the injuries that result in the death. The victim=s death
occurred during the course of the robbery. Indeed, the victim=s
death was the result of a chain of events initiated by defendant
X. Thus, under the first part of the instruction, defendant X may
be held liable for the death. Looking to the second part of the
instruction, is there any limitation imposed upon the killing for
which defendant X may be liable? Hardly. We are simply told
that the death may be accidental or intentional, committed by a
confederate or by a third party. Indeed, in my example, the
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death was accidental and was the result of a chain of events
set into motion by defendant X.
Presiding Justice Reid, in dissent from the appellate court
opinion, proffered the following instruction for consideration:
A >A person commits the offense of first degree murder
when he commits the offense of attempt armed robbery
and during the course of the commission of the offense
of attempt armed robbery he sets in motion a chain of
events which causes the death of an individual and the
death is a direct and foreseeable consequence of the
actions. It is immaterial whether the killing in such a
case is intentional or accidental or committed by a
confederate without the connivance of the defendant or
even by a third person trying to prevent the commission
of the felony. To sustain the charge of first degree
murder, the State must prove *** that the defendant, or
one for whose conduct he is legally responsible, was
committing the offense of attempt armed robbery; and,
second, that during the course of the commission of the
offense of attempt armed robbery, the defendant, or one
for whose conduct he is legally responsible, set in
motion a chain of events that, as a direct and
foreseeable consequence thereof, caused the death of
Chrispin Thomas. And, third, that the defendant did not
act under compulsion. If you find from your
consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable
doubt, you should find the defendant guilty. If you find
from your consideration of all the evidence that any one
of these propositions has not been proved beyond a
reasonable doubt, you should find the defendant not
guilty.= @ (Emphasis omitted.) 354 Ill. App. 3d at 659
(Reid, P.J., dissenting).
I agree with Presiding Justice Reid that such an instruction
provides appropriate guidance for the just application of the
proximate cause theory of felony murder and the core concept
of foreseeability. I note that, in affirming defendant=s conviction,
the appellate court majority candidly admitted that Abased on
the supreme court=s rationale in Lowery, the best wording for
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an instruction on proximate causation in felony murder would
include either the phrase >direct and foreseeable consequence=
or, alternatively, the phrase >sets into motion a chain of events
which were or should have been within his contemplation when
his actions were initiated.= @ 354 Ill. App. 3d at 655.
Rather than analyze the instruction at bar in light of our
established precedent on proximate cause, the majority
introduces new terms into the lexicon of felony murder,
bringing confusion to an established area of law. The majority
informs us that A[t]he term >proximate cause= describes two
distinct requirements: cause in fact and legal cause.@ Slip op. at
7. The majority then states:
ALegal cause >is essentially a question of foreseeability=;
the relevant inquiry is >whether the injury is of a type that
a reasonable person would see as a likely result of his
or her conduct.= [Citation.] Foreseeability is added to the
cause-in-fact requirement because >even when cause in
fact is established, it must be determined that any
variation between the result intended *** and the result
actually achieved is not so extraordinary that it would be
unfair to hold the defendant responsible for the actual
result.= [Citation.] Although foreseeability is a necessary
component of a proximate cause analysis, it need not
be specifically mentioned in a jury instruction to
communicate the idea of >proximate= to a jury.@ Slip op.
at 7.
Having laid the foundation for a discussion of cause in fact
and legal cause, the majority tells us that the court Aset 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.@ Slip
op. at 7. There follows a discussion of proximate cause, devoid
of the terms cause in fact and legal cause. Slip op. at 7-8. The
majority then informs us the parties do not dispute that the first
part of the instruction establishes the cause in fact
requirement. Slip op. at 8.
Turning to the concept of legal cause, the majority states:
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AAs for whether the instruction indicated that the cause
must also be >proximate,= a review of the law in this
state concerning proximate cause since 1935
demonstrates that the disputed language in the instant
case [the language of the second part of the instruction]
has long been integral to this state=s felony-murder
proximate cause jurisprudence.@ Slip op. at 8-9.
The majority launches into a second discussion of proximate
cause, once more devoid of the terms cause in fact and legal
cause, and concludes that the language of the second part of
the instruction Ais tantamount to a definition of the legal cause
component of proximate cause, and therefore coextensive with
foreseeability@ Slip op. at 11.
I do not dispute that the language of the second part of the
instruction has been part of the discussion of proximate cause
in previous cases. These cases nowhere intimated, however,
that the language was Atantamount to a definition of the legal
cause component of proximate cause.@ Indeed, no other Illinois
case has ever discussed the proximate cause theory of felony
murder in terms of cause in fact and legal cause. Nor has any
case indicated that the language at issue was intended to limit
the circumstances under which a defendant may be held liable
for felony murder to those circumstances which are
foreseeable.
To add to the confusion, the majority proffers as the
rationale for its holding the reasoning of the appellate court
majority. Slip op. at 12-13. Although the appellate court
majority found the instruction to be a proper statement of the
law, the appellate court majority nowhere explained its ruling in
terms of cause in fact and legal cause. As noted above, it is the
present majority which introduces the terms cause in fact and
legal cause into the fabric of the proximate cause theory of
felony murder. To support the new verbiage, the majority relies
on an opinion which nowhere discusses the terminology at
issue.
More importantly, the present majority, while acknowledging
the concept of foreseeability, approves an instruction which
provides no limits and no guidance to a juror regarding
foreseeability. As the majority notes: AForeseeability is added
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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.= @ Slip op. at 7,
quoting 1 W. LaFave, Substantive Criminal Law '6.4, at 464
(2d ed. 2003). Looking again at the instruction, what part of the
instruction limits the defendant=s accountability to a death of
which he is the Alegal cause@? The second part of the
instruction did not state that only killings under the
circumstances described are attributable to a defendant. It
provided examples but no limitations on the Acause-in-fact@
element.
As stated, the majority initially informs the bench and bar
that the jury instruction given in this matter is a correct
restatement of the theory of proximate cause and the core
concept of foreseeability, declaring that the language used in
the instruction is Atantamount to a definition of the legal cause
component of proximate cause, and therefore coextensive with
foreseeability.@ Slip op. at 11. However, having just proclaimed
that the given instruction provides a definitive statement of
proximate cause and foreseeability, the majority only a few
paragraphs later appears to retreat from its initial position of
confidence and states that the instruction given in this cause
was merely Aadequate.@ Slip op. at 13. In what appears to be
an acknowledgment that its holding in this cause is
problematic, the majority believes it necessary to Aaid the
bench and bar in future cases@ by noting that Athe instruction
could have stated the law of proximate cause more precisely.@
Slip op. at 13. Despite holding that the given instruction did not
violate defendant=s rights to due process in the matter at bar,
the majority nevertheless deems it appropriate to insert dicta in
its opinion to guide future cases. The majority offers alternative
language for the instruction which Awould have simply and
concisely stated the law on proximate cause *** as it applies to
this case.@ Slip op. at 14. I note that the language proffered by
the majority harkens back to the traditional language of
proximate cause and mirrors the language advocated by
defendant in his brief to this court. Although the majority states
-23-
that its dicta will assist the bench and bar in future cases, I
disagree. The majority=s suggestion of an alternative instruction
after having upheld the given instruction sends mixed signals to
our courts and practitioners, and will engender confusion and
additional litigation.
It is my position that the majority could have avoided
engaging in this contrarian exercise by simply holding that the
jury instruction given in this case was deficient and then
applying a harmless error analysis to determine whether the
result of the trial would have been different had the jury been
properly instructed. Pomykala, 203 Ill. 2d at 210; People v.
Johnson, 146 Ill. 2d 109, 137 (1991). In its brief to this court,
the State contends that even if the instruction proffered to the
jury in this case was erroneous, any error is harmless on the
facts presented, as defendant=s guilt is clear. I agree. Based
upon the facts in the cause at bar, the outcome of the trial
would have been the same, and, accordingly, defendant
suffered no prejudice. In other words, the evidence of
defendant=s guilt was so clear and convincing as to render the
error harmless beyond a reasonable doubt. Pomykala, 203 Ill.
2d at 210.
CONCLUSION
As this court explained in People v. Dennis, 181 Ill. 2d 87,
105 (1998):
AFelony murder seeks to deter persons from committing
forcible felonies by holding them responsible for murder
if a death results. [Citation.] Because of the extremely
violent nature of felony murder, we seek the broadest
bounds for the attachment of criminal liability. For that
reason, in felony murder, *** [a] defendant may be
found guilty of felony murder regardless of a lack either
of intent to commit murder [citation], or even connivance
with a codefendant [citation]. Our continued adherence
to a proximate cause approach is further exemplary of
how broadly we seek to extend the reaches of criminal
liability in the case of felony murder.@
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While I agree that liability should be imposed under the theory
of proximate cause for the killing at issue, I also suggest that
the theory of proximate cause does not impose liability for any
and every death that occurs concomitantly with a felony. As
this court has repeatedly held, a defendant may be held liable
only where he has set in motion a chain of events which were
or should have been within his contemplation when the motion
was initiated, and which by direct and almost inevitable
sequence results in the death. See Lowery, 178 Ill. 2d at 467. It
is precisely because the theory of proximate cause is intended
to cast a broad net that I believe it must be tempered by
judicious application of instructions properly conveying the
theory of proximate cause and its core element of
foreseeability.
In the present case, liability is imposed on defendant for the
death of his cofelon Thomas at the hands of the off-duty police
officer. The instruction, however, failed to limit defendant=s
liability to a death proximately caused by his actions. Although I
agree with the result reached by the majority, based upon the
weight of the evidence at defendant=s trial, I cannot agree with
the majority=s rejection of the salutary limits provided by the
concept of foreseeability in its holding, and cannot
countenance the confusion it engenders by its dicta which
appears contrary to its holding.
JUSTICE KILBRIDE joins in this special concurrence.
JUSTICE McMORROW, dissenting:
After a jury trial, 15-year-old defendant, Lavelle Hudson,
was convicted of first degree murder based on the commission
of a felony (felony murder). The charge of murder was
premised on the death of Chrispin Thomas, who was shot and
killed by an off-duty police officer who happened to be a
customer in the barbershop that defendant and Thomas
attempted to rob. The issue on appeal is whether the jury was
properly instructed regarding proximate cause in relation to
felony murder. The majority affirms defendant=s conviction,
-25-
finding that the State=s proffered non-IPI jury instruction
correctly states the law. I disagree.
As I explained in People v. Klebanowski, No. 100257 (June
22, 2006), I continue to maintain, as I did in People v. Dekens,
182 Ill. 2d 247, 257 (1998) (Bilandic, J., dissenting, joined by
McMorrow, J.), that, A[w]here a cofelon is killed by a third party,
the most direct cause of the death is the cofelon=s participation
in the felony, not the defendant=s acts.@ Accordingly, under the
proximate cause theory of liability for felony murder, a cofelon
may not be held liable for murder when a third party kills an
active coparticipant in the underlying felony. In my view, the
felony-murder doctrine simply Adoes not apply to render a
surviving felon guilty of murder where a cofelon is killed by a
nonparticipant in the felony.@ People v. Dekens, 182 Ill. 2d at
255 (Bilandic, J., dissenting, joined by McMorrow, J.).
Here, as in Klebanowski, the notion that the cofelon=s own
participation in the felony is the most direct cause of his death
is made particularly apparent by the facts. In the case at bar,
defendant and Thomas entered a barbershop with the intent to
commit a robbery therein. Both carried guns, although
defendant=s gun was inoperable. Inside the barbershop,
Thomas took charge and demanded that the customers throw
their money on the floor. When Thomas was not looking, an
off-duty police officer, who happened to be a customer in the
shop, drew his service revolver and announced, APolice, drop
the gun@ or AFreeze, police.@ Despite repeated warnings,
Thomas pointed his gun at the officer, who responded by
shooting Thomas in the right arm. Thomas, however, was not
dissuaded. He transferred his gun to his left arm and tried to
point it at the officer. The officer walked up to Thomas and,
placing his gun on Thomas= chest, ordered Thomas to ADrop
the gun, man.@ Thomas still refused to comply. Instead,
Thomas tried to point his gun at the officer. Only after the
officer shot Thomas in the chest twice, at point-blank range, did
Thomas drop the gun. Thomas died as a result of his injuries
from these gun shots.
It is abundantly clear from the above facts that Thomas=
conduct, not defendant=s, Aset in motion@ the chain of events
which proximately caused Thomas= death at the hands of the
-26-
officer. While it is true that defendant participated in the
underlying felony of armed robbery, nothing he did during the
course of the felony led to the death of his cofelon. In my view,
the public policy reasons for holding the felon criminally liable
for murder are inapplicable in these circumstances. Thus, I
would hold that a conviction for murder in these cases is
fundamentally unjust. For this reason, I dissent.
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