## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Kidd , 2013 IL App (2d) 120088

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ASON E. KIDD, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-12-0088

Filed September 25, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution f or drug -induce d homicide, the trial court did not err in reje cting the i nstruction on proxi mate cause t en dere d by defe ndant, but his counsel was i n ef

fective in failing to tender the pattern instruction defining “deliver

y ,” espec ially in view of the questions that exis ted

conce rning what drug s, if any , defe ndant delivere d to the victim and the circ umstances of any d elivery
, since there was a rea sonable probability that a p ro p er ly instructed jury could have found defe ndant not g uilty ; there fore
, defe ndant’s conviction was reve rsed an d the cause was

rema nded for a new trial.

Dec ision Under Review Appea l from the Circui t C o u rt of Kenda ll County
, No. 11-CF- 140; the Hon. J ohn A. B arsa

nti, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Thomas A. L ilien and Paul Alexander Roge rs, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Eric C. Weis, State’s Attorney
, of Yorkville (L awr en ce M

. Ba uer and Sally A. Swiss, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Schostok and Spence concur red in the judg ment and opinion.

OP INION

¶ 1 Def

endant, J ason E. Kidd, was indicted on one coun t o f d rug-induce d homicide (720 I L CS 5/ 9-3.3(a ) (West 2010)) “ by knowing ly

deliveringcoca ine, a controlled substanc e to Merr ideth [ sic ] M. Castro and [ she] there afte r i n haled or inge sted a portion of t he cocaine into her body and said i n h al at i o n or i ng estion of cocaine caused [ her] death.” Following a jury trial, defe ndant was convicted a nd sentenc ed to a ter

m of 10 y ear s’ imprisonment and 3 y ear s’ mandator

y supervised r elea se. He timely appea led. ¶ 2 Def

endant contends that the trial court err ed in ref using his tender ed jury instructions and that he rec eived ineffe ctive assistance of counsel. We deter mine that defe ndant’s first issue lacks merit; howeve r, his second issue is meritorious and, there fore
, we reve rse defe ndant’s conviction and r emand f

or a ne w trial.

¶ 3 I . BA CKGROUND ¶ 4 On M ar ch 7
, 2 0 10, defe ndant found his g irlfriend, Mere dith Castro, fac edown on an upstairs bedroom floor. He rolled her ove r and immediately rea liz ed that she was dead. He called the police. ¶ 5 Alex Silva, an Osweg o fire depar tment para

medic, testified that he and his partne r wer e dispatched to a townhouse in Osweg o in response to a call of an unconscious or unresponsive
person. Upon arr iving at the townhouse, Silva a nd his partner

wer e met by defe ndant, who said that Castro was up stairs and was not breathing. Silva and his partne r found her lying fac eup on the floor, unresponsive, with no pulse, and not breathing. After confirming that she had no hear t ac tivity
, respiration, or pulse, they told defe ndant that Castro was dece ased. Silva testified that defe ndant was upse t. ¶ 6 Def

endant told Silva that he and Castro had used cocaine on the previous day

. He also told Silva that Castro had chronic obstructive pulmonary disease (COPD), cong estive hear t failure
, and other car diac issues, and that she took insulin and other medications. Silva then

-2-contac ted a near by hospital an d received a “pronounc ement” of death, which is differ ent from a time of death. Silva and his partne r aler ted the corone r’s office and then left the scene

. ¶ 7 Of

fi ce r M at thew Ung er, of the Osweg o police depar tment, testified that he and h i s partne r wer e called to a townhouse in the ear ly morning of Marc h 7 to assist para medics with

a “p o s s i b ly dece ased person.” W hen he arr ived between 6:30 and 7 a.m., he went upst airs and saw Castro lying fac eup on a bedroom floor. She was not breathing and had no pulse or hear t activity

. He stated that “[w]hen we wer e assessing her, we noticed that she was stiff.” He then went downstairs and spoke with defe ndant in the living room. Def endant stated that he had lived with Castro in the townhouse for two y ear s. The previous day
, Castro was upset beca use her cat had died. Def endant told Ung er that in the evening he and Ca s t ro had consumed “powde r coca ine” and marijuana
, then watche d a mov i e toge ther. Castro went upstairs to bed betwee n 10 and 11 p.m. Def endant stay ed downstairs and slept on the couch. Around 6:30 a.m. he went upstairs and found Castro on the floor in the bedroom. Def endant told Unge r that he vomited a fter he found Castro, and the n he ca lled the police. De fenda nt t o l d Ung er that Castro had cong estive “hea rt failure
, COPD, high blood pressure, an d diabetes.” ¶ 8 Detec tive Rob Sherwood, of the Osweg o police depar tment, testified that he was the “oncall investigator” on Marc h 7, 2010, an d re sponded to a call for a “suspicious death investigation” at a residenc e. He arrived around 8 a.m. The scene had alre ady been proce ssed,

so he made arr ang ements to interview defe ndant at the po l i ce s t at i o n. Def endant was not under arr est. The interview was rec orded and a video re co rd i n g and a transcr ipt wer e admitted into evidence and published to the jury

. ¶ 9 D u

r in g the interview, defe ndant told Sherwood that Castro wanted to g et coca ine bec ause she was upset that her cat had died. Def endant admitted to smoking marijuana almost daily
, and he st ated that Castro knew about his drug use. Def endant stated that Castro had used

coca ine fre quently in the past but ha d not used it for about a y ear

. He stated that “last night she said, ‘Go g et me a bag of coca ine.’ ” He then stated that he “we nt to the bar, g ot us a bag
, we we nt home. We did it. And we smoked pot.” ¶ 10 On cross-e x amination, Sherwood stated that he did not ask specific questions about the drug transac tion at the bar, such as whether anyone was with him or wher e the money for the drugpurcha se ca

me from. ¶ 11 Offic er Chad Var g as, an investigator with the Osweg o police depa rtment, testified that

on May 9, 2 0 1 1
, he and Sherwood arr ested defe ndant for drug -induce d homicide. After
g iving defe ndant his Miranda war nings, they interviewe d him at t h e police station. A
transcr ipt of the interview was admitted into evidenc e and published to the jury

. Def endant stated that, afte r he returne d from disposing of Castro’s dece ased cat, she said “let’s g et a bag [of cocaine ].” She went to an ATM for cash. At first defe ndant stated that they could have
g one to one of three bars, or they could have had the coca ine delivere d. Var g as reminded him that in the previous interview in Marc h 2010 defe ndant stated that they went to one bar and
t h en returne d home and snorted the coca ine. When asked if the purcha se was at o n e particula r bar, defe ndant responde d, “uh-huh.” Def endant al s o t o ld Var g as that Castro possessed morphine, Xanax , and Vicodin and that she sometimes smoked “cr ack” coca ine.

-3-¶ 12 Dr. J ohn Denton, a fore nsic pathol o gist, perf ormed an autopsy on Castro on Marc h 9, 2010. Castro was 5 fee t 2 inches tall a nd weig hed 260 pounds. He testified that the settling of her blood indicated that she had been place d on her back “soon afte r d ea t h

. ” Castro’s lungs were “hea

vy or conge sted” wit h blood but she di d not have blood clots, pneumonia, asthma, C OPD, emphy sema, or canc er. Her heart wa s enlarg ed and he r main ar teries were partially (“mode rate ly ”) blocked. Her liver was fatty and enlar g ed, which Dr. Denton opined

was “re lated to her obesity and diabetes.” Her brain was swollen. The tox icolog y repor t noted evidenc e of mo rp h i n e consumption, at 290 nanog rams per milli liter. Acc ording to Dr. Denton, this is an elevated level. He stated that over 100 nanog rams is “a potential cause of death.” Dr. Denton testified t hat, whil e cocaine is a s t i mulant, morphine i s a narcotic that,

as a sedative, leads to respiratory depre ssion. He opined that hy pox ia (def

iciency of ox yg en

rea ching body tissues) cause d by “coc aine and opiate intox ication” was the cause of death. There was no way to deter mine which drug was inge sted first or whether they wer e inge sted at the same time. ¶ 13 Dr. J ames O’Donne ll, an associate profe ssor of pharma cology at Rush Medica l Colleg e, testified for the defe nse as an expert on pharma cy and pharma colog y

. O’Donne ll’s training included how to study and interpre t tox icolog y results, and he had spent 40 y ear s rese arc hing the ef fec ts and tox icity

of morphine. ¶ 14 Dr. O’Donne ll opined that t h e ra t i o o f co caine to its metabolite, benzoylecg onine, in Castro’s blood was “extremely high,” indicating that most of the coca ine in her sy stem had been metabolized. This in turn indicated “a use distant from the time of death.” The level of morphine in her blood was a “highly tox ic level” that was “lethal.” O’Donne ll further opined that Castro consumed the morphine sometime afte r defe ndant had g one to bed. His opinion was based on the absorption rate of m orphine an d the l evel of morphine i n Castro’s bl ood as indicate d in the tox icolog y repor t. ¶ 15 The tox icolog y re p o rt al so indicated the prese nce of the anti-anxiety drug Xanax at a thera peutic level
, i

. e. , “a level that is expected from taking [i t] at presc ribed doses.” O’Donne ll testified that, if Xanax and morphine are combined, “the eff ect of the Xanax enhanc es the toxi city

of the morphine.” Alcohol would have the same de pressa nt effe ct. ¶ 16 Def

endant testified on his own behalf

. He stated that on the afte rnoon of Marc h 6, 2010, Castro sug g ested that they g et some coca ine. He and Castro wer e well known at sever al bars in the are a, and he knew that they would be able to buy coca ine at one of them. They stopped
at an ATM wher e Castro withdrew $120 from her bank acc ount and they then went to a bar wher e she handed defe ndant $20 to buy a shot of whiskey for her and a beer for him. He went to the back room and played pool; he did not k now if she drank her shot. He stated that Castro went outs ide and then returne d and said, “ L et’s g o.” The y wer e at the bar for about 10 minutes. When they g ot home, she told defe ndant to roll a “blunt” and then took a bag of

coca ine from her bra. She told him it was slightly less than an “eightball” (one- eighth of an ounce)

. They snorted the coca ine and smoked canna bis ove r the next three hours. They did

n o t d ri nk any alcohol. During the evening they play ed video g ames and watche d movies. Be tween 10:30 and 11:30 p.m., defe ndant went d o wn s t ai rs and sl ept on the couch. Castro

was a wake and ale rt, and de fenda nt did not noti ce a

ny unusual behavior.

-4-¶ 17 Be tween 5:30 a nd 6 a.m., def

endant a woke and walked the dog , then ca lled upstairs to Castro. She did not respond, so he went upstairs and found her lying fac edown on the floor. He rolled her over, immediately rea liz ed that she was dece ased, and vomited. He then called the police. Within mi nutes the par amedics a rrived, a nd then the police. ¶ 18 Def

endant testified that he vaguely reme mbere d talking to Ung er. He felt as though his “whole world had fallen apar t”; it was traumatic and he was cry ing. He completed a written
statement and then went to the Osweg o police depar tment. Sherwood interviewe d him at the police station. He w as conf used by Sherwood’s que stions. ¶ 19 In May 2011, 14 months later, Sherwood and Var g as arr ested defe ndant and told him that he was being char g ed with drug -induce d homicide. They did not explain the char g e. Var g as i n t er v i ewed him and asked him to summarize what he had tol d Sherwood in Marc h 2010. Def endant did so as well as he could. He testified that his m i n d was clea rer at the second interview, but he still had trouble rec alling some of the events leading up to Castro’s death. ¶ 20 Following closing arguments, the trial court instructed the jury on the applicable l aw

. Over defe ndant’s objection, the trial court instructed the jury with I llinois P at t er n J ury Instructions, Criminal, No. 7.15 (4th ed. 2000) (he reina fter, I PICriminal 4th), as follows:
“In order for you to find that the ac ts of the def endant or one for whose conduct he is leg ally responsible cause d the death of Mere dith Castro, the State must prove beyond

a rea sonable doubt that defe ndant’s acts wer e a contributing cause of the death and that the death did not result from a cause unconnec ted with the defe ndant. Howeve r it is not

nece ssary that y ou find the acts of t he defenda nt wer e the sole and immediate cause of death.” ¶ 21 Def

endant of fer ed a non- I PIjury

instruction that rea d as follows:
“The term ‘proximate cause ’ means any cause which, in the natura l o r p robable
sequenc e, produce d the death. I t need not be the only cause , nor the last or near est cause

. I t is sufficie nt if i t co n cu rs with some other cause acting at the same time, which in combination with it causes the de ath.”
In ref using the tender ed instruction, the trial court rema rked that I PI Criminal 4th No. 7.15 “ade quately descri b e[ d ] the proxi mate cause responsibility the State has and adequately d escribe[d] the intervening and superse ding events and adequately describe[d] t h e fore seea bility .” ¶ 22 A sec ond proposed instruction, which w as also re fused, r ead a s follows:

“Proxi mate cause is a cause that direc tly produce s an event and without which the event would not have occur

red. Prox imate cause is established if Mere dith Castro’s death was fore seea ble as the ty

pe of harm that a rea sonable person would expect to see as the result of De fenda

nt’s conduct.” ¶ 23 T h e j u ry was also instructed with I PI Criminal 4th No. 7.27, which rea d, “[a] pers o n commits the offe nse of drug induced homicide when he knowing ly delivers to another a substance containing Cocaine, a controlled substance, *** and any person dies as a result of the ing estion of any

amount of that controlled substanc e.” ¶ 24 Also over defe ndant’s objection, the trial court instructed the jury on acc ountability with

-5-I PICriminal 4th No. 5.03, as follows:
“A person is leg ally responsible for the conduct of another person when, either befor e or duringthe commission of an off ense, a nd with the intent to promote or fac ilitate the commission of an offe nse, he knowing ly solicits, aids, abets, ag ree s to aid, or attempts to aid the other pe rson in the planningor commission of an off ense. The word ‘conduc t’ includes any criminal act done in further ance of the planned and intended ac t.” ¶ 25 The trial court also instructed the jury with only the third para g raph of I PI Criminal 4th No. 17.05A. No ob

j ec t i on was made by the defe nse reg arding omitti ng the first two para g raphs, nor did defe nse counsel submit this instruction i n i t s enti rety

. The whole instruction rea ds:
“The word ‘deliver ’ means to transfe r possession or to attempt to transfe r possession. The word ‘deliver ’ i n cludes a constructive transfe r of possession which occur s without an actua l phy sical transfe r. When the conduct or decla rations of the person who has the rig ht to exercise control over a thing is such as to eff ectively relinquish the rig ht of control to a

nother person, so that the other person is then in constructive possession, there has bee n a deliver

y

. A delivery may occur with or without the transfe r or exchang e of money , or with or without the tr ansfe r or exchang e of other consideration.” I PICriminal 4th No. 17.05A. ¶ 26 During delibera tions, the j ury sent a note to the t ri al co u rt which read: “Request cause of death repor

t from Dr. Denton.” In response , the trial court sent “P eo p l e’ s E x h ibit #7,” which was the au t o p s y re p o rt and the tox icolog y repor t. The cause of death was listed as “coc aine a

nd opiate intox ication.” The rea fter, the jury returne d a guilty verdic t. Defe ndant timely appea led.

¶ 27 I I . ANALYSI S ¶ 28 A. Tende red I nstructions ¶ 29 Def

endant fi rs t argues that “the conflicting evidenc e reg arding the cause of Castro’s death made it imperative fo r the trial court to g ive the ‘proximate cause ’ instructions tender ed by

the def ense.” I llinois Supreme Court Rule 451 (e ff. July 1, 2006) states: “(a ) Use of I PI Criminal Instructions; Requirements of Other Instructions. Whenever I llinois Pattern J ury Instructions, Criminal, contains an instruction appli cable in a criminal case , g iving due consideration to the fac ts and the g overning law, and the court deter mines that the jury should be instructed on the subject, the I PI Criminal instruction shall be used, unless the c ourt deter mines that it does not accur ately state the law .”
Our revie w is de novo “bec ause the issue raised conce rns whether the jury was provided with the corr ect leg al principles that apply in this case , there by allowing the jury to rea ch a proper result based on th e ap p l i cab le l aw and the evidence.” People v. W alker
, 2012 I L App (2d) 110288, ¶ 18. ¶ 30 As a prefac e to our di scussion of t he jury -instruction issue, we point out the follo wi ng leg islative history of the languag e reg arding causation in the drug -induce d homicide statute.

-6-In 2005, our leg islature attempted to make the statute’s definition of cause consistent with

that in other homicide statutes. Prior to January 1, 2006, the statute re ad: “§ 9-3.3. D rug -induce d homicide. (a) A per son who violates Section 401 of the I llinois Controlled Substanc es Ac t by unlawfully delivering a controlled substance to another
, and any person dies as a result of t h e i njection, inhalation or inge stion of any amount of that controlled substance, commits the offe nse of drug -induce d homicide.” (Emphasis added.) 720 I L CS 5/9-3.3(a) (West 2004). Effe ctive January

1, 2006, the languag e of the statute was amended a s follows: “§ 9-3.3. D rug -induce d homicide. (a) A person who violates Section 401 of the I llinois Controlled Substances Act *** by unlawfully d el i v er i n g a controlled substance to another
, and any person’s death is caused by the injection, inhalation or i n ges tion of any amount of that controlled substance, commits the offe nse of dr u g

- in d u c ed homicide.” (Emphasis added.) 720 I L CS 5/9-3.3(a) (West 2010). ¶ 31 I

n th e d is c u s sion on the House floor reg arding the proposed chang e, Represe ntative Pihos stated that the c hang e wa s: “cle anup languag e. I t p ro v i des that a person who unlawfully delivers a controlled

s ubstance to another and any person’s death is caused by the injection, inhal at i o n , o r inge stion of any amount of that controlled substance
, co m mits the offe nse of drug

induced homicide. T he re ason for the cha ng e is to provide cla

rity in the law re lating to drug -induce d homicide. The causation langu age is the same as the other homicide languag e in the law.” (Emphasis added.) 94th I ll. Gen. Assem., House Procee dings, Apr. 5, 2005, at 85 (stateme nts of Represe ntative Pihos).
In the I llinois Senate, Senator Sandoval stated: “House Bill 1109 amends the drug -induce d homicide Section of the Criminal Code to exte nd criminal liabili ty for any deaths caused as

a result of unlawful delivery of a controlled substance by injection, inhalation or [i ng estion] ***.” (Emphasis added.) 94th I ll. Gen. Assem., Senate Procee dings, M ay 18, 2005, at 39 (statements of Senator Sandoval). This abbre viated discussion indicates that the leg islature intended to chang e the languag e so that it mirrore d the languag e of other homicide statutes, which ref er to “ac ts which cause the death” of an individual, whether such act is intentional (720 I L CS 5/9-1 (West 2010) (first deg ree murder) ), neg lige nt (720 I L CS 5/9-2 (West 2010) ( s e c o n d d e g ree murder) ), or rec kless (720 I L CS 5/9-3 (West 2010) (inv o lu nta r y ma n s la u ghte r and rec kless homicide)). There does not appea r to have been an intent to make a signific ant chang e in the under lying me aningof the c oncept of causation. ¶ 32 We turn to the issue raised on a ppeal. Def

endant offe red a non-I PI jury instruction that define d proxi mate cause as a cause direc tly producing an event and without which the event would not have occur

red. A second instruction offe red by defe ndant s t at ed further that proxi mate ca

use wa s established if Castro’s death was fore seea ble as the ty

pe of ha rm that

a rea sonable person would expect to result from defe ndant’s conduct. Def endant argues that he could not have anticipated t h at t h e sequenc e of events would result in Castro’s death. Howeve r, as the S tate point s out, “for esee ability” does not require that the per son char g ed

-7-with the crime fore see either the extent of the injury (in this case , death) or the exact way in

which it occur s (in th i s ca s e, the inge stion of both coca ine and morphine). See People v. Cook
, 2011 I L App (4th) 090875, ¶ 18 (“A lthough the fore seea bility o f an injury will establish [prox imate] cause , the extent of the injury or the exact way in which it occur s need not be fore seea

ble.” ( Interna l quotation marks omitted.)). ¶ 33 The drug -induce d-homi ci d e s t at u t e incorporates the “knowing ” mental state ele ment from section 401 of the Controlled Substanc es Act. People v. Boand
, 362 I ll. App. 3d 106, 1 4 2 (2005); see 720 I L CS 570/401(a) (West 2010). Ex plaining the mental sta t e o f “knowing ly ,” the Third District Appellate Court has stated that the defe ndant “just needs to make a knowing delivery of a controlled substance, and if any person then dies as a result of taking that substance, the defe ndant is responsible for that person’ s death.” People v. Faircloth , 234 I ll. App. 3d 386, 391 (1992). The Boand court de termined:
“A person commits drug -induce d homicide if he ‘violates Section 401 of the I llinois Controlled Subst ance s Act [(the Act) (720 I L CS 570/ 401 (West 2004))] by unlawfully d el i v er i ng a controlled substance to another
, and any person dies as a result of the injection, inhalation or inge stion of any amount of that controlled substance.’ 720 I L CS 5/9-3.3(a) (West 2004).” Boand , 362 I ll. App. 3d at 139. ¶ 34 Def

endant arg

ues that it was not subjectively fore seea ble that Castro would die, beca use he could not have anticipated Castro’s additional inge stion of morphine. The State responds that defe ndant’s knowledg e that Castro possessed morphine made it subjectively fore seea ble that she might take morphine t hat night. Howeve r, under the proxi mate-c ause theory of crim i n al l i abil ity
, liability attache s for any death proxi mately resulting from the unlawful

ac t i v i t y

. Id. at 142. We ag ree with the State that the conce pt of “proximate cause ” wa s adequately explained by the l an gu age o f I PI Criminal 4th No. 7.15. We are not convince d that the defe nse instructions would have more fully informed the jury ’s deliberations; in fac t, the proff ere d instructions seem to confuse the conce pt of causation with a fore seea ble result. There fore
, we conclude that the trial court did not err in ref using d ef en d an t ’s tender ed instructions on prox imate ca use.

¶ 35 B. Ineff ective A ssistance of Counsel ¶ 36 Def

endant next argues that he was denied the eff ective assistance of couns el
, b ecause defe nse counsel failed to offe r a jury instruction defining the term “deliver y .” Under Strickland v. W

ashington , 466 U.S. 668, 688, 694 (1984), a c laim of ineff ective assistance of counsel can succe ed only if the defe ndant demonstrat es b o t h that: (1) counsel’s perf ormanc e was objectively unrea sonable; and (2) it i s re asonably probable that, but for counsel’s unprofe ssional err ors, the result of the proce edi n g wo u ld have been differ ent. Counsel’s perf

ormanc e is measure d by “pre vailing profe ssional norms.” Id. at 688. Fur ther, “a rea sonable probability that t h e re s ult *** would have been differ ent is a probability sufficie nt to undermine confide nce in the o u tcome”; in other words, counsel’s defic ient perf ormanc e must have rende red the out co m e of the trial “unre liable or fundame ntally unfair.” (Interna l q u o t ation marks omitted.) People v. Manning
, 241 I ll. 2d 319, 327-28 (2011).

-8-¶ 37 The committee notes for I PI Criminal 4th No. 7.27 state that if the trial court chooses to

define the term “deliver ,” I PI Criminal 4th No. 17.05A should be used. I PI Criminal 4th No. 17.05A, in its entirety , rea ds as follows: “The word ‘deliver ’ means to transfe r possession or to attempt to transfe r possession.
The word ‘deliver ’ i n cludes a constructive transfe r of possession which occur s without an actua l phy sical transfe r. When the conduct or decla rations of the person who has the rig ht to exercise control over a thing is such as to eff ectively relinquish the rig ht of control to another person, so that the other person is the n in c onstructive possession, there has bee n a deliver

y

. A delivery may occur with or without the transfe r or exchang e of money , or with or without the transfe r or e x chang e of othe r consider ation.” ¶ 38 De fe ndant poses the question of what conduct falls within the l ega l d ef i n i t i o n o f “deliver y .” Her e, beca

use there was a questio n fo r the fac t finder as to who actua lly “possessed” the coca ine, I PI Criminal 4th No. 17.05A should have been g iven in its entirety

. This situation is analog ous to that in People v. Coots
, 2012 I L App (2d) 100592, ¶ 41, wher e “the ulti mate is sue” was whether any phy sical t ransf er of heroin from the defendant to the dece ased was a delivery

. In Co o t s , the defe ndant testified that the dece ased orig inated the idea o f procur ing heroin and paid for it. On the other hand, the defe ndant made the calls, located a supplier, and order ed the drug s. They both wer e prese nt when the supplier delivere d the her oin, but the supplier handed it to the def endant, who put it in her poc ket. ¶ 39 This court noted that Coots was a close and difficult case on the fac ts and deter mined that “[e]it her the exis tence or the nonexis tence of joint possession at a pertinent time could have been found by a rea sonable jury .” (Emphasis in orig inal.) Id. ¶ 42. This court rec og nized that the jury
, without g uidance on the meaning of “deliver y ” in t h e dru g-i nduced homicide statute, “mig ht well have g iven the term a broade r meaning than it deser ves to the prejudice of defe ndant.” Id. ¶ 45. There fore
, this court ag ree d with the defe ndant that her trial counsel’s failure to tender an instruction that would have limit ed the definition of “deliver y ” amounted to ineffe ctive assistanc e. ¶ 40 Her e, th e S t at e n ev er alleg ed that defe ndant delivere d either Xanax or morphine to Castro. Thus, the linchpin of the State’s case was that Castro’s death direc tly resulted from defe ndant’s “knowing ly delivering coca ine” to her. The State unpersua sively argues that the 1 evidenc e showed that defe ndant had e x clusive possession of the coca ine until he delivere d it to Castro. Def

endant’ s statements in the two interviews with the poli ce an d in his testimony at trial wer e fairly consistent reg arding his activities on the afte rnoon and evening of Marc h 6, 2010. Howeve r, a question of fac t for the jury was whether Castro and defe ndant boug ht the coca ine toge ther or one or the other actua lly purcha sed and possessed it. I f Castro and defe ndant jointly possessed the coca ine, there was no delivery

. See Coots
, 2012 I L App (2d) 100592, ¶ 44. The rule that possession must be exclusive does not mean that the

An exact ti m e of deat h was not esta bli she d, a fa ct or tha t cou ld have affe ct ed the opi nio ns 1 of exp er ts as to the cau se of dea th bec aus e, pre sumably, a m ore acc ura te ext ra pol at ion of the blo od le vels o f l et hal drugs in th e t oxi col ogy re por t wo uld have be en p oss ibl e.

-9-possession may not be joint; if two persons share immediate and exclusive c ontrol or share

the intention and power to exercise control, then eac h has possession. People v. Schmalz
, 194 I ll. 2d 75, 82 (2000). Where possession has bee n shown, an inferenc e of g uilty knowledg e

can be drawn from the surrounding fac ts and circ umstances. Id. The fac t of possession must be shown be y ond a re asonable doubt. Id. ¶ 41 As J ustice McL are n pointed out in his special concur renc e in Coots : “[T] he conce pt of dominion and control relates to the understanding betwee n the parties that they are ‘entitled’ to exercise domini on and contr ol. Whether the under standing is based upon a joint ventur e, the contemplation or threat of forc e, or some other abstruse

conce pt, it is not require d that leg ally consistent concepts of dominion and control be the sine qua non

. See Peo

p l e v. Drake
, 288 I ll. App. 3d 963, 969 (1997) (‘Where two or

more people share immediate and exclusive control or share the intention and power to exercise control, there arises a situation of joint possession. [C itation.] Even wher e there is no phy sical possession, constructive possession may exis t wher e there is an intent and
capa city to maintain control and dominion over the contra band, and this may be proved by showing that the defe ndant contr olled the premises wher e it was found.’) .” Coots
, 2012 I LApp (2d) 100592, ¶ 60 (McL are n, J ., specia lly concur ring ). ¶ 42 We be lieve that, had the jury been proper ly instructed, there is a rea sonable proba bility that it wo u l d have returne d a not g uilty verdic t. Under the Strickland test, defe ndant was prejudice d. Def

ense counsel should ha

ve proff ere d the instruction reg ardingdelivery in its entirety
, and the tria l court should have instruc ted t he jury acc ording ly

. We deter mine that the judg ment should be reve rsed a nd that defe ndant should rec eive a new tria l.

¶ 43 I I I . CONCLUSI ON ¶ 44 For the reasons stated, t he judgment of the ci rc u i t court of Kendall County is rever sed and the c ause r emande d for a new tria l.

¶ 45 Reverse d and re manded f or a ne w trial.

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