                                         2015 IL App (1st) 131552
                                             No. 1-13-1552
                                       Opinion filed June 30, 2015.

                                                                       Third Division
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                  )     Appeal from the Circuit Court
                                                           )     of Cook County.
            Plaintiff-Appellee,                            )
                                                           )
     v.                                                    )     No. 09 CR 14369 (02)
                                                           )
     BYRON BROWN,                                          )
                                                           )     The Honorable
            Defendant-Appellant.                           )     Steven J. Goebel,
                                                           )     Judge, presiding.
     ______________________________________________________________________________

            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.


                                                  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.
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¶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.

¶4                                           BACKGROUND

¶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.




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¶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


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       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 the gas station."


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       Vivanco testified that Brown told him he ran because "he was scared." Vivanco further testified

       Brown stated:

                       "He knew he was going to be—something bad was gonna happen. The two guys

                       that he was with, they knew that the victim had a lot of TVs and computer at his

                       house, he just went along with them but he knew something bad was gonna

                       happen."

¶ 14          Evidence technician officer Steven O'Connell processed and photographed the crime

       scene of the residential burglary. He recovered fingerprints. After the burglary division learned

       Tommye Freeman had died from her injuries, they notified the homicide detective division and

       Detective Wade Golab was assigned to the case. Detectives recovered a hat from the scene of the

       accident that looked like it could have come from one of the suspects.

¶ 15          Evidence technician Edward Grabarek took a buccal swab from Rodney Jones on

       September 10, 2008. Jones's DNA matched the DNA found on the driver's side airbag of the

       white SUV; Jones was arrested and charged with Freeman's murder.

¶ 16          In late 2008, Detective Brogan contacted Detective Golab and told him he had

       information about a phone call Brown placed to Ronesha Foots; Golab received a copy of a

       recording of the call. Foots testified Brown was the father of her daughter and they were dating

       in July 2008. On July 3, 2008, she said Brown was with her, but he left when he received a call

       from Jones and Pierre Skipper. Later that day, Foots got a call that police had arrested Brown.

¶ 17          Evidence technician officer Edward McCartan collected evidence from the white SUV.

       He recovered blood from the outside doors and recovered the following from inside the vehicle:

       a cigarette butt, chapstick, a water bottle, a CD, a red T-shirt, an airbag, and a pair of gym shoes.

       The items were inventoried and sealed.


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¶ 18            Deborah McGarry, a forensic scientist and an expert in the field of latent fingerprint

       examination and analysis, examined the fingerprint samples. She compared latent prints lifted

       from the residential burglary scene to the prints of Jones and Brown and found them to match.

¶ 19            Forensic evidence determined that the DNA found on the SUV's driver's side door and

       airbag matched Jones's DNA. The DNA from the recovered cigarette found inside the SUV and

       the baseball hat recovered at the scene after the accident matched Brown.

¶ 20            At the conclusion of the State's case, Brown moved for a directed verdict, which the court

       denied. The defense rested and the parties presented closing arguments.

¶ 21                                  Jury Instructions and Deliberations

¶ 22            The parties extensively argued jury instructions. The trial court ultimately determined

       that a modified version of Illinois Pattern Jury Instructions, Criminal No. 7.15A (IPI) would be

       given.

                       "A person commits the offense of first degree murder when he commits the

                       offense of residential burglary and the death of an individual results as a direct

                       and foreseeable consequence of a chain of events set into motion by his

                       commission of the offense of residential burglary. It is immaterial whether the

                       killing is intentional or accidental or committed by a confederate without the

                       connivance of the defendant. A person may be held responsible for a death that

                       occurs during an escape following the commission of residential burglary."

       The court added the last sentence, which defense counsel objected to.

¶ 23            During deliberations, the jury sent out a note, "Is there a legal or more complete

       definition of the term foreseeable?" As the parties debated how to respond to the jury question,

       defense counsel stated that he was "not aware of any definition we could give them." The State

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       could not find a definition in the IPI and agreed with defense counsel. Defense counsel suggested

       they could use a dictionary definition and a discussion ensued regarding using civil jury

       instructions. Although a definition of foreseeability was found in Black's Law Dictionary, the

       parties agreed the court should tell the jurors to continue deliberations. The jury was told, "You

       have heard all of the evidence and you have all of the instructions. Please continue to deliberate."

¶ 24          The jury returned a guilty verdict of first degree murder. Brown filed a posttrial motion

       for a new trial or judgment notwithstanding the verdict, arguing the court erred in failing to

       instruct the jury that a felon is responsible for those deaths which occur during a felony and

       which are the foreseeable consequence of the initial criminal act and that the trial court should

       have provided a definition of "foreseeable" in response to the jury's question. The trial court

       denied Brown's posttrial motion. The court sentenced Brown to 25 years' imprisonment and

       denied his motion to reconsider the sentence.

¶ 25                                               ANALYSIS

¶ 26          Brown contends the State failed to prove him guilty beyond a reasonable doubt of felony

       murder because he could not have foreseen that his codefendant's "irrational and dangerous"

       driving during their escape from committing residential burglary would "likely" or "almost

       inevitably" result in the victim's death.

¶ 27                             Sufficiency of the Evidence of Felony Murder

¶ 28          The relevant inquiry when faced with a challenge to the sufficiency of the evidence

       involves, after viewing the evidence in the light most favorable to the prosecution, whether any

       rational trier of fact could have found the essential elements of the crime beyond a reasonable

       doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). As a reviewing court, we will not

       substitute our judgment for that of the trier of fact on questions concerning the weight of the


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       evidence or the credibility of the witnesses. Id. at 375. We will not reverse a criminal conviction

       unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable

       doubt of the defendant's guilt. Id.

¶ 29          The jury convicted Brown of felony murder predicated on residential burglary. A person

       commits first degree murder when he or she "kills an individual without lawful justification ***

       if, in performing the acts which cause the death: *** he [or she] is attempting or committing a

       forcible felony." 720 ILCS 5/9-1(a)(3) (West 2008). The forcible felony was the residential

       burglary. 720 ILCS 5/2-8 (West 2008).

¶ 30          Illinois adheres to the "proximate cause" theory of liability for felony murder, meaning

       "liability attaches under the felony-murder rule for any death proximately resulting from the

       unlawful activity." People v. Lowery, 178 Ill. 2d 462, 465 (1997). "A felon is liable for those

       deaths which occur during a felony and which are the foreseeable consequence of his [or her]

       initial criminal acts." Id. at 470. Additionally, a defendant may properly be held responsible for a

       death that occurs during an escape following the commission of a forcible felony. People v.

       Klebanowski, 221 Ill. 2d 538, 549 (2006); see also People v. Hickman, 59 Ill. 2d 89, 94 (1974)

       (time and activities involved in escaping to a place of safety are part of crime).

¶ 31          Brown argues that as a passenger in the SUV during the escape he could not reasonably

       have foreseen that Jones would drive in an "irrational and dangerous" manner and, accordingly,

       cannot be held responsible for Freeman's unforeseeable death. As further support for his position,

       Brown offers the fact that neither he nor Jones carried weapons during the commission of the

       residential burglary. Brown argues this fact shows they had no intention of using force to escape,

       and from this, he contends the victim's death could not be a foreseeable consequence of his

       actions in carrying out the residential burglary because he never contemplated the use of force or


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       violence. According to Brown, Jones did not merely lose control of the car while speeding

       during their escape, but "made the unexpected and irrational decision to ignore the stoplight and

       drive directly into heavy traffic in an intersection—conduct that impeded escape and put himself

       and his passengers at the risk of death and injury." Brown maintains that the State failed to show

       how the accident was the "almost inevitable" result of the burglary, making the victim's death

       reasonably foreseeable.

¶ 32          To sustain a conviction for felony murder, the State need not prove the defendant

       contemplated "that his actions would result specifically in death," only that he or she intended to

       commit the underlying felony. People v. Hudson, 354 Ill. App. 3d 648, 655 (2004) (citing People

       v. Causey, 341 Ill. App. 3d 759, 769 (2003)). To sustain its burden, the State must prove the

       defendant "set in motion a chain of events which were or should have been within his

       contemplation." Lowery, 178 Ill. 2d at 467. Moreover,"[i]t is unimportant that defendant did not

       anticipate the precise sequence of events that followed [the forcible felony]." Id.; see also People

       v. Brackett, 117 Ill. 2d 170, 180-81 (1987) (defendant did not have to foresee victim would die of

       asphyxiation while being fed in nursing home following rape and beating to sustain felony

       murder conviction).

¶ 33          The facts presented establish Brown's guilt for the residential burglary and the murder of

       an innocent victim during his escape from the burglary. Although Brown did not perform the acts

       that caused Freeman's death—"irrational and dangerous" driving—he did participate in the

       residential burglary and the escape that culminated in Freeman being the victim in a fatal car

       accident. Brown's participation in the forcible felony set in motion a chain of events that led to

       Freeman's foreseeable death. It was sufficient for Brown to have contemplated that, to avoid

       liability, his actions would require escape from the home without capture. Freeman's death


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       directly resulted from Brown's actions in committing the residential burglary and attempting to

       escape capture.

¶ 34          The evidence presented to the jury showed that on July 3, 2008, a burglary at Hunter and

       Shaw's home and the removal of personal items occurred. A friend told Shaw about the burglary

       and that the burglars remained at the home. He immediately went home and as he approached,

       Shaw saw a group of men in the alley. Shaw flagged a nearby police car. As Shaw explained

       what had transpired, he pointed in the direction of his house and then both Shaw and the officers

       saw a white Suburban SUV coming toward them down the alley from Shaw's house. The SUV

       did not stop as it came out of the alley and proceeded in the wrong direction down 78th Street.

       The police pursued the SUV with sirens and lights activated, but the SUV did not slow down or

       brake. Instead, the SUV increased the distance between it and the police car by failing to stop as

       it crossed intersections. When the SUV turned, the police car was four blocks behind. When the

       officers arrived at the intersection of 76th and State, they could see the SUV resting against a

       light pole on the northeast corner having been in an accident. Brown, who had run, was found

       hiding in a basement stairwell behind a nearby home. When the police questioned Brown about

       the events, he said he "knew something bad was gonna happen." Neither Brown nor Jones

       carried weapons during the burglary and none were found at the location of the accident.

¶ 35          Brown argues that because the absence of weapons during the resident burglary

       establishes that he and Jones never contemplated the potential use of violence, "it was even less

       foreseeable to a reasonable person in Brown's position that codefendant would recklessly

       endanger lives of other drivers during flight from the police." In support for his position, Brown

       cites People v. Belk, 203 Ill. 2d 187, 192 (2003), and argues the State offered no evidence that he

       could reasonably foresee that Jones would endanger lives should police pursue them. He also


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       relies on language from Lowery and Hudson in arguing the State could not show Freeman's death

       was "almost inevitable" (Lowery, 178 Ill. 2d at 467) and "likely" from his actions ((internal

       quotation marks omitted) People v. Hudson 222 Ill. 2d 392,401 (2006)).

¶ 36          Our supreme court has determined that a defendant does not have to anticipate the precise

       sequence of events leading to the fatality. Lowery, 178 Ill. 2d at 470. In People v. Dekens, 182

       Ill. 2d 247, 254 (1998), the supreme court reaffirmed this principle, explaining that "the focus of

       the proximate cause theory is on the chain of events set in motion by the defendant." Focusing on

       the chain of events Brown's actions set in motion, we agree with the State that liability for

       Freeman's death is warranted as a foreseeable consequence.

¶ 37          We find People v. Hickman, 59 Ill. 2d 89 (1974), cited by the State, more in line with the

       facts than the cases cited by Brown. In Hickman, a police officer pursing fleeing burglars was

       mistakenly shot and killed by another officer who mistook the pursing officer as one of the

       burglars. Id. at 94. In finding the defendant guilty of felony murder, our supreme court noted that

       "commission of the burglary, coupled with the election by defendants to flee, set in motion the

       pursuit by armed police officers." Id. The shot that killed the officer responded to the escape of

       the fleeing burglars and, therefore, constituted a direct and foreseeable consequence of the

       defendant's commission of the crime. Id. Relying on Hickman, the State argues the application of

       the felony murder doctrine does not depend on the identity of the person whose physical action

       specifically caused the decedent's death but, instead, on whether the fatality was a foreseeable

       consequence of the defendant's forcible felony. See also People v. Cervantes, 408 Ill. App. 3d

       906 (2011) (discussing foreseeable conduct in context of resisting police officer, court held it

       reasonably foreseeable that pursing officer might be injured when defendant chose to run from

       police in icy and snowy conditions).


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¶ 38          Brown's participation in the residential burglary, coupled with his choice to escape the

       consequences of his actions by fleeing with Jones, set in motion the circumstances that

       concluded in the fatal accident. Put another way, had Brown not participated in the residential

       burglary and then fled, Freeman would not have been killed. That Brown claims he and Jones

       were unarmed during the forcible felony is irrelevant. As our supreme court has indicated, " '

       "[i]t is unimportant that the defendant did not anticipate the precise sequence of events that

       followed *** His unlawful acts precipitated those events, and he is responsible for the

       consequences." ' " People v. Klebanowski, 221 Ill. 2d 538, 548 (2006) (quoting Hickman, 59 Ill.

       2d at 94 (quoting People v. Smith, 56 Ill.2d 328, 333-34 (1974))).

¶ 39          After considering the evidence in the light most favorable to the State, we affirm Brown's

       conviction. Any rational trier of fact could have found Brown guilty beyond a reasonable doubt.

       As a matter of law, Brown is responsible for Freeman's death, which occurred during his escape

       from the commission of the residential burglary. Brown's participation in the burglary set in

       motion a chain of events that ultimately caused the death.

¶ 40                                  Ineffective Assistance of Counsel

¶ 41          To establish ineffective assistance of counsel, a defendant must show both a deficient

       performance by counsel that falls below an objective standard of reasonableness and prejudice,

       meaning a reasonable probability that absent counsel's error, the result would have been

       different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to satisfy either prong

       dooms the claim. People v. Givens, 237 Ill. 2d 311, 331 (2010).

¶ 42          Jury instructions convey to the jury the law that applies to the evidence presented.

       People v. Herron, 215 Ill. 2d 167, 187 (2005) (citing People v. Fuller, 205 Ill. 2d 308, 343

       (2002)). Jury instructions should not be misleading or confusing. People v. Bush, 157 Ill. 2d 248,


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       254 (1993). "[T]he general rule is that the trial court has a duty to provide instruction to the jury

       where it has posed an explicit question or requested clarification on a point of law arising from

       facts about which there is doubt or confusion." People v. Childs, 159 Ill. 2d 217, 228-29 (1994).

       The trial court, however, may properly exercise its discretion to "decline to answer a jury's

       inquiries where the instructions are readily understandable and sufficiently explain the relevant

       law, where further instructions would serve no useful purpose or would potentially mislead the

       jury, when the jury's inquiry involves a question of fact, or if the giving of an answer would

       cause the court to express an opinion which would likely direct a verdict one way or another." Id.

       at 228. How the trial court responds to a jury question during deliberations ordinarily falls within

       the discretion of the trial court "so that the trial court's decision will be disturbed on appeal only

       if that decision constituted an abuse of discretion." People v. Falls, 387 Ill. App. 3d 533, 537

       (2008).

¶ 43             In response to the jury's note asking for the definition of "foreseeable," both parties

       indicated they were inclined to tell the jury to continue deliberating. The State informed the court

       it had briefly looked for a definition in the IPI, but had not found one. The court personally asked

       Brown if he agreed with instructing the jury to continue deliberating and he did. Defense counsel

       then stated:

                        "Judge, if I can throw something out there? I know there is an alternative of

                        getting a definition from a source other than the IPI, a regular dictionary ***. I

                        don't have a definition here."

       The court then inquired whether the parities had a way to access the civil IPI. Defense counsel

       indicated he could use the Internet; the State expressed its hesitation to look to civil instructions,

       but reserved opinion on the matter. The trial judge retired to chambers and consulted Black's


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       Law Dictionary for the definition of "foreseeability." The court read aloud the definition, "the

       ability to see or know in advance hence the reasonable anticipation that harm or injury is a likely

       result of acts or omissions." The court then took a brief recess.

¶ 44          Back on the record, the State indicated it could not find a definition in the civil IPI.

       Defense counsel stated he did not feel comfortable with the parties drafting anything in response

       to the jury question and suggested instructing the jury to continue deliberating. With no objection

       from either party, the court instructed the jury it had heard all of the evidence and had the

       instructions, so it was to continue deliberations.

¶ 45          Brown argues Illinois Supreme Court authority or the Black's Law Dictionary definition

       of foreseeability could have easily been incorporated into a response to the jury's note. Brown

       suggests the jury's note shows the jury struggling with how foreseeable Freeman's death had to

       be to support a felony murder conviction. Brown contends defense counsel's failure to propose a

       response defining "foreseeable" was objectively unreasonable, leaving the jury with no guidance

       on how likely the victim's death needed to be to find Brown guilty of felony murder. Brown

       maintains that a "properly instructed" jury would have concluded that because Brown and Jones

       did not arm themselves before the burglary, "they did not plan to avoid potential apprehension

       with violence" and, therefore, the fact that someone could be killed by their actions was not

       reasonably foreseeable. Brown insists that Jones' "irrational behavior" caused Freeman's death,

       an unforeseeable consequence of the residential burglary.

¶ 46          As support, Brown cites People v. Lowry, 354 Ill. App. 3d 760, 766-67 (2004), in which

       this court determined trial counsel ineffective for failing to offer the pattern instruction defining

       "knowledge" in response to the jury's question. The defendant was charged with aggravated

       battery and armed robbery. Id. at 761. During deliberations, the jury asked whether " 'knowingly'


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       " implied " 'that it wasn't an accident, or can it be accidental and knowing?' " Id. at 762. The

       attorneys and the court agreed to respond that the jury had been instructed on the law, heard all

       of the evidence, and should keep deliberating. Id. On appeal, we reversed and remanded for a

       new trial. We held that because the jury's question expressed confusion about the meaning and

       application of the term "knowingly," the question should have been answered with the pattern

       instruction and, therefore, trial counsel was ineffective for failing to request the instruction. Id. at

       765-66, 768.

¶ 47           Brown contends that, just as in Lowry, defense counsel should have asked the court to

       respond to the jury's note because the jury sought clarification on an important point of law and

       counsel's failure to do so constitutes ineffective assistance. See also People v. Coots, 2012 IL

       App (2d) 100592, ¶¶ 46-52 (counsel's acquiescence in trial court's decision not to answer jury's

       question for definition of "delivery," in drug-induced homicide case, was objectively

       unreasonable).

¶ 48           Unlike in Lowry, the trial court's refusal to define foreseeability for the jury did not create

       "a serious danger that the jury would (and did) convict defendant based on facts that were legally

       insufficient to establish [the crime]." Id. ¶ 51.

¶ 49           The State relies on People v. Hicks, 2015 IL App (1st) 120035, in which we held that the

       trial court in a robbery prosecution need not define "force" when the jury requested a definition.

       In holding as it did, the Hicks court cited to People v. Bradley, 192 Ill. App. 3d 387, 393 (1989),

       which held that words with a "commonly understood meaning" need not be defined for the jury.

       Hicks, 2015 IL App (1st) 120035, ¶ 54. We find unpersuasive Brown's contention that Hicks was

       wrongly decided.




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¶ 50          The instructions tendered to the jury accurately state the applicable law concerning felony

       murder. See People v. Hudson, 222 Ill. 2d 392, 408 (2006) (same language used to instruct jury

       here "simply and concisely stated the law on proximate cause"). Thus, the claim of ineffective

       assistance of counsel fails—the trial court made the appropriate decision in declining to provide

       the jury with a definition of "foreseeable" because the jury instructions correctly stated the law.

¶ 51          Moreover, during closing arguments, defense counsel contended that the fatal car

       collision was not a foreseeable result of Brown's actions. Counsel urged the jury to pay attention

       to the language of the jury instruction, specifically foreseeability. Counsel defined foreseeability

       for the jury as "was it planned, contemplated, did they consider this was going to happen. Those

       are ways of talking about foreseeability." Defense counsel's argument encouraged the jury to

       adopt a "common sense" interpretation of foreseeability that fit the defense theory. Brown's

       counsel argued the evidence showed Brown did not foresee getting into a car and putting anyone

       in danger. Defense counsel told the jury:

                       "So what is foreseeable? What evidence or lack of evidence can help you make a

                       decision as to whether or not this was foreseeable? Well, there is one big and

                       obvious answer for that. If you foresee violence as being the result of the

                       residential burglary that you are admittedly part of, do you foresee that? What

                       might you being with you? A weapon. A gun. A knife."

       Counsel implored the jury to use "common sense" concerning what the State needed to prove to

       show the victim's death as foreseeable. Defense counsel asked the jury to consider Brown's lack

       of a weapon as evidence Brown did not foresee violence resulting from his actions.

¶ 52          Notably, counsel's decision to stand on the instructions provided to the jury constitutes

       reasonable trial strategy. Providing the jury with an additional dictionary definition or one from


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       case law would have undermined defense counsel's instruction to the jurors that they should rely

       on their own "common sense" definition of foreseeability.

¶ 53          We reiterate that to support an ineffective assistance claim, a defendant must show both

       counsel's representation fell below an objective standard of reasonableness and also that the case

       was prejudiced as a result; failure to meet either prong precludes a finding of ineffective

       assistance of counsel. Strickland, 466 U.S. at 687. Defense counsel's decision as to what jury

       instructions to tender involves a matter of trial strategy that is generally immune from ineffective

       assistance claims. See People v. Douglas, 362 Ill. App. 3d 65, 75 (2005).

¶ 54          The trial court properly instructed the jury on the law and, under the circumstances

       presented, defense counsel acted reasonably in going along with the court's instruction to the jury

       to continue deliberating without the aid of a definition of foreseeable. Brown had competent

       representation.

¶ 55                                             CONCLUSION

¶ 56          The State introduced sufficient evidence from which a reasonable trier of fact could find

       Brown guilty of felony murder beyond a reasonable doubt. During the course of the commission

       of the residential burglary, Brown set in motion a chain of events that led to a fatal car accident

       while he tried to evade police capture. We affirm Brown's conviction.

¶ 57          Defense counsel's decision not to provide a definition of foreseeability to the jury at its

       request constitutes sound trial strategy in the face of a legally sufficient jury instruction and

       defense counsel's theory that the jury rely on "common sense." Thus, the ineffective assistance of

       counsel claim must fail.

¶ 58          Affirmed.




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