People v. Mars ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Mars, 2012 IL App (2d) 110695
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARK R. MARS, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0695
Filed December 26, 2012
Modified upon
denial of rehearing February 25, 2013
Held A pro se postconviction petition alleging that defendant’s appellate
(Note: This syllabus counsel was ineffective in failing to raise the issues of whether the
constitutes no part of murder indictment was subject to compulsory joinder and that
the opinion of the court defendant’s right to a speedy trial was violated was properly dismissed at
but has been prepared the first stage of the proceedings.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 05-CF-557; the Hon.
Review John T. Phillips, Judge, presiding.
Judgment Affirmed.
Counsel on Alan D. Goldberg and Shawn O’Toole, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
and Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Mark R. Mars, appeals from an order of the circuit court of Lake County
dismissing his postconviction petition at the first stage. We affirm.
¶2 BACKGROUND
¶3 On March 2, 2005, the grand jury indicted defendant on one count of first-degree murder,
alleging that he caused the death of a taxi driver, Lee Jones, while committing the forcible
felony of aggravated robbery (720 ILCS 5/18-5(a) (West 2004)). In July 2007, the State
indicted defendant on two additional counts (counts II and III) of first-degree murder, based
upon the forcible felonies of attempted aggravated robbery (720 ILCS 5/8-4(a), 18-5(a)
(West 2004)) and attempted robbery (720 ILCS 5/8-4(a), 18-1(a) (West 2004)). Defendant
moved to dismiss counts II and III of the indictment on the grounds of denial of due process
and denial of a speedy trial. The trial court granted defendant’s motion but then reversed
itself when it granted the State’s motion to reconsider. All three counts of the indictment
were presented to the jury. The following facts pertinent to this appeal were adduced at trial.
¶4 In the late evening hours of January 31, 2005, defendant was riding in a cab driven by the
victim. During the ride from Waukegan, Illinois, to North Chicago, Illinois, defendant
unsuccessfully demanded money from the victim and stabbed the victim in the head,
shoulder, and right arm. This was at 2:15 a.m. on February 1, 2005. When the victim’s front-
seat passenger and coworker, Motyka Gibson, called in a robbery in progress, defendant
jumped out of the cab and ran away. Gibson later identified defendant to the police as the
perpetrator from a photo lineup.
¶5 The victim was taken by ambulance from the scene to St. Therese Hospital in Waukegan.
He was admitted to the emergency room at 3:57 a.m. Nurse Dolores Kilpatrick remembered
him as a large, African-American gentleman with cuts to the back of his head and on his
arms. According to Kilpatrick, the victim was “scared, but then he really didn’t want us to
-2-
take care of him properly.” Kilpatrick testified that the victim would not allow the doctor to
stitch his wounds. At 4:30 a.m. the victim was discharged.
¶6 Lorraine Jones, the victim’s wife, testified that the victim came home on February 1,
2005, between 2 a.m. and 4 a.m. in a “wrapped up, bloody” condition. She noted that a cut
on his right arm on top of the wrist kept bleeding. Over the next 24 hours, the victim was in
a lot of pain and was “delirious,” his right arm turned blue, green, and red, and it was
significantly swollen. The next day, February 2, the victim’s right arm turned black. Jones
testified that the fingers turned black first and then the blackness went up the arm. Jones
rubbed the arm with warm cloths, and when that did not ease the condition, she accompanied
the victim to Kenosha Memorial Hospital in Kenosha, Wisconsin (they lived in Kenosha),
where they arrived between 11 a.m. and 1 p.m. They waited for a while before the victim was
seen in an examining room.
¶7 Dr. Suzanne Siegel was the emergency room physician who attended the victim. She
testified that the victim’s complaint was of arm pain–he reported that he had been hit with
a heavy object–but when a physician’s assistant checked the victim’s blood sugar, it was very
high and Dr. Siegel took over the case. Because the arm X rays were negative, the hospital
staff treated the injury as a “soft tissue” injury, iced the arm, and elevated it. The victim was
given morphine for the pain. According to Dr. Siegel, she observed small scratches and
abrasions on the victim’s arms but nothing that required stitches. Dr. Siegel testified that she
shifted her focus to caring for the victim’s diabetes, which he had reported. She administered
intravenous (IV) fluids and insulin. According to Dr. Siegel, the victim resisted treatment and
pulled out the IVs. Both Dr. Siegel and Jones kept trying to convince him to stay in the
hospital and continue his therapy. However, the victim checked himself out against medical
advice.
¶8 Jones had already left the hospital, so the victim took a cab home. He was in pain, lying
on the stairs when Jones got home. She helped him inside. She saw that the blackness on his
right arm had reached his bicep. Three hours later, a friend took the victim to St. Catherine’s
hospital in Kenosha. The victim presented himself at St. Catherine’s at 11:02 p.m. From St.
Catherine’s, the victim was taken to a hospital in Milwaukee, Wisconsin, where he died of
sepsis due to necrotizing fasciitis (flesh-eating disease), following the surgical amputation
of his right arm at the shoulder.
¶9 Dr. Jeffrey Jentzen, a forensic pathologist and the medical examiner for Milwaukee
County, performed an autopsy on the victim. Dr. Jentzen observed bruising and lacerations
to the back of the head. According to Dr. Jentzen, the victim suffered a blunt force injury to
the skull. Dr. Jentzen also examined the severed right arm. He observed a wound, also
described as a “cut,” in the right arm. There were also surgical incisions on the forearm and
the back of the hand. These were fasciotomy incisions made by the surgeons to relieve
pressure caused by swelling due to infection. Dr. Jentzen further observed necrotic tissue.
Dr. Jentzen opined that a break in the tissue of the right arm allowed bacteria into the tissues
that caused necrotizing fasciitis, which–almost always fatal–caused the victim’s death. Dr.
Jentzen testified that the cut on the right arm was the “direct” cause of the sepsis.
¶ 10 The jury found defendant not guilty on count I of the indictment (felony murder
-3-
predicated on aggravated robbery) and not guilty on count II (felony murder predicated on
attempted aggravated robbery), but found him guilty on count III (felony murder predicated
on attempted robbery). The trial court sentenced defendant to 43 years’ imprisonment. This
court affirmed on direct appeal (People v. Mars, No. 2-08-0251 (2009) (unpublished order
under Supreme Court Rule 23)).
¶ 11 On March 11, 2011, defendant filed a pro se petition for postconviction relief under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Defendant
alleged, inter alia, that his appellate counsel rendered ineffective assistance for failing to
argue that the victim’s sepsis was not causally related to the attempted robbery. Defendant
also contended that his trial counsel was ineffective because he failed to challenge the
sufficiency of the grand jury indictment, which “omitted essential elements of the charges.”
On June 8, 2011, the trial court dismissed the petition on the grounds that the petition was
submitted without a notarized affidavit and that the petition was frivolous and patently
without merit. Defendant timely appealed.
¶ 12 ANALYSIS
¶ 13 Defendant contends that the trial court erred in dismissing his petition at the first stage,
because the petition sufficiently alleged that appellate counsel was ineffective for not
challenging the State’s causation evidence and for not arguing that the 2007 indictment
should have been dismissed because it charged offenses subject to compulsory joinder with
the 2005 indictment and violated defendant’s right to a speedy trial. The Act provides a
method for a criminal defendant to assert that his or her conviction was the result of “a
substantial denial of his or her rights under the Constitution of the United States or of the
State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2010); see People v. Hodges, 234
Ill. 2d 1, 9 (2009). A defendant commences proceedings under the Act by filing a petition
in the circuit court in which the original proceeding occurred. Hodges, 234 Ill. 2d at 9. The
Act provides for three stages of proceedings. Hodges, 234 Ill. 2d at 10. At the first stage, the
trial court shall dismiss the petition in a written order if it determines that the petition is
frivolous or is patently without merit. Hodges, 234 Ill. 2d at 10. If the petition progresses to
the second stage, counsel may be appointed for an indigent defendant, and the State may
answer or move to dismiss. 725 ILCS 5/122-4, 122-5 (West 2010). If the defendant makes
a “substantial showing” of a constitutional violation at the second stage, then the petition
proceeds to a third-stage evidentiary hearing. 725 ILCS 5/122-6 (West 2010). We review de
novo the dismissal of a postconviction petition without an evidentiary hearing. People v.
Kirkpatrick, 2012 IL App (2d) 100898, ¶ 13.
¶ 14 Here, the trial court dismissed defendant’s petition at the first stage. One of the bases for
the dismissal was that the affidavit verifying the petition was not notarized. The State argues
that we may affirm on this basis. Defendant asserts that our decision in People v. Turner,
2012 IL App (2d) 100819, ¶ 47, precludes affirmance on this ground. In People v. Carr, 407
Ill. App. 3d 513 (2011), this court held that the defendant’s failure to have the affidavit
verifying his postconviction petition notarized rendered the petition invalid. Carr, 407 Ill.
App. 3d at 515-16. However, we refused to follow Carr in Turner and agreed instead with
-4-
the First and Fourth Districts of the Appellate Court, which held that lack of notarization is
not a ground for affirming a first-stage dismissal. Turner, 2012 IL App (2d) 100819, ¶¶ 31-
32. The State now urges us to repudiate Turner as having been wrongly decided, while
defendant contends that the weight of authority has shifted in his favor since we decided
Carr. Defendant argues that Turner was correctly decided. Here, because the trial court also
reached the merits and dismissed defendant’s petition as frivolous and patently without merit,
we need not address the issue of lack of notarization. Instead, we will move directly to a
consideration of the merits of this appeal.
¶ 15 Defendant first contends that gross medical negligence was a supervening cause of the
victim’s death and that appellate counsel was ineffective for not raising that issue on direct
appeal. Under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), to
succeed on a claim of ineffective assistance of counsel, a defendant must show that his
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness, and that counsel’s deficient performance prejudiced the defendant. People
v. Houston, 226 Ill. 2d 135, 144 (2007). Prejudice is shown by demonstrating 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. A reasonable probability
that the result of the proceeding would have been different is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694; Houston, 226 Ill. 2d at
144. Failure to satisfy either prong of the Strickland test defeats an ineffective-assistance
claim. Strickland, 466 U.S. at 697; Houston, 226 Ill. 2d at 144-45. The Strickland principles
apply to appellate counsel. People v. Cathey, 2012 IL 111746, ¶ 23.
¶ 16 It has long been established that when the State has shown the existence, through the act
of the accused, of a sufficient cause of death, the death is presumed to have resulted from
such act, unless it can be shown that the death was caused by a supervening act disconnected
from any act of the accused. People v. Meyers, 392 Ill. 355, 359 (1945); People v. Robinson,
199 Ill. App. 3d 494, 503 (1990). If death results indirectly from a blow through a chain of
natural causes, unchanged by human action, the blow is regarded as the cause of death.
Meyers, 392 Ill. at 360. The injury inflicted by an accused need not be the sole or immediate
cause of death in order to constitute the legal cause of death. People v. Dixon, 78 Ill. App.
3d 73, 78 (1979).
“[W]here a person inflicts upon another a wound which is dangerous, calculated to
endanger or destroy life, it is no defense to a charge of homicide that the alleged victim’s
death was contributed to by, or immediately resulted from, unskilled or improper
treatment of a wound or injury by attending physicians or surgeons.” Dixon, 78 Ill. App.
3d at 79.
This is so because the death is caused by the cooperation of the initial assault as well as the
failure to prevent the assault from resulting in death. People v. Griffin, 578 N.Y.S.2d 782,
784 (N.Y. App. Div. 1991). Put another way:
“ ‘But if a man receives a wound, which is not in itself mortal, but either for want of
helpful applications, or neglect thereof, it turns to a gangrene, or a fever, and that
gangrene or fever be the immediate cause of his death, yet, this is murder or
-5-
manslaughter in him that gave the stroke or wound, for that wound, tho it were not the
immediate cause *** thereof, and the fever or gangrene was the immediate cause of his
death, yet the wound was the cause of the gangrene or fever, and so consequently is causa
causati.’ ” United States v. Hamilton, 182 F. Supp. 548, 550 (D.C. Cir. 1960) (quoting
1 Matthew Hale, Pleas of the Crown 427 (1736)).
¶ 17 Once the State establishes a sufficient legal proximate cause of death through an act for
which the defendant is responsible, a presumption arises that the death resulted from the
culpable act of the defendant. People v. Gulliford, 86 Ill. App. 3d 237, 242 (1980). The
presumption then must be rebutted by the defendant’s presentation of contrary evidence that
the sole cause of death was the intervening gross negligence of physicians. Gulliford, 86 Ill.
App. 3d at 242. Unskilled or improper medical treatment that aggravates a victim’s
preexisting condition or contributes to the victim’s death is considered reasonably
foreseeable and does not constitute an intervening act unless the treatment is so bad that it
can be classified as gross negligence or intentional malpractice. Robinson, 199 Ill. App. 3d
at 503. Gross negligence or intentional medical maltreatment constitutes a valid defense
where it is disconnected from the culpable act of the defendant, because the intervening
conduct is abnormal and not reasonably foreseeable. Gulliford, 86 Ill. App. 3d at 241.
¶ 18 In the present case, defendant argues that Kenosha Memorial’s failure to treat the sepsis
that entered the victim’s body through the cut in his arm was an independent cause of death
relieving defendant of responsibility for the victim’s demise. In other words, defendant
claims that the victim did not die from the wound inflicted during the attempted robbery, but
died as a result of gross medical negligence, that being Kenosha Memorial’s failure properly
to treat the victim’s arm.
¶ 19 At this point, earlier in our discussion rather than later, the law of causation needs to be
clarified, because it is defendant’s position that Gulliford stands for the proposition that in
all instances gross medical negligence breaks the chain of causation and exonerates an
accused from criminal liability for his acts. Defendant misreads Gulliford. In Gulliford, the
defendant was accountable for the act of his accomplice, who struck the victim in the head
with a pipe during a robbery attempt and inflicted a wound so grievous that it resulted in a
coma. Gulliford, 86 Ill. App. 3d at 240. While the victim was comatose, his lungs collected
secretions that caused pneumonia. Gulliford, 86 Ill. App. 3d at 240-41. According to the
pathologist, the victim’s immediate cause of death was pneumonia. Gulliford, 86 Ill. App.
3d at 240. On appeal, the defendant argued that the victim’s attending neurosurgeon’s failure
to treat the pneumonia was a supervening cause of death, relieving the defendant of legal
responsibility. Gulliford, 86 Ill. App. 3d at 240. The appellate court disagreed for two
reasons: (1) there was no evidence in the record to establish gross negligence or intentional
malpractice on the part of the treating physicians; and (2) “the alleged act or omission of the
victim’s physicians was not disconnected from the culpable act of striking the victim.”
Gulliford, 86 Ill. App. 3d at 241. In order to drive point (2) home, Gulliford then repeated,
“As aforesaid, 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.” Gulliford, 86 Ill. App.
3d at 241. Gulliford further explained:
“The record supports the conclusion that the direct and proximate result of [the victim’s]
-6-
head injuries was the onset of pneumonia from which he ultimately died. The death of
[the victim] was a natural and foreseeable consequence of the blow to the victim’s head
and the resulting dangerous wound. The legal chain of causation from the blow to the
head and the ultimate death was unbroken under the facts presented to us, and ‘[t]he
attending physicians and the family of the victim owe no duty to the defendant to treat
the victim so as to mitigate the defendant’s criminal liability. The defendant’s desire to
mitigate his liability may never legally override, in whole, or in part, the decisions of the
physicians and the family regarding the treatment of the victim.’ ” Gulliford, 86 Ill. App.
3d at 242 (quoting In re J.N., 406 A.2d 1275, 1282 (D.C. 1979)).
¶ 20 Similarly, defendant’s reliance on People v. Brackett, 117 Ill. 2d 170 (1987), is
misplaced. In Brackett, our supreme court underscored the point made in Gulliford when it
stated that “[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.”
(Emphasis added.) Brackett, 117 Ill. 2d at 176. Thus, when the broken rib and other injuries
inflicted by the defendant on the 85-year-old victim during a rape and robbery caused the
victim to become weak and aspirate her food, the fact that her death was due to asphyxiation
did not exonerate the defendant. Brackett, 117 Ill. 2d at 178 (“[T]he victim’s depressed,
weakened, debilitated state was the direct result of the trauma associated with the attack upon
her. *** It was [the doctor’s] opinion that she became too weak even to swallow.”).
Therefore, in order for defendant to show that the victim’s death in our case was due to a
supervening cause relieving him of responsibility, he must show that the victim’s treatment
at Kenosha Memorial was grossly negligent and that the victim’s death was completely
unrelated to any act of defendant’s.
¶ 21 We first look at what defendant argues is evidence of gross medical negligence.
Defendant’s opening brief cites Walski v. Tiesenga, 72 Ill. 2d 249 (1978), which held that a
standard of care must be established through expert testimony except where the common
knowledge of laymen is sufficient to recognize or infer negligence. Walski, 72 Ill. 2d at 257.
The types of malpractice claims actionable without expert medical testimony are claims of
sponges left in the abdomen, instruments left after surgery, and X ray burns. Walski, 72 Ill.
2d at 257. At trial, defendant did not present expert testimony of medical malpractice or
proffer expert testimony that gross medical negligence was the sole cause of the victim’s
death. Defendant’s trial theory appeared to be that the victim’s myriad medical problems,
including diabetes, heart problems, obesity, and cancer, as well as his refusal of treatment,
led to his death. Consequently, defendant must establish that the facts surrounding the
victim’s visit to Kenosha Memorial allow us to infer gross medical negligence.
¶ 22 Dr. Siegel testified that the victim presented himself at Kenosha Memorial on February
2, 2005, at 9:30 a.m. complaining of arm pain. According to Dr. Siegel, the victim stated that
he had been hit by an object. Dr. Siegel did not recall “any major break in the skin.” She
testified that she saw some “small abrasions.” She said that there were “[n]o major cuts in
the arm.” She described the abrasions as “small scratches” that did not need stitches. The
evaluation of the arm included X rays to determine whether there were any broken bones.
The X rays were negative, so Dr. Siegel treated the arm for a “soft tissue” injury by keeping
it elevated and iced, and she prescribed morphine for the pain. Throughout the day, Dr.
-7-
Siegel examined the victim’s arm “several times” to make sure he was keeping the arm
elevated, which he did not want to do. Dr. Siegel saw nothing about the arm that required
urgent care. She testified that she observed the arm “repeatedly for cuts and swelling.”
¶ 23 Initially, the victim was seen on the urgent-care side of the facility, but when his blood
sugar was found to be elevated, the victim was moved to the acute-care side, where Dr.
Siegel saw him. The victim had reported that he was diabetic. At that point, according to Dr.
Siegel, there was a change in the focus of treatment from the arm to the diabetes. Dr. Siegel
testified that she was “very concerned” about the victim’s high heart rate and high blood
sugar. According to Dr. Siegel, once the victim’s arm X rays were negative, she felt that the
high heart rate and “his sugars” were more life threatening. Dr. Siegel testified that the victim
several times pulled out his IVs, and she and Jones had to convince the victim to continue
with the treatment.
¶ 24 Dr. Robert Fields was the emergency room physician at Kenosha Memorial who came
on shift after Dr. Siegel. Dr. Siegel had endorsed the victim to Dr. Fields’ care. Dr. Fields
reviewed the victim’s chart and spoke with Dr. Siegel. His recollection of the victim’s
symptoms was “very vague,” only that the victim was clinically sick and was being treated
for diabetic ketoacidosis. Dr. Fields recalled a problem with the victim’s arm, but nothing
specific about it. Shortly before 5:57 p.m., the victim indicated that he was going to leave the
hospital. Dr. Fields testified that he conveyed to the victim that he was “very ill” and should
stay in the hospital for further care. Dr. Fields warned the victim that if he left the hospital
his “different medical problems” could worsen and he could die. Nevertheless, at 5:57 p.m.,
the victim left the hospital against medical advice.
¶ 25 At oral argument, defendant made a number of assertions about the evidence that are not
borne out by the record. First, he argued that the physicians at Kenosha Memorial watched
the victim’s arm turn black. Dr. Siegel and Dr. Fields were the only two physicians from
Kenosha Memorial who testified, and neither of them testified that they watched the arm turn
black or that they observed that it was black. Second, defendant asserted that Dr. Siegel saw
“cuts” on the victim’s arm. Dr. Siegel testified that she saw “small abrasions” and “small
scratches.” She specifically said that there were no major cuts on the arm. Third, defendant
asserted that, after the victim checked himself out of Kenosha Memorial, he exclaimed to
Jones that he had checked himself out because Kenosha Memorial would not treat his arm.
What Jones testified to was that “[the victim] told [her] that they wouldn’t treat him and he
got really mad because they had him on a gurney.” The victim did not say anything to Jones
about the doctors’ failure to treat his arm.
¶ 26 Given that the victim did not report that he had been stabbed in the arm; that Dr. Siegel
did not see anything other than small scratches and small abrasions; that X rays of the arm
were negative; and that the victim’s diabetic condition was potentially life threatening, we
disagree that the claims of negligence in the instant case are as transparent as a sponge left
in the abdomen. We do not believe that laymen could infer gross negligence. However, even
if we were to say that the treatment was grossly negligent, defendant still would have to show
that the victim died of a cause completely unrelated to the stab wound in the arm.
¶ 27 According to the death certificate in evidence, the victim died at 4 p.m. on February 3,
-8-
2005. The immediate cause of death listed was “sepsis due to necrotizing fasciitis right arm
due to incised injury to right arm due to physical assault.” “Diabetes mellitus” was listed as
an “other significant condition.” The manner of death was listed as “homicide.” According
to Dr. Jentzen, sepsis is an infection that gets into the bloodstream and causes a “cascade
effect,” culminating in low blood pressure, heart failure, and death. Dr. Jentzen testified that
“necrotizing fasciitis” is an infection that travels through the muscle tissues and the spaces
where the fascia holds the muscle in place. Dr. Jentzen stated that necrotizing fasciitis is a
“rapidly-ascending infection.” When asked if it could have killed the victim within 60 hours
of the attack, Dr. Jentzen answered, “That would be a classic case, yes.” Dr. Jentzen testified
that the necrotizing fasciitis originated at the site of the injury to the victim’s right arm,
which the doctor described as a cut. The infection streaked up the arm and began to affect
the lateral portion of the victim’s right chest. In the doctor’s opinion, “[T]he direct cause of
death was the incised wound to the arm causing necrotizing fasciitis resulting in sepsis.”
Although Dr. Jentzen used the words “incised wound,” it is clear that he was not talking
about the fasciotomy incisions the surgeons made to relieve pressure, because the sepsis was
already present when the fasciotomy incisions were made. Dr. Jentzen testified that, “but for”
the wound in the right arm, the victim would not have gotten necrotizing fasciitis. According
to Dr. Jentzen, the victim’s diabetes was a risk factor for perpetuating the infection, but did
not, of itself, cause death. According to Dr. Jentzen, the victim’s heart problems, obesity, and
cancer had no role in the death.
¶ 28 In this appeal, defendant accepts Dr. Jentzen’s opinion that sepsis due to necrotizing
fasciitis was the cause of death, but he argues that the medical staff at Kenosha Memorial
was solely responsible because of the failure to properly treat the arm. Defendant adduced
no evidence at trial that Dr. Siegel’s treatment fell below the standard of care, and for the
reasons stated above, we believe that expert testimony on the standard of care was necessary.
Dr. Siegel testified that she observed scratches and abrasions but no major cuts and that the
victim himself reported only that he had been hit with an object. When the X rays were
negative, she treated the arm by elevating it and icing it, and she checked on the arm several
times during the victim’s hospital stay. Of importance, Dr. Jentzen was not asked by either
party whether, given the victim’s statement of what happened and Dr. Siegel’s observations
of the arm, Dr. Siegel overlooked the sepsis. Therefore, defendant’s entire premise is pure
speculation. More important, any delay in treatment could not have been the sole cause of
death, because the undisputed evidence was that the infection entered through the wound
defendant caused. Dr. Jentzen was clear that, “but for” the cut inflicted by defendant, the
infection would not have entered the victim’s body. Defendant set the chain of events into
motion, and any supposed delay in treatment cannot legally amount to a supervening cause.
As the court in Griffin stated:
“The factual situation is in legal effect the same, whether the victim of a wound bleeds
to death because surgical attention is not available or because, although available, it is
delayed by reason of the surgeon’s gross neglect or incompetence. The delay in treatment
is not in fact an intervening force; it cannot in law amount to a supervening cause.”
(Emphasis in original.) (Internal quotation marks omitted.) Griffin, 578 N.Y.S.2d at 784.
¶ 29 This principle is illustrated in People v. McGee, 187 P.2d 706 (Cal. 1947). In McGee, the
-9-
California Supreme Court held that the defendant was not prejudiced by the trial court’s
exclusion of his expert’s proposed testimony that the victim would not have died of a bullet
wound inflicted by the defendant if the attending surgeon had not, grossly contrary to proper
surgical practice, failed for more than 10 hours after the victim’s admission to the hospital
to take any action to control the hemorrhage from the bullet wound. McGee, 187 P.2d at 715.
In its analysis, the California Supreme Court assumed that the 10-hour delay in treatment was
gross negligence and that the victim’s life might have been saved by prompt and proper
surgical treatment. McGee, 187 P.2d at 715. Even assuming gross medical negligence, the
court said that the delay in treatment would not be, in fact, an intervening force, because
death was a consequence of the defendant’s criminal act. McGee, 187 P.2d at 715. This is
consistent with Illinois law. Gulliford held that, for the defendant to escape liability, the
alleged act or omission of a victim’s physicians must be disconnected from the culpable act
of the defendant. Gulliford, 86 Ill. App. 3d at 241.
¶ 30 Defendant relies on People v. Stewart, 358 N.E.2d 487 (N.Y. 1976). In Stewart, the
defendant was charged with stabbing and killing the victim. Stewart, 358 N.E.2d at 489. The
victim underwent surgery, and the knife wound was repaired. Stewart, 358 N.E.2d at 489.
The surgeons then set about repairing a hernia that was unrelated to the stabbing, when the
victim went into cardiac arrest and died a month later. Stewart, 358 N.E.2d at 490. At trial,
the pathologist testified to the medical reports in which the surgeons blamed the
anesthesiologist for failing to ventilate the victim, causing his cardiac arrest. Stewart, 358
N.E.2d at 490. On cross-examination, the pathologist conceded that, if the anesthesiologist
was not doing his job, that alone could have been the cause of death. Stewart, 358 N.E.2d at
490-91. On appeal, the defendant’s manslaughter conviction was reduced to assault, because
the hernia operation during which the victim suffered cardiac arrest was unrelated to the stab
wound and because, if the anesthesiologist failed to provide oxygen to the victim, that alone
could have been the cause of death. Stewart, 358 N.E.2d at 492. Stewart is inapplicable. In
our case, Dr. Jentzen never testified that the sepsis might have been, or was, caused by gross
medical negligence, and the facts as we know them do not lead to that conclusion.
Additionally, the surgeons in Stewart were operating on a hernia that was unconnected to the
stabbing when the cardiac arrest caused by malpractice occurred. Moreover, defendant
attempts to take Stewart too far when he argues that the rule is that gross medical negligence
exonerates a defendant. In In re Anthony M., 471 N.E.2d 447 (N.Y. 1984), the New York
Court of Appeals cited Stewart and then cited the rule: “Even an intervening, independent
agency will not exonerate [a] defendant unless ‘the death is solely attributable to the
secondary agency, and not at all induced by the primary one.’ ” Anthony M., 471 N.E.2d at
452 (quoting People v. Kane, 107 N.E.2d 260, 270 (N.Y. 1915)). Griffin offers the example
of a negligent administration of a deadly poison as an independent act that will break the
chain of causation. Griffin, 578 N.Y.S.2d at 783. Here, the legal chain of causation
connecting the stab wound to the victim’s arm, inflicted by defendant, to the victim’s
ultimate death was unbroken. Consequently, defendant has not set forth an arguable basis
under the first Strickland prong, that his appellate counsel’s performance was deficient,
because his legal theory that gross medical negligence is always a supervening act relieving
a defendant of culpability is indisputably meritless. As defendant failed to set forth an
-10-
arguable basis that counsel’s performance was deficient, we need not consider whether he
was prejudiced by counsel’s performance.
¶ 31 Defendant’s second contention of appellate counsel’s ineffective assistance is counsel’s
failure on direct appeal to argue that the trial court erred in not dismissing the 2007
indictment, because it was subject to compulsory joinder with the 2005 indictment and
violated defendant’s right to a speedy trial. The State argues that the issue is forfeited,
because it was not raised in the postconviction petition. Defendant responds that the petition,
if read liberally, raised the issue. The allegation in the petition on which defendant relies is
the following:
“Defense counsel failed to challenge the sufficiency of the grand jury indictment which
omitted essential elements of the charges. But for, [sic] counsel’s ineffective assistance
of counsel’s [sic] no trier of fact could have found petitioner guilty beyond any
reasonable doubt of first degree murder.”
¶ 32 A pro se petitioner is not required to allege facts supporting all elements of a
constitutional claim. People v. Mescall, 403 Ill. App. 3d 956, 962 (2010). Petitions filed pro
se must be given a liberal construction and are to be viewed with a lenient eye, allowing
borderline cases to proceed. Mescall, 403 Ill. App. 3d at 962. Because a pro se defendant will
likely be unaware of the precise legal basis for his claim, the threshold for survival is low,
and a pro se defendant need allege only enough facts to make out a claim that is arguably
constitutional for purposes of invoking the Act. Hodges, 234 Ill. 2d at 9. However low the
threshold, the petition must “clearly set forth” the respects in which the petitioner’s
constitutional rights were violated. (Internal quotation marks omitted.) Hodges, 234 Ill. 2d
at 9. This means that the pleading must bear some relationship to the issue raised on appeal.
Liberal construction does not mean that we distort reality.
¶ 33 In the present case, defendant’s pro se petition alleged that his “defense counsel” was
ineffective for not challenging the indictment on the basis that it lacked essential elements
of the crimes charged. No matter how liberally we construe the above allegation, viewing it
in context, we cannot conclude that by this allegation defendant actually raised a claim
relating to appellate counsel’s failure on direct appeal to raise the issue of compulsory
joinder and violation of his right to a speedy trial. Defendant alleged in the first sentence that
the indictment lacked the essential elements to state an offense. In the second sentence, he
concluded that the defective indictment would have prevented the jury from finding him
guilty, had his counsel raised the issue. Clearly, defendant was addressing the failure of his
trial counsel to bring the allegedly faulty indictment to the trial court’s notice and that
failure’s consequences at trial. In contrast, defendant explicitly referred to errors of appellate
counsel throughout the document when complaining of deficiencies in his direct appeal.
Defendant’s pro se petition as a whole is an organized, coherent document. It sets forth the
record facts in a logical fashion with appropriate record citations and raises specific legal
challenges with regard to appellate counsel, such as counsel’s failure to raise a “Brady
Violation” and the State’s failure to connect him to the sepsis that killed the victim. In short,
we do not have to comb through a morass of irrelevancies to try to figure out what defendant
meant to raise as constitutional violations. He was aware of legal concepts, such as a Brady
violation, and he was capable of articulating the type of relief he thought he was entitled to,
-11-
such as reversal on appeal. Moreover, the subject matter raised in the above-quoted
allegation could not have been compulsory joinder and speedy trial in the context of
something his trial attorney failed to do, because trial counsel actually did bring a motion to
dismiss the 2007 indictment based on compulsory joinder and violation of defendant’s right
to a speedy trial. Thus, we agree with the State that the issues of compulsory joinder and
speedy trial are forfeited as they were not raised in the postconviction petition. Accordingly,
for the reasons set forth above, we affirm the trial court’s first-stage dismissal of the
postconviction petition.
¶ 34 Affirmed.
-12-