People v. Sullivan , 2014 IL App (3d) 120312 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Sullivan, 2014 IL App (3d) 120312Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption SCOTT SULLIVAN, Defendant-Appellant.
District & No. Third District
Docket No. 3-12-0312
Filed March 26, 2014
Held On appeal from defendant’s conviction for the first degree murder and
(Note: This syllabus aggravated battery of a senior citizen, defendant failed to sustain his
constitutes no part of the burden of establishing that the prosecutor’s improper comment during
opinion of the court but closing arguments on the reasonable doubt standard constituted plain
has been prepared by the error, defense counsel’s failure to request an instruction on causation
Reporter of Decisions did not amount to ineffective assistance, the appellate court rejected
for the convenience of defendant’s contention that he was entitled to have a new attorney
the reader.) argue his motion for a new trial because his trial counsel created a
per se conflict of interest by arguing his own ineffectiveness, and the
30-year sentence for first degree murder was not an abuse of
discretion; however, the conviction for aggravated battery of a senior
citizen was vacated pursuant to the one-act, one-crime doctrine.
Decision Under Appeal from the Circuit Court of Will County, No. 11-CF-513; the
Review Hon. Daniel J. Rozak, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Michael J. Pelletier and Benjamin Wimmer (argued), both of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
James Glasgow, State’s Attorney, of Joliet (Justin A. Nicolosi
(argued), of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE McDADE delivered the judgment of the court, with
opinion.
Justices O’Brien and Wright concurred in the judgment and opinion.
OPINION
¶1 Defendant Scott Sullivan was convicted of first degree murder (720 ILCS 5/9-1(a)(2)
(West 2010)) and aggravated battery of a senior citizen (720 ILCS 5/12-4.6(a) (West 2010)).
He appeals and argues (1) that his conviction should be reversed because the prosecutor made
improper comments regarding the standard of proof beyond a reasonable doubt; (2) that his
attorney was ineffective for failing to request a jury instruction on causation; (3) that his
attorney had a per se conflict of interest during posttrial proceedings; (4) that the trial court
imposed an excessive sentence on the first degree murder conviction; and (5) that his
conviction for aggravated battery of a senior citizen should be vacated under the one-act,
one-crime doctrine.
¶2 We affirm defendant’s first degree murder conviction and sentence, but vacate his
conviction for aggravated battery of a senior citizen.
¶3 BACKGROUND
¶4 Defendant Scott Sullivan was the primary caretaker of his father, 86-year-old Fred
Sullivan. Fred suffered from dementia. He lived with defendant and also attended adult day
care five days per week. Fred was able to move with the aid of a walker and the assistance of
others, and could participate in some physical activities. But he was cognitively impaired, and
while he would speak to others, he was unable to carry on long conversations and often became
agitated.
¶5 On July 18, 2010, paramedics were dispatched to defendant’s home in Lockport, Illinois.
When they arrived they found Fred severely injured and lying in a pool of blood. Fred had
severe facial swelling, a laceration on the back of his head, and abrasions and skin tears on his
arms and legs. Defendant told the paramedics that Fred had suffered a fall. The paramedics
transported Fred to the hospital, and their supervisor contacted the police.
¶6 The emergency room doctor who treated Fred was Dr. George Filiadis. When Fred arrived,
he was nonresponsive and had to be intubated and put on a ventilator. Dr. Filiadis described
Fred’s state as “semicomatose.” Given the extensive bruising injuries on Fred’s head, Dr.
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Filiadis diagnosed Fred with a “close head injury,” which is a nonspecific diagnosis indicating
brain trauma. He believed that Fred had “too many bruises” to have suffered a simple fall. Dr.
Filiadis ordered CT scans and X-rays; these tests did not reveal any fractures or brain bleeds,
although Dr. Filiadis stated that a hematoma could have developed from Fred’s injuries after
the tests were conducted.
¶7 In August of 2010, Fred was admitted to the Salem Village nursing home, where he was
deemed a “total care.” Fred was fed through a feeding tube, was practically immobile and
bedridden, and was not able to communicate verbally. On September 14, 2010, Fred fell and
struck his head at the nursing home while being bathed by a nursing assistant. Fred died two
months later in November 2010. An autopsy revealed a large subdural hematoma in his brain
that was months old.
¶8 On March 17, 2011, a grand jury returned bills of indictment charging defendant with one
count of first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and one count of aggravated
battery of a senior citizen (720 ILCS 5/12-4.6(a) (West 2010)). 1 In addition to the facts above,
the following evidence was adduced at defendant’s trial.
¶9 The State presented testimony from police officers who questioned defendant after Fred
was injured. When Deputy Arthur Huffstuttler arrived at defendant’s home on the evening of
July 18, 2010, defendant stated that he got out of bed and heard Fred calling for help.
Defendant found Fred in the dining room and he pulled him into the living room. Deputy
Huffstuttler indicated that he smelled alcohol on defendant that evening. Defendant told police
that he was not sure how Fred hurt himself, but that Fred fell often and must have received the
injuries in a fall. Defendant stated that he slapped Fred’s face that night in an effort to revive
him, which might have injured Fred’s face, and he might have injured Fred’s back and legs
while moving him from the dining room.
¶ 10 Defendant’s neighbors testified that defendant had grown frustrated with caring for Fred in
the months preceding July 2010. The neighbors witnessed defendant physically pulling and
dragging Fred inside the home. They could hear defendant insulting and yelling at Fred. They
heard defendant say that Fred had ruined his life.
¶ 11 Crime scene investigators took photos of bloodstains on the walls and ceiling of
defendant’s home. The investigators collected DNA swabs of the bloodstains, and the parties
admitted stipulated testimony indicating to a high degree of likelihood that Fred was the source
of the blood. Dr. Paul Kish, a bloodstain pattern analyst, examined the bloodstains, which
indicated the occurrence of at least four impacts of an object against a human body. He also
stated that the bloodstains on the ceiling indicated that blood was cast off from an object while
the object was being swung. Based on the bloodstains, Dr. Kish opined that one or two “impact
splatter events” occurred in the living room of defendant’s home.
¶ 12 Dr. John Scott Denton was a forensic pathologist with the Will County coroner. He
testified as an expert in forensic pathology. Dr. Denton reviewed photographs of Fred’s
injuries and stated that they indicated blunt trauma on his face and head. He also described
“pattern” injuries resulting from collisions with objects of various shapes. Dr. Denton opined
Fred’s facial injuries were not consistent with being slapped in the face. The injuries were also
not consistent with a fall because there were too many injuries on different parts of the body
and the contours of the injuries were curved, which indicated more than hitting a wall or floor.
1
A third charge for aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2010)) was dismissed
prior to trial.
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¶ 13 Dr. Denton conducted an autopsy on Fred on November 15, 2010. The autopsy revealed
that Fred had an “extensive” subdural hematoma in the frontal, temporal, and parietal lobes of
his brain. This indicated that Fred’s brain had been bleeding. Dr. Denton stated that the
hematoma had been healing and stated that it was not a recent injury, estimating that it was
“months old.” With the elderly, any injury to the head can potentially cause a brain bleed. Fred
had a condition called hydrocephalous, which also carried an increased risk of brain bleeding.
¶ 14 Dr. Denton also discovered pneumonia and bronchopneumonia in Fred’s lungs, which was
consistent with fluid aspirating into Fred’s lungs. Dr. Denton determined that Fred “died from
that bronchopneumonia acutely due to the subdural hematoma and the brain or cerebral
injuries due to an assault related to those multiple bruises.” He opined that the assault caused
the hematoma, which immobilized Fred and created a situation where Fred would aspirate and
develop bronchopneumonia. He testified about determining the cause of death:
“In forensic pathology or forensic medicine, it’s basically a causal link. You know,
is there a link between the initiating event and does that person suffer injuries that they
eventually will die from and is that link unbroken? That is the main criteria.
So with Mr. Sullivan, the injuries were consistent with inflicted trauma or inflicted
blunt trauma consistent with some kind of pattern injury, the linear force, and then the
curvilinear area. So an object, I believe, caused those injuries from an assault.
Immediately when he went to the hospital, he was in a coma, Mr. Sullivan was in a
coma. He was unresponsive.
He suffered severe injuries that put him into a coma where before he was living in a
house, he was talking, he was able to walk. Now he suffers injuries that put him into a
coma where he is basically dependent on a ventilator. There is a tube breathing–a tube
and a machine breathing for him because of his head injuries, and then he basically just
continues on without any interruption in that capacity.
He develops aspiration pneumonia in August. He was treated for that. He was
aspirating because of a head injury. So he had aspirational pneumonia in August. He
was treated with antibiotics.
He never progressed back to his normal level[,] which is another criteria. If a
person sustains injuries, they become ill, and they get back to their normal level, then
that is a break in the chain; but if he never got back to his normal level, he still
continued on in that lower area of dysfunction.
At this level as an 86 year old man, he sustains the injuries, he functions at this
level, and he never functions again where he was, that’s the criteria for forensic
medicine.”
¶ 15 Dr. Denton also testified that his opinion did not change even though the initial CT scans
following Fred’s injuries on July 18, 2010, showed no hematoma. He cited recent studies
indicating that CT scans could “miss things about a third of the time.” Dr. Denton also testified
that he reviewed hospital records from September 2010 after Fred fell at the nursing home. The
records indicated Fred suffered a three-centimeter gash above his left eyebrow. A CT scan was
conducted at the hospital and there was no evidence of a rebleed. Because Fred’s state of
functioning was the same both before and after the fall in September 2010, it did not change
Dr. Denton’s opinion on the cause of death.
¶ 16 The defense called Phillip Oswu, a certified nursing assistant (CNA) at the Salem Village
nursing home. Oswu cared for Fred while Fred stayed at Salem Village. He testified that on
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September 14, 2010, he and another CNA used a wheelchair to move Fred to the shower for
bathing. They placed Fred in a shower chair, and when Oswu turned around to pick up a
washcloth, Fred fell forward and hit his head on the floor. Fred sustained a cut on his head and
was taken to the hospital.
¶ 17 On cross-examination, Oswu discussed Fred’s condition prior to this fall: Fred was
confined to bed, and although he could move around in the bed, he was not physically able to
walk, he was not able to communicate, and he was fed through a feeding tube. After the fall,
Fred was in the same condition. Another nurse at Salem Village, Imani Crudup, also testified
that Fred’s physical condition appeared to be the same both before and after he fell in the
shower.
¶ 18 The defense also presented testimony from defendant’s family. Defendant’s son, Anthony
Sullivan, stated he never witnessed defendant physically or verbally abuse Fred. Anthony
knew of prior instances where Fred had suffered falls at the home. Anthony also testified that
he visited Fred every other week when Fred was at Salem Village. When he visited, Fred
would reach out and touch Anthony’s hand and track movement with his eyes. Fred would
mumble softly. However, when he visited after Fred fell on September 13, 2010, Fred was not
as alert and did not track movements. Defendant’s wife, Terry Sullivan, testified that when she
visited Fred in early September 2010, he was recovering. But after the fall at the nursing home
she never saw Fred awake again.
¶ 19 The case proceeded to closing argument, where the State cited Dr. Denton’s testimony to
argue that defendant assaulted Fred on July 18, 2010, and that Fred’s injuries caused Fred’s
death because he never returned to his pre-assault level of functioning. The State also made a
brief attempt to explain the “beyond a reasonable doubt standard” to the jury. The defense
argued in closing that the State had not met its burden. It argued that Fred’s injuries could have
been sustained in a fall at defendant’s home. The defense also argued that it was reasonable to
conclude that Fred’s intervening fall at the nursing home was the cause of his death.
¶ 20 The jury found defendant guilty of both first degree murder and aggravated battery of a
senior citizen. The defense brought a posttrial motion with 18 allegations of error, including an
allegation that the court erred by failing to submit a jury instruction on causation. After hearing
arguments on the motion, the court summarily denied the motion. The matter proceeded to a
sentencing hearing. The trial judge sentenced defendant to serve a 30-year term for the murder
conviction concurrently with a 7-year term for the aggravated battery of a senior citizen
conviction.
¶ 21 Defendant filed a timely notice of appeal.
¶ 22 ANALYSIS
¶ 23 I. State’s Comments on Reasonable Doubt
¶ 24 Defendant’s first argument on appeal addresses the State’s discussion of reasonable doubt
during closing arguments. The prosecutor told the jury:
“The standard of reasonable doubt is not beyond all doubt or beyond a shadow of a
doubt. And you don’t get a jury instruction on what reasonable doubt is. That is
something you collectively have to decide, what reasonable doubt is and whether we
have overcome that burden in proving our case to you.”
According to defendant, the prosecutor’s statement was an impermissible attempt to define
reasonable doubt. Defendant argues that this comment was prejudicial because the prosecutor
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effectively told the jury that reasonable doubt meant whatever the jury decided it meant,
creating a risk that the jury convicted defendant on proof less than the constitutionally required
standard of proof beyond a reasonable doubt.
¶ 25 Defendant did not object to the prosecutor’s comment at trial or raise the issue in a posttrial
motion. The failure to do so would ordinarily result in forfeiture of appellate review of the
issue, but defendant asks that we review this issue under the plain error rule. Under plain error
review, we may reach an otherwise forfeited issue if a clear and obvious error occurred and (1)
the evidence is closely balanced, or (2) the error “is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process.” People v. Piatkowski,
225 Ill. 2d 551, 565 (2007). See also People v. Thompson, 238 Ill. 2d 598, 613-14 (2010)
(equating the second prong of plain error review with structural error).
¶ 26 In plain error review, the defendant carries the burden of persuasion, and if the defendant
fails to meet that burden, we will honor defendant’s procedural default. People v. Walker, 232
Ill. 2d 113, 124 (2009). Our first step in plain error review is to determine whether any error
occurred at all. Thompson, 238 Ill. 2d at 613. Whether the prosecutor’s comments during
closing arguments constitute reversible error is an issue of law we review de novo. See People
v. Wheeler, 226 Ill. 2d 92, 121 (2007).
¶ 27 “The law in Illinois is clear that neither the court nor counsel should attempt to define the
reasonable doubt standard for the jury.” People v. Speight, 153 Ill. 2d 365, 374 (1992). Our
supreme court has cautioned that attempts to explain reasonable doubt pose a danger of
“distort[ing] the standard to the prejudice of the defendant.” People v. Keene, 169 Ill. 2d 1, 25
(1995). Moreover, there is no need for counsel or the trial judge to explain the reasonable doubt
standard to a jury, because the concept of reasonable doubt is self-explanatory. See People v.
Wielgos, 220 Ill. App. 3d 812, 820 (1991) (“[T]here is no better definition of reasonable doubt
than the words themselves.”). As the State concedes in this case, the prosecutor should not
have attempted to explain reasonable doubt during his closing argument.
¶ 28 Accordingly, we must determine whether this error constitutes plain error. Defendant
argues that it meets the second prong of the plain error rule, constituting an error so serious it
compromised the fairness of defendant’s trial. In support of his argument, defendant cites two
recent appellate decisions: People v. Turman, 2011 IL App (1st) 091019, and People v.
Franklin, 2012 IL App (3d) 100618. In Turman, the trial judge instructed the jury that
“ ‘reasonable doubt is not defined under Illinois law. It is for the jury to collectively determine
what reasonable doubt is.’ ” Turman, 2011 IL App (1st) 091019, ¶ 19. The court concluded
that this instruction was plain error because the instruction created a risk that the jury “used a
lesser standard of doubt than reasonable doubt since they were to collectively determine what
the term meant.” Turman, 2011 IL App (1st) 091019, ¶ 27. In Franklin, the trial judge gave a
similar instruction, telling jurors “that ‘beyond a reasonable doubt’ is ‘what each of you
individually and collectively, as 12 of you, believe is beyond a reasonable doubt.’ ” Franklin,
2012 IL App (3d) 100618, ¶ 20. The Franklin court noted that a reasonable doubt instruction is
constitutionally deficient if it creates a reasonable likelihood that the jury convicted the
defendant on proof less than proof beyond a reasonable doubt. Franklin, 2012 IL App (3d)
100618, ¶ 23 (citing Victor v. Nebraska, 511 U.S. 1, 5 (1994)). It held that the trial judge’s
instruction created such a risk, and therefore the second prong of the plain error rule was
satisfied. Franklin, 2012 IL App (3d) 100618, ¶ 28.
¶ 29 We do not find Franklin and Turman determine whether plain error occurred in the present
case. While they involved statements quite similar to what the prosecutor said in this case,
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those two cases are distinguishable because they involved instructions from the trial judge that
attempted to define the reasonable doubt standard. Here, we are only dealing with the
statement of a prosecutor. The jury looks to the judge–a neutral arbiter of the trial–to define the
law, and would logically place more weight on the judge’s discussion of reasonable doubt than
that of the prosecutor. Compared to an instruction from a trial judge, the prosecutor’s statement
here does not carry as grave a danger of distorting the reasonable doubt standard so as to
undermine the fairness of defendant’s trial.
¶ 30 While the cases dealing with a trial judge’s instructions are not determinative, we do take
guidance from cases which have addressed a prosecutor’s comments on the reasonable doubt
standard. We have previously held that a prosecutor’s attempt to define reasonable doubt
constitutes plain error only when it causes substantial prejudice to the defendant. People v.
Howell, 358 Ill. App. 3d 512, 524 (2005). Comments on reasonable doubt cause substantial
prejudice when they:
“(1) [S]uggest that the State had no burden of proof or attempt to shift that burden to the
defendant; (2) reduce the State’s burden of proof to a pro forma or minor detail; or (3)
amount to involved instructions on reasonable doubt.” Howell, 358 Ill. App. 3d at 524
(citing Speight, 153 Ill. 2d at 374).
See also People v. Euell, 2012 IL App (2d) 101130, ¶ 22 (a prosecutor’s statement improperly
shifting burden of proof to defendant only constitutes plain error when the comments are “so
inflammatory or so flagrant that defendant was denied a fair trial”). We cannot conclude that
the prosecutor’s discussion of reasonable doubt in the instant case meets any of the three
elements discussed in Howell. The prosecutor did not shift the burden of proof to defendant.
The prosecutor did not suggest that its burden of proof was a minor matter. And this statement
was but a brief comment in a lengthy closing argument and does not amount to an involved
discussion of reasonable doubt.
¶ 31 We reject defendant’s argument that we must find plain error here because when a
prosecutor improperly discusses the reasonable doubt standard, there is no way to remedy the
prejudice to defendant because the court cannot give a clarifying instruction on the reasonable
doubt standard. In essence, defendant argues that this is an incurable error. But defendant’s
argument is controverted by our supreme court’s holding in Speight. There, during closing
argument, the prosecutor improperly told the jury that a reasonable doubt had to be a
substantial doubt. Speight, 153 Ill. 2d at 374. The defense objected, and the trial court informed
the jury “ ‘I will tell you what the law is in this case. And [the prosecutor’s] statement of what
the law is is not correct.’ ” Speight, 153 Ill. 2d at 374. The Speight court held that because the
judge admonished the jury to disregard the prosecutor’s statement and then properly instructed
the jury on reasonable doubt, there was not substantial prejudice to the defendant. Speight, 153
Ill. 2d at 374. Thus, it is clear that a prosecutor’s improper comments on the reasonable doubt
standard can be remedied by a contemporaneous objection and subsequent instructions from
the trial judge.
¶ 32 In the present case, there was no objection to the prosecutor’s statement because defendant
did not object. But after closing arguments concluded, the trial judge informed the jury: (1) the
judge would instruct the jury as to the law; (2) defendant was presumed innocent and that
presumption could not be overcome unless the jury was convinced beyond a reasonable doubt
that he was guilty; and (3) the State had the burden of proving defendant guilty beyond a
reasonable doubt and defendant was not required to prove his innocence. As in Speight, the
subsequent instructions from the judge here would have reinforced to the jury the importance
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of the reasonable doubt standard and the State’s burden of proof, and minimized any prejudice
to defendant from the prosecutor’s improper comment.
¶ 33 In short, defendant has not carried his burden of persuasion that the prosecutor’s comment
on the reasonable doubt standard was so egregious that it risked the jury using a lesser standard
to convict defendant. Therefore, we conclude that this was not an error so serious that it
affected the fairness of the defendant’s trial or challenged the integrity of the judicial process.
Because we do not find plain error, this issue is forfeited.
¶ 34 II. Ineffective Assistance of Counsel
¶ 35 Next, defendant argues that his trial counsel was ineffective for failing to seek a jury
instruction on the issue of causation. Defendant asserts that his trial counsel should have
requested that the jury be tendered Illinois Pattern Jury Instructions, Criminal, No. 7.15 (4th
ed. Supp. 2011) (hereinafter, IPI Criminal 4th No. 7.15). That instruction provides:
“In order for you to find that the acts of the defendant caused the death of [the
victim], the State must prove beyond a reasonable doubt that defendant’s acts were a
contributing cause of the death and that the death did not result from a cause
unconnected with the defendant. However, it is not necessary that you find the acts of
the defendant were the sole and immediate cause of death.” IPI Criminal 4th No. 7.15.
According to defendant, a reasonable defense attorney would have requested this instruction.
He further argues that had the jury been given this instruction, there is a reasonable probability
they would have concluded that the cause of death was Fred’s fall at the nursing home and not
the earlier injuries he sustained at defendant’s home.
¶ 36 To prevail on claim for ineffective assistance of counsel, a defendant must satisfy the
two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104
Ill. 2d 504, 526 (1984) (adopting the Strickland test). First, a defendant must show that
“counsel’s performance was deficient in that it fell below an objective standard of
reasonableness.” People v. Houston, 226 Ill. 2d 135, 144 (2007). We analyze this first prong
with a strong presumption that defense counsel’s conduct might be considered sound trial
strategy. Houston, 226 Ill. 2d at 144. Second, a defendant must show that “the deficient
performance prejudiced the defendant in that, but for counsel’s deficient performance, there is
a reasonable probability that the result of the proceeding would have been different.” Houston,
226 Ill. 2d at 144. This prejudice prong is satisfied if the defendant demonstrates a “probability
sufficient to undermine confidence in the outcome.” Houston, 226 Ill. 2d at 144.
¶ 37 We conclude that defendant cannot satisfy the prejudice prong of Strickland because even
if IPI Criminal 4th No. 7.15 had been submitted to the jury, there is not a reasonable probability
the jury would have acquitted defendant.
¶ 38 We begin our analysis with a background on the law of causation in homicide cases. To be
guilty of murder, a defendant’s acts are not required to be the sole and immediate cause of
death: it is sufficient that the defendant’s criminal acts contribute to the victim’s death. People
v. Brackett, 117 Ill. 2d 170, 176 (1987). However, “[t]he courts in Illinois have repeatedly held
that an intervening cause completely unrelated to the acts of the defendant does relieve a
defendant of criminal liability.” Brackett, 117 Ill. 2d at 176. Put another way, the State has the
burden of proving beyond a reasonable doubt “that the victim’s death was not caused by a
source unconnected to defendant’s act.” People v. Martinez, 348 Ill. App. 3d 521, 530 (2004).
Causation is normally a question for the trier of fact, and when the causal chain is not
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immediately apparent, medical experts may be of assistance in determining causation.
Brackett, 117 Ill. 2d at 177.
¶ 39 Courts in Illinois have often addressed whether an event constitutes an intervening cause in
homicide cases. In Brackett, the defendant raped and beat the victim, an 85-year-old woman,
and she died of asphyxiation five weeks later when she choked on food in a nursing home.
Expert testimony established that the injuries inflicted by the defendant put the victim in a
weakened condition where she would be unable to dislodge food from her trachea, and she
could not be fed through a feeding tube. Noting that causation only requires that the
defendant’s act contribute to death, the court affirmed the defendant’s murder conviction
because he “set in motion a chain of events which contributed to [the victim’s] death.”
Brackett, 117 Ill. 2d at 179. Similarly, in People v. Amigon, the defendant shot the victim,
rendering him a quadriplegic; five years later the victim died from pneumonia. People v.
Amigon, 239 Ill. 2d 71, 82 (2010). Noting that expert testimony established that quadriplegia
compromises an individual’s immune system, which left the victim unable to fight off the
bacterial infection, the court affirmed the defendant’s conviction for murder. Amigon, 239 Ill.
2d at 82.
¶ 40 Although Brackett and Amigon involved the defendants’ challenges to the sufficiency of
the evidence, we note them as illustrations of the principle that to be a true intervening cause,
the victim’s death must be unrelated to the criminal act of the defendant. See also People v.
Mars, 2012 IL App (2d) 110695, ¶ 19 (“[A] supervening act will not relieve an accused from
responsibility for death of another unless that act is disconnected from the act of the accused.”
(quoting People v. Gulliford, 86 Ill. App. 3d 237, 241 (1980))). 2
¶ 41 Here, even if the causation instruction were tendered to the jury, it is not reasonably
probable the jury could have found Fred’s fall in the shower at the nursing home was an
intervening cause unconnected to defendant’s actions. The jury found that defendant battered
Fred at their home on July 18. The attack caused severe injuries, which resulted in Fred being
virtually immobilized and bedridden. While being treated at the nursing home, Fred hit his
head as the nursing assistant bent over to pick up a washcloth. The State’s expert, Dr. Denton,
testified that according to the records he reviewed, this fall was not the cause of Fred’s death
because his level of functioning was unchanged before and after the fall. Although there was
some testimony from defendant’s family that Fred was recovering, he was still immobile and
unable to speak at the time he fell in the shower. It is not reasonably probable that the jury
would have concluded that this fall was unconnected to any act of defendant. This is because
defendant’s attack caused the injuries that placed Fred in that situation in the nursing home:
defendant’s attack weakened Fred to the point of immobility, and that condition clearly
contributed to Fred’s fall at the nursing home. Defendant set in motion a chain of events which
led to the victim’s death. See Brackett, 117 Ill. 2d at 178. To be an intervening cause, the event
must be unconnected to the criminal act of defendant. The IPI instruction makes this clear.
Therefore, defendant was not prejudiced by counsel’s failure to request the causation
instruction.
2
The court in Mars rejected the defendant’s argument that gross medical negligence by physicians
treating the victim would always relieve the defendant of criminal liability for the victim’s death. Mars,
2012 IL App (2d) 110695, ¶ 19. The court emphasized that to constitute a true intervening cause, the
acts of treating physicians would need to be disconnected from the defendant’s criminal act. Mars,
2012 IL App (2d) 110695, ¶¶ 19, 29-30.
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¶ 42 III. Conflict of Interest During Posttrial Motion
¶ 43 After defendant was convicted, he brought a motion for a new trial, alleging in part that
error occurred because the trial judge failed to instruct the jury on causation. During arguments
on the motion, defense counsel stated that because Fred fell after the alleged assault, there was
evidence of an intervening cause and the jury should have been instructed on causation.
Defense counsel argued that the definition instruction on proximate cause should have been
tendered to the jury. 3 Counsel also stated the following:
“[T]he defense believes it was error for the jury not to be instructed as to the issue of
causation. I will state to the Court that neither the State nor the defense did specifically
request an instruction for causation. Nevertheless, we believe that the jury should have
been instructed as to that.”
¶ 44 On appeal, defendant argues that this exchange demonstrates that defense counsel
acknowledged that he should have requested a causation instruction. According to defendant,
this acknowledgment means that defense counsel was essentially arguing his own
ineffectiveness during the motion for a new trial, creating a per se conflict of interest.
Defendant asks that we remand because he was entitled to have an attorney without a conflict
of interest argue the posttrial motion. The State responds that defense counsel had no conflict
of interest. We review de novo whether an attorney was laboring under a conflict of interest.
People v. Miller, 199 Ill. 2d 541, 544 (2002).
¶ 45 The sixth amendment to the United States Constitution guarantees a criminal defendant the
right to effective assistance of counsel, and this guarantee includes the right to conflict-free
representation. People v. Taylor, 237 Ill. 2d 356, 374 (2010). There are two types of conflict of
interest for defense attorneys: actual and per se. When defense counsel has an actual conflict of
interest, the defendant must demonstrate that the conflict adversely affected counsel’s
performance to obtain a reversal and new trial. People v. Austin M., 2012 IL 111194, ¶ 82.
With a per se conflict of interest, however, the defendant need not establish such an adverse
effect, because such a conflict relates to facts about the attorney’s status which “engender, by
themselves, a disabling conflict.” Austin M., 2012 IL 111194, ¶¶ 80-81.
¶ 46 Our supreme court has recognized a per se conflict of interest in three situations:
“(1) [W]here defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution; (2) where defense
counsel contemporaneously represents a prosecution witness; and (3) where defense
counsel was a former prosecutor who had been personally involved in the prosecution
of defendant.” Taylor, 237 Ill. 2d at 374.
None of these situations apply here. In support of his argument that a per se conflict arises
where an attorney alleges his own ineffectiveness, defendant cites People v. Lawton, 212 Ill.
2d 285 (2004). In Lawton, the court stated that trial counsel’s failure to assert his own
ineffective representation in a posttrial motion does not waive the issue on appeal, because an
attorney forced to argue his own ineffectiveness would face “an inherent conflict of interest.”
3
During the hearing on the posttrial motion, counsel stated that the court should have provided the
jury with the proximate cause definition contained in Illinois Pattern Jury Instructions, Criminal, No.
4.24 (4th ed. Supp. 2011) (hereinafter, IPI Criminal 4th No. 4.24). We note, however, that the
committee comments provide that “[t]his instruction should not be given when causation is an issue in
intentional, knowing or reckless homicide cases. Instruction 7.15 should be given under those
circumstances.” IPI Criminal 4th No. 4.24, Committee Comments.
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Lawton, 212 Ill. 2d at 296. See also People v. Parker, 288 Ill. App. 3d 417, 421 (1997); People
v. Keener, 275 Ill. App. 3d 1, 5 (1995). We note, however, that the Lawton court did not hold
that a per se conflict would occur in such a situation: its discussion was limited to waiver. In
addition, this court recently did not find a per se conflict where a defendant raised a
post-guilty-plea allegation of ineffective assistance regarding his attorney and that same
attorney argued the motion to withdraw the guilty plea. See People v. Gabrys, 2013 IL App
(3d) 110912, ¶ 20 (finding no per se conflict because the situation did not meet one of the three
types of per se conflicts identified by our supreme court).
¶ 47 We find no conflict of interest in this case, per se or actual, because defense counsel was
clearly not arguing that he was ineffective. There is no explicit allegation of ineffective
assistance of counsel anywhere in the trial record. During posttrial proceedings, counsel did
not argue he provided inadequate representation. All defense counsel did was argue that the
failure to instruct the jury on causation was error and explain that he did not request such an
instruction. The failure to request the instruction during trial would ordinarily result in
forfeiture of the issue, although the trial court still could have granted defendant relief under
Illinois Supreme Court Rule 451(c) (eff. July 1, 2006), which is coextensive with plain error
doctrine. See People v. Herron, 215 Ill. 2d 167, 175 (2005) (a court may review unpreserved
errors regarding jury instructions if the interest of justice requires). We will not transform
counsel’s acknowledgement that the error with the jury instruction was not raised at trial into
an allegation of ineffective assistance of counsel.
¶ 48 If we were to adopt defendant’s argument here, it would mean that any time defense
counsel brings a possibly forfeited error to the court’s attention in a posttrial motion, it could
be construed on appeal as trial counsel arguing his own ineffectiveness. According to
defendant, this would trigger a per se conflict of interest. The practical effect of this would be
that a new defense attorney would have to be appointed to raise potentially forfeited errors in
posttrial motions. Not only would this needlessly strain the resources of the public defender’s
office, it would effectively deny a criminal defendant the assistance of her trial
counsel–presumably the attorney who knows the defendant’s case best and is in the best
position to argue about the impact of these errors–during posttrial proceedings. While it is true
that an attorney cannot be expected to argue his own ineffectiveness (Lawton, 212 Ill. 2d at
296), defense counsel here was not doing so. Merely bringing a possibly forfeited error to the
trial court’s attention, without more, cannot be construed as an allegation of ineffective
assistance of counsel. Neither Lawton nor the sixth amendment commands such a
counterproductive procedure.
¶ 49 IV. Sentencing
¶ 50 As his fourth argument on appeal, defendant contends that the 30-year sentence imposed
for the first degree murder conviction was excessive. He asks that we remand for a new
sentencing hearing or use our authority under Illinois Supreme Court Rule 615(b)(4) to reduce
his sentence to a 20-year term–the statutory minimum. See 730 ILCS 5/5-4.5-20(a) (West
2010) (setting the sentencing range for first degree murder between 20 and 60 years).
¶ 51 We review a trial court’s sentencing decision for an abuse of discretion. People v.
Alexander, 239 Ill. 2d 205, 212 (2010). The trial court is granted great deference in imposing a
sentence “because the trial court is generally in a better position than the reviewing court to
determine the appropriate sentence. The trial judge has the opportunity to weigh such factors as
the defendant’s credibility, demeanor, general moral character, mentality, social environment,
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habits, and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). A court of review may not alter
the sentence merely because it would have weighed these factors differently. Alexander, 239
Ill. 2d at 212. A sentence within the statutory sentencing range constitutes an abuse of
discretion if “the sentence is greatly at variance with the spirit and purpose of the law, or
manifestly disproportionate to the nature of the offense.” Stacey, 193 Ill. 2d at 210.
¶ 52 At the sentencing hearing in this case, defendant presented testimony in mitigation from
his wife Terry and son Anthony. They both testified that defendant was a caring and
non-violent person. Defendant was active in the community with his band and the Cub Scouts,
and he did charity work. Defendant had sustained a brain injury in a fall six years ago, which
impaired his short-term memory and other thought processes. Defendant acted as Fred’s
primary caretaker and Terry and Anthony had never witnessed any violence. Defendant also
made a brief statement denying that he beat his father and saying that his father died of
pneumonia. The State did not present any evidence in aggravation.
¶ 53 After considering the evidence presented at trial and at the sentencing hearing, the trial
court found that three mitigating factors applied: defendant had no prior history of delinquent
or criminal activity, the crime was the result of circumstances unlikely to recur, and
defendant’s character and attitude indicated he was unlikely to commit another crime. In
aggravation, the court found that its sentence was necessary to deter others. The court also
found in aggravation that the victim was a person who was physically and mentally dependent
on defendant. The court then announced a sentence of 30 years in the Department of
Corrections for the murder charge.
¶ 54 On appeal, defendant argues that the trial court’s sentence was excessive because it ignores
his rehabilitative potential. He notes that he was 58 years old at the time of sentencing, and he
argues that a 30-year sentence means he will likely die in prison. While it is possible that
defendant will die before his release, this fact alone does not make the sentence an abuse of
discretion. See People v. Martin, 2012 IL App (1st) 093506, ¶ 50. Defendant also argues that
the 30-year sentence ignores the fact that the crime was the product of circumstances unlikely
to recur and defendant is unlikely to reoffend, as the trial court itself found. Despite the
presence of these mitigating factors, the court was not obligated to impose the minimum
sentence. People v. Malin, 359 Ill. App. 3d 257, 264 (2005). As a court of review, we are not
entitled to reweigh defendant’s sentence. Given the nature of the crime at issue, and the
aggravating factors as found by the trial court, we cannot say that defendant’s sentence is
disproportionate to the nature of the offense or greatly at variance with the spirit or purpose of
the law. We find no abuse of discretion here.
¶ 55 V. One Act, One Crime
¶ 56 Finally, defendant argues that he was improperly convicted of two crimes stemming from
only one physical act. Under the one-act, one-crime doctrine, “[m]ultiple convictions are
improper if they are based on precisely the same physical act.” People v. Rodriguez, 169 Ill. 2d
183, 186 (1996). Both the charging instruments and the evidence presented during trial only
support the theory that defendant attacked his father in a single, generalized instance.
Therefore, as the State concedes, the evidence only supports a finding that defendant
committed a single physical act. The one-act, one-crime doctrine applies here.
¶ 57 When a defendant is convicted of two offenses based upon the same single physical act, we
must vacate the conviction for the less serious offense. People v. Johnson, 237 Ill. 2d 81, 97
(2010). Accordingly, we vacate defendant’s conviction for aggravated battery of a senior
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citizen.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed in
part and vacated in part.
¶ 60 Affirmed in part and vacated in part.
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