Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 09 CR 14369 (02). The Honorable Steven J. Goebel, Judge, presiding.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Alan Spellberg, Carol L. Gaines, Gina DiVito, Assistant State's Attorneys, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan J. Spellberg, Deputy Defender, Adrienne River, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Byron Brown was convicted of felony murder based on a fatal traffic accident that occurred while he and his co-offender, Rodney Jones, fled from the scene of a residential burglary. Brown contends the State did not prove him guilty beyond a reasonable doubt because he could not have foreseen that his codefendant's " irrational and dangerous" driving during their escape would result in the victim's " almost inevitable" or " likely" death. We affirm.
[¶2] The jury properly found Brown guilty of felony murder where the evidence showed he committed a residential burglary and then, with his codefendant at the wheel, sped away from the police. Jones failed to stop at intersections, which resulted in a fatal traffic accident. During the commission of the residential burglary, Brown and Jones set in motion a chain of events that caused the death.
[¶3] During deliberations, the jury requested a definition of foreseeability. After defense counsel agreed the court should not provide the jury with a definition, the jury was instructed to continue deliberating. Brown argues that because foreseeability was a " sharply disputed issue at trial, and the key to acquittal," defense counsel was ineffective for failing to provide a definition to the jurors when they requested one. But, the jury received instructions that fairly and accurately stated the applicable law. Defense counsel's decision to offer no definition of foreseeability to the jury's question during deliberations was trial strategy and, therefore, cannot serve as a basis for an ineffective assistance of counsel claim. Counsel spent the majority of his closing argument defining foreseeability to fit the defense theory.
[¶5] The evidence at trial showed that on July 3, 2008, a burglary occurred at the single family bungalow on South Langley, Chicago, where Anthony Shaw and Jocelyn Hunter lived. Hunter ran a club about a mile away from her home, and on the date of the burglary, Shaw arrived at the club around 3:30 p.m. to help her clean and stock. When Shaw and Hunter left their house, it was locked and undamaged. Around 6 p.m., a friend of Shaw's came into the club to tell Hunter and Shaw that someone had broken into their home and was still there. Shaw tried to call the police but was unsuccessful.
[¶6] Shaw and his friend left the club and went to the home. As Shaw looked down the alley toward his house, he saw " some guys" standing against a neighbor's garage. Shaw drove toward 78th Street and flagged down the marked police car of Officer John Kennedy and his partner, Officer Passerelli. Shaw told them about the burglary and pointed down the alley in the direction of his house. Coming toward them from the alley was a white Suburban SUV. The SUV did not stop as it came out of the alley and drove the wrong direction on 78th Street. The officers activated their lights and sirens and pursued the SUV which increased its distance from the police car by failing to slow down at any intersections, as the police car did. Officer Kennedy broadcast a radio description of the SUV and its direction to alert fellow officers. When the SUV turned right, Officer Kennedy was four blocks behind it on 78th Street.
[¶7] When the officers arrived at the intersection of 76th and State, they saw an accident ahead. The SUV they had been pursing rested against a light pole on the northeast corner. The officers pulled behind the SUV. Officer Kennedy did not see anyone inside the SUV. Those gathered nearby pointed east and said three men from the SUV had run in that direction. Officer Kennedy ran in that direction toward an alley. He radioed to let other responding officers know that the suspects were on foot and which direction they went. At the time, Officer Kennedy did not know that another vehicle was involved in the accident.
[¶8] When Officer Kennedy returned, he learned another car, a Cadillac, had been involved and came to a halt farther north on State Street against a fence. Officer Kennedy saw people trying to help the woman inside, who was later identified at Tommye Freeman. She died from her injuries at a hospital.
[¶9] Officer Johnson received Officer Kennedy's radio broadcast alerting him that a white SUV " used in a burglary" had crashed at 76th and State. Officer Johnson arrived there, saw an accident had happened and received the radio transmission that three African-American males had run east from the SUV. Officer Johnson began looking for the suspects on foot. He entered the rear yard at 7532 South Michigan, where he saw Brown crouching alone in the basement stairwell.
[¶10] After Shaw identified Brown as someone he believed had been in the SUV, Brown was transported to the 6th district police station. During a custodial search, police found on Brown two yellow bracelets, a checkbook, and a cross. Officer Johnson looked inside the SUV and noticed several large items he believed were proceeds from the burglary--two televisions, 32 and 50 inches, and two laptops, one gray and one silver. Officer Johnson removed the items from the SUV and inventoried them at the 6th district police station.
[¶11] Officer Kennedy learned that the BP gas station on the northwest corner of 76th and State had video surveillance equipment recording the intersection. Officer Kennedy obtained the videotape that showed the accident. The recording was played for the jury.
[¶12] When Shaw entered his house, he found his bedroom had been ransacked and numerous items taken, including a 32-inch television, a 50-inch television and some tools. Later that night, when Hunter returned home, she noticed her son's checkbook was missing, as well as her tennis bracelet and other jewelry. Shaw went to the police station and identified the property the officers had recovered as items from his home.
[¶13] Officers Johnson and Vivanco interviewed Brown around 7:30 p.m., after Officer Johnson gave him his Miranda warnings. Officer Vivanco testified at trial that in response to his question to Brown about how he was involved in the car accident and burglary, Brown replied:
" Man, you know I was there. Everyone knows I was there. There were people out there. They have cameras at ...