People v. Nere

• Decision Date: 20 September 2018
• Docket Number: Docket No. 122566
• Citation: 425 Ill.Dec. 650,2018 IL 122566,115 N.E.3d 205
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Jennifer N. NERE, Appellant.
• Court: Illinois Supreme Court

2018 IL 122566

115 N.E.3d 205

425 Ill.Dec. 650

The PEOPLE of the State of Illinois, Appellee,

v.Jennifer N. NERE, Appellant.

Docket No. 122566

Supreme Court of Illinois.

Opinion filed September 20, 2018.

David P. Gaughan and Timothy Moran, both of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Lindsay Beyer Payne, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 A Du Page County jury convicted defendant, Jennifer N. Nere, of drug-induced homicide ( 720 ILCS 5/9-3.3(a) (West 2012) ). Defendant appealed, arguing, inter alia , that (1) the trial court erred in refusing her proposed jury instructions on causation and (2) she was not proved guilty beyond a reasonable doubt. The appellate court affirmed her conviction and sentence. 2017 IL App (2d) 141143, 415 Ill.Dec. 524, 82 N.E.3d 728. We allowed defendant's petition for leave to appeal, and we now affirm the appellate court.

¶ 2 BACKGROUND

¶ 3 A complete statement of facts, including a summary of all of the testimony, may be found in the appellate court opinion. Id. ¶¶ 3-52. We summarize here only those facts necessary to an understanding of our decision.

¶ 4 On June 27, 2012, Augustina Taylor died in the bathroom of her mother's apartment in Wheaton. Taylor and other family members had gathered there to celebrate Taylor's release from prison the previous day. Taylor's girlfriend, Leslie Walker, joined the party sometime between 1 and 3 p.m. At around 10:30 p.m., Taylor called defendant to arrange a ride home for Walker. When defendant arrived, Taylor and Walker went down to defendant's car to meet her. According to defendant's own statements, defendant gave heroin, crack cocaine, a syringe, and a crack pipe to Taylor.¹ The pipe and syringe were wrapped in a dirty sock that had blood on it.

¶ 5 Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower. Walker called the apartment while Taylor was in the bathroom. Taylor's son, Joshua, initially hung up on Walker, but after she called back repeatedly, he eventually agreed to speak her. Based on what Walker told him, Joshua alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom. They eventually re moved the doorknob but still could not open the door. Joshua called 911.

¶ 6 Officers arrived and forced the door open. Taylor was unresponsive. The officers carried Taylor to the living room and performed CPR. Paramedics arrived a few minutes later and transported Taylor to the hospital, where she was pronounced dead. The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.

¶ 7 The forensic pathologist who performed Taylor's autopsy, Dr. Jeff Harkey, testified that Taylor died of heroin and cocaine intoxication due to intravenous drug use. Harkey found fresh needle puncture wounds on Taylor's arm. Harkey testified that three opiates were found in Taylor's blood—morphine, codeine, and 6-MAM. These opiates are associated with heroin use. The importance of 6-MAM is that it comes only from heroin. If a person takes pharmacological morphine, it would not cause codeine and 6-MAM to appear in the blood. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.

¶ 8 Harkey testified that the amount of morphine in Taylor's blood was "way beyond" what someone would take medically and was at an amount that is associated with heroin fatalities. According to Harkey, there is no "safe" amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by Taylor could have been fatal by itself. On cross-examination, Harkey acknowledged that high levels of morphine in the blood could be accumulative and indicate heroin use over several days.

¶ 9 Dr. Harkey testified that cocaine metabolites were also found in Taylor's blood and urine. The principal one was benzoylecgonine. Harkey testified that the small amount of the metabolite in Taylor's blood could have indicated either that she took a large amount of cocaine at an earlier time or that she had taken a smaller amount closer to the time of death. Thus, he could not offer an opinion as to how recently Taylor had used cocaine. On cross-examination, he was asked whether cocaine use alone could cause death:

"Q. Now, isn't it true, possible now, possible, that any level—any—any amount of cocaine could cause cardiac arrhythmia which could lead to fatal heart failure ; isn't that true?

A. Yes.

* * *

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."

¶ 10 On redirect examination, Harkey reiterated that the presence of 6-MAM in the blood indicated recent use of heroin, and on recross-examination he explained that "the last dose would be the one that has 6-MAM still found in it. In accumulative doses, things that are taken the day before, you're not going to find the 6-MAM."

¶ 11 The jury heard conflicting testimony over whether Taylor had consumed drugs before receiving the cocaine and heroin from defendant and also over whether Taylor and Walker were ever alone together at the party. Walker testified that on June 26, 2012, the day Taylor was released from prison, Walker picked her up at the Greyhound station in Chicago. Taylor wanted to get high, so Walker took her back to Walker's house in Summit. Taylor went next door and bought heroin at a drug house. Taylor returned to Walker's house and injected the heroin into a vein. Taylor also "smoked a little crack," following which Walker took her home. The next day, defendant dropped Walker off at Taylor's mother's house at around 2 or 3 p.m. Walker went into the house with Taylor and fell asleep. Walker remembered Taylor snorting heroin in the bathroom that afternoon. Walker did not remember anything else until Taylor woke her up when defendant arrived.

¶ 12 On cross-examination, Walker was impeached with an interview that she gave to the police on December 5. On that date, Walker told the police that, when she picked up Taylor upon Taylor's release from the penitentiary, they went to Walker's sister's house in LaGrange. They did not use drugs on that date. Walker told the police that Taylor had wanted drugs but that Walker had refused to give her any heroin. Later that evening, Walker dropped Taylor off at her mother's home in Wheaton, and Walker did not see her again until defendant dropped her off there the next day at around 2 or 3 p.m. Walker acknowledged telling the police that she and Taylor did not do drugs that afternoon, but she claimed that she did so because she had promised Taylor that she would not tell her family that she was using drugs again. Walker agreed that she had told the police that she was "100% sure" that Taylor had not used drugs that day.

¶ 13 Members of Taylor's family testified that Taylor arrived at her mother's house on the night she was released from prison and that she was behaving normally. When Walker arrived at the party the next afternoon, Taylor's family members observed Taylor and Walker walking on a path around the pool, and they were visible to the partygoers as they did so. After the partygoers moved inside, Taylor and Walker sat in the living room together, and Taylor braided Walker's hair. Taylor and Walker were never alone during this time, and Taylor's family members testified that she was acting normally until the time she escorted Walker out to defendant's car.

¶ 14 The defense brought out on cross-examination of Wheaton police officer Dan Salzmann that two of Taylor's family members had told Salzmann that Taylor and Walker had broken off from the rest of the party and spent time alone together. Salzmann was also asked on cross-examination if he remembered defendant saying that Taylor had heroin left over from the previous day. Salzmann said he did not remember that. He then stated that defendant had said that she saw Taylor with a bag of heroin the day before, that Taylor had taken some of it, and that there was some left over. Salzmann said that he would "presume" that defendant still had some heroin left after Taylor saw her use some of it the day before.

¶ 15 At the jury instructions conference, a dispute arose over how the jury should be instructed on causation. The relevant portion of the drug-induced homicide statute provided:

"A person who violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act 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 controlled substance, commits the offense of drug-induced homicide." 720 ILCS 5/9-3.3(a) (West 2012).

The court instructed the jury pursuant to Illinois Pattern Jury Instructions, Criminal, No. 7.28 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 7.28):

"That to sustain the charge of Drug Induced Homicide, the State must prove the following propositions:

First Proposition : That the defendant knowingly delivered to another a substance containing heroin, a controlled substance; and

Second Proposition : That any person injected, inhaled or

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