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People v. Nere

Court of Appeals of Illinois, Second District

June 29, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JENNIFER N. NERE, Defendant-Appellant.

         Appeal 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.

          OPINION

          McLAREN JUSTICE

         ¶ 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 be asleep.

         ¶ 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 her.

         ¶ 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 quintillion Caucasians.

         ¶ 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 cocaine.

         ¶ 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. Yes.
A. Yes.
Q. Did you come to an opinion to a reasonable degree of medical and scientific certainty as to the cause of death?
A. Yes.
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, correct?
A. Yes.
Q. And your testimony is also that it's possible that cocaine could cause a death; isn't that right?
A. Yes."

         ¶ 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 2011.

         ¶ 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 rehabilitation.)

         ¶ 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 defendant away.

         ¶ 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 crack."

         ¶ 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, Walker, ...


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