from the Circuit Court of Du Page County. No. 13-CF-1687
Honorable Daniel P. Guerin, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with
opinion. Justices Zenoff and Schostok concurred in the
judgment and opinion.
1 After a jury trial, defendant, Jennifer N. Nere, was
convicted of drug-induced homicide (720 ILCS 5/9-3.3(a) (West
2012)) and sentenced to nine years' imprisonment. On
appeal, she argues that (1) the trial court erred in giving
several improper jury instructions and refusing other
instructions and (2) she was not proved guilty beyond a
reasonable doubt. We affirm.
2 The drug-induced-homicide statute reads, in pertinent part,
"A person who violates Section 401 of the Illinois
Controlled Substances Act [(720 ILCS 570/401 (West 2012))]
*** by unlawfully delivering a controlled substance to
another, and any person's death is caused by the
injection, inhalation, absorption, or ingestion of any amount
of that substance, commits the offense of drug-induced
homicide." 720 ILCS 5/9-3.3(a) (West 2012). Defendant
was charged with committing (1) unlawful delivery of a
controlled substance (720 ILCS 570/401(d) (West 2012)) in
that, on June 27 or June 28, 2012, she knowingly and
unlawfully delivered less than one gram of a substance
containing heroin; and (2) drug-induced homicide in that she
knowingly delivered heroin to Augustina Taylor and
"thereafter Augustina Taylor injected, inhaled, or
ingested an amount of that heroin into her body and said
injection, inhalation, or ingestion of heroin caused the
death of Augustina Taylor."
3 We summarize the pertinent trial evidence. Wheaton police
officers David Schatz and Jim Craig testified that, early on
the morning of June 28, 2012, they were dispatched to the
apartment of Diane Lockett, Taylor's mother. They forced
open the locked bathroom door. Inside was Taylor, lying on
the floor, apparently unconscious. Schatz saw a
one-inch-by-one-inch baggie and a crack pipe. The officers
moved her out of the bathroom. Paramedics, who had arrived in
the meantime, administered CPR and took Taylor to the
hospital, where she was pronounced dead. The officers
reentered the bathroom, photographing and collecting
evidence. The evidence included the baggie, the crack pipe,
two cigarettes, a cigarette box, a lighter, two tinfoil
bindles inside the cigarette box, and a dirty white-gray sock
that contained a drug-cooking spoon, a syringe, and a plastic
wrapper from the cigarette box. Schatz searched Taylor's
personal belongings but found no prescription medicines.
4 Several members of Taylor's family testified about the
circumstances preceding her death. Melanie Taylor (Melanie),
her sister, testified on direct examination as follows. On
June 26, 2012, she was residing at Lockett's apartment,
along with her son, Erik Patterson, and Taylor's four
children. That evening, everyone was there to welcome Taylor
home from prison. When Taylor arrived that evening, she was
in high spirits. The next day, the family had a cookout by
the community pool. At about 1 or 2 p.m., Leslie Walker,
Taylor's girlfriend, arrived alone. She and Taylor walked
around the pool, talking. In the evening, after the pool
closed, Melanie entered the apartment. Taylor and Walker were
in the living room; Taylor was braiding Walker's hair. It
was about 10:30 p.m. Taylor looked normal. Walker appeared to
5 Melanie testified further that, later that night, she heard
Joshua Coakley, Taylor's teenage son, talking on the
house phone and knocking on the bathroom door, telling Taylor
to get out because Walker wanted to talk to her. Coakley,
Melanie, and Kiara, Taylor's daughter, then removed the
bathroom doorknob and tried to force the door open. Coakley
called the police. They arrived quickly, forced open the
door, and carried Taylor into the living room. Taylor was
soon taken to the hospital. Melanie went later and learned
that Taylor had died.
6 Melanie testified on cross-examination as follows. Asked
whether Taylor and Walker had "go[ne] upstairs for about
an hour or two without the rest of the group, " Melanie
said that she did not so recall. Melanie had told a detective
that Taylor and Walker went upstairs at some point, but she
did not recall telling him that the two women had been alone
for an hour or two. Melanie went inside between 7 and 8 p.m.
Although Taylor and Walker did go inside before then, Melanie
did not know whether they had then been by themselves;
Lockett had gone inside earlier, and other residents of the
apartment had been there that day.
7 Lockett testified as follows. On June 26, 2012, when she
welcomed Taylor home, Taylor appeared very happy. The next
day, at the barbecue, Walker arrived about 2 p.m., spoke to
Lockett, then walked with Taylor around the pool. Lockett
went inside about 5 p.m., and Taylor and Walker soon arrived.
Taylor was happy and conversed with Lockett; there was
nothing unusual about her demeanor.
8 Lockett testified that Taylor and Walker never went off by
themselves that evening. At some point, around 9 or 10 p.m.,
Lockett, Taylor, and Walker were all sitting in the living
room. Taylor was on the couch next to Lockett, braiding
Walker's hair as Walker sat on the floor. Lockett and
Taylor were talking; Taylor appeared fine and was happy to be
home. Later, Taylor called to get Walker a ride home.
Sometime afterward, Taylor said that Walker's ride had
arrived, and Taylor and Walker left. Within five minutes,
Taylor returned and said that she was going to shower. It was
about 11:30 p.m. Taylor entered the bathroom. The phone rang
and kept ringing. Lockett, Melanie, and Coakley tried to open
the locked door but could only remove the knob. Lockett
testified consistently with Melanie about the arrival of the
police and paramedics and the eventual trip to the hospital.
9 Coakley testified on direct examination as follows. On June
26, 2012, at about 8 or 9 p.m., Taylor came home, happy to
see her family. The next day, at the barbecue, Taylor
appeared happy. When Walker arrived, she and Taylor went for
a walk around the pool. Coakley saw them from time to time.
About 8:30 or 9 p.m., Coakley returned to the apartment;
everyone else appeared to have returned also. In the living
room, Lockett and Taylor sat on the couch and Walker sat on
the floor as Taylor braided her hair. Taylor was conversing
with Lockett and there was nothing unusual about her demeanor
or what she was saying. Walker was sleeping.
10 Coakley testified that, about 11 p.m., Taylor said that
Walker's ride had arrived, and the two women left the
apartment. A few minutes later, Taylor returned. She was
talking, but she was "a little urgent, " tugging on
her shirt and "in a rush." She was holding two
cigarettes. She said that she was going to take a shower.
Patterson was in the bathroom, and she told him to get out.
Taylor entered the bathroom, dropped the cigarettes into the
sink, and closed the door. About 15 minutes passed until
Coakley heard the shower go on. The phone rang twice. Coakley
saw from caller ID that it was Walker, but he did not answer.
The third time the phone rang, he answered. Walker sounded
"urgent" and "in a rush." Coakley hung
up, told Lockett what Walker had said, and knocked repeatedly
on the bathroom door. Coakley testified consistently with
Melanie and Lockett about the remaining events before Taylor
was taken to the hospital.
11 Coakley testified on cross-examination that, on June 27,
2012, Taylor and Walker were alone in the apartment for a
time. On redirect, he said that he did not recall when this
was, then testified that he did not think that the two women
had been in the apartment all alone that day. On
re-cross-examination, he did not recall what he had told a
detective about this matter.
12 Patterson testified on direct examination as follows. At
dinner on June 26, 2012, Taylor looked like "a new
person." The next day at the barbecue, Patterson saw
Walker arrive and spend time with Taylor, walking around the
pool. When Patterson returned to the apartment, Taylor and
Walker were in the living room. A short time later, from
Coakley's bedroom, Patterson looked out and saw a car
pull up. Taylor and Walker were outside, and Taylor went to
the driver's window. About 10 minutes later, when
Patterson was in the bathroom, Taylor came back and asked him
to leave the bathroom. Patterson returned to Coakley's
bedroom. After a while, he heard the telephone ring three
times; Coakley answered it the third time and then tried to
open the bathroom door. Coakley called the police, who forced
the door open. Paramedics then treated Taylor and removed
13 Patterson testified on cross-examination as follows.
Taylor had been a drug addict. On June 26, 2012, she spent
some time with Walker, but Patterson did not know how much.
Also, late that evening or early the next morning, he saw
Taylor vomiting in the bathroom. On June 27, when Walker
arrived, Taylor walked with her around the pool. Next, the
two women went alone to the apartment, the rest of the family
returning later. When the car pulled up, Taylor and Walker
approached it together and Walker entered. Taylor then walked
around to the front and started talking to the driver.
Patterson saw that a white woman was driving. At that point,
Patterson left for the bathroom. On redirect examination,
Patterson testified that, when Taylor and Walker left the
pool area, he stayed near the pool and could not have known
whether someone was already in the apartment.
14 Mary Margaret Greer-Ritzheimer of the Du Page County
Forensic Science Center testified that she analyzed the blood
stains from the white-gray sock and a sample from buccal
swabs taken from defendant. The DNA profiles matched. The
profile would be expected to occur in approximately 1 in 3.1
15 Sara Norris, a drug chemist with the Du Page County
Forensic Science Center, testified that she received the
small plastic baggie, the two tinfoil bindles, and the
off-white powder that came from the bindles. The powder from
one bindle, without packaging, weighed 0.02 grams and testing
proved that it contained heroin. No additional testing was
performed, because the statutory weight class of the
substance would not have changed.
16 Dr. Jeff Harkey, a forensic pathologist, testified on
direct examination as follows. On June 28, 2012, he performed
the autopsy on Taylor. He found a track-mark scar, the result
of repeated use of the same vein, on Taylor's arm. There
were no needle-puncture wounds along this track mark, but two
freshly-made puncture wounds overlay a different vein. An
internal examination showed no evidence of disease.
17 Harkey recounted his interpretation of a toxicological
test from an outside laboratory. Three opiates were found in
Taylor's blood and urine: morphine, codeine, and 6-MAM.
All are associated with heroin use. In particular, 6-MAM
comes only from heroin and is present only after recent
heroin use. The presence of 6-MAM means a more recent death
than does the presence of morphine or codeine alone. Cocaine
metabolites were also found in Taylor's blood and urine,
but Harkey could not say how recently Taylor had ingested
18 Harkey testified that the level of morphine in
Taylor's bodily fluids was "way beyond what somebody
would take normally medically." Asked whether the level
was "at or above levels which have been associated with
heroin fatalities, " Harkey said yes. He added, however,
that there is no "safe amount" of heroin to ingest
and that a person can die from taking the same amount that
she has been taking regularly for some time. Asked whether he
had found "a significant amount of cocaine
metabolites" in Taylor's bodily fluids, Harkey
responded, "Well, any amount is significant if it's
taken when you're not prescribed it. *** But, yes, it was
significant in that I included cocaine intoxication
ultimately in my cause of death."
19 Harkey's testimony continued as follows:
"Q. You said the heroin and the morphine was in very
high amounts. Could that have been fatal by itself?
A. Heroin use alone without cocaine use?
Q. Did you come to an opinion to a reasonable degree of
medical and scientific certainty as to the cause of death?
Q. And what was your opinion?
A. That Augustina Taylor died of heroin and cocaine
intoxication due to intravenous drug use."
20 Harkey testified on cross-examination as follows. With
enough time, heroin in bodily fluids turns into morphine.
Thus, the level of morphine could result from accumulation
over several days. Also, any level of cocaine can cause fatal
cardiac arrhythmia. How long 6-MAM will be present can vary
depending on the individual's metabolism and how much
heroin was taken over how long a period.
21 Harkey's testimony continued:
"Q. Okay. Well, your testimony on direct was that
it's possible that heroin alone could cause a death,
Q. And your testimony is also that it's possible that
cocaine could cause a death; isn't that right?
22 On redirect examination, Harkey testified that the
presence of 6-MAM indicates recent use; it is not cumulative
over a period of persistent use. The concentration of
morphine in Taylor's blood was at or above levels that
have been associated with fatalities from heroin alone.
23 Dan Salzmann testified on direct examination as follows.
In June 2012, he was a Wheaton police detective. On June 29,
2012, he and another detective, Jason Scott, questioned
defendant. A DVD of the interview was played for the jury,
and the trial court admitted a transcript also. Defendant
also wrote out a statement, which was admitted into evidence.
24 We summarize the interview. Defendant said that she had
been struggling with heroin addiction for 10 years. She had
used crack cocaine on and off for 12 years and had smoked
some earlier that day. However, she said that she was not
high or intoxicated and was thinking straight. Defendant and
Walker had met as prostitutes and sometimes did drugs
together. Walker and Taylor had been together since late
25 Defendant told the detectives that, on June 26, 2012, a
man known as "Houdini" gave her a "woop"
bag that was "all dorm, " i.e., it had
little or no actual heroin. She complained, so the next day
he came by her house in Summit and gave her a small bag for
free. Defendant used two bags of heroin at home. Later that
day, Taylor called and asked defendant, " 'Can you
get me a rock and blow?, ' " i.e., cocaine
and heroin. Defendant said that she was unsure because she
would have to spend money that belonged to Walker. Taylor
told her not to worry; she was with Walker, who was agreeable
to the idea, and she (Taylor) had $20. Defendant explained to
the detectives that the plan was to sell a rock of crack for
$10 and two bindles of heroin for $10.
26 Defendant said that, later in the day, she was at a hotel
with her friend Lewis when Taylor called (apparently the
original call described earlier). At this point, defendant
did not have all the drugs that Taylor wanted, so she had
Lewis drive her back to Summit. Defendant said that, partly
as a result of prior purchases, she now had four rocks of
cocaine and four bindles of heroin. She went upstairs and
consumed two of each. Taylor called and asked defendant to
bring her a crack pipe and a needle (syringe). Defendant
explained that she acceded to this request only because on
June 26, 2012, after Walker had picked up Taylor, Taylor
injected herself with heroin in defendant's and
Walker's presence. (Walker had also picked defendant up
from the hospital that day after defendant completed her drug
27 Defendant told the detectives that, before she left her
house in Summit, Taylor kept calling her. She got into the
car with the crack cocaine, the two bindles of heroin, a
glass crack pipe, and an orange-capped 100-cc syringe. The
pipe and the syringe were wrapped in a dirty sock that had
some of her blood on it. On the way, she sampled a small
amount of the heroin in one bindle, then closed it up. When
Lewis and defendant arrived at Lockett's apartment
complex in Wheaton, Taylor exited the building first and
Walker followed right after. Defendant gave Taylor the
cocaine, the two bindles of heroin, and the sock containing
the crack pipe and the syringe. Taylor did not give defendant
any money. Walker got into the car and Lewis drove her and
28 Defendant told the detectives that, on the ride back,
Walker tried to call Taylor. Walker also excoriated defendant
for giving Taylor the drugs. Eventually, Walker spoke to
Coakley. She told him to knock on the door, because she
wanted to talk to Taylor; when there was no response, she
said to break the door down and get Lockett. Walker was
becoming frantic. The phone conversation ended. Walker's
next calls went unanswered. Defendant called the police and
the hospital but got no information on Taylor. Defendant
repeatedly told the detectives that she did not poison Taylor
and was upset that some members of Taylor's family
suspected that she had adulterated the heroin.
29 Salzmann read defendant's written statement. We quote
it in part:
"On Wednesday night at 6-27-12 Augustina Taylor called
me on the phone and asked me if I would get her a rock and a
blow and bring it to her when I came to pick Leslie up from
Tina's. I bought the crack on Wensday [sic][.] I
got 4 bags of crack and got four bags of heroin. I did two of
the bags of heroin. I kept two bags of heroin and gave it to
Tina[.] [T]he one bag was small so it really amounted up to
about 1 nice bag. She called me earlier and asked me to bring
a bag of dope and a bag of crack and at that time asked for
me to bring a needle with [sic] and a crack pipe. I
went to Wheaton to [T]ina's house to pick [L]eslie up.
[A]t that time [T]ina came out and came in [the] car and I
gave it wrapp [sic] up in a [d]irty sock. I also
gave her a plastic baggie with two bns [sic] of H,
and gave her another bag with the crack in it and 1 hit of
30 Salzmann testified on cross-examination as follows. When
he interviewed Melanie in October 2012, she said that, on
June 27, 2012, Taylor and Walker broke away from the rest of
the family for "[m]uch of the evening." A few days
later, Coakley told Salzmann that Taylor and Walker spent
time alone before rejoining the family.
31 Salzmann testified that, although he did not recall
defendant saying that Taylor had had some heroin left over
from the previous day, she did say that Taylor had taken
"some left over." Asked whether Taylor presumably
would still have had some of that heroin on the day of the
delivery, Salzmann answered, "I would presume
that." While interviewing defendant, Salzmann took no
notes, but Scott made some that he showed to Salzmann,
suggesting topics to raise. Later on, when Salzmann was
transferred to patrol, the notes were mistakenly thrown out.
32 The State rested. At a conference, the parties and the
court agreed that the pattern definitional and elements
instructions on drug-induced homicide should be used
(Illinois Pattern Jury Instructions, Criminal, Nos. 7.27,
7.28 (4th ed. 2000)), modified to accommodate an amendment to
the statute, effective in 2006, that replaced "dies as a
result of" with "death is caused by." 720 ILCS
5/9-3.3(a) (West 2004); People v. Kidd, 2013 IL App
(2d) 120088, ¶ 30. Thus, the definitional instruction
read, "A person commits the offense of Drug Induced
Homicide when he knowingly delivers to another a substance
containing heroin, a controlled substance, and any
person's death is caused by the injection, inhalation or
ingestion of any amount of that controlled substance."
The elements instruction was phrased consistently with the
definitional instruction. The parties and the court also
agreed to use the pattern instruction on delivery of a
controlled substance. See Illinois Pattern Jury Instructions,
Criminal, No. 17.18 (4th ed. 2000). The court then told
defendant that it would not give a proposed instruction (No.
3), stating that, if law-enforcement officers "destroyed
or failed to preserve any investigative material" that
had come into their possession, the jury could infer that the
material, had it been preserved, "would have led to the
presentation of evidence unfavorable to the State's
case." The court explained that, although there was
testimony that notes of the interview with defendant had been
lost inadvertently, the notes merely recorded what defendant
had said, all of which had been preserved on the DVD.
33 Defendant's sole witness was Walker, who testified on
direct examination as follows. She had been Taylor's
girlfriend and had met defendant because they both sold
drugs. She had used heroin with Taylor and defendant,
sometimes with both together. On the afternoon of June 26,
2012, Walker picked up Taylor at the bus station and, because
Taylor wanted to get high, Walker took her to Summit, where
Walker and defendant resided. When they arrived, about 4 or 5
p.m., Taylor went next door and bought heroin. She returned
to Walker's house, where she injected some heroin and
Walker "tooted" (snorted) some. In the evening,