No. 1-04-2709

1 SIXTH DI VISI ON June 8, 2007

No. 1-04-2709

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County , Illi nois. ) ) ) No. 01 CR 22689 (03) v. ) ) GLEN N SIMS, ) Honorab le ) Lon Will iam Schultz Defendant-Appellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Following a jury

trial in the circuit court of Cook County def endant, Glenn Sims, was found guilty of f

irst degree murder and ar

med robbery . Defendant was sentenced to consec utive terms of 28 yea

rs’ and 9 ye ars’ imprisonment, respectively . On appeal, defendant contests the sufficie ncy of evide nce to sus tain his conviction f or first d egree murder. He spec ifically contends that the State failed to prove bey ond a reasonable doubt that the stress caused by the armed robbery

was a contributing cause of the victim’s death, whic h occurred approximately 51⁄2 hours after the robbery . Defendant also contends that the trial court erre d in prohibiting the defense expert witness from referring to a hospital protocol to explain his conclusion that the victim died from respiratory arrest not related to any

stress resulting from the robbery

.No. 1-04-2709

2

Defend ant further conte

nds that he

was provided inef

fective assistanc e of coun sel beca use counsel ( 1) faile d to appro priately raise the affirma tive def ense of c ompulsion a

nd negl ected to have the jury instructed as to this defense; and (2) failed to tender the hospital protocol to the State, thereby pr

ecluding the expert from fully testifying to an a

lternate theory

of causation in the victim’s death. Defendant finally contends that the trial court abused its discretion in sentencing him, because it did not adequately consider mitigating factors. For the reasons discussed below, we reverse and remand. I. BACKGROUND Defendant was arrested and c harged with one count of first deg ree murder arising from the commission of a forcible felony , armed robbery in violation of section 9-1(a)(3) of the Criminal Co de of 196 1 (720 I LCS 5/9 -1(a)( 3) (West 20 00)) and two count s of arme d robber y in violation of section 18-2 (720 IL CS 5/18-2 (West 2000)), one of Queen Smith, and the other of Guill ermoRamir

ez. The evidence adduced at trial shows that on Marc h 23, 2001, Noemi Ramirez, and her brother Guillermo

Ramirez we

re work ing as c ooks at Ta

urus Fla vors res taurant

at 8534 Sou

th Stony I sland in Chicago, along with three other employ ees and Queen Smith, the night manager

. At trial, Noemi Ramirez testified on behalf of the State that about 9:30 p.m., two men wearing ski masks entered the restaur ant. One of the men was carry ing a gun and he jumped across the counter. Noemi testified that she and Guillermo lay face down on the floor as the man search ed their

pockets. Noemi the

n heard S mith come o

ut of the b athroom, which wa s locate d in the back of the restaurant. According to Noemi, she heard a man order Smith to open the safe.No. 1-04-2709

3

Shortly, afterwa

rds, she heard two gunshots and then the men running through the rear door of the resta urant. A fter the

police a rrived, Noemi we

nt to see Sm

ith and obs erved Smi

th sitting in front of the bathroom door, unable to talk, breathing fa st and “look[ing] scared.” Noemi also identified defendant in court and testified that he had worke d at Taurus Flavors restaurant for a period of a bout three months, but that he was not an employe e of the establishment at the time of the robbery . Noemi also testified that Smith was “a lady w ith a lot of energy ” and a fast worker. Guillermo Ramirez next testified to essentially the same sequence of events. He added that as he lay on the f

loor next to his sister, one of the masked men searched his pockets and took his wallet, which contained money . Guillermo further testified that after he heard the men run out of the store, he went to check on Smith and noticed that she looked very scared, “like she wanted to cry , but could

n’t,” an d that she waved he

r hands a s if she ne eded air . Guiller mo also identified defendant in court as a former employ ee of the restaurant. On cross-examination, Guillermo testified that after he came to help Smith, she spoke and asked him for a glass of water. Larry Hardy ne xt testified that he pleaded guilty to the murde r and armed robbery

of Smith and that he received a sentence of 25 y ears’ imprisonment in exchange for his cooperation in the prosecution of defendant. Hardy stated that around 5 p.m. on March 23, 2007, he, defenda nt, Terr ell Bell , Berna

rd Robinso n, Mega

n Irw in, Carme lla Hard

y, a nd Ik e Hardy were in his home discussing the Taurus Flavors restaurant, whe n Bell suggested that they rob it. Hardy further testified that because defenda nt had worked at the restaurant, he told every one that theNo. 1-04-2709

4

restaurant made money , and that the safe was located in the bathroom, but indicated that defendant was “just telling us things that we [already ] knew.” Hardy

next averred that Bell then left the house to get a gun from his own home. When he r eturned, they a

ll discussed what everyone ’s role in the robbery would be. According to Hardy , defendant was to be the “lookout,” stand in the front of the restaurant, and knock on the window to aler t the others if the police arrived. Bell and Robinson were going to go inside the restaurant, and Hardy was to stand in the back and watch f

or police . All thre e would ha ve their faces c onceale d. Accor

ding to H ardy , it was also decided that Ir

win, Bell’s girlfriend, would drive them to the restaur ant. Hardy ne xt testified that when Irwin drove the four of the m to an alleyway

a block away from the restaurant, defendant g ot out of the car first and walked toward the front of the restaurant. He came back and told the other s that there were “some L atinos” and a “little black girl” inside the restaurant. At that point, Bell told every one where to go, and he, Robinson and Hardy star

ted walking toward Taurus Flavors, while de fendant walked toward a ga s station where he was to act as lookout. Hardy and Bell put on ski masks, and Robinson tied a scarf around his face. According to Ha rdy, Be ll walked into the restaurant first, pointed the gun at the employees, told them to ge t on the floor and then jumped over the counter. Bell found Smith and pulled he r to the ba

throom, ho lding he

r by her shir t collar. Hardy

testifie d that he r

emained in the front of the store, but that he could hear “a lot of commotion” in the bathr oom. Soon afterw ard, Ha

rdy heard two gunsho ts and some “tussling ,” as if s omeone w as thrown agains t a wall. Hardy a

lso heard Smith say that she did not know the safe combination, as well as cries of, “Don’t hit me. Don’t hit me again.” After he he ard Robinson yell that he found five bags ofNo. 1-04-2709

5

money, Hardy

proceeded to the back of the store, whe re he saw Smith next to the bathroom door. He then ran out of the restaurant toge ther with Bell and Robinson and went to Robinson’s house. Hardy testified tha

t a short time later, they obse rved a police car from the window of Robinson’s house, grabbed some money, and ran each in his own direction. Hardy was apprehended by police a short while later as he walked on Stony Island Avenue. On cross-examination, Hardy testified that at the time of the robbery , he was 26 ye ars old, Bell was older than him, and Robinson was “around his age .” He also testified that defendant was only 15 y

ears old. Hardy

further testified that at the time of the robbery, defendant had run away f rom home and was living in Hardy ’s house. Hardy also stated that on the afternoon of the robbery, e

veryone in the house

was drinking and smoking marijuana. Hardy testified that he was a regular customer of Taur us Flavors restaurant and that he knew there was a safe in the restaur ant before defe

ndant eve r talked about it. A ccordin

g to Har dy, before every one got into Irwin’s car , defend

ant state d that he d

id not wan

t to take p art in the

robbery . Accor

ding to Hardy, de fendant indicated that he “wasn’t feeling it,” and Hardy

understood that to mean that defendant was afraid. At this point, Bell who held the g un in his hand told defendant that “he was there when it started, he got to be there when it finished,” and every one got into the car. At this point the trial court called a recess, indicating to defe nse counsel that it seemed that coun sel was a

ttempting to raise a n affirmative de fense of

compulsio n without ha

ving ple d it in the defense pleadings. The following c olloquy then took place betwe en defense counsel and the cour t:No. 1-04-2709

1 Defens e counse l. 6

“MR. FOX 1 : Judge, I

believe I mad e a mistak

e by not filing or asking to file a compulsion defense this afternoon around 1:30 when I talked with *** Hardy and he tol d me someth

ing that he testif ied to now

about how

[defenda nt] wanted to get out of this robbery and one of the other guy

s said you couldn’t g et out of it. He told me that today. I

have asked him previously . He did not say that. Other witnesses I have a sked did not say. THE COURT: So you asked Mr. Ha rdy that on previous occ asions and he did not give that information to you? MR. FOX: Correct. TH E C OU RT : W ha t o th er oc ca si on s h av e yo u s po ke n t o M r. Ha rd y? MR. FOX: None with Mr. Hardy , but I talked with *** I rwin on another court date. THE COURT: *** I am concerne d with your lack of c ompliance and discovery rule s and obligations that you ha ve in representing the defenda nt. And clearly when an a

ffirmat ive defe nse is bei ng rais ed as to th e charg es aga inst him, you have an obligat ion to put th e State on

notice a s to that. N ot to do so is a discover y vi olation a

nd perha ps furthe r violation of the c annons of ethics.

*** MR. FOX: *** The reason I didn’t file it today was bec ause I was underNo. 1-04-2709

7 the mistaken presumption that I couldn’t arg ue it unless I could prove it. Whereas in speaki ng with a nother la wy ers as lo ng as it c an be ra ised, tha t’s enoug h to file it. I wasn’t aware

of the distinction. THE COURT : That con

cept mak es absolu tely no lega l sense to me whatsoever. The state ments that

attorne ys make in co

urt reg arding

the evide nce shou ld be based on the evidence and rea sonable inferences to be drawn from the evidence. That applies to affirmative defe nses, whether there is direct evidence or

a reasonable inf

erence as to the a

ffirmat ive defe nse base d on the ev

idence t hat is in the record. *** In my view, this is nothing but trial by ambush. I will allow you very reluctantly to pursue a

t least your questioning. I will deal with the issue of arguments and defense and instructions later .” After cross-examination resumed, Hardy testified that although defendant’s role in the robbery was to knock on the restaurant window if the police showed up, he ne ver heard a knock on the window and did not see defendant next to the window. According to Ha rdy, at the end of the robbery , no one went up front to check if defendant wa s there. Rather, Bell, Robinson, and Hardy a ll ran out through the back door. On redirect examination, Hardy acknowledged that Bell never actually pointed the g

un at defendant, or threatened to hit or hurt him, but stated that, “we all know wha t it mean[t].” Hardy further testified that he spoke to defense counsel prior to tria l and gave him this information.No. 1-04-2709

2 At this point in the trial, defense counsel moved for a mistrial arguing that the State had violated a pretrial motion in limine precluding any reference to allega

tions that defendant had 8 On recross-examination, Hardy testified that he had pleaded guilty to the armed robbery and murder in this case, and received 25 y ears’ imprisonment for each to run concurr ently, but that if he had not pleaded guilty and agreed to testify

against his codefendants, he would have risked a sentence of up to 60 y ears’ imprisonment. Office r Steven Wi ley

next testif

ied that o n March 2 3, 2001, a round 9:30

p.m. he wa s in his squad car when he received a call for a robbery

in progress at Taurus Flavors re staurant. Officer Wiley immediate ly activated the e mergency lights on his vehicle and proceeded to the restaurant. Upon his arrival, the officer notice d defendant on the pay phone about 30 to 40 feet away from the r

estaura nt. Offic er Wiley

told anoth er offic er who ha d arrive d at the sa

me location to hold onto defendant while he went inside the restaurant to investiga te. Once inside, Officer Wiley obse

rved Smith hyperventilating and then saw the paramedics walk her slowly out of the restaurant. On cross-examination, Officer Wiley testified that when he arrived at the scene a nd observed defendant next to the pay phone, defendant was not acting suspiciously

. Officer Nalls testified that around 9:30 p.m. on March 23, 2001, he wa s responding to a call for a robbery

in progress at Taurus Flavors re staurant when he observed defendant ne ar a pay phone next to the restaurant. Officer Nalls stated that he then hea rd Officer Wiley

yell, “Gra

b that guy on the

phone. He was here last time.” The trial court sustained de fense counsel’s objection to this question and instructed the jury to disreg ard the officer’s answer. 2 Office r NallsNo. 1-04-2709

been involved in a prior robbery of the Taurus Flavors restaurant. The State a rgued that Officer Nalls did not violate the motion in limine because, in his testimony, he did not mention defendant’s prior robbery, but merely stated that de fendant was “there the last time.” The trial court denied the motion for mistrial, noting that Officer Nalls’ statement did not re fer to a previous crime or “any

thing of that nature,” and that defendant would not incur any prejudice

as the jury was instr ucted to d isrega rd that sta tement. 9 testified that he next entered the restaurant and spoke to the victims. Once he was informed that the offenders had escaped on foot throug h the rear entry , the officer ran to the alley to pursue them and soon thereafter captured Ha rdy. Officer Virginia McL

inn next testified that about 9:30 p.m. on March 23, 2001, she was responding to a call for a robbery in progress at Taurus Flavors re staurant when she heard another announcement on her radio that the offe nders were no longer at the sce ne of the crime. Office r McL inn testif

ied that she was ab out six block s away from the r

estaura nt, near 84th Street and Stony I sland, when she stopped her vehicle, waiting to see if any offe nders would run in her direction. Officer McL inn stated that she then observed three black males, all dresse d in dark clothing and car ry ing some thing in t heir han ds, run ou t of the a lley and into a

basemen t stairwe ll of a house on 84 th Plac e. Of fice r McL inn th en dr

ove h er sq

uad c ar ve

ry slowl y i nto th e all ey

next to the house where she observed the men on the stairwe ll, “totally engr ossed in whatever they were looking at.” Officer McLinn pulled her vehicle into the y ard, got out and twice shouted, “Police Freeze.” According to Officer McLinn, at that point two of the of fenders ran westbound down the alley, one

with something in his hands, and the third offender remained on theNo. 1-04-2709

10

stairwell. When Officer McL inn approached him, he placed every thing that he had in his hands on the protruding wall of the stairwell and also ran we stbound. Officer McLinn testified that she went to see what the third offender had left be hind and recovered a handg un, a live round of ammunition and a money bag . The officer immediately radioed for assistance and provided a description of the fleeing men as well as informa tion about the direction of their flight. Officer McLinn then chased one of the men, who ran into Officers Nalls and Brumley . Officer McLinn later identified the three men as Hardy , Bell and Robinson Office r Lin da Davis next testif

ied that a bout 9:30 on

March 23 , 2001, she

was on dut

y near 87t h Street and Stony I sland Avenue when she received a c all of a robbery in progress at Taurus Flavors restaurant. Office r Davis stated that as she headed toward the re staurant, she received a radio call from Off icer McLinn indicating tha t some of the offenders were running westboun d. Offic er Davis

was nea r 84th Street and Blackstone Place when she saw B ell run out of an alley a

nd approach two females, who were la ter identified as Carmella Hardy and Irwin. Officer Davis took Bell, Carmella Hardy and Irwin into custody

. Officer Milton Hubbard, the evidence technic ian, next testified that about 11 p.m. on March 23, 2001, he arrived at the scene of the police investigation and examined Taurus Flavors resta urant . Amon g other thin gs, Off icer M ilto n test ified that h e foun d two 9 -mil lime ter car tridge cases and one fired bullet in the bathroom of the restaur ant. Officer Milton then went to 1536 84 th Place and photographed the are a by the bac k stairs leading to the basement, where Off icer McLinn had observed B ell, Hardy a nd Robinson. There, Officer Milton found a 9-millimeter pistol and two bank money bag s. At 1531 84 th Place, he found a purse, and at 1525 E. 84 th PlaceNo. 1-04-2709

11

he recovered some clothin g, inclu ding g loves and

a ski mask . At 1549 E. 84th Street, Officer Milton processed a Ford Taurus vehicle, from whic h he lifted two prints. Officer Milton testified that all the items were collected, inventoried and deposited into a locker at the crime lab. Detecti ve Michael Spauldi

ng next te stified th at on Mar ch 23, 200 1, as par

t of his investigation of the robbery at Taurus Flavors, he spoke to defendant at the police station. After learning that defendant was 15 y ears old, Detective Spaulding waited until a gua rdian was present before speaking to him. Accor ding to Detective Spaulding, Barba ra Sims, defendant’s grandmother, arrived at the police station at a bout 8 a.m. on March 24, 2001. Detective Spaulding testifie d that in the

presenc e of Ba

rbara Si ms, he adv

ised def endant of his Miranda rights and informed him that, even though he was 15, he would be tried as an adult. According to Detective Spaulding, defendant indicated that he unde rstood, and the two proceeded to have a

convers ation in the

presenc e of Ba

rbara Si ms. Assistant State’s Attorney Michae l Crowe next testified that on March 24, 2001, he interviewed defendant in the presence of his grandmother, y

outh officer Kennedy

and Detective Spaulding . Crowe te stified th at he first advise d defend ant of his Miranda

rights and then had him sign a videotape consent form. According to Crowe, defendant’s grandmother a lso had no objection to the videotaped statement. When Crowe asked defendant how he had been treated by various people at the police station, defendant told him that a light-skinned bald AfricanAmerican police officer had hit him in the hat when he did not give the officer his father’s telephone number

quickly enough after the arre st, but tha

t being h it had noth

ing to do w

ith his present videotap ed state

ment. Acc ording t

o Crowe, a

videotap ed state

ment was made abo

utNo. 1-04-2709

12

10 p.m. on March 25, 2001. On cross -examinat

ion, Crowe

acknowl edged

that he ne

ver told d efenda nt or his grandmother that he worked for the sa me office that would be prosecuting defe ndant if he were charged or that defenda

nt could be charged and prosec uted with murder. Crowe also averred that after the interview was concluded he did not re play the video for

defendant or ask defendant if he wanted to make any

correc tions or change s in that sta tement. Defendant’s videotaped confession was then published to the jury . In the videotape, defenda nt reiter ated tha t he under

stood his Miranda

rights and acknowledged that he signed the videotape consent form. Defendant then indicated tha t he was 15 yea

rs old. He stated that he was suppo sed to be l iving wit h his gra ndmother , but that h e had run away and was l iving wit

h his father, Glenn Sims, Senior, who lived with codefendant, Hardy . Defendant also stated that he worked a t Taurus F lavors r

estaura nt in the su

mmer of 20 00. According to defenda nt, about a week before the robbery

, he visited the restaurant with Hardy ’s brother and one of the cashiers told them that the re stauran t had made

about $5, 000 that da

y. D efenda

nt discuss ed this information with Hardy, B ell, Robinson, Carmella Hardy, a nd Irwin, and they

agreed to rob the establish ment. Def

endant st ated tha t he told the

others where the

safe wa s locate d. He als o stated that his role in the robbery was to stand by the pay

phone next to the restaurant and to act as a look o

ut. Defendant also stated that on March 22, 2001, Hardy asked him to check to see how many people we

re working at the restaurant that day . The following day , at about 3 p.m., defenda nt purcha sed food a

t the rest aurant a nd repor ted back to Hardy that ther e were sixNo. 1-04-2709

13

employees inside Taur

us Flavors. According to defenda nt, at about 8 p.m., he, Bell, Robinson, Hardy, Car

mella Hardy a

nd Irwin had another discussion about the r obbery. Af

terwards, around 9:15 p.m., Irwin drove Bell, Robinson, Hardy and him to the restaurant. At that time, Bell was carry ing a 9-millimeter automatic gun, Hardy and Bell wore ski masks, and Robinson had tied a white scarf around his mouth. Defendant stated that he g ot out of the car first, walked to the pay phone adjacent to the restaurant and looked inside to see who was there. He then returned to the car and informed the others that ther

e was no one in the r

estaura nt, but tha

t he knew Smith must be working, because her truc k was parked in the front. According to de fendant, Bell, Hardy and Robinson got out of the car, put on their masks, and walked into the restaura nt. Defendant remained in front next to the pay phone . He stated that if the police showed up he was supposed to walk past the window and bang on it. Defendant then watched Hardy , Bell and Robinson jump over the counter inside Taurus Flavors. He heard screaming and two gunshots. Soon afterward, the police arr ived, placed defendant in the back of a police car and drove around looking for the others. De fendant stated that he was later taken to the police station, where an of ficer asked him for his father’s phone number a nd “smacked him.”

Defend ant state d that he w as not inju red as a result of this, although “his throat was hurting all the time.” Defe ndant indicated that he was not hurting when he gave the videotaped statement and that the “ smack” had nothing to do with his statement. Defend ant also s tated tha

t his gra ndmother had bee n presen t for the e ntire dur ation of h is questioning and that he had enough to drink and ea t and was allowed to use the restroom. Barbara Sims next testified that she was defendant’s materna l grandmother and that sheNo. 1-04-2709

3 The cour t qualifie d Dr. Den

ton as an e

xpert in for

ensic pa thology . The doc tor was no t, ho we ve r, qu al if

ie d a s a n e xp er t i n c ar di ol og y.

4 The record reveals that the autopsy protocol included autopsy photog raphs, a postmorte

m examinati on repor

t, a toxicolo gic ana

lys is repor

t, and dia grams made by

Dr. Worre ll while conducting the autopsy report.

5 According to the medical report the victim was 5 fe et 6 inches and weighed 250 pounds. 14 adopted defendant about six ye ars ago. She stated that her gr andson had been treated well and was giving the statement voluntarily

. Dr. John Sco tt Denton next testifie d on beha lf of the S tate that

on March

24, 2001, a s a deputy medical e

xaminer for the Cook County medical examiner’s off ice, he supervised a trainee, Dr. Rexene Worrell, in conducting an autopsy on the victim, Smith. 3 Dr. Denton testified that he did not perform the autopsy , but that he signed off on the autopsy protocol prepar ed by Dr. Worre ll. 4 Dr. Denton testified that the victim appeared to be the stated ag e of 53 yea rs old and was

overwe ight. 5 He stated that an external examination revealed a bruise to the bridg e of her nose, a swelling of her left cheek bone, a bruise on her left knee and a fairly small abrasion on her right leg. According to Dr. Denton, an internal examination showed that Smith’s lungs wer e “markedly he avy,” a

nd filled with blood and fluid, which indicated a circulatory cardiac respiratory

problem. Examination of Smith’s heart revealed that the left anterior descending coronary artery was 90% blocked, her left circumflex coronary artery was 20% blocked and herNo. 1-04-2709

6 Accord ing to Dr . Denton, Smith’s hea rt was 509grams, and “[a]ny thing ove r 500 gr ams is what we term electrically unstable heart. It’s a he art that can stop. It can go into fibrillation or irregular heart beats.” 15 right coronary

artery was fairly w

ide open. Dr. Denton testified that Smith suffered from

coronar y he art disea se beca

use her heart ha

d ye llow athe

roscler otic plaq ue, which takes y

ears to build up. According to Dr. Denton, Smith’s heart was enlarg ed, weighed too much, 6 and had an overall flabby

appearance. Dr. Denton stated that the a utopsy report re

vealed that Smith’s heart suffered from a chronic lack of oxygen ca

using it to dilate and collapse and expand from the normal “v” shape to a “u shape.” Examination of Smith’s liver revealed that it was becoming “engor ged with blood,” which Dr. Denton testified indicated “poor circulation.” Dr . Denton stated that the blood was backing up into the

liver and the live

r was expa

nding. Si milarly, examinati on of Smith’ s brain revealed that it was swollen and weighed mor e than normal. Dr. Dent on furthe r testifie d that whe

n a person with or without cor onary heart di sease experiences stress, the body releases adrenalin and epinephrin, which c auses the heart rate and blood pressure to increase, and force s the person to breath faster. Dr. Denton ave rred that for a person with Smith’s level of coronary heart disease, a stressful event is an “insult to injury ” and “can push someone over the edge very ea sily.” He explained that in such circ umstances, a heart like Smith’s would dilate and stretch because it was already enlarged. Moreover, the 90% clogg ed arte

ry would pre

vent the brain from getting enough oxyg en and wo

uld ultimat

ely cause the hear t to experie

nce fibr illation. A ccordin

g to Dr. Denton, t

he autopsy r

eveale d that bec auseNo. 1-04-2709

7 Dr. Denton testified that the stress response could be any where between two “extremes,” one involving stress immediately f ollowed by a person grabbing his chest and collapsing, a nd the other involving “someone who suffers a stress and the n *** [goes] into congestive heart failure, possibly over day

s, *** [having] to go to the ICU where [he or she is] on a ventilator and [where] 16 Smith’s heart was “u-shaped,” the blood coming throug h the left ventricle was not getting “the forceful push” it needed to circulate the blood throug h her body and tha

t as a result, blood and fluid backed up into the lungs and liver. According to Dr. Denton, however, it took several hours for Smith’s lung and liver to begin filling with fluid. Dr. Denton further testified that a person with 90% blockag e of the main coronary artery can live for y ears wit hout knowi

ng that she suffe

rs from c oronary

disease , until she

suddenly experiences che st pains or even die s very

suddenly . Dr. Den

ton stated that when

a person with Smith’s condition experiences stress, the stress can compress the heart and ca use it to fail. Accord ing to Dr . Denton, it is diffic ult to quan

tify how much s tress wou

ld cause a heart to fail, but that the

stress Smit

h endure d as part

of the ar med robbe

ry was suff icient to c ause her

heart to fail and cause her death. As Dr. De nton stated, “the stress that brought [Smith] to the medical examiner’s office was enough stress.” Dr. Dent on also te stified th at “homic ide by heart a ttack” is a term use d by

forensi c pathologists to explain a situation where a person with severe heart or lung disease is subjected to stress, such as a

burgla ry , or an al

tercati on, and a s a resul

t of that st

ress die s within the

“stress response of that time period.” According to Dr . Denton the stress response time is variable and depends on the circumstances of each c ase. 7 Dr. Dent on stated that it wa s his opinio n that SmithNo. 1-04-2709

[he or she] can’t be revived.” 17 died within the stress response time because she died approximately 5 1⁄2 hours after the robbery and was still being treated and evaluated a t the hospital for stress symptoms related to that robbery. Dr. Denton averred that if Smith had been release d from hospital and then died at home, he would not have concluded that she had died within the response time per iod. Dr. Denton also testified that Smith was given Atavan at the hospital, which is a ty pe of short-acting Valum drug that calms a pa tient down. Dr. Denton finally c oncluded that within a reasonable degre e of scientific and medical certainty it was his opinion that “[t]he cause of de ath in Queen Smith [was] coronary atherosclerosis of the heart or heart disea se, and the contributing factor in her dea th [was] blunt trauma to the head due to an assault.” Dr. Denton also indicate d that it was his opinion that the manner of death was homicide. On cross-examination, Dr. Denton acknowledged that Smith’s other injuries we re not life-threatening. He acknowle dged that CPR can cause lungs to fill up with fluid, but indicated that he ha d never s een lung s that wei ghed 90 0 grams as a res ult of CPR. Dr . Denton a lso testified that Smith’s blood pressure could have fluctuated after the ar med robbery , and that he could state with a reaso nable degree o f medi cal cer taint y only that h er blo od pre ssure was hi gh during t he incide nt at the r estaura nt. Dr. Denton also testified that it was standard protocol to order a patient’s hospital re cords for an autopsy, but that he did not recall if he saw Smith’s hospital records before signing the autopsy report. Dr . Denton stated that he did see “bits and pieces” of those re cords in a meetingNo. 1-04-2709

8 The St ate al so in trodu ced tes timo ny by a forensi c scien tist that t he two fired cartri dge casings found at the scene were fired from the 9-millimeter pistol also found after the incident. The par ties also s tipulated

that a fo rensic s cientist would testif y th at she re ceived f

our late nt prints from the Chicago police department but that only one was suitable for comparison and that print did not match those of Robinson, Hardy, Sims or Bell.

9 At the time

of the ar med robbe

ry , Bixter ha

d worked as a par amedic f or 21 y ears. 18 with the attorneys in prepa ration for codefendant Robinson’s trial. Dr. Denton, howeve r, testified that he found nothing in those records that would chang e his conclusions. On redir ect examination, Dr . Denton s tated tha t, in his opin

ion, Smith did

not die as

a result of CPR. He also testified that the “bruises” on Smith’s face, although not life threa tening themselves, were the “contributing fac tor” that pushed her heart disease over the e dge. Following Dr. Denton’s testimony , the State rested its case. 8 In his defense , defend

ant calle d Chicag o fire de partmen t ambulance comma

nder De nnis Bixter. 9 After Bixter testified that he could not recall the parame dic call that he received about 9:30 p.m. on March 23, 2001, he was permitted to review his “run sheet” f or that call, indicating that he had filled out the report contemporaneous to the events desc ribed therein and that he recognized his signature on it. Afterwa rds, referring to the run sheet, B ixter testified that after receiv ing a ca ll at 9:43 p. m., he and

his partn er, par

amedic c andidate

Roberta S hanaha

n, went to a resta urant loc ated on 85 thStreet and Stony I sland Avenue. After arriving at the r estaurant at exactly 9:48 p.m., inside Bixter observed Smith “hy perventilating,” which he defined as “breathing too fast.” Bixter explained that “hy perventilating” does not mean that Smith wasNo. 1-04-2709

19

experiencing “shortness of breath,” an “ unscientific term that a lot of people use to describe what they perc eive as breathing difficulty .” Bixter also stated that he did not notice any signs of trauma to Smith’s body, such as bruises, lac erations or fractures. Bixter te stified th at at 9:52 p.m, his pa rtner took Smith’s vit

al signs and rela ted them to him. Smith’s

blood pre ssure wa s 220 over 110, her heart r ate was 1 08, and he

r respir ation ra te was 22 per minute, all of which were high. Ac cording to Bixter, Smith’s skin color, moisture and temperature were all normal. B ixter testified that his partner checked Smith’s lungs and indicated that they both “sounde d clear.” Bixter testified that the term “clear” lung indicated a smooth passage of air in and out of a lung, with no dete ctable pathology that would cause an unusual sound. As he explained: “[clear] essentially *** mea ns *** she is breathing normally .” According to Bixter, at 10:01 p.m, Smith’s vitals were taken aga in. This time, her blood pressure was 188 over 88, which was “still high.” Smith’s hear t rate was 100 and her respiration rate was 16, which was “still a little fast,” but “not within the categ ory of hy perventilation.” Bixter also stated that Smith did not need to be restrained while being transported to the hospital in the ambulance vehicle and that her care was transferred over to hospital staff at 10:09 p.m. Defendant next called City of Chica go paramedic Roberta Shanahan, who te stified that about 9:45 p.m., on Ma

rch 23, 2 001, alon

g with he r partne r Dennis B ixter, she was dispat ched to a restaurant on Sony

Island, where “a

lady, who would be our pa tient, *** was pacing [and] *** was very upset.” Shanahan admitted that she only remembered “bits and pieces” of wha t happened and would have to refer to the “ run report” for that day , which she signed but whichNo. 1-04-2709

20

was prepared by

Bixter. The court called a sidebar outside the presenc e of the jury a nd stated that Shanahan would not be allowed to read the report into the rec ord. Shanahan explained that although her signature was on the r eport, the computer prints out the report at the beginning of the day bef

ore the first call, and she did not have any independent recollection of Smith’s vital signs. T he court indicate d that the

document

would not c onstitute a

business r

ecord or a past recollection recorded because Shanahan did not prepare it herself. Back in front of the jury , Shanahan testified that Smith was ambulatory a nd that she walked to the emer gency vehicle by herself. She also st

ated tha t during the ride to the hosp ital, Smith did not need to be restrained but was able to sit up by he rself. Defense counsel next called Dr. Joseph Messer. Based on the following information, the court qualified Dr. Messer as an expert in cardiolog y. Dr. Messer

is a graduate of Harvar

d College and Harvard Medical School. At the time of the tr ial, he had been a practicing phy sician for 45 yea rs. Dr. Messer had been chief of c ardiology at the Boston City Hospital for 10 y ears until he came to Chicago to act as chief of c ardiology at Rush Medical Center. In 1987, Dr. Messer retired from that position and entered private pr actice. Dr. Messer was one of 47 worldwide masters of the American College of Cardiology a

nd the chairman of the Inde pendent Pract ice As socia tion , whic h cons ists of 25 c ardio logy groups in great er met ropol itan C hicago that work together to try

and improve the practice of cardiolog y. He has published a

round 40 articles, chapters in books and editorials on coronary artery disease and congestive heart fa ilure. Dr. Messer testified that he was asked by defense counsel to review Smith’s records from the emergency

medical service, paramedic rec ords, supplementary r ecords, hospital records andNo. 1-04-2709

21

the autopsy repor

t and give his opinion as to the cause of Smith’s death. He stated that based on hi s r ev ie w o f t he se re co rd s, he re ac he d t he op in io n, to a r ea so na bl e d eg re e o f m ed ic al ce rt ai nt y, that stress did not play role in Smith’s death and that she did not die fr om coronary atherosclerosis. Dr. Messer testified that although the autopsy report indicated that one of Smith’s three major coronary

arteries was 90% obstructed, the other two arte ries were sufficiently

open and thus precluded coronary

atherosclerosis from causing death. Dr . Messer stated that the state of Smith’s heart indicated that she suffered from a sever e narrowing of one corona ry arte ry, but not

severe heart di sease, b ecause

the other two arte ries wer e able to deliver sufficie nt blood sup

ply to the heart muscle. Dr. Messer further testified that the hospital records indica ted that Smith arrived at the emergency

room “hyper

ventilating,” which indicated that she was “short of bre ath.” According to Dr. Messer, there was nothing in the rec ords indicating that Smith complained of chest pain, although the records show that she was questioned at lea st two or three times as to whether she was having any

such pains. Dr. Messer also stated that according to the records, Smith’s blood pressure, her respiratory

rate, and her pulse at the time of arrival we re only mildly

elevated. Dr. Messer stated that someone with a preexisting condition of 90% blockag e in one of the three major ar teries w ould exper

ience a n increa se in blood

pressur e due to a n exciting event be cause the anxiety and stress of the situation would cause a release of adrenalin and a n increase in blood pressure. Dr. Messer further testified that of the factors he considered in formulating his opinion,No. 1-04-2709

22

the most important was the “Code Blue Log ,” which outlined Smith’s condition and the treatment attempted just prior to and at the time of her death by those caring for her afte

r the arrest. As Dr. Me sser beg an to disc lose why the “Code

Blue L og” wa s importan t, the State called a sidebar to review the documents Dr. Me sser was rely ing upon for his opinion. It was revealed that a packet of hospital rec ords including “all protocols for intravenous sedation of behavioral medicine patient in effect for the y ears 2001, 2, and 3" had never bee n tendered to the State in discovery. Appare ntly , that pro tocol re

vealed t hat the At avan sho uld be adm

inistere d to patients intravenously and not ora lly. Defense

counsel responded that the documents pertained to the hospital’s protocols for administering sedation and did not contain any information specific ally

regar ding Smith . Furthe

r, defe nse coun sel indica

ted that h e could no t state wit h certain ty that the doc

uments ha

d been te ndered t o the State . Defen se counse l averr ed that e ven if the document Dr. Messer was rely ing on had not been tendered to the State, the State had bee n placed on notice of this protocol through Dr. Messer’ s report, which had been tendered to the State and which listed the items Dr. Messer had reviewed, including the hospital protocols. The trial court then reviewed Supreme Court Rule 413(c) ( 134 Ill. 2d R. 413 (c)) and asked defense counsel why the State had not been tendered the documents that had bee n used by the defense expert, to which defense counsel re plied that the assistant public defenders for all of the codefendants in this case were working together to get documents from the hospital, and that he obtained the records from one of the code fendant’s attorney s and was under the misapprehension that the item had been tendered to the prosec ution. Defense counsel further stated that he did not believe that Dr. Messer would testify that he relied on the hospital’sNo. 1-04-2709

23

protocols in forming his opinion that Smith died of respiratory arrest, but rather that he relied primarily on the para

medic report and the report from the hospital showing wha t happened there. In response, the State cited to Dr. Me sser’s pre-court opinion, which stated:

“I a m unawar e of any instance in which e

motional st

ress has resulted in respiratory arrest and believe that respiratory arrest may have resulted from Atavan ad

ministere d intrave nously rat

her than or

ally as writt

en in the o rders. Contrary to the policies and pr ocedures for administration of intravenous sedation the decedent did not have vital signs closely monitored and there is no record of oxygen satura

tion values recorded during the dece dent’s nearly five hours in the emergency

room.” (Emphasis added.) Defense counsel argue d that Dr. Messer did not have an opinion to a reasonable deg ree of medical certainty

as to what caused Smith’s respiratory arrest, and that the basis of his opinion was the “Code Blue” and not the protocols. The cour t replied that, “the rest of the sentence, at le as t t he wa y th e S ta te re ad it [f ro m D r. Me ss er ’s pr et ri al op in io n] , w as gi ve n i n a pp ar en tl y [ sic ] contrary to some established protocol that might be reflected in these documents that we ren’t tendered.” Defense counsel then a rgued that he would not ask Dr. Messer to specula te as to what might have caused the respiratory arrest, because he “doesn’t know.” The tr ial co urt su bsequ ently mad e the fo llow ing rul ing:

“If [Dr. Messer is] going

to come in here and render even pa rtially that the cause of death resulted from hospital violating their own policies of giving an intravenous injection of some drug that should not have been given, I think thatNo. 1-04-2709

24 it’s unconscionable that the Sate wasn’t put on notice at least in giving the

because first of all, the opinions are going beyond what [Dr. Messer ] indicated he’s go ing to be

expressin

g opinion s on in wha

t I or dered to be prepa red just to avoid all of this months ago and I’ve even now expanded that a little bit so as not to deprive [defendant] of his right to present his defense. What I ’m going

to do, and

I sup pose if th ere is a

convicti on in this c ase it will be reviewed and I

may be cr

iticized, but this to me is an ongoing symptom of, I sup pose in pa

rt even a s to subtle i ssues, tr ial by ambush. A

nd I’ m not goin

g to allow it. I

indicate d before

I wa s not goin

g to allow it. I will allow the doctor to continue to testify . He can

express hi s opinion a s to what he believes based on his expertise and what he reviewe d caused the death of Miss Smith. Th er e w il l b e n o r ef

er en ce to th is re po rt , a nd he wi ll no t r en de r o r s ta te an y opinion or be asked any

opinion with regard to hospital protocols and ostensible hospital o r doctor

or nurse violations

of hospita

l protoco ls.

*** Well, I’m not even preventing y ou [defense counsel] from bringing in that if [Dr. Messer’s] experience and training and expertise and obser vations of the chart of this patie nt’s are such that he belie ves somehow the Ata

van play ed a role in that and he’s established a sufficient familiarity with that drug, I’m not preventing y

ou from bringing that out.No. 1-04-2709

25 What I’m preventing y

ou from bringing out is that somehow it’s a grande r conspiracy

or negligence or something of a doctor or some medical person violating the hospital policy for w hich the State has not been given any notice or tendered any

such documents in order to inquire into that. And I’m certainly not going to recess this t

rial so that t

hey cantake whate

ver leng th of time it

does to combat an alleged hospital negligence .” (Emphasis added.) Following the trial court’s ruling, defe nse counsel did not ask Dr. Messer any questions relating to the hospital protocol or neglige nt administration of Atavan. Instead, Dr. Me sser continued his testimony by stating that Smith’s respiration rate was 22 breaths per minute when taken by the pa

ramedics and 36 breaths per minute when taken by triage at the hospital. According to Dr. Messer, the normal re spiratory ra te is anywher

e between 12 to 22 or 23 breaths per minute. Dr. Messer further testified that respira tory rates a

re very much related to the amount of stress and emotional trauma that a person experiences, and tha t in this case, Smith’s respiratory

rates were “quite normal” when the pa ramedics arrived at the restaurant. In a ddition, Dr . Messer

testifie d that at 9 :52 p.m. the parame dics took Sm

ith’s hea rt rate and noted that it was 108, and that later, at 10:01 p.m., it was 100. The hospital records further indicated that Smith’s heart rate was 93 upon admission to the hospital. According to Dr. Messer, “the nor

mal rang e of hea

rt rate [is ] between

60 and 100 .” Dr. Me sser expla ined that if heart rates are only

slightly elevate d or normal, like in Smith’s case, the heart is not under a greatly increased burden. Moreover, ac cording to Dr. Messer, the fact that Smith’s heart ra tes were only slig

htly increase d and then came down into the normal range sug gests that she was notNo. 1-04-2709

26

under great emotional stress when she ar rived at the hospital. Dr. Messer further explained that the “Code Blue L og” indicated that CPR was started on Smith at 2:25 a.m, and that the box for “respiratory a rrest” was checked and not the box for “cardiac arrest.” Ac cording to Dr. Messer, this indicated that those caring for Smith believed that she was suffering a respira tory arre st, which is the cessation of breathing, and not a car diac arrest, which is a cessation of heart action. Dr. Messer testified that the log indicated that the respiratory

arrest was “unwitnessed,” indicating that “ we really don’t know how long this patient had arrested.” The recor

d indicates instead that at 2:35 a.m., 10 minutes later, Smith was intubated so that she could ventilate more effectively , and that at 2:40 a.m. she still had a pulse, or a beating heart. Accor ding to Dr. Messer, the “Code Blue L og” indicated that 18 minutes after those in attendance had indicated that Smith was in respiratory arrest, Smith had no more pulse, i.e., that her

heart ha d stopped b eating . Dr. Mes ser testi fied tha t the “Code

Blue L og” es tablishes that “this was a classic respiratory arrest followed by

a cardiac arrest,” and tha t in his entire career he has “never

seen a patient die of a respiratory arrest from emotional distress.” Dr. Messer finally

stated that Smith’s enlarged heart was a re flection of her history of high blood pressure and that the fluid in her lungs was pr oduced by CPR, which had bee n performed on her for 35 minutes. On cross-examination, Dr. Messer acknowledge d that stress could lead to a heart attack. Dr. Messe

r also sta ted that h e never

spoke with

any of the doc

tors who w

rote the hospital r

eports to determine their accuracy and did not know who wrote the “Code Blue L og.” Dr. Messer further acknowledged that he ne ver examined Smith, that he did not know what her normal heartNo. 1-04-2709

10 The charge of arme d robbery of Queen Smith merged with the first degree murder under the one-act one-crime rule. See People v. Rodriguez , 169 Ill. 2d 183 (1996).

27 rate was, and that if her normal heart ra te was 60, a rate of 100 would be “significa ntly higher than 60.” The jury found de fendant guilty of armed robbery

and of first degree murder dur ing the commission of the forcible felony of armed robbery . After hearing arg uments in aggravation and mitigation, the court sentenced defendant to 28 y ears’ imprisonment for the first degree murder of Smith 10 and 9 yea

rs’ imprisonment for the armed robbery of Guillermo Ramirez to run

consecu tively , for a to tal of 37 y

ears’ im prisonme nt. Defe ndant now

appeals

. II. AN ALYS IS 1. Sufficiency of

Evidence Defend ant first contends that the e vidence present ed at his tr

ial was in sufficie

nt as a matter of law to sustain his conviction for the charge of first degre e murder. We disagree. At the outset, we reject defendant’s contention that this issue presents a que stion of law, subject to de novo review. In support of this contention, defe ndant cites to People v. Smith , 191 Ill. 2 d 408, 411 (2000), where our supreme court he ld that whe

re fac ts of the c ase are

not in dispute, defendant’s guilt is a question of law, which should be reviewe d de novo . Unlike in the present case, in Smith , the cour t was esse ntially asked to c onstrue t

he meani ng of a statute a s it applied to the undisputed facts of that case. Moreover, unlike in Smith , here de fendant is specifically a sking this court to review the jury ’s findings of fact that defendant’s conduc tNo. 1-04-2709

28

contributed to Smith’s death, based on the conflicting testimony of the two medical experts. As such, the facts a re in disp ute and th e standa

rd of re view is not de novo

. Rather, the applicable standard of review r equires us to determine whether defendant’s conviction was against the manifest weight of the evidence. People v. Ervin , 297 Ill. App. 3d 586, 590 (1998). Under this standard, when considering a challenge to the sufficiency of the evidenc e the re levant qu

estion is w

hether, after viewing the

evidenc e in the lig

ht most favorable to the pro secution , any rat ional trie r of fact could ha

ve found the esse ntial ele ments of the crime beyond a reasonable doubt

. People v. Hall , 194 Ill. 2d 305, 330 (2000). The weight to be given the testimony, the credibility of the witnesses, the resolution of conflicting testimony, and the reasonable inferences to be dra wn from the evidence are the re sponsibility of the trier of fact. People v. Walensky , 286 Ill. A pp. 3d 82, 9 7 (1996); People v. Milka , 211 Ill. 2d 150, 178 (2004). A reviewing court will not set aside a criminal conviction unless the evidence is so unre asonable, improbable, or unsatisfactory as to justify reasonable doubt of the defe ndant's guilt. Hall , 194 Ill. 2d at 330. In this case, defendant was convicted of first degree murder arising from the commission of a forcible felony , armed robbery , in violation of section 9-1(a)(3) of the Criminal Code of 1961 (720 IL CS 5/9-1(a)(3) (West 2000)). Under the felony murder statute, a person

who kills an individ ual withou

t lawful ju stificat

ion commits

first deg ree mur der if, in perfor ming the acts which cause the death, he is attempting to or committing a forcible felony , other than second degree murder. See 720 IL CS 5/9-1(a)(3) (West 2000). We initially note that there is no issue raised as to whe ther defendant committed the forcible felony

of armed robbery . Defendant does not contest the applicability of the legal theoryNo. 1-04-2709

29

of his accountability for

the actions of Robinson, Bell and Hardy in perpetrating the felony of armed robbery

which is alleged to have resulted in Smith’s death. I nstead, on appeal, defendant solely asserts t hat the Sta

te faile d to estab lish that th e forci ble felo ny was the contributing cause of Smith’s death. Defendant specifically contends that the State failed to prove bey ond a reasonable doubt that the stress caused by the armed robbery

was a contributing cause of Smith’s death, which occurred 5 1⁄2 hours later. To prove defenda nt guilty of murde r, the Sta te was re quired to

prove be yon d a reas onable doubt both the fact of death and the criminal age ncy ca using death. People v. Fuller , 141 I ll. App. 3d 737, 748 (1986). Illinois law follows the proximate cause theory of liability for felony murder. People v. Dekens , 182 Ill. 2d 247, 249 (1998). The focus of the pr oximate cause theory of liability is whether the def endant’s actions “set in motion a chain of events [which were or should have been within defendant’s contemplation] that ultimately caused the death of the decedent.” People v. Lowery , 178 Ill. 2d 462, 473 (1997). The State need not prove that defendant’s acts constituted the sole and immediate cause of death ( People v. Martin , 112 I ll. App. 3d 48 6, 499 (19 83)), but rather must show that defe

ndant’s a cts were a contri buting c ause of death , such tha

t death di d not resu

lt from a s ource un

connec ted with or

independ ent of tho se acts (see Fuller , 141 Ill. App. 3d at 748; see also Dekens , 182 Ill. 2d at 249 (a defenda nt’s criminal acts are the proximate cause of a person’ s death if they c ontribute to that person’s death, and the death is not caused by an intervening event unrelated to the def endants acts); People v. Paulson , 80 I ll. App. 2d

44 (1967)(noting

that an intervening cause, completely unrelated to the

ac ts of de fe nd an t, re li ev es a d ef en da nt of cr im in al li ab il it y) ; People v. Hudson , 222 Ill. 2d 392,No. 1-04-2709

30

401 (2006), quoting 1 W. LaFave , Substantive Criminal Law §6.4, at 464 (2d ed. 2003) (“Foreseeability

is added to the cause-in-fact requireme nt [of proximate cause] because ‘even when ca use in fa ct is esta blished, i t must be de

termined that any variation betwee

n the res ult intended *** and the result actually achieved is not so ex traordinar

y that it wou ld be unfai

r to hold the de

fendant re

sponsible for the ac tual result .’ [Citation.]”(Emphasis added.)). Defendant first contends that the jury was presented with conflicting medical opinions as to the ca use of Smith ’s death

and asks u s to rewe igh the e xperts’ te stimonies b ased on their respec tive qual ifications. Defe ndant doe s not dire ctly

challen ge Dr. Denton’ s qualific ations as a Cook County medical examiner and patholog ist to testify as to the cause of Smith’s death (se e People v. Jackson , 145 Ill. App. 3d 626, 633 (1986) (noting that g enerally e xpert witnesses are qualifie d if, bec ause of t

heir skill , training

or experi ence, they

are bet ter able to form an

accura te opinion concerning the matter at issue than is an aver age lay person)), but rather contends that the testimony of Dr. Messer, the defense expert, should have been given more weight because, unlike Dr. Denton, Dr. Messer is a world-renowne d cardiologist and thus far better qualified. At the outset, we note that the issue here is not who among the two experts was better qualified to offer an opinion but rather whether Dr . Denton’s opinion, as challenged by Dr. Messer’ s conclus ions, was sufficien t for the ju ry to find de fendant

guilty . The ca

use of de ath is a question of fact, which should be left to the trier of fact (se e People v. Brack ett , 117 Ill. 2d 170, 177 (1987 ); Fuller , 141 Ill. App. 3d at 748). I t is for the trier of fact to evaluate the expert testimonies and weigh their relative worth in context. Fuller , 141 Ill. App. 3d at 748. When the expert testimonies offer divergent conclusions, the jury “is entitled to believe one expert over theNo. 1-04-2709

31

other” ( Hall v. National Freight, I nc ., 264 I ll. App. 3d

412, 423 ( 1994)) a

nd is not re quired to search out a cause of death compa tible with innocence ( Fuller , 141 Ill. App. 3d at 748). In the present case, D r. Messe

r testifie d that Smith d

ied as a r esult of r espiratory arrest, which was not related to stress arising from the ar med robbery . His testimony directly conflicted with Dr. Denton’s conclusion that Smith died of a heart attack, arising f rom stress that she suffer ed during the arme d robber

y. T he jury, hearin

g both te stimonies, resolve d the cre dibility question in favor of the State's witness, which was well within its discretion to do. See Hall , 264 Ill. A pp. 3d at 4 22-23 (“ [t]he testimony o f expert w itnesses i s to be con sidered in light o f their qualific ations, th e quality of their t estimony , and thei r credi bility ,” and the

trier of fact is generally “in a better position to review pertinent exhibits and assess witness credibility ”). As such, we must turn to the threshold inquiry of the sufficiency

of Dr. Denton’s testimony in establishing the cause of death. Defendant contends that Dr. Denton’s te stimony was insufficient to establish a cause of death beca use unlike Dr. Messer, Dr. Denton did not consider the essential “Code Blue L og” reporting Smith’s state of health and her treatment at the hospital immediately prior to her dea th, but based his opinion entirely on Smith’s autopsy report. We disagree. We first no te that it is

unclear from the r

ecord w hether Dr. Dento n had an o pportunit y to examine the “Code Blue Log ” before formulating an opinion as to Smith’s death. The rec ord does not sp ecifica

lly show that D r. Dento n conside red the “ Code Blue

Log ” in comin

g to his opinion, but also does not rule out the possibility that he did not see the document befor e trial. According to the trial transcript, Dr. Denton testified tha t he could not recall if he had seen theNo. 1-04-2709

32

Jackson Park hospital records before signing Dr . Worrell’s autopsy repor t. Dr. Denton, however, stated tha t he did se e Smith’s me dical re cords in a n informa l confer ence wi th the publ ic defenders, including defense c ounsel, before codefendant Robinson’s trial in 2004. Dr. Denton indicated that during that meeting, he saw only “bits and pieces” and “some parts” of Smith’s medical records. When questioned if he read those re cords, Dr. Denton stated that he “looked at them” but “didn’t k eep them and reta in them and study

them.” Dr . Denton, however , also testified that after seeing those recor ds, he “reevaluated his opinion” but found nothing in them that would change his conclusions. We next note

that exper

ts, other wise qua lified, a re generally

permitte d to state t

heir opinions if

the infor mation upon which th ey

are bas ing thei

r opinions

is the ty pe reas onably relied upon by the e

xperts in their field (see People v. Hernandez , 313 Ill. App. 3d 780, 784 (2000); Wilson v. Clark , 84 Ill. 2d 186, 193-94 (1981)), and expert testimony can be introduced only upon a proper

foundation of facts already in evidence (see People v. Moore , 199 Ill. App. 3d 747, 772 ( 1990)). I

n the pre sent cas e, in for

ming his o

pinion, Dr . Denton r

elied on t he autopsy protocol prepar ed by Dr. Worre ll, which i

ncluded a postmorte

m examinati on, a toxico logic analy sis repor t, and dia grams made by

Dr. Worre ll in perf

orming t he autopsy. G eneral ly, these types of repor

ts are reasonably

relied upon by experts in the field of f orensic pathology

to form their opinions as to the cause and manner of death (see People v. Nieves , 193 Ill. 2d 513, 528 (2000 ) (hel d that in rev iewin g autop sy photo graphs , post morte m exa minat ion re port, tox icolo gy report, evidence receipt, diag rams prepared during autopsy , and investigator’s report, chief examiner r

elied upon ty

pe of evi dence r

easonab ly r

elied on by experts in the field of f orensicNo. 1-04-2709

33

pathology to for

m their opinions as to the cause and manner of the victim’s death)). Furthermore, Dr. Denton’s testimony posited a plausible causal connection between the armed r obbery and Smith’ s death 5 1⁄2

hours af ter that r obbery . Dr. Den

ton opined

that Smith died as a result of a heart attack, which wa s induced by the stress she suffered during the armed robbery. Dr. Denton testified that Smith was an elderly , severely overweight woman, who suffered from severe hea

rt atherosclerosis. Dr. Denton explained that the atherosclerosis wa s evident f rom Smith’s

autopsy which re vealed t hat Smith’s

heart ha d ye llow athe

roscler otic plaque, t hat her main left c oronary artery was 90% b locked, a

nd that he r heart was abnormally flabby and “

u”-shaped ( i.e,. was experiencing “chronic lack of oxygen”). Dr. Denton further testified that because Smith’s heart weighed over 500 grams, it was “electrically unstable,” i.e., it could stop or go into fibrillation, or irregular hear t beats, at any time. Dr. Denton stated that for a person with Smith’s heart condition, a stressful event in the nature of a scare would be an “ insult to injury” which could push the person “ove r the edge,” causing her heart to compress, fa il and go into cardiac arrest. Under such stress, an enlarged heart su ch as Smith ’s would h ave to dil ate and s tretch a s it would ha ve to wor k harder to pump the blood t

hrough the body . Howeve

r, beca use the he art’s ma

in arter y is 90% clogged, th e brain would be prevented from receiving enough oxyg en and the heart would experience fibrillation. Dr. Denton averred that Smith’s autopsy revealed lungs that were “ma rkedly hea

vy,” and filled wit h blood and fluid, a

nd a liver that was b ecoming

“engorged w

ith blood.”

Accord ing to Dr. Dent on, this ind

icated that Smith’s “

u”-shap ed hear

t could not

make a f orcefu l enoug h push to circu late the b lood throu

gh the e ntire bod y, a nd as a re sult, within

a few ho urs, blood and fluidNo. 1-04-2709

34

backed up in to her lungs . Dr. D enton also r ebutt ed Dr. M esser’ s test imon y that Sm ith’s lungs filled up with blood because CPR was performed on her for about 35 minutes, by explaining that although CPR can cause lungs to fill up with fluid, he had never see n lungs that weighed 900 grams as a result of CPR. Dr. Denton finally state d that Smith died as a result of a “homicide by heart attack,” which he defined as occur ring wh en someone with sev ere hea rt or lung disease is subjec ted to intense stress and dies within the stress response time. Dr. Denton concluded that Smith died within the

stress re sponse time

because she was b eing tr

eated a t the hospi

tal for th e stress symptoms she experienced during the armed robbery

and had not been released by any hospital personnel before going into ca rdiac arrest. Viewing this evidence in the light most favorable to the prose cution, we hold that Dr. Denton’ s testimony

was suff icient to e stablish that the str ess caus ed by

the arme d robber

y w as a contributing factor in Smith’s death. See Fuller , 141 Ill. App. 3d at 748-49 (court held that evidence was sufficient to sustain finding that the victim’s death of a heart attack was caused by injuries he rece ived duri

ng the c ommission of

a felony , 27 day s earlie r, even t hough th e experts ’ testimonies on the cause of death directly conflicted, because defense e xpert’s opinion was principa lly b ased upo n specula

tion that th e patholo gist’s r eport wa s inaccu

rate an d his autop sy techniques insufficient; court also made note of defense e xpert’s opinion that the victim died of complications in surgery

that resulted from pulmonary embolization related to gallbladder disease , rather

than fro m a hear

t attack, but indica

ted that “ [a] reasonable doub t does not e xist because other factors may have contributed to decedent’s death[,] or because an individualNo. 1-04-2709

35

without de cedent’ s medica l history might not

have die d from the

trauma” ); Brack

ett , 117 Ill. 2d at 178-79(court h eld that the trier o f fact w as entitle d to find th at defe ndant, a 2 1-year-ol d male who batte red and r aped an 85-y ear-ol d woman, s et in motion a chain o f events

that cont ributed to her death, five weeks later, of asphy xiation, while being fed by a nurse’s aide in a nursing home, noting that “defendant takes the victim as he finds [her],” and that “[the jury placed] great weight” on the testimony of the State’s expert, who concluded that, as a result of the attack, the victim, who had been a “feisty woman,” became depressed and r esisted efforts to feed her). In coming to this conclusion, we have considered People v. Kent , 111 Ill. App. 3d 733 (1982), cited by de fendant and find it inapposite. In that ca se, defendant was charg ed and convicted of first degree murde r based on the evidence that she admitted feeding beer to her baby twice daily fr

om the time the baby was thre e weeks old until it died at the age of four months. Kent , 111 Ill. App. 3d at 739. At trial, t he State’ s patholog

ist testifi ed that in

conducting postmortem tests, he requested an alcohol determination on the muscle tissue he re moved from the neck of the deceased, which re vealed 20 milligrams % ethanol in the tissue, but that he did not preserve any

blood from the infant’s body be cause he did not initially consider a lcohol poisoning to be a possible cause of death. Kent , 111 Ill. App. 3d at 735. The pathologist ag reed with the testimony of defense

experts that Sudden Infant Death Sy ndrome, Reyes Sy

ndrome, and malnutrition could have caused the phy sical conditions found in the infant during the autopsy

. Kent , 111 Ill. App. 3d at 736. I n Kent , the court reversed defendant’s c onviction, concluding that the totality of evidence

presented at trial was insufficient to prove bey ond a reasonable doubt that defendant’s acts were the ca use of the baby ’s death. Kent , 111 Ill. App. 3d at 738. I n doing so,No. 1-04-2709

36

the court noted that the cause of death was “me re conjecture” because, a

mong other things: (1) the proper medical tests were not performe d to exclude the possibility that the alcohol content found in the baby’s muscle tissue could not have originated from another medica l condition or from an innocent source; (2) the amount of alcohol fe d to the child was not established; (3) the small amou

nt of alc ohol found

in the chi ld’s muscl e tissue w as consis tent with n ormal bod

ily decomposition; and (4) too few tissue samples were taken to prec lude error or contamination. Kent , 111 Ill. App. 3d at 738-39. Unlike in Kent , in the present case, Dr. Denton’s testimony regarding Smith’s death, was not “mere conjecture.” As noted above, Dr. Denton provided a basis for his conclusion that Smith died of a heart attack induced by the stress she suffered during the ar med robbery . Dr. Denton te stified th at the au topsy report c onclusive ly s howed tha t the victi m suffer ed from a

severe ly c logge d arter

y a nd that a p erson in s

uch a co ndition, if

exposed to s tress, wo

uld likely suffer a heart attack. Moreove r, unlike in Kent , where the court concluded that the patholog ist’s finding was based on an inadequate and unr eliable autopsy, in this case, the re was no evidence presented that questioned the accuracy of the autopsy re

port. In addition, unlike in Kent , here, Dr. Messer, the defense expert, provided no evidenc e to explain or offer an alternative and/or independent source of Smith’s death. As shall be more fully discussed with regard to the the issue of the trial court’s exclusion of certain hospital records, Dr. Messer only testified that Smith died of respiratory ar rest, but offered no explanation as to what could have caused suc h an arrest, only 5 1⁄2 hours after Smith had been robbed at gunpoint. Defendant nevertheless contends that Dr. De nton’s testimony is insufficient standingNo. 1-04-2709

11 As noted above, Robinson was one of the men who actually entered Taurus Flavors restaurant and demanded that Smith give him the combination of the safe

.

12 Th ey j ur y fo un d c od ef

en da nt Ro bi ns on gu il ty o f a rm ed ro bb er y.

37 alone as in a separate procee ding codefendant Robinson was acquitted for fe lony murder under a far less compellin

g set of circumst ances. 11 See People v. Robinson , No. 1-04-2061 (March 20, 2006) (unpublished order pursuant to Supreme Court Rule 23). I n codefendant’s proceeding , the only evidence

offered regarding

the cause of Smith’s death was that of the State witness, Dr. Denton. The jury in that c ase, however, found Dr. Denton’s testimony an insufficient basis upon which to connect the stress caused by the armed robbery

to Smith’s death and acquitted Robinson on the charge of felony murder. 12 Defendant does not contend that because code fendant was acquitted, he should also be acquitte d, but rat

her arg ues that c odefend

ant’s ac quittal ind

icates that “rea sonable j uries” c ould disagree as to whether Dr. De nton’s testimony sufficiently established the cause of Smith’s death. We note, however, that the fact that “rea sonable juries” can disagree is irr elevant to our determination of sufficiency . See People v. Gharst , 122 Ill. App. 3d 1, 5 (1984) (noting that where codefendants are trie d separately before different triers of fa ct, the acquittal of one codefendant has no bearing on the g uilt of a codefendant, regar dless of the nature of the evidence, because the attitudes of eac h trier of fact may

differ, resulting in conflicting resolutions of factual disputes and credibility determinations); People v. Wehmeyer , 155 Ill. App. 3d 931, 944 (1987) (“Each trier of fact weighs the evidence, assesses the cr edibility of the witnesses, and applies the pertinent law on the basis of its preconceived attitudes and e xperiences. Provided theNo. 1-04-2709

38

trier of facts’ determination is reasonable a nd supported by the evide nce, we see no reason why the determinations of separate triers of fac t *** require absolute consistency . In this regar d, one trier of fact may be more l enient th an anothe r and ent er a con viction for a lesse

r offen se or only on one offense instead of two despite support in the evidence f or both convictions”). 2. Exclusion of Hospital Protocol Defendant next contends that it was reversible error f or the trial court to prohibit Dr. Messer from referring to the hospital protoc ols to further explain his conclusion that Smith died fr om re sp ir at or y ar re st no t r el at ed to an y st re ss re su lt in g f ro m t he ar me d r ob be ry. The State first contends that defendant has waived this issue for purpose s of appeal because after the trial court indicated tha t it would not allow Dr. Messer to refer to the hospital’s protocol s, instea

d of objec ting, de fense c ounsel sta

ted, “I have no problem do ing that . I wi ll certain ly c aution him n

ot to mention it in any

way .” Defe

ndant con cedes that he fa

iled to properl y pr eserve this issue f

or appea l becaus e he fai led to obje ct to it at tr ial, but c ontends that it was inef fective assistanc e for co

unsel not t

o do so. I n the alte rnative , defend

ant asks t his court to review h is claim un

der the f irst prong of the pla

in error doctrine . 134 I ll. 2d R. 615 (a); People v. Herron , 215 Ill. 2d 167, 186-87 (2005). “[T]he plain-error doctrine by passes normal forfeiture principles and allows a re viewing court to consider unpreserved error w here either (1) the evidence is close , regardless of the seriousness of the error, or (2) the err or is serious, regardless of the closeness of the evidence.” Herron , 215 Ill. 2d at 186-87. I n the first instance, defendant must prove “prejudicial er ror,” i.e.,No. 1-04-2709

39

that ther e was er ror and t hat the e vidence was so clo sely

balance d that the

error a lone seve rely threatened to tip the scales of justice against him. Herron , 215 Ill. 2d at 187. Under the second prong o f the pla

in error analy sis, defe ndant must

prove the re was e rror an d that the error w as so serious that it affected the fairness of his trial and cha llenged the integrity

of the judicial process. Herron , 215 Ill. 2d at 187. I n both instances, the burden of persuasion remains on the defe ndant. Herron , 215 Ill . 2d at 187, c itin g People v. Hopp , 209 Ill. 2d 1, 12 (2004). For purposes of plain error, we first conside r whether the trial court’s decision to exclude the evidence was made in error. At the outset, we note that the record below is confusing and tenuous. First, it is unclear from the record whether de fendant wanted the hospital protocol admitted i n the firs t place. The tran script re veals tha t when de fense c ounsel fi rst attem pted to elicit testimony from Dr. Messer regarding the “Code B lue Log,” which outlined Smith’s condition and treatment just prior to and at the time of her death by those caring for her afte

r her arrest, the State called a sidebar (her einafter referred to as “ sanctions sidebar”) to review the documents Dr. Messer was rely ing upon. During the sidebar, it was reve aled that among other things, Dr. Messer was rely ing upon a 50-page document of “ all protocols from intravenous sedation of behavioral medicine patient in effect f or the yea rs 2001, 2, and 3” from Jackson Park Ho sp it al , w hi ch ha d n ot be en te nd er ed to th e S ta te in di sc ov er y. When questioned by the court on this point, defense counsel changed course seve ral times. First, counsel responded that the documents pertained to the hospital’s protocols for administering sedation and did not contain any information regarding Smith or her trea tment. Defense counsel next indicated that he could not state with certainty that the documents had beenNo. 1-04-2709

40

tendere d to the Sta

te, but ind

icated that the Sta

te had be en put on notice of the proto col beca

use Dr. Messer “put within his cover letter *** which was provided to the State on F ebruary 26, 2004, all t

he items he

had revi ewed, including

the post- mortem, th e Jackson Pa rk records, protocols for sedation, the paramedics, the video tape, the police reports.” Defense counsel then change d course and admitted that the assistant public defenders for all of the codefendants in this case were wor king together to get documents fr om the hospital. Defense counsel explained that he had obtained the rec ords from one of the codefendant’s attorneys and tha

t he had been acting under the misappre hension that the item had been tendered to the prosecution. Counsel then changed course ag ain, however, and surprisingly stated that he did not intend to a sk Dr. Me sser to ba se his opin ion on the s edation protocol. In re sponse to t his contention, the State cited to Dr. Messer’s precourt opinion and indicated that this document showed that in coming to his conclusion Dr. Messer relied on the hospital’s sedation protocol and that, therefore, defense counse l clearly intende d to elicit this information at trial. Dr. Messer’s precourt opinion stated:

“I am unawar

e of any instanc e in which emotional stress has resulted in respiratory arrest and believe that respiratory arrest may have resulted from Atavan ad

ministere d intrave nously rat

her than or

ally as writt

en in the o rders. Contrary to the policies and pr ocedures for administration of intravenous sedation the decedent did not have vital signs closely monitored and there is no record of oxygen satura

tion values recorded during the dece dent’s nearly five hours in theNo. 1-04-2709

41 emergency

room.” (Emphasis added.) The trial court agreed with the State and indica ted that, “the rest of the sentence, at least the wa y the State read it [f rom Dr. Me sser’s pretrial opinion], wa s given i

n appare ntly contrar y to some established protocol that might be reflected in these docume nts that weren’t tendered.” In response, defe

nse reiterated that Dr. Messer’s opinion was base d on the “Code Blue Log” and not on the hospital protocol, a nd indicated that Dr. Messer would only testify that Smith died of respiratory ar rest but that he had no opinion to a reasonable degre e of medical certainty a s to what caused this respiratory arrest. Defense counsel assured the court that he would not a sk Dr. Me sser to sp eculate as to wha

t might ha

ve cause d the res

piratory arrest, because the doctor “doesn’t know.” We next note

that altho

ugh foll owing th

is colloqu y, t he trial c ourt sanctioned de fense counsel by excluding e

vidence , it is uncle ar from t he record what e

vidence the trial court actually excluded. After a careful review of the transcript, we cannot be sure whether the court intended simply to limit admissibility of the hospital protocol alone, to c onstrain any re liance by Dr

. Messer on the hospital protocol in testifying about hospital negligence, or to entirely exclude any negligence testimony

be it related to the sedation protocol or not. In ma king its ruling, the trial court sta ted: “If [Dr. Messer] is going to come in here and render even pa rtially that the cause of death resulted from hospital violating their own policies of giving an intravenous injection of some drug that should not have been given, I think thatNo. 1-04-2709

42 it’s unconscionable*** because *** the opinions are g oing bey ond what he’s indicated he’s going to be expressing opinions on in what I ordered to be prepared just to avoid all this months ago ***.

*** I will allow the doctor to continue to testify . He can express his opinion as to what he

believe s based on

his experti se and what he re viewed c aused the

death of Miss Smith. There will be no reference to this repor t, and he will not render or state any opinion or

be asked any opinion wit

h rega rd to hospi

tal protoc ols and ost

ensible hospital o r doctor

or nurse violations

of hospita

l protoco ls.

*** Well, I’m not even preventing y ou [defense counsel] from bringing in that if [Dr. Messer’s] experience and training and expertise and obser vations of the chart of this patie nt’s are such that he belie ves somehow that At

avan pla ye d a role in that and he’s established a sufficient familiarity with that drug, I’m not preventing from y

ou bringing that out. What I am preve nting y ou from br

inging out is that s omehow it’ s a grander conspiracy

or negligence or something of a doctor or some medical person violating the hospital policy f or which the State has not been given any notice or tendered any

such documents in order to inquire into that. And I’mNo. 1-04-2709

43 certainly not going to recess this trial so that they can take whatever length of time it does to combat an alleged hospital negligence .” (Emphasis added.) In ma king this ruling, the trial

court ac knowledg ed that th

is was a ha

rsh sanc tion, notin

g that “ if there is a convicti on in this c ase it will be revie wed and I may be critic ized,” but

neverth eless defined defense counsel’s failure to timely furnish the State with a copy of the hospital protocol as “trial by a

mbush.” Because of the lack of cla rity in this record, we

cannot find that the trial court’s ruling was too broad since we cannot state with any certainty that c ounsel intended to offer any testimony to establish neglig ence on part of the hospital, whether based upon the e xcluded protocol or based upon ge neral me dical sta

ndards ot herwise known to th e expert. We also not e that defense counsel made no attempt to clarify this point or test the boundaries of the trial court’s ruling, but instead acquiesced in the ruling and, following the sidebar, never asked Dr. Messer any

question regarding Atavan, ne gligence, the hospital protocol or intravenous se dation. However, if we were to find that in fac t defendant intended to establish that the cause of death wa s induced

by t he intra venous a dministra tion of Ata

van, we would be compelled to conclude that the exclusion of

either the hospita

l protoco l alone, or any

gener al refe rence t o negligence, would have be en too harsh a sanction and therefore made in error. In I

llinois, di sc ov er y ru le s a re se t i n p la ce in or de r t o “ pr ev en t s ur pr is e o r u nf ai r a dv an ta ge [t o e it he r p ar ty] and to aid in the search for the truth.” People v. Daniels , 75 Ill. App. 3d 35, 41 (1979). Pursuant to Supreme Court Rule 413(c), defendant must furnish the State with a list of witnesses it intends to call, a nd with the

statemen ts and qua

lifications of exper

t witnesse s, and all ow the Sta te toNo. 1-04-2709

13 Defendant is also under a continuing duty to disclose any additional information that he discovers after his initial compliance with discovery . See 134 Ill. 2d R. 415(b). 44 inspect “any r

eports or results, or testimony re lative thereto,” which it has in its control or possession. 134 Ill. 2d R. 413(c). 13 When a party fa ils to comply with an applicable discover y rule, the circuit court is authorized to “order such party to permit the discovery of material and information not previously disclosed, g rant a continuance, exclude such evidence, or e nter such *** order as it deems just under the circumstances.” 134 Ill. 2d R. 415(g). I t is within the trial court’s discretion to determine which sanction is appropriate, and its judg ment is given great weight. People v. Levi

n , 207 Ill. App. 3d 923, 933 (1991). Howeve r, sanct ions are intended to accom plish the p

urpose of discover y, n ot to punish the offending party , and their imposition must not encroach on a party ’s right to a fair trial. See People v. Houser , 305 Ill. App. 3d 384, 393 (1999) (“The objec tives of the discovery

rules are accomplished by c ompliance, not by the exclusion of material e vidence. *** If sanctions other than exclu sion can s

ufficie ntly correct and dete

r discove ry violations , then the

re is no r eason to resort to a sanction that ‘itself constitutes a “conscious mandatory distortion of the fact-finding process wheneve r applie d.”’[Cita

tions.]”); People v. Damico , 309 Ill. App. 3d 203, 212 (1999) (sanctions should be “fashioned to meet the circumstances of the particular case with the ultimate objective of compelling compliance, not punishing a party for the oversight or the errors of his attorney

”); People v. Anderson , 80 I ll. App. 3d 1018 (198 0) (same ); People v. Foster , 271 Ill. App. 3d 562, 567 (1995) (even whe n a discovery

violation is wilful, and the State makes no showing of surprise or prejudice, the better option is to punish the offending attorney dire ctly andNo. 1-04-2709

45

personally, not to impose sanctions on his client). In the present case , if the record permitted us to find that the trial court intended to bar Dr. Messer from offering testimony as to general medical principles regarding the proper versus the negligent administration of Atavan, without seeking support from the Jackson Park Hospital protocol, we would conclude that such a ruling would clea rly have be en excessive because the discovery violation was made only with reg ard to counsel’s failure to tender the hospital protocol . In a

ny e vent, suc h a sanct ion would h ave bee

n unduly harsh if a lesser sanction could have been imposed so as not to prevent defendant from f ully asserting his sole theor y of defe nse, namely, that Smith’s death resulted fr om an intervening cause completely unrelated to the acts of defenda nt ( i.e. his involvement in the armed robbery ). See People v. Brooks , 277 Ill. App. 3d 392, 3 98 (19 96), q uoti ng People v. Osborne , 114 Ill. App. 3d 433, 437 (1983) (court re versed defenda nt’s conv iction fin ding tha t the tria l court e rred wh en it bar

red def endant’ s alibi witness on grou nds that de fendant

violated discover y r ules by making a typ ographical er

ror in the address of that a libi witnes s; court noted that “‘[i]t is a f

undament al righ t of a def endant to present his theory of the c ase,’” and that the State failed to show how it was prejudiced by defendant’s minor infrac tion of the

rules); Foster , 271 Ill. App. 3d 562, 565-69 (1995) (court he ld that circuit court abused its discretion when it failed to consider alternative sanctions for a n attorney’s wilful violation of discovery rule s, and barred defendant from raisingan affirmative defense of selfdefense because he failed to file a discovery re sponse disclosing this intention; court noted that barring a defense is a sanc tion that infringes upon the rights of the defendant a nd should only be imposed as a last resort).No. 1-04-2709

46

Morever, even to the use of the protocol itself, the court’ s ruling would have gone bey ond the limits of

its discre tion, par ticularl y si nce the hospital pr

otocol wo uld have s

ubstantia lly bolstered any opinion as to the hospital’s ne gligence based on g eneral medical principles by demonstr ating th e hospita

l’s own imp lied rec ognition of that fa ct. I n that re gard, we first

note that the State was not without notice a s to what D r. Messe r would te stify

at trial. As the Stat

e itself poi nted out, a

nd the tria

l court a greed , Dr. Mes ser’s wr

itten pre trial sta tement, te ndered t o the State on Febr uary 26, 2004, a

bout thre e months pr

ior to tria l, indica ted that the doctor

would testify as to a possible connec tion between the intravenous administration of Atavan and Smith’s subseque nt respir atory arrest. As such, t

he State c ould have

reasona bly anticipa ted that d efense counsel would question Dr. Messer about the potential link between Atavan and Smith’s respira tory arrest a nd allude to negli gence

on part of

the hospit

al in acti ng “contrary

to [its] policies and procedures for administration of intravenous seda tion.” Moreove r, the re cord indi cates th at defe nse coun sel was, a

t worst, ne glige

nt in faili ng to provide the State with the hospital protocol because in obtaining and tendering all the pretrial documents, she relied on her colleague s in the public defender’s office who wer e working on codefe ndants’ c ases and

subpoena

ed Jackson

Park Hosp ital for t

hose rec ords. As s

uch, it wo uld appear to be excessive to totally bar the introduction of the protocol when lesser sanctions are available, even if the ban would not have prec luded the expert from testifying to negligence based on general medical principles. See Damico , 309 Ill. App. 3d at 212 (sanctions should not “punish [] a p arty

for the o versig

ht or the e

rrors of his attorney”); People v. Foster , 145 Ill. App. 3d 477, 481 (1986) (“a defendant should not be penalized for his counsel’ s negligence”). Here,No. 1-04-2709

47

too, a less severe sanction, such as a rece ss or continuance, would have been able to cure any prejudice or surprise to the State, as it would have allowed the State to revie w the hospital protocol, prepare for a more thoroug h cross-examination, or find a rebuttal expert witness. See People v. Hawkins , 235 Ill. App. 3d 39, 41 (1992) (noting that the sanc tion of excluding testimony is disfavored beca use it does not contribute to the goal of truth-seeking and tha t “[t]he preferred sanction is a rece ss or continuance if the granting ther eof would be effective to protect the [party] from surprise or pre judice”); see also People v. Nelson , 92 Ill. App. 3d 35, 45 (1980) (noting that exclusion is a last resort, demanded only where a recess or a continuanc e would be ineffe ctive); People v. Levi n , 207 Ill. App. 3d 923, 933 (1991) (noting that the sanc tion of preclud ing evid ence is l imited to “ only

the most extr

eme cas es of disc overy

violations ”); People v. White , 257 Ill. App. 3d 405, 414 (1993) (noting that whe n exclusion of evidence is employed by the trial court, that sanc tion will be “closely scrutinized on appea l”). However, even if we could hold that the trial court a bused its discretion by excluding either the hospita

l protoco l or any

refer ence to neglig ence, u

nder the present record , we would have difficulty in finding

that defendant was prejudiced by the court’s ruling. See Herron , 215 Ill. 2d at 187 (to permit our review of unpr eserved error, under the first prong of the plain error doctrine, asserted by

defendant, defendant must show “prejudicial err or,” i.e. , that there was error, and that t

he evide nce was so closel y ba lanced t hat the e rror alo ne sever ely threate ned to tip the scales of justice against him). Prelimina rily , we note

that aside

from the q

uestion of whether defenda nt partic ipated in the underlying

felony, which will be discusse d later with regard to the issue of compulsion, thereNo. 1-04-2709

48

is no quest

ion that the

evidenc e in this ca se was c lose. This is partic ularly true gi ven that, in comparing the testimony

of the two experts, the State’s pathologist, Dr. Denton testified that he based his opinion on an autopsy per formed by Dr . Worrell, whose report he only recalled reading, while he was uncerta in if he ever saw the “Code Blue Log,” which was key to the determination of the precipitating cause of de ath (namely, if it wa s cardiac or respiratory arrest), and given too the fact that Dr. Denton’s opinion was re jected by a

different jury

in codefendant’s case even in the absence of a me dical expert offered by that codefendant. However, we find that under the present record, defe ndant cannot demonstrate that any testimony about hospital negligence or the use of

the hospital protocol would have been outcome determinative in the fac e of his own

counsel’ s surprisi

ng but a pparent repres entation

that he ha

d no intent

ion of off ering i t, and in light of the fact that after the court’ s ruling, he made no effort to do so. As set forth above, the colloquy during the sanctions sidebar indicates that although the State and the trial court apparently viewed Dr. Messer’s pretrial report a s an indication that he would testify that the administration of Atavan some how played a

role in causing Smith’s respira tory arrest, defense

counsel d

isagre ed. Afte

r the tria l court’s admonishm ents, def

ense counsel surprisingly

disassociated himself from this theory, e xplaining to the court that he had no intention of asking Dr. Messer either about the “c ause of the respiratory arrest” or the sedation protocol . Notwiths tanding Dr. Messe

r’s appa rent cle ar pret

rial stat ement to the contra

ry , defens e counsel told the court that Dr. Messer did not have an opinion as to a reasona ble degree of medical certainty

as to what caused Smith’s respiratory arrest, and that he would not ask Dr.No. 1-04-2709

14 We note that this statement by its breadth would have e xtended to the exclusion of the hospital protocol alone, as the protocol could not have bolstered any theory of ne gligence if Dr. Messer could not offer an opinion that neglige nce playe d a role in Smith’s respiratory a rrest. 49 Messer to “speculate” on this point because the doctor “ did not know.” 14 Counsel further indicated that Dr. Messer had not relied on the sedation protocol in forming his opinion, but that he had concluded that Smith died from respiratory arrest merely

by considering

the “Code Blue Log.” Without more than a brief excerpt of Dr. Messer’s pretrial report indicating that the doctor would have testified to a potential connection between Atavan a nd respiratory

arrest, and in light of counse l’s clea

r disasso ciation f

rom this the ory

of defe nse, we m

ust, albe it with some reluctance, conclude that we do not have suf ficient basis upon which to find that the exclusion of the sedation protocol, or more widely any evidenc e of negligence, would ha ve changed the outcome of the proceedings. 3. Ineffective A ssistance of Counsel Defendant next contends that his attorney provided ineffective assistance of counsel whe n he faile d to tende

r the hosp ital proto col to the State dur ing pre trial disc overy

and acq uiesced in the court’s ruling by

failing to question Dr. Messer about any potential relationship between Atavan a nd Smith’s r

espiratory arrest. The right of the accused to eff ective assistance of counsel is provided by the sixth and fourteenth amendments of the United States Constitution. U.S. Const., amends. VI, XI V; People v. Conley , 118 Ill. App. 3d 122, 127 (1983). Whether defenda nt was denied effective assistance of counsel is evaluated in accorda nce with the two-prong test set forth in Strickland v.No. 1-04-2709

50

Washington , 466 U.S. 6 68, 687-8 8, 80 L . Ed. 2d 674 , 693, 104 S. Ct. 2052, 20 64 (1984) ; People v. Bloomingburg , 346 Ill. App. 3d 308, 316-17 (2004). Under Strickland , to preva il on a cla im of ineffective assistance, defenda nt must show that (1) counsel’s performance fell below an objectiv e standa

rd of re asonable

ness and (2) the de ficient p erforma nce so pr ejudice d the def

ense as to deny def

endant a fair trial. Strickland , 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. As to the first prong of Strickland , defend ant must ov ercome

a strong presumpt ion that, under the circumstances, the challeng ed action or inaction of counsel was a valid trial strateg y. Bloomingburg , 346 Ill. App. 3d at 317; 3 W. LaF ave, J. Israel & N. King , Criminal Procedure §11.10(c) at 715 (2d ed. 1999)). I n determining the adequacy of defendant’s legal assistance, a reviewi ng cour t will not consider iso lated inst ances of allege d defici encies b

ut, rathe r, the tota lity of circumstances. People v. Long , 208 Ill. App. 3d 627, 640 (1990). Bec ause effective assistance refers to competent and not perfe ct representation ( People v. Odle , 151 Ill. 2d 168, 173 (1992)), mistakes in trial strategy or judgment will not, of themselves, render the repre sentation incompet ent ( People v. Palmer , 162 I ll. 2d 465, 4 76 (1994) ). Moreo ver, cou nsel’s str ategic choices will not constitute ineffec tive assis tance si mply because they were un success ful ( People v. Milton , 354 Ill. App. 3d 283, 290 (2004)) or beca use another attorney

may have pursued a different course of action ( Palmer , 162 Ill. 2d at 476). In the present case , defense counsel himself admitted that he inadvertently failed to tender the hospital protocol to the State prior to trial as required by Supreme Court Rule 413(c), thereby providing defendant with ineffective assistance of counsel. See People v. DeSimone , 9 Ill. 2dNo. 1-04-2709

51

522, 531 (1956) (concluding that defense counse l’s lack of knowledge of basic rules of criminal procedure and evidence pre cluding him from presenting an adequa te defense denied defendant effective representation). More over, even if we were not to take at f ace value defense counsel’s explanation for failing to tender the hospital protocol in discovery, and instead relied on the trial court’s determination that counsel’s conduct was nothing but a subtle attempt at a “trial by ambush,” we would still find defense counsel’s conduct fell below the objec tive standard of reasonableness. See People v. Burns , 304 Ill. App. 3d 1, 11 (1999) (“delibera te violation of the discovery rule s falls below the standard of reasonableness for professional assistance”). Moreove r, we fin d that def ense cou nsel’s fa ilure to a ttempt to un

do the san

ction so a s to permit te stimony

with reg ard to the

protocol , or at the

very least to c larify

that the sa

nction wo uld not extend beyond the use of the protoc ol to ban any evidenc e of negligence would violate the first prong of Strickland . Howeve r, in lig ht of coun sel’s disc laimer th at Dr. Me sser inte nded to opine that the faulty administration of Ata van was the cause of death, we must ag ain conclude, albeit with some reluctance, that there is insufficient basis to hold that these failure s by themselves so prejudiced defendant so as to deny him a fair trial. See Strickland , 466 U.S. at 687, 80 L. Ed. at 693, 104 S. Ct. at 2064 (to show prejudice under the se cond prong of Strickland, defendant must establish that but for counsel’s actions, the result of his procee ding would hav e been d

iffere nt)

. Given Dr . Messer ’s clea r stateme nt, albei t in a brie f excerp t of his report, that he was of the opinion that the victim’s death was precipitated by the incorrect administr ation of A

tavan, a nd give n the tria l court’s and the Sta

te’s insis tence th at they

fully expected such an opinion to be proffered, the disclaimer of a ny such intention by

defense counselNo. 1-04-2709

52

is, to say the very least, su rprising , but neve

rtheless preclud es us fro m conclud

ing that on this point counsel was ineffective. However, as shall more fully be discussed below , while we cannot predica te a find ing of ineffec tive assis tance of counsel on these f

actors a lone, notw

ithstandin g all contrar y in dication s, we do f

ind ineff ective a ssistance

in counse l’s failu

re to gi ve due re gard to defendant’s compulsion defense. By wa y of brief ba

ckground, the State’s key witness in establishing defendant’s complicity in the subject felony murder was codefendant L arry H ardy, who himself plea ded guilty and turne d State’s witness. The State called upon him to testify a s to defendant’s participation in the planning and execution of the crime. The record shows that in the middle of codefendant Hardy ’s cross-examination, defense counsel asked Hardy whether defendant had ever indicated that he did not want to be part of the arme d robbery. H ardy re plied in the affirmative and the following colloquy took place: “A [Hard y]: Rig ht befor e we lef t, befor e we lef t out. Q [Defense counsel]: Right before y ou left your house to g o tho the restaur ant? A [Hardy]: Right when we was getting in the car? Q [Def ense coun sel]: What did [defendant] say or do? A [Hardy ]: He just sa

id he was n’t fee ling it; he wasn’t f eeling right. Q [Defen se counse l]: [Defend ant] said he

wasn’t f eeling it? A [Hardy ]: Yes.No. 1-04-2709

53 Q [Def ense coun sel]: What did you take that to mean? A [Hardy]: That he was, y ou know, he was scared. Q [Def ense coun sel]: Who did he say that to? A [Hardy ]: To Terr

ell Bell

. Q [Def ense coun sel]: Wh o e ls e w as ne ar by? A [Hardy ]: Me. Robins on. I

t was just u s. Q [Defense counsel]: Did one of y ou guys ha

ve the gun at that time? A [Hardy]: That’s right be fore he gave it to me. Bell had the g un. Q [Defense counsel]: What happened after [defendant] said he wasn’t feeling it? A [Hardy ]: Bell just

told him tha

t he was there whe

n it starte d, he go t to be there when it finished. Q [Defen se counse l]: Bell sa id, “You a

re ther e when it s tarted. You got t o be the refo r the f

ini sh? ” A [Hardy ]: Yes. Q [Def ense coun sel]: And Bell

had the g un at that point? A [Hardy ]: Yes. Q [Def ense coun sel]: What did y

ou guy s do afte r that? A [Hardy]: That’s when we got in the car.”No. 1-04-2709

54

As soon as

defense counsel e licited th

is informa

tion, the tr

ial cour t ordere d a “rec ess in chambers.” From the nature of the que stioning, the trial court concluded that defense counse l’s intention was to raise an affirmative defense of c ompulsion, which defense counsel admitted he did not include in his answer to discovery . The trial court stated that counsel’s actions were a “discovery

violation and perhaps further violation of the canons of ethics.” In re sponse, d efense counsel e xplained th at Hardy

had pres ented him

with this inf

ormation a

bout 1 1⁄2 hou

rs prior t o his testimony at trial, during lunch a nd in the presence of Hardy ’s attorney, a nd that he “made a mistake by not filing or a sking to file a compulsion defense” after he discovered this information. Defense counsel further explained:

“I was unde

r the mista

ken pres umption tha

t I co uldn’t ar gue it un less I could prove it. Whereas in speaking with another lawy er as long as it can be raised, that’s enough to file it. I wa sn’t aware of the distinction.”

Concerned with co

unsel’s c onduct, the trial c ourt “ve ry relucta ntly ” allowe d defens e counsel to pursue this line of questioning and stated that it would “deal with *** arg uments and defenses and instructions later.” (Emphasis added.) After the recess, on redirect e xamination, the State attempted to clarify the boundar ies of Bell’s t hreat. Wh en the Sta

te asked Hardy whether Bell actually

told defe ndant tha t he would ha rm hi m i f h e d id no t g o t hr ou gh wi th th e r ob be ry, Ha rd y st at ed , “ No . * ** [B ut ] [ e] ve ryb od y, you know, I

mean–well, I can’ t say ever ybody ; but, we all know what it mean[t].” This ended Hardy’ s testimony. Defense c ounsel made no further efforts to question Hardy and during the instruction conference submitted no compulsion instruction.No. 1-04-2709

55

Defendant now contends that his trial counsel’s failure to ra ise the affirmative defense of compulsion and offer an instruction as to that defense constituted rever sible error. We agree. It is w ell settle d in Il linois that counsel’ s choice

of jury instructi ons, and the decisi on to rely on one theor

y of defe nse to the exclusion of others, is a matter of trial strategy

. People v. Labo sette , 236 I ll. App. 3d 846, 857 ( 1992); People v. Douglas , 362 Ill. App. 3d 65, 75 (2005). Accordingly , counsel’s decision as to which jury instruction to tender can support a claim of ineffective assistance of counsel only if that choice is objectively unreasonable. Douglas , 362 I ll. App. 3d at 75. For the reasons that follow, we find that in the prese nt case counsel’s choice not to reque st a compu

lsion instr uction fe ll below th e object ive stand ard of r easonab leness. Compulsion is an affirmative defense that would exculpate an accused, if the trier of fact belie ved t hat the ele

ments of co mpuls ion ha

d bee n pro ven. 720 I

LCS 5/7-1 1 (Wes t 2002 ). We note that although a compulsion defense is gene rally not available to a

defendant prosecuted for murder, the defense may

be raised in a prosecution for felony murder. See People v. Serrano , 286 Ill. App. 3d 485, 490-92 (1997) (noting that if a defendant was compelled to commit the felony which is the pre dicate for a felony murder charge and during the commission of the felony, the per

son compelling him unexpectedly killed someone, such as the victim of the felon, defendant may

rely on the def

ense of compulsion to the felony murder charge). Compulsion requires that in committing the felony, de fendant performed the charg ed offense under the threat or menac e of imminent infliction of death or great bodily harm, which the person reasonably

believed would be inflicted upon him if the conduct was not performed. See 720 IL CS 5/7-11 (West 2002). The defense is not available if the compulsion arises from negligence or fa

ult of the defendant or if the defendant had ample oppor tunities to withdraw fromNo. 1-04-2709

56

the criminal enterprise but failed to do so. People v. Scherzer , 179 Ill. App. 3d 624, 645-46 (1989). H owever , so long as the fe ar of g

reat bod ily harm is re asonable , a compul sion defe nse is available even where defe ndant may have

been mistaken in his belief. People v. Adcock , 29 I ll. App. 3d 917. To raise the

affirma tive def ense of c ompulsion d

efenda nt “‘must [only ] present some evidence thereon.’” (Emphasis added). People v. Pegram , 124 Ill. 2d 166, 172 (1988 ) quoting Ill. Rev. Stat. 1983, ch. 38, par. 3-2(a) ; see also People v. Redmond , 59 Ill. 2d 328 (1974) (holding that the q uantum of

evidenc e neces sary

to raise a n affirmative de fense is

that the e vidence must be sufficient to raise an issue of fact for the jur y crea ting a reasonable doubt as to defendant’s guilt) . After d

efenda nt raises the issue , the State

is required to disprove the existence of the affirma tive def ense beyond a re asonable doubt

. People v. Adcock , 29 Ill. App. 3d 917 (1975). Once de fendant

present s some “so me evide nce” wh ich suppor

ts the aff irmative defense , he is entitled to an instruction and it is error to refuse to instruct the jury on such a defense. See People v. Jones , 175 Ill. 2d 126, 131-32 (1997); see also People v. Kalpak , 10 Ill. 2d 411, 425 (1957) (“ very slight evidence upon a given theory

of the case will justify the g iving of an instructi on” (emphasis add ed)); People v. Carpentier , 20 Ill. App. 3d 1024 (1974) (holding that unless the evidence before the trial court is so clea r and convincing to permit the court to find as a matter of law that there is no affirmative def ense, the factual issue must be determined by the jury with proper instruction as to the la w applicable). The State would contend that the evidence was insufficient for a defense of compulsion because defenda nt did not wi

thdraw f rom the ro

bbery althoug h he had a

n opportun

ity t o do so when he exited the vehicle to scout out Taurus Flavors restaura nt on Bell’s command andNo. 1-04-2709

15 We also note that Bell was a convicted felon and a g ang elder. 57 because in his videotaped confession he never c laimed that he was threatened . We disagree. In the present case , there was more than “some evidence” of compulsion presented at trial. The record

indicate s that the State’s own witness, Hardy , testified that immediately befor e enterin g the ca r to go r ob Tauru s Flavors restau

rant, 15-ye ar-old d

efenda nt indica ted to the adult Bell 15 that he “wasn’t feeling it; he wasn’t fe eling right,” about the robbery . Hardy testified tha t he understood this to mean that defendant was afraid. Ac cording to Hardy , Bell, who was holding the gun in his hand told defendant: “You [were] there whe n it started. You

got to be there for the finish.” (Emphasis added.) Despite the State’s contention to the contrary , Hardy, the State’s own witness, interpreted Bell’s conduct as menac ing, and testified “we all k n[e]w what i

t mean[t].” Thus, the evidence was sufficient to warrant a c ompulsion instruction and the consequent failure to tender that instruction constituted ineffective a ssistance of counsel, which if prejudicial, requires reversal. See Pegram , 124 Ill. 2d at 174 (holding that the failure of defense counsel to tender an instruction on the defense of compulsion and on the prosecution’s burden of proof for that defense, whe re defendant did not deny he was present during the robbery, but testified tha

t he was forced at gun point to lead the robbe rs to the victim, constituted ineffective assistance of counsel); see also Serrano , 286 I ll. App. 3d at 492 (ho lding tha

t defens e counsel was ineffective for prese nting the compulsion defense to the jury without tendering an instruction informing the jury tha t the threats of harm made to the defendant could provide a legal d efense , even tho

ugh the defenda nt had g iven a co

urt-rep orted sta

tement ad mitting hi s guiltNo. 1-04-2709

16 Although there is a possibility that the c ourt would have rejected the instruction for counsel’ s noncompl iance with discov ery , this would have oc curred

as a res ult of def ense counsel’ s admitted

failure to disclose

this evide

nce and request a compuls ion defe

nse prior to trial. Either way, c ounsel would have been at fault for the failure. 58 in the armed robbery

). 16 Given the fact that the evidence in this case was c lose, particularly w ith respect to the cause of death, w e find tha

t defend ant was prejudic ed by

defense counsel’ s failure

to reque st a compulsion instruction. In that regar d, we note that in comparing the testimonies of Dr. Messer and Dr. D enton, Dr . Denton t estified that he ba sed his opi

nion on an

autopsy perfor med by his colleague, which he only

recalled reading, while he was uncertain whether he ever c onsidered the “Code Blue Log ,” vital in determining the precipitating cause of death. Moreover, Dr. Denton’s testimony was rejec

ted by a diffe

rent jury in the trial of c odefendant, who was an adult and a far more active participant in the crime, even in the abse nce of expert testimony proff ered by tha

t codefendant. In a

ddition, defendant in this case was a 15-y ear-old boy

at the time of the armed robbery, w

ho resided with an adult codefendant and whose par ticipation in the armed robbery was that of the outside “look out.” Under these circumstance s, we cannot conclude that had the jury been instructe d on the defense of compulsion, there was no reasona ble probability that the outcome of the trial would have been different. See Strickland , 466 U.S. a t 687, 80 L . Ed. 2d at 693, 104 S. Ct. at 2064 ; see also Serrano , 286 Ill. App. 3d at 492-93 (holding that def endant was deprived of a fair trial when defe nse counsel failed to tender a jury instruction because there was a reasonable probability

that being advised of the proper burden of proof, the jury c ould haveNo. 1-04-2709

59

been pe rsuaded to conclu de that de fendant

was comp elled to c ommit the crime); Pegram , 124 I ll. 2d at 173-74 (court h eld that “ ‘[f]undame ntal fair ness incl udes *** s eeing t

o it that ce

rtain ba sic instructions, essential to a fair determination of the case by the jury, are

given.’ [Citation.] ***[T]he omission [of a compulsion instruction] ‘removed from the jury’s consideration a disputed issue essential to the determination of defendant’s guilt or innocenc e.’ [Citation.]”) For the foregoing r

easons, we reverse and rema nd Reversed and remanded. FITZG ERALD SMIT

H, P.J., and O’MALLEY , J. concur.