In a prosecution for drug-induced homicide, the trial court did not err in rejecting the instruction on proximate cause tendered by defendant, but his counsel was ineffective in failing to tender the pattern instruction defining “delivery, ” especially in view of the questions that existed concerning what drugs, if any, defendant delivered to the victim and the circumstances of any delivery, since there was a reasonable probability that a properly instructed jury could have found defendant not guilty; therefore, defendant’s conviction was reversed and the cause was remanded for a new trial.
Appeal from the Circuit Court of Kendall County, No. 11-CF-140; the Hon. John A. Barsanti, Judge, presiding.
Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate Defender's Office, of Elgin, for appellant.
Eric C. Weis, State's Attorney, of Yorkville (Lawrence M. Bauer and Sally A. Swiss, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justices Schostok and Spence concurred in the judgment and opinion.
¶ 1 Defendant, Jason E. Kidd, was indicted on one count of drug-induced homicide (720ILCS 5/9-3.3(a) (West 2010)) "by knowingly delivering cocaine, a controlled substance to Merrideth [sic] M. Castro and [she] thereafter inhaled or ingested a portion of the cocaine into her body and said inhalation or ingestion of cocaine caused [her] death." Following a jury trial, defendant was convicted and sentenced to a term of 10 years' imprisonment and 3 years' mandatory supervised release. He timely appealed.
¶ 2 Defendant contends that the trial court erred in refusing his tendered jury instructions and that he received ineffective assistance of counsel. We determine that defendant's first issue lacks merit; however, his second issue is meritorious and, therefore, we reverse defendant's conviction and remand for a new trial.
¶ 3 I. BACKGROUND
¶ 4 On March 7, 2010, defendant found his girlfriend, Meredith Castro, facedown on an upstairs bedroom floor. He rolled her over and immediately realized that she was dead. He called the police.
¶ 5 Alex Silva, an Oswego fire department paramedic, testified that he and his partner were dispatched to a townhouse in Oswego in response to a call of an unconscious or unresponsive person. Upon arriving at the townhouse, Silva and his partner were met by defendant, who said that Castro was upstairs and was not breathing. Silva and his partner found her lying faceup on the floor, unresponsive, with no pulse, and not breathing. After confirming that she had no heart activity, respiration, or pulse, they told defendant that Castro was deceased. Silva testified that defendant was upset.
¶ 6 Defendant told Silva that he and Castro had used cocaine on the previous day. He also told Silva that Castro had chronic obstructive pulmonary disease (COPD), congestive heart failure, and other cardiac issues, and that she took insulin and other medications. Silva then contacted a nearby hospital and received a "pronouncement" of death, which is different from a time of death. Silva and his partner alerted the coroner's office and then left the scene.
¶ 7 Officer Matthew Unger, of the Oswego police department, testified that he and his partner were called to a townhouse in the early morning of March 7 to assist paramedics with a "possibly deceased person." When he arrived between 6:30 and 7 a.m., he went upstairs and saw Castro lying faceup on a bedroom floor. She was not breathing and had no pulse or heart activity. He stated that "[w]hen we were assessing her, we noticed that she was stiff." He then went downstairs and spoke with defendant in the living room. Defendant stated that he had lived with Castro in the townhouse for two years. The previous day, Castro was upset because her cat had died. Defendant told Unger that in the evening he and Castro had consumed "powder cocaine" and marijuana, then watched a movie together. Castro went upstairs to bed between 10 and 11 p.m. Defendant stayed downstairs and slept on the couch. Around 6:30 a.m. he went upstairs and found Castro on the floor in the bedroom. Defendant told Unger that he vomited after he found Castro, and then he called the police. Defendant told Unger that Castro had congestive "heart failure, COPD, high blood pressure, and diabetes."
¶ 8 Detective Rob Sherwood, of the Oswego police department, testified that he was the "on- call investigator" on March 7, 2010, and responded to a call for a "suspicious death investigation" at a residence. He arrived around 8 a.m. The scene had already been processed, so he made arrangements to interview defendant at the police station. Defendant was not under arrest. The interview was recorded and a video recording and a transcript were admitted into evidence and published to the jury.
¶ 9 During the interview, defendant told Sherwood that Castro wanted to get cocaine because she was upset that her cat had died. Defendant admitted to smoking marijuana almost daily, and he stated that Castro knew about his drug use. Defendant stated that Castro had used cocaine frequently in the past but had not used it for about a year. He stated that "last night she said, 'Go get me a bag of cocaine.' " He then stated that he "went to the bar, got us a bag, we went home. We did it. And we smoked pot."
¶ 10 On cross-examination, Sherwood stated that he did not ask specific questions about the drug transaction at the bar, such as whether anyone was with him or where the money for the drug purchase came from.
¶ 11 Officer Chad Vargas, an investigator with the Oswego police department, testified that on May 9, 2011, he and Sherwood arrested defendant for drug-induced homicide. After giving defendant his Miranda warnings, they interviewed him at the police station. A transcript of the interview was admitted into evidence and published to the jury. Defendant stated that, after he returned from disposing of Castro's deceased cat, she said "let's get a bag [of cocaine]." She went to an ATM for cash. At first defendant stated that they could have gone to one of three bars, or they could have had the cocaine delivered. Vargas reminded him that in the previous interview in March 2010 defendant stated that they went to one bar and then returned home and snorted the cocaine. When asked if the purchase was at one particular bar, defendant responded, "uh-huh." Defendant also told Vargas that Castro possessed morphine, Xanax, and Vicodin and that she sometimes smoked "crack" cocaine.
¶ 12 Dr. John Denton, a forensic pathologist, performed an autopsy on Castro on March 9, 2010. Castro was 5 feet 2 inches tall and weighed 260 pounds. He testified that the settling of her blood indicated that she had been placed on her back "soon after death." Castro's lungs were "heavy or congested" with blood but she did not have blood clots, pneumonia, asthma, COPD, emphysema, or cancer. Her heart was enlarged and her main arteries were partially ("moderately") blocked. Her liver was fatty and enlarged, which Dr. Denton opined was "related to her obesity and diabetes." Her brain was swollen. The toxicology report noted evidence of morphine consumption, at 290 nanograms per milliliter. According to Dr. Denton, this is an elevated level. He stated that over 100 nanograms is "a potential cause of death." Dr. Denton testified that, while cocaine is a stimulant, morphine is a narcotic that, as a sedative, leads to respiratory depression. He opined that hypoxia (deficiency of oxygen reaching body tissues) caused by "cocaine and opiate intoxication" was the cause of death. There was no way to determine which drug was ingested first or whether they were ingested at the same time.
¶ 13 Dr. James O'Donnell, an associate professor of pharmacology at Rush Medical College, testified for the defense as an expert on pharmacy and pharmacology. O'Donnell's training included how to study and interpret toxicology results, and he had spent 40 years researching the effects and toxicity of morphine.
¶ 14 Dr. O'Donnell opined that the ratio of cocaine to its metabolite, benzoylecgonine, in Castro's blood was "extremely high, " indicating that most of the cocaine in her system had been metabolized. This in turn indicated "a use distant from the time of death." The level of morphine in her blood was a "highly toxic level" that was "lethal." O'Donnell further opined that Castro consumed the morphine sometime after defendant had gone to bed. His opinion was based on the absorption rate of morphine and the level of morphine in Castro's blood as indicated in the toxicology report.
¶ 15 The toxicology report also indicated the presence of the anti-anxiety drug Xanax at a therapeutic level, i.e., "a level that is expected from taking [it] at prescribed doses." O'Donnell testified that, if Xanax and morphine are combined, "the effect of the Xanax enhances the toxicity of ...