                        Illinois Official Reports

                                Appellate Court



                   People v. Brown, 2015 IL App (1st) 131552



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            BYRON BROWN, Defendant-Appellant.



District & No.     First District, Third Division
                   Docket No. 1-13-1552



Filed              June 30, 2015
Rehearing denied   August 7, 2015


Decision Under     Appeal from the Circuit Court of Cook County, No. 09-CR-14369
Review             (02); the Hon. Steven J. Goebel, Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Alan J. Goldberg, and Adrienne River, all of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg and
                   Gina DiVito, Assistant State’s Attorneys, of counsel), for the People.



Panel              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.
¶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.
¶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 sport utility
     vehicle (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 pursuing rested against a light pole on the northeast corner. The


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       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 as 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
       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.”
       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.

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¶ 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.
¶ 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 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

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       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
       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 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

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       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. at 470; 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
       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 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”

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       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 pursuing fleeing burglars was
       mistakenly shot and killed by another officer who mistook the pursuing 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 pursuing officer might be injured when
       defendant chose to run from police in icy and snowy conditions).
¶ 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 defendants 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

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       instructions should not be misleading or confusing. People v. Bush, 157 Ill. 2d 248, 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 parties 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 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 was ineffective for failing to offer the pattern instruction

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       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’ ” 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.
¶ 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.

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¶ 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 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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