People v. Hudson, 1-03-0953.

• Decision Date: 30 December 2004
• Docket Number: No. 1-03-0953.,1-03-0953.
• Citation: 821 N.E.2d 1203,354 Ill. App.3d 648,290 Ill.Dec. 629
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lavelle HUDSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

821 N.E.2d 1203

354 Ill. App.3d 648

290 Ill.Dec. 629

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Lavelle HUDSON, Defendant-Appellant.

No. 1-03-0953.

Appellate Court of Illinois, First District, Fourth Division.

December 30, 2004.

Michael J. Pelletier, State Appellate Defender, Michael James McDermott, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, John E. Nowak, Matthew Connors, Assistant State's Attorneys, Chicago, for Appellee.

Justice THEISdelivered the opinion of the court:

Following a jury trial, defendant, Lavelle Hudson, was convicted of first-degree murder and sentenced to 22 years' imprisonment.On appeal, he contends that (1)he was denied his constitutional rights to due process and trial by jury because the trial court gave the non-Illinois Pattern Jury Instruction (IPI) on proximate causation in felony murder tendered by the State, which, he claims, constituted an incorrect statement of the law, instead of the instruction offered by defense counsel; and (2) his conviction must be vacated because the shooting of the decedent was legally justified.For the following reasons, we affirm the judgment of the circuit court.

BACKGROUND

Defendant, who was 15 years' old at the time of the offense, was charged as an adult with multiple counts of first-degree murder, armed robbery, and burglary in connection with the July 30, 1998, fatal shooting of Chrispin Thomas, defendant's co-felon, at the Fresh Barbershop in Chicago.The following evidence was adduced at defendant's trial.About 4:45 p.m. on the day in question, Thomas and defendant entered the barbershop brandishing handguns.Thomas announced that this was a "stick-up," and ordered the people in the shop to throw their money onto the floor.Defendant remained by the door with his weapon as the people in the shop complied with Thomas' order.

When Thomas turned to begin gathering the money from the floor, off-duty Chicago Police Officer Ricky Bean, who had been getting a haircuit at the time, jumped out of his chair, drew his service revolver, announced his office, and ordered Thomas to drop his gun.Thomas did not comply, but rather, turned and pointed his weapon at the officer.Officer Bean fired once at Thomas and ordered him again to drop the gun.Thomas transferred his weapon into his other hand and tried to point it at the officer.Officer Bean continued to order Thomas to drop his weapon and fired two more shots at him.This time, Thomas complied.

Officer Bean grabbed Thomas and turned to defendant, who was still picking up money from the floor.The officer ordered defendant to drop his gun.Instead of complying, defendant pointed his weapon at Officer Bean.The officer fired once at defendant, and defendant fled the barbershop.The people in the shop then called 911 to request more police and an ambulance for Thomas.

Shortly thereafter, Thomas died on the scene.The medical examiner determined that he died of multiple gunshot wounds and ruled his death a homicide.

Police ultimately located defendant at Roseland Community Hospital, where he was being treated for a gunshot wound to his right leg.After being advised of his rights as a juvenile offender, defendant chose to speak to the police and related substantially the same chronology of events.Defendant's statement was later reduced to writing by an assistant State's Attorney.Defendant also testified to these events at trial and admitted that he had pled guilty to two other armed robberies of barbershops in Chicago, both of which occurred a few weeks prior to the July 30, 1998, incident.

The jury returned a verdict of guilty on one count of felony murder.The court subsequently sentenced defendant to 22 years' imprisonment.

ANALYSIS

Defendant first contends that he was denied his constitutional rights to due process and trial by jury when the court gave the non-IPI jury instruction on proximate causation in felony murder offered by the State instead of the instruction offered by the defense.The State responds that the court correctly instructed the jury as to the elements of felony murder.

The purpose of jury instructions is to provide the jurors with the legal principles applicable to the evidence presented so that they may reach a correct verdict.People v. Hopp,209 Ill.2d 1, 8, 282 Ill.Dec. 173, 805 N.E.2d 1190, 1194(2004).Supreme Court Rule 451(a)(177 Ill.2d R. 451(a)) provides that whenever the IPI contain an applicable jury instruction, and the court determines that the jury should be instructed on the subject after giving due consideration to the facts and law, "the [IPI instruction] shall be used unless the court determines that it does not accurately state the law."Where there is no IPI jury instruction on a subject on which the court determines the jury should be instructed, the court has the discretion to give a nonpattern instruction.People v. Ramey,151 Ill.2d 498, 536, 177 Ill.Dec. 449, 603 N.E.2d 519, 534(1992).Therefore, we will not disturb a trial court's decision to instruct a jury using a non-IPI instruction absent an abuse of that discretion.People v. Pollock,202 Ill.2d 189, 211, 269 Ill.Dec. 197, 780 N.E.2d 669, 682(2002).Whether the court has abused its discretion in giving a particular nonpattern instruction will depend on whether that instruction was an accurate, simple, brief, impartial, and nonargumentative statement of the applicable law.177 Ill.2d R. 451(a);Pollock,202 Ill.2d at 211, 269 Ill.Dec. 197, 780 N.E.2d at 682.

Illinois adheres to the so-called "proximate cause" theory of liability for felony murder.People v. Lowery,178 Ill.2d 462, 465, 227 Ill.Dec. 491, 687 N.E.2d 973, 975(1997).Under this theory, "liability attaches `for any death proximately resulting from the unlawful activity — notwithstanding the fact that the killing was by one resisting the crime.'"People v. Dekens,182 Ill.2d 247, 249, 230 Ill.Dec. 984, 695 N.E.2d 474, 475(1998), quotingLowery,178 Ill.2d at 465,227 Ill.Dec. 491,687 N.E.2d at 975-76.In addition, a defendant is not relieved of liability for a homicide where the one resisting the crime causes the death of defendant's co-felon.Dekens,182 Ill.2d at 252,230 Ill.Dec. 984,695 N.E.2d at 477.

In the present case, defendant was charged with felony murder based on Officer Bean's fatal shooting of Thomas, defendant's co-felon, in resisting the armed robbery.Thus, in order to sustain a conviction of felony murder in this case, the State was required to prove that Thomas' death was the direct and proximate result of the armed robbery in which defendant participated.SeeDekens,182 Ill.2d at 252, 230 Ill.Dec. 984, 695 N.E.2d at 477.

The relevant IPI instruction on felony murder provides that:

"A person commits the offense of first degree murder when he kills an individual [without lawful justification] if, in performing the acts which cause the death,

* * *

[4]he[(is attempting to commit)(is committing)] the offense of ____."

IPI, Criminal, No. 7.01 (4th ed.2000)(hereinafter IPI Criminal 4th).

We initially note that this instruction correctly states the law applicable to situations where the defendant, or one for whom the defendant is accountable, kills an individual during the commission of a forcible felony.See720 ILCS 5/9-1(West 2002);People v. Jenkins,190 Ill.App.3d 115, 128, 137 Ill.Dec. 225, 545 N.E.2d 986, 995(1989).However, as the parties agree, this instruction does not accurately state the law applicable to the circumstances present in this case.Defendant did not perform the acts which caused Thomas' death, but rather, participated in an armed robbery attempt that culminated in the fatal shooting of his co-felon by one of the intended victims of the armed robbery.Therefore, the trial court properly exercised its discretion to give a non-IPI instruction.People v. Jackson,331 Ill.App.3d 279, 290, 265 Ill.Dec. 23, 771 N.E.2d 982, 992(2002)("A trial court abuses its discretion in declining to give a non-IPI instruction when the jury is left to deliberate with instructions that are unclear, misleading or contain inaccurate statements of law.").Accordingly, we must determine whether the trial court's decision to give the instruction offered by the State constituted an abuse of discretion.SeePollock,202 Ill.2d at 211, 269 Ill.Dec. 197, 780 N.E.2d at 682.

At the jury instruction conference, both parties submitted modified versions of IPI Criminal4th No. 7.01.Defendant submitted the following instruction:

"A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbery and during * * * the commission of that offense, the death of an individual is [the] direct and foreseeable consequence of the commission or attempt to commit that offense, and the defendant contemplated or should have contemplated that his actions could result in death."

The instruction submitted by the State read:

"A person commits the offense of first degree murder when he commits the offense of attempt [to commit] armed robbery, and during the course of the commission of the offense of attempt [to commit] armed robbery[,]he sets in motion a chain of events which cause the death of an individual.

It is immaterial whether the killing in such a case is intentional or accidental, or committed by a confederate without the connivance of the defendant or even by a third person trying to prevent the commission of the felony."

Following argument, the court chose to give the State's instruction.The court indicated that it did not "believe that the felony murder doctrine requires the State to prove that the defendant contemplated or should have contemplated that his actions would result in death," and that Lowery and other relevant cases"clearly indicate that if a person is involved in a forcible felony, and during the course of the commission of that...