                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Walker, 2012 IL App (2d) 110288




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



District & No.             Second District
                           Docket No. 2-11-0288


Filed                      December 31, 2012


Held                       Defendant’s conviction for felony murder was upheld over defendant’s
(Note: This syllabus       contention that the trial court erred by failing to sua sponte give the
constitutes no part of     instruction on causation in felony-murder cases, even though the victim
the opinion of the court   of the beating inflicted by defendant died after permission for a blood
but has been prepared      transfusion was refused by the victim’s wife because he was a Jehovah’s
by the Reporter of         Witness, since defendant neither tendered the instruction nor argued at
Decisions for the          trial that it should be given or that the refusal of a transfusion was an
convenience of the         intervening cause, and there was no indication that the failure to give the
reader.)
                           instruction denied defendant a fair trial.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 08-CF-291; the
Review                     Hon. Daniel P. Guerin, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender’s
Appeal                      Office, of Elgin, for appellant.

                            Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                            Assistant State’s Attorney, and Lawrence M. Bauer and Scott Jacobson,
                            both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                            the People.


Panel                       JUSTICE HUTCHINSON delivered the judgment of the court, with
                            opinion.
                            Justices McLaren and Burke concurred in the judgment and opinion.




                                              OPINION

¶1          Following a jury trial, defendant, Semaj Walker, was convicted of first-degree murder
        under a felony-murder theory (720 ILCS 5/9-1(a)(3) (West 2006)) and sentenced to 32 years’
        imprisonment. Evidence presented at defendant’s jury trial revealed that defendant beat the
        victim, James Keniski; the victim was taken to a hospital for treatment of his injuries; the
        victim was a Jehovah’s Witness; and, based on religious reasons, the victim’s wife prohibited
        treating doctors from giving the victim a necessary blood transfusion. The victim died soon
        thereafter. At trial, defendant did not claim that the jury should be given the instruction on
        causation that may apply in felony-murder cases. As a result, the jury was not given that
        instruction. On appeal, defendant claims for the first time that he was denied a fair trial when
        the trial court failed to give the instruction sua sponte. For the reasons that follow, we affirm.
¶2          The facts necessary to decide the issue raised on appeal are as follows. On May 16, 2007,
        defendant and some other men went to the home that the victim shared with his wife, Keena
        Keniski. Defendant and the other men went to the Keniski home to rob the victim. While
        there, the victim, who had purchased drugs from one of the men before and believed that the
        men were there to sell him drugs again, was sitting on the bannister of the stairs leading to
        the basement of their home. Defendant pushed the victim as he sat on the bannister, he fell
        backward down the stairs, and, according to one witness, defendant then ran down the stairs
        and began punching and kicking the victim as the victim was lying on the ground. While this
        was happening, the victim’s wallet, among other things, was stolen.
¶3          Keena called 911, and the victim was eventually taken to Elmhurst Memorial Hospital.
        One of the treating doctors at the hospital, Dr. Stephen Mendak, testified that he began
        treating the victim when he was transferred to the intensive care unit (ICU) at the hospital
        on May 17, 2007. When the victim first arrived at the ICU, he was conscious and alert. An
        exam revealed that the victim was suffering from multiple contusions around his face,

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     thorax, chest, and abdomen. In addition, the victim had, among many other injuries, a
     hematoma, or a collection of blood, underneath his scalp. Dr. Mendak also observed a
     collection of blood underneath the skin around the victim’s right eye. A CT scan revealed
     that the victim had a seven-millimeter hematoma under the lining of his brain along with a
     collection of blood in the space between the lining of his brain and the brain matter itself. Dr.
     Mendak testified that blunt force trauma would cause blood to pool in these areas.
¶4       Further, Dr. Mendak stated that blood had collected in the victim’s chest cavity and that,
     because the bleeding did not stop, a chest tube was inserted. Blood also had pooled in the
     victim’s abdominal cavity. This was caused by a superficial fracture to the victim’s liver. Dr.
     Mendak testified that, based on proper medical procedures, doctors did not operate on the
     victim’s liver or do anything to stop that bleeding. Rather, doctors only continued to monitor
     it.
¶5       Due to all of the bleeding and the victim’s infusion of fluids, his hemoglobin count
     dropped. Because of that and the continued blood loss, Dr. Mendak suggested that the victim
     be given a blood transfusion. Given that the victim was not alert enough at this point to talk
     with Dr. Mendak, Dr. Mendak asked Keena whether the victim could undergo a blood
     transfusion. Dr. Mendak explained to Keena that “it would be fatal if [the victim] didn’t get
     this blood transfusion.” Because the victim was a Jehovah’s Witness, Keena refused to allow
     doctors to give him a blood transfusion.
¶6       Because the victim could not undergo a blood transfusion, Dr. Mendak gave him iron and
     attempted to stimulate the victim’s bone marrow as a way to replace the blood loss. This did
     not prove to be successful, and the victim was transferred to Loyola University Medical
     Center on May 22, 2007, where doctors were better equipped to treat the victim.
¶7       The parties stipulated that, if Dr. James Santaniello were called to testify, he would
     indicate that he treated the victim at Loyola; when the victim was admitted to Loyola on May
     22, 2007, he was alert and awake; and surgery to stop the internal bleeding and blood pooling
     that the victim was experiencing was unsuccessful. Given the amount of blood the victim
     continued to lose, Dr. Santaniello suggested that the victim undergo a blood transfusion. This
     was refused on religious grounds. On May 25, 2007, the victim died.
¶8       The parties also stipulated that, if Dr. Tera Jones, a pathologist, were called to testify, she
     would state that she performed an exam to determine the manner and cause of the victim’s
     death. Dr. Jones would testify that, to a reasonable degree of medical and scientific certainty,
     the victim died as a result of “multiple injuries due to blunt trauma, due to an assault and that
     the manner of death was homicide.”
¶9       After the State rested, defendant moved for a directed verdict, arguing that the State
     failed to prove that defendant caused the victim’s death. Specifically, defendant claimed that
     the refusal to have the victim undergo a blood transfusion was an intervening cause of his
     death, and, as a result of this intervening cause, defendant did not “know [whether] anybody
     can technically legally be held accountable” for the victim’s death. In reply, the State noted
     that the parties had stipulated to Dr. Jones’s testimony and that Dr. Jones concluded that the
     victim died because of blunt force trauma and that the manner of death was homicide.
     Moreover, the State observed that Illinois Pattern Jury Instructions, Criminal, No. 7.15 (4th


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       ed. 2000) (hereinafter, IPI Criminal 4th No. 7.15), which instructs the jury on causation in
       murder cases, provides that the defendant’s acts need not be “the sole and immediate cause
       of [the victim’s] death.” Based on the State’s two points, the trial court denied the motion.
¶ 10        After defendant presented his case and the State presented a brief rebuttal, defendant
       renewed his motion for a directed verdict without making an argument. The trial court denied
       the motion. During closing argument, defendant never claimed that the victim died because
       he was not given a necessary blood transfusion.
¶ 11        When the jury was instructed, it was given IPI Criminal 4th No. 7.15, among other
       instructions. The jury was not given the instruction governing causation in felony-murder
       cases (see Illinois Pattern Jury Instructions, Criminal, No. 7.15A (4th ed. Supp. 2011)
       (hereinafter, IPI Criminal 4th No. 7.15A (Supp. 2011))), which no one claimed should have
       been given to the jury.
¶ 12        The jury acquitted defendant of intentional first-degree murder and found, per a special
       verdict, that the State failed to prove that defendant was over 18 and that he personally killed
       the victim. However, the jury did find defendant guilty of felony murder, which was
       predicated on home invasion (720 ILCS 5/12-11 (West 2006)), residential burglary (720
       ILCS 5/19-3 (West 2006)), and robbery (720 ILCS 5/18-1 (West 2006)), as well as of all
       three of these predicate offenses. The trial court merged these findings into a finding of guilty
       of felony murder predicated on robbery and sentenced defendant. Defendant timely appealed,
       having never claimed in the trial court that the jury should have been given IPI Criminal 4th
       No. 7.15A (Supp. 2011).
¶ 13        At issue in this appeal is whether defendant was denied a fair trial when the trial court
       did not sua sponte give the jury IPI Criminal 4th No. 7.15A (Supp. 2011). Defendant claims
       that this instruction should have been given to the jury, because the instruction would have
       advised the jury that defendant could be held accountable for the victim’s death only if his
       death was a “direct and foreseeable consequence of a chain of events set into motion by
       [defendant’s] commission of [the other] offense[s].” Id. In considering that issue, we first
       observe that defendant neither tendered that instruction to the trial court nor otherwise
       claimed in the trial court that that instruction should have been given.
¶ 14        Illinois Supreme Court Rule 366(b)(2)(i) (eff. Feb. 1, 1994) provides that “[n]o party may
       raise on appeal the failure to give an instruction unless the party shall have tendered it.”
       Moreover, “a defendant will be deemed to have procedurally defaulted his right to obtain
       review of any supposed jury instruction error if he failed to object to the instruction or offer
       an alternative at trial and did not raise the issue in a posttrial motion.” People v. Sargent, 239
       Ill. 2d 166, 188-89 (2010). However, there is an exception to these rules. Pursuant to Illinois
       Supreme Court Rule 451(c) (eff. July 1, 1997), “ ‘substantial defects’ in criminal jury
       instructions ‘are not waived by failure to make timely objections thereto if the interests of
       justice require.’ ” Sargent, 239 Ill. 2d at 189 (quoting Ill. S. Ct. R. 451(c) (eff. July 1, 1997)).
¶ 15        Defendant advances two ways in which this court may review his claim. First, defendant
       claims that he preserved the issue by raising the issue in his motions for a directed verdict.
       We disagree. In those motions, defendant said nothing about any jury instruction. In any
       event, as the State points out and the cases indicate, raising the issue in a motion for a


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       directed verdict would not be enough. See People v. Enoch, 122 Ill. 2d 176, 186 (1988)
       (“Both a trial objection and a written post-trial motion raising the issue are required for
       alleged errors that could have been raised during trial.” (Emphases in original.)).
¶ 16        Second, defendant argues that, if his argument is not preserved, this court should review
       his claim under the plain-error doctrine. Rule 451(c) is coextensive with the plain-error
       doctrine. Sargent, 239 Ill. 2d at 189. The plain-error doctrine permits courts to review alleged
       errors that were not preserved below “when (1) a clear or obvious error occurred and the
       evidence is so closely balanced that the error alone threatened to tip the scales of justice
       against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
       occurred and that error is so serious that it affected the fairness of the defendant’s trial and
       challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
       Id. Under either prong, the defendant bears the burden of persuasion. Id. at 190.
¶ 17        A necessary antecedent to invoking the plain-error doctrine is to determine whether error
       occurred at all. Id. at 189. Thus, we must first decide if it was error for the trial court not to
       sua sponte give the jury IPI Criminal 4th No. 7.15A (Supp. 2011). See id. at 189-90.
¶ 18        Generally, when there is evidence to support the giving of an instruction, the trial court
       abuses its discretion when it does not give the jury that instruction. See People v. Jones, 219
       Ill. 2d 1, 31 (2006). However, the abuse-of-discretion standard does not apply in every jury
       instruction case. Rather, when the issue raised concerns whether the law was accurately
       conveyed in the jury instructions, our review is de novo. People v. Parker, 223 Ill. 2d 494,
       501 (2006); People v. Herron, 215 Ill. 2d 167, 174 (2005). Here, because the issue raised
       concerns whether the jury was provided with the correct legal principles that apply in this
       case, thereby allowing the jury to reach a proper result based on the applicable law and the
       evidence, we conclude that our review is de novo.
¶ 19        In considering whether the court had a duty to sua sponte give the jury an instruction on
       foreseeability, we find instructive People v. Parks, 65 Ill. 2d 132 (1976). There, an
       accomplice to the robbery and murder in which the defendant allegedly participated testified
       that he and the defendant robbed the victim and that the defendant shot and killed the victim
       as the victim attempted to flee. Id. at 134. This was the only evidence linking the defendant
       to the crimes. Id. When the case was submitted to the jury, the jury did not receive any
       instruction concerning the testimony of an accomplice, and, in fact, the defendant objected
       to any instruction that used the term “accomplice.” Id. at 135-36.
¶ 20        On appeal, the defendant argued that the trial court should have sua sponte instructed the
       jury on accomplice testimony. Id. at 133. Our supreme court disagreed. Id. at 138. In doing
       so, the court observed that “[g]enerally, a party who desires a specific instruction must offer
       it and request the court to give it and the trial court has no obligation to instruct on its own
       motion.” Id. at 137. The court went on to note that there are exceptions to this rule. Id. That
       is, “[i]n criminal cases *** this rule is modified in certain situations by the requirements of
       a fair trial.” Id. Specifically, “[i]t has been held that a court bears the burden of seeing that
       the jury is instructed on the elements of the crime charged, on the presumption of
       innocence[,] and on the question of burden of proof.” Id.
¶ 21        Although, as the court recognized, an instruction on accomplice testimony did not fall


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       within one of these categories, the court nevertheless looked at whether, “viewing the
       defendant’s trial as a whole, it is clear the jury was not deprived, by the failure to give the
       accomplice instruction, of essential guidance in its evaluation of the evidence.” Id. at 138.
       The court determined that there was no such deprivation, given that the accomplice was
       questioned about his prior inconsistent statements and his reasons for implicating the
       defendant, and the jury was given instructions on judging the credibility of the witness and
       prior inconsistent statements. Id. Accordingly, the court determined that “[a]lthough these
       general instructions were not as absolute an admonition as the more particularized
       accomplice instruction would have been, nonetheless, [these general instructions] provided
       the jury with sufficient direction.” Id.
¶ 22       Here, in light of Parks, we decline to conclude that the trial court erred when it did not
       sua sponte give the jury IPI Criminal 4th No. 7.15A (Supp. 2011). First, the jury was given
       instructions for the presumption of innocence, the burden of proof, and the elements of the
       offense of felony murder. The issues instruction for felony murder advised the jury:
                “To sustain the charge of first degree murder, the State must prove the following
           propositions:
                First proposition: That the defendant, or one for whose conduct he is legally
           responsible, performed the acts which caused the death of James R. Keniski; and
                Second proposition: That when the defendant, or one for whose conduct he is legally
           responsible, did so,
                ***
                [defendant] was committing the offense of home invasion;
                                                   or
                [defendant] was committing the offense of residential burglary;
                                                   or
                [defendant] was committing the offense of robbery.”
       See Illinois Pattern Jury Instructions, Criminal, No. 7.02 (4th ed. 2000). IPI Criminal 4th No.
       7.15A (Supp. 2011), which defendant argues should have been given to the jury, instructs
       the jury about foreseeable causation in felony-murder cases. It states:
                “A person commits the offense of first degree murder when he commits the offense
           of ______, 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 ________.
                It is immaterial whether the killing is intentional or accidental [(or committed by a
           confederate without the connivance of the defendant) (or committed by a third person
           trying to prevent the commission of the offense of ______)].” Id.
       As noted, as relevant here, a trial court need advise the jury only about essential elements of
       the crime charged. See People v. Pearson, 252 Ill. App. 3d 1, 11 (1993) (the court has a duty
       to instruct the jury on “essential elements” of the crime charged). Although the parties
       suggested otherwise at oral argument, the causation instruction contained in IPI Criminal 4th
       No. 7.15A (Supp. 2011) does not set out an essential element of felony murder. See People
       v. Childress, 321 Ill. App. 3d 13, 21 (2001) (court not bound by parties’ concessions made

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       at oral argument). Unlike the issues instruction that contains the elements of the offense
       charged, our supreme court has explicitly determined that IPI Criminal 4th No. 7.15A (Supp.
       2011) does not need to be given to the jury when a defendant is tried for felony murder. See
       People v. Hudson, 222 Ill. 2d 392, 401 (2006) (“Although foreseeability is a necessary
       component of a proximate cause analysis, it need not be specifically mentioned in a jury
       instruction to communicate the idea of ‘proximate’ to [the] jury.”). As the committee
       comments make clear, IPI Criminal 4th No. 7.15A (Supp. 2011) “should be used in felony
       murder cases where causation is an issue.” IPI Criminal 4th No. 7.15A, Committee Note, at
       14 (Supp. 2011). Certainly, if IPI Criminal 4th No. 7.15A (Supp. 2011) should be given only
       when causation is at issue, it cannot contain an essential element of the offense charged, or,
       otherwise, it would have to be given in every felony-murder case.
¶ 23       Second, although the jury was not given IPI Criminal 4th No. 7.15A (Supp. 2011), it was
       given an instruction based on IPI Criminal 4th No. 7.15. This instruction provided:
                “In order for you to find that the acts of the defendant, or one for whose conduct he
           is legally responsible, caused the death of James R. Keniski, the State must prove beyond
           a reasonable doubt that defendant’s acts, or acts for one for whose conduct he is legally
           responsible, were a contributing cause of the death and that the death did not result from
           a cause unconnected with the defendant, or one for whose conduct he is legally
           responsible. However, it is not necessary that you find the acts of the defendant, or acts
           for one whose conduct he is legally responsible, were the sole and immediate cause of
           death.”
       Although, as in Parks, IPI Criminal 4th No. 7.15 is not as specialized as IPI Criminal 4th No.
       7.15A (Supp. 2011), it did provide the jury with “sufficient direction” in this case, as
       defendant never claimed in front of the jury that the victim’s refusal of a blood transfusion
       was an unforeseeable intervening cause sufficient to relieve defendant from liability for the
       victim’s death. See People v. Nash, 2012 IL App (1st) 093233, ¶ 26 (jury instructions must
       be based on the evidence presented during trial).
¶ 24       It is critical here that defendant never argued to the jury that the refusal to undergo a
       blood transfusion was an intervening cause. That is, under the facts presented here, the court
       was not required to give the jury IPI Criminal 4th No. 7.15A (Supp. 2011), because
       defendant’s theory at trial was not that the victim died from an unforeseeable circumstance.
       Rather, defendant claimed at trial that the State’s evidence did not establish that he was the
       perpetrator who injured the victim. Had defendant made the argument at trial that the cause
       of the victim’s death was questionable, given that a blood transfusion was not given, and
       depending upon the reason it was not given, then his position on appeal would have been
       stronger. However, that theory was not presented to the jury. As the State contended at oral
       argument, giving the jury IPI Criminal 4th No. 7.15A (Supp. 2011) may very well have been
       disadvantageous, as that instruction provides, contrary to defendant’s theory at trial, that a
       defendant will be liable for a victim’s death even when the death is accidental and done
       without the defendant’s approval or knowledge.
¶ 25       Given that IPI Criminal 4th No. 7.15A (Supp. 2011) does not contain an essential
       element of felony murder and that nothing in the record indicates that defendant was denied


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       a fair trial when the court did not sua sponte give the jury IPI Criminal 4th No. 7.15A (Supp.
       2011), we cannot conclude that error, let alone plain error, arose in this case. People v.
       Naylor, 229 Ill. 2d 584, 602 (2008) (“Absent reversible error, there can be no plain error.”).
¶ 26        As an aside, we briefly mention that, in other jurisdictions, courts have considered
       whether a victim’s refusal to undergo treatment for an injury the defendant caused can be an
       intervening cause sufficient to relieve the defendant of liability for the victim’s eventual
       death. In those cases, the courts have concluded that refusing treatment is not a sufficient
       intervening cause. See, e.g., State v. Perez-Cervantes, 6 P.3d 1160 (Wash. 2000) (the
       defendant, who stabbed the victim, was accountable for the victim’s death even though the
       victim did not seek treatment when, while recovering at home, he began complaining about
       his injuries, and toxicology tests performed on the victim after his death revealed that heroin
       and cocaine found in the victim’s system were a contributing cause of the victim’s death);
       Franklin v. State, 51 S.W. 951 (Tex. Crim. App. 1899) (the defendant, who shot the victim
       in the leg, was accountable for the victim’s death even though the victim was told by doctors
       that his leg should be amputated to avoid blood poisoning, the victim refused to have his leg
       amputated at that time, and the victim ultimately died of blood poisoning). Moreover, in a
       case from this state where the defendant claimed that the treating doctor withheld medical
       treatment and that this was the intervening cause of the victim’s death, the court observed
       that “ ‘the family of the victim owe[s] no duty to treat the victim so as to mitigate the
       defendant’s criminal liability.’ ” People v. Gulliford, 86 Ill. App. 3d 237, 242 (1980)
       (quoting In re J.N., 406 A.2d 1275, 1282 (D.C. Cir. 1979)). In fact, “ ‘[t]he defendant’s
       desire to mitigate his liability may never legally override, in whole, or in part, the decisions
       of *** the family regarding the treatment of the victim.’ ” Id. (quoting J.N., 406 A.2d at
       1282). Given these cases, and assuming that this court may consider the issue of
       foreseeability as a matter of law, we question defendant’s claim that refusing to have the
       victim undergo a blood transfusion was an intervening cause sufficient to render defendant
       not liable for his death.
¶ 27        For these reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 28      Affirmed.




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