Appeal from the Circuit Court of McHenry County. No. 09-CF-827 Honorable Sharon L. Prather, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion.
Justice McLaren specially concurred in the judgment, with opinion.
¶ 1 After a jury trial, defendant, Amanda K. Coots, was convicted of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2008)), based on the death of Rustin Cawthon from heroin, and was sentenced to 10 years' imprisonment. On appeal, she contends that (1) she was not proved guilty beyond a reasonable doubt, because the evidence showed at most that she and Cawthon jointly possessed the fatal heroin, not that she "deliver[ed]" (id.) it to him; and (2) her attorney was ineffective for failing to request a supplemental instruction, based on the joint possession theory, in response to the jury's question about the meaning of "delivery." We reverse and remand for a new trial.
¶ 2 The indictment against defendant alleged that she knowingly delivered a substance containing heroin, a controlled substance, to Cawthon, in violation of section 401 of the Illinois Controlled Substances Act (720 ILCS 570/401 (West 2008)), and that Cawthon died by ingesting some of the heroin. We summarize the pertinent evidence at trial.
¶ 3 Neil Patel testified as follows. On Friday, June 5, 2009, he managed the Super 8 Motel in McHenry. That evening, defendant and Cawthon checked into a room. The next day, at about 11 a.m., she and Cawthon checked out and left in a cab. At about 12:30 p.m., they returned and rented room 119. On Sunday, at about 10:45 a.m., housekeeper Leticia Cortez knocked on the door to room 119. Receiving no response, she opened the door and saw Cawthon sitting in a chair. Cortez left and told Patel what she had seen. Patel called the room, got no response, then went to the room and opened the door. Cawthon was not moving. Patel called the police.
¶ 4 McHenry police officer Derrick Kay testified that, shortly after 11 a.m. on June 7, 2009, he arrived at room 119. Cawthon was lying motionless in a recliner; foam had accumulated around his mouth and nose. Nobody else was there until medical personnel and Detective Marc Fisher entered.
¶ 5 Kimberly Bostic, a McHenry County deputy coroner, testified as follows. At about 11:32 a.m. on June 7, 2009, she arrived at room 119 and examined Cawthon's body. Rigor mortis had set in. Bostic explained that rigor mortis sets in about 10 to 12 hours after death and starts to reverse itself about 24 to 36 hours after death. Bostic could not determine precisely when Cawthon died. Cawthon's body was taken to the county morgue, where Bostic helped Dr. Mark Peters perform the autopsy. Peters testified that fluid samples from the laboratory established that Cawthon had died from the adverse effects of heroin.
¶ 6 Joane Kurth, a taxi driver, testified that, on June 6, 2009, at about 11:30 a.m., she picked up defendant and Cawthon at the Super 8. Kurth drove to a bank in Wauconda, where Cawthon exited. Five minutes later, he returned and told defendant that he had withdrawn $1,000 from his account. Kurth then returned to the Super 8, dropping defendant and Cawthon off at 12:30 or 1 p.m. At about 4:15 p.m., Kurth returned to the Super 8, where she picked up defendant, who was alone. Kurth drove her to a subdivision in Wauconda.
¶ 7 The trial court admitted a copy of a statement that defendant gave Fisher on June 8, 2009. It related the following. On the afternoon of Friday, June 5, 2009, Cawthon called her and asked whether she wanted to get a hotel room and "party." She agreed, so they got a ride, picking up beer along the way. Next, they checked into the Super 8, drank beer in their room, and went to sleep. On Saturday, at 11 a.m., they took a cab to Cawthon's bank, where he withdrew $1,000 and suggested that they "party" with heroin. Defendant said that she was not sure whether she could get heroin. They returned to the Super 8 and got another room. At Cawthon's request, defendant made some calls, but with no luck. At about 3 p.m., she called "A.J." for the third time; A.J. said that he could deliver six bags of heroin for $100 and would be there within an hour. At 3:30 or 4 p.m., defendant decided to take a cab home to shower and change, because she had no clean clothes at the motel. The cab arrived at about 4 p.m. A.J. had not shown up yet. At about 4:30 p.m., defendant got home, showered, and ate. She called room 119 to tell Cawthon that she did not have a ride back to the motel, but nobody answered. At about 8 p.m., she went to sleep.
¶ 8 Detectives Fisher and Ryan Sciame interviewed defendant at the police station on August 4, 2009. The trial court played the videotape for the jury. We summarize the tape.
¶ 9 Initially, defendant gave Fisher and Sciame approximately the same account as in her written statement. She said that, on the afternoon of June 6, 2009, she called several possible drug suppliers; that she called A.J. about an hour or an hour and a half after she checked into room 119, telling him that, if she were not there to meet A.J., Cawthon would be; and that she left the motel at about 3:30 or 4 p.m., before A.J. showed up. The detectives expressed doubt that she had left before A.J. showed up. They noted that phone records proved that A.J. had been at the Super 8 before defendant left. Further, the evidence of when Cawthon went into rigor mortis proved that he was already dead when defendant left. Defendant then changed her story.
¶ 10 Defendant told the detectives that A.J. "brought up the shit" and dropped it off, although she could not remember exactly when. Sciame told defendant that she had said she left the motel at 4 p.m., and he asked how long before then A.J. had dropped off the heroin. She responded, "probably an hour, tops." After A.J. left, Cawthon told defendant that he wanted to "go first." Defendant, who had brought along only one needle, acquiesced. Cawthon, who was sitting on the bed, ingested the first bag. As defendant was using her first two bags simultaneously, Cawthon complained that he was not high, and he asked for another bag. Defendant told him, "You need to just wait." Defendant estimated that she waited 10 to 15 minutes. During that time, Cawthon "kept begging and begging."
¶ 11 Defendant told the detectives, "I had the bags in my pocket, so I wasn't going to give it to him." Cawthon kept "begging," so she said, "All right, Rusty, whatever. You're a grown man, you do what you've got to do." Defendant explained, "it was his money, he paid for it." She gave him another bag. She then threw her one needle into the garbage, took her cooker, and left.
¶ 12 Defendant next said that, on June 6, 2009, she and Cawthon arrived at room 119 between 1:30 and 2 p.m. Shortly afterward, A.J. "came in, gave it to me, and walked back out." He was there about five minutes, leaving at about 2:30 p.m. Defendant left the motel between 3:30 and 4 p.m.
¶ 13 The interview returned to defendant's and Cawthon's use of the heroin. Defendant said that Cawthon sat at the desk against the wall and used defendant's needle to inject one bag. Five minutes later, he started "bitching" that he was "not even high," and he asked defendant for "another one." Defendant told him to "wait a little bit." Five minutes later, Cawthon complained again that he was "not high." He "bitched for maybe 5 or 10 minutes" while defendant was finishing her first two bags. When she was done, she "gave him the bag." Cawthon injected the second bag while sitting on the bed, then got up and sat in the chair.
¶ 14 In closing arguments, the parties focused on whether the evidence proved that defendant had "deliver[ed]" (720 ILCS 5/9-3.3(a) (West 2008)) heroin to Cawthon. The State contended that defendant was guilty because she "gave Rustin Cawthon heroin" that killed him. The heroin "went from [defendant's] hand into Rustin Cawthon's bloodstream by injecting it with the rig that [defendant] gave to him." That Cawthon paid for the heroin did not negate defendant's guilt. More important was that defendant, not Cawthon, had a supplier-A.J.-and she called him repeatedly to obtain heroin. Also, she gave Cawthon one bag, lent him her needle to ingest it, and then removed another bag from her pocket and handed it to Cawthon. The heroin that defendant removed from her control and gave Cawthon contributed to his death, making her guilty of drug-induced homicide.
¶ 15 In response, defendant's attorney observed that the decision to "party" originated with Cawthon and that Cawthon used his money, not hers, to obtain the heroin. Defendant's attorney told the jury that defendant and Cawthon were both "consumers of heroin" who were "at the bottom of the food chain in the heroin distribution cycle." In rebuttal, the State countered that, according to the evidence, defendant had called A.J., arranged the purchase, and given Cawthon both the heroin and the needle that he used to consume it.
¶ 16 During deliberations, the jury sent the judge a note reading, "With respect to the definition of the term 'delivery,' may the jury reasonably interpret the term to mean 'give[?]' " The judge proposed "to refer the jury to their jury instructions." The prosecutor and defendant's attorney agreed. The judge wrote to the jury, "Please refer to your jury instructions." The jury convicted defendant. ...