2013 I L App (2d) 120088 No. 2-12-0088 Opinion filed September 25, 2013

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ THE PEOPL E OF THE STATE ) Appea l from the Circuit Court OF I L L I NOI S, ) of Ke ndall County

. ) Plaintiff-Appellee , ) ) v. ) No. 11-CF- 140 ) J ASON E. KI DD, ) Honora ble ) J ohn A. B arsa

nti, Def endant- Appellant. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE McL AREN deliver ed the judg ment of the c ourt, 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 count of drug -induce d homicide (720 I L CS 5/9-3.3(a) (West 2010)) “by knowing ly delivering coca ine, a controlled substance to Merr ideth [ sic ] M. Castro and [she] there afte r inhaled or inge sted a portion of the coca ine into her body and s aid inhalation or inge stion of coca ine cause d [her] death.” Following a j u ry trial, defe ndant was convicted and sentenc ed to a term of 10 y ear s’ imprisonment and 3 y ear s’ mandatory supervised rele ase. H e timely

appea led. ¶ 2 Def

endant contends that the trial court err ed in ref using h is 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;2013 I L App (2d) 120088

howeve r, his second issue is meritorious and, there fore , we reve rse defe ndan t ’s conviction and

rema nd for a new tria l. ¶ 3 I . BA CKGROUND ¶ 4 On Marc h 7, 2010, defe ndant found his g irlfriend, Mere dith Castro, fac edown on an upstairs bedroom floor. He rolled her over and immediately rea liz ed that she was dead. He called the police. ¶ 5 Alex Silva, an Oswe go fi re d ep ar t ment para medic, testified that he and his partne r we re 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 and his partne r wer e met by defe ndant, who said that Castro

was upstairs and was not brea thing. Silva and hi s p ar t n er found her ly ing fac eup on the floor, unresponsive, with no p u l s e, an d not brea thing. After confirming that she had no hear t activity , respira tion, or pulse, they told defe ndant that Castro was dece ased. Silva testified that defe ndant was upset. ¶ 6 Def

endant told Silva that he and Castro had used coca ine 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 was took insulin and other medications. Silva then con tacted a

near by hospital a

nd rec eived a “pronounc ement” of death, whic h is differe nt f rom a time of death. Silva and his partner

aler ted the cor oner’ s office and then lef t the scene

. ¶ 7 Offic er Ma tthew Ung er, of the Oswe g o police depa

rtment, testified t hat he a

nd his partner

wer e called t o a townhouse in the early morning of March 7 t o assist para medics wit h a “possibly dece ased person.” When he arr ived betwee n 6:30 and 7 a.m., he went upstairs and saw Castro ly ing fac eup on a bedroom floor. She was not brea thing 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

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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 Castro had consume d “powde r coc aine” and mar ijuana, then watched a movie 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 upsta i rs and found Castro on the floor in the bedroom. Def

endant told Ung er that he vomited afte r he found Castro, and then he called the police. Def endant told Ung er that Castro had cong estive “hea rt failure , COPD, high blood p re s s u re , and diabetes.” ¶ 8 Detec tive Rob Sherwood, of the Osweg o police depar tment, testified that he was the “on- call investiga tor” on Marc h 7, 2010, and re sponded to a c all for a “suspicious death investiga tion” at a residenc e. He arr ived around 8 a.m. The scene had al ready been proce ssed, so he made

arr ang ements to interview defe ndant at the police s t at i o n . Def endant was not under arr est. The interview was rec orded and a video reco rd i ng and a transcr ipt wer e admitted into evidenc e and published to the jury

. ¶ 9 During the i nterview , defe ndant t o l d S h er wood t hat C astro wanted t o g et cocaine be cause she was upset that her cat had died. Def endant admitted to smoking marijuana almost daily , and he stated that Castro knew about his drug use. Def endant stated that Castro had used coca ine fre quently in the past but had 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 went home. We did it. And we smoked pot.”

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¶ 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 any one was with him or wher e the money fo r t h e drug purcha se ca

me from. ¶ 11 Offic er Chad Var g as, an inves t i g ator with the Osweg o police department, t estified that on May 9, 2011, 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 the police station. A transcr ipt of the interview was admitted i n t o ev i d en ce 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 coca ine].” 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 an d then returne d home and snorted the coca ine. When asked if the pur chase was a t one par ticular ba r, def endant responded, “uh-huh.” Defe ndant also told Var g as that Castro possessed morphine, Xana x , and Vicodin and that she so metimes smoked “c rac k” coc aine. ¶ 12 Dr. J ohn Denton, a fore nsic patholog ist, perf ormed an autopsy on Castro on Marc h 9, 2010. Castro was 5 f

eet 2 inche s tall and weig hed 260 pounds. He testified that the settling of her blood indicated that she had been placed on her back “soon afte r death.” Castro’s lung s were “hea vy or cong ested” with blood but she di d not have blood clots, pneumonia, asthma, COPD, emphy sema,

or canc er. Her hear

t was enlar g ed and her main arte ries wer e 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 n o t ed evidenc e of morphine consumption, at 290 nanog rams per milli liter. Acc ording to Dr. Denton, this is an eleva ted level. He stated that over 100

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nanog rams is “ a potential cause of death.” Dr. De nton testified that, while coca ine is a stimul ant, morphine is a narc otic that, as a sedative, leads to r espirator y depre ssion. He opined that hy pox ia (def iciency of ox y g en reac hing body tissues) cause d by “coc aine and opiate int ox 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 as s o ci at e profe ssor of pharma colog y at Rush Medica l Coll eg 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 eff ects and
tox icity of morphine. ¶ 14 Dr. O’Donne ll opined that the ratio of coca ine to its metabolite, benzoy lecg 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 “h ighly tox ic level” that was “lethal.” O’Donne ll further opined that Castro cons u m ed t h e morphine sometime afte r defe ndant had g one to bed. His opinion was based on the absorption rate of morphine a

nd the level of

morphine in Castro’s blood as indica ted in the tox icolog y repor t. ¶ 15 The tox icolog y repor t also i n d i ca t ed t h e p re sence of the anti-anxiety drug Xana x 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 Xana x and morphine are combined, “the eff ect of the Xana x enhanc es the toxi city of the morphine.” Alcohol would have the same de pressa nt effe ct. ¶ 16 Def

endant testified on h i s o wn b ehalf

. 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

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wher e Castro withdrew $120 from her bank acc ount a nd they then went to a bar wher e she handed defe ndant $20 to buy a shot of whiskey for he r and a

beer for him. He w ent to the bac k room and play ed pool; he did not know if she dran k h er s hot. He stated that Castro went outside and then
returne d and said, “L et’s g o.” They 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. Sh e t o l d h i m i t was slightly less than an “eig htball” (one- eig hth of an ounce)

. They snorted t h e co caine and smoked

canna bis over the next three hours. They did not drink 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 downstairs and slept on the couch. Castro was awa ke and aler

t, and defe ndant did not notice any unusual behavior

. ¶ 17 Be tween 5:30 and 6 a.m., defen d an t aw o k e an d wa l k ed the dog , then called upstairs to Castro. S h e d i d n o t respond, so he went upstairs and found her ly ing 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. Wit hin minutes the parame dics arr ived, and then the police. ¶ 18 Def

endant testified that he vaguely reme mbere d talking to Un ger . He fe lt as though his “whole world had fallen apar t”; it was traumatic and h e wa s cr y i n g. He completed a written
statement and then went to the Osweg o police depar tment. Sherwood interviewe d him at the police station. He wa s confuse d by Sherwood’s que stions. ¶ 19 I n May 2 0 1 1 , 1 4 m onths later, Sherwood and Var g as arrested defe ndant and told him that he was being char g ed with drug -induce d homicide. They did n o t ex p l ain the char g e. Var g as interviewe d him and asked him to summarize what he had told Sherwood in Marc h 2010. Def endant did so as well as he could. He testified that his mind was clea rer at the second interview, but he still had trouble r eca lling some of the events lea ding up to Castro’ s death.

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¶ 20 Following closing arg uments, the trial court instructed the jury on the applicable law. Over defe ndant’s objection, the trial court instructed the jury with I llinois Pattern J ury I nstructions, Criminal, No. 7.15 (4th ed. 2000) ( here inafter , I PI Criminal 4th), as follows:

“I n order for y ou to find that the acts of the defendant or one for w hose conduc t he is leg ally responsible cause d the death of Mere dith Ca s t ro , t h e State must prove bey ond a

rea sonable doubt that defe ndant’s acts wer e a contributing cause of the death and that the d ea t h d i d not result from a cause unconnec ted with the defe ndant. Howeve r it is no t

n ece ssary that y ou find the acts of the defe ndant wer e the sole and immedia t e ca u s e o f death.” ¶ 21 Def

endant of fer ed a non- I PI jury

instruction that rea d as follows: “The term ‘prox imate cause’ means any cause which, in the n atura l or probable s equenc 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 it concur s with some other cause acting at the same time, which in combination with it causes the de ath.” I n ref using the tender ed instruction, the tri al co u rt rema rked that I PI Criminal 4th No. 7.15 “ade quately descr ibe[d] the proxi mate cause responsibility the State has and adequa tely descr ibe[d] the interve ning a

nd superse ding e vents and a dequate ly descr ibe[d] the 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 eve n t and without which the event

wo u l d n ot have occur

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

pe of harm that a rea sonable person would expect to see as the result of Def endant’ s conduct.”

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¶ 23 The jury was also instructed with I PI Criminal 4th No. 7.27, which rea d, “[a] person 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 inge stion 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 I PI Criminal 4th No. 5.03, as follows:

“A person is leg ally responsible for the conduct of another person when, either befor e

o r d u ri n g the commission of an offe nse, and with the intent to promote or fac ilitate th e 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 planning or 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 objection was made by the defe nse reg arding omitti ng the first two para g raphs, nor did defe nse counse l submit this inst ruction in its entirety . 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 t o eff ectively relinquish the rig ht of control t o another person, so that the ot her person i s then in constructive posse ssion, there has bee n a deliver

y .

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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.” I PI Criminal 4th No. 17.05A. ¶ 26 During delibera tions, t h e j u ry sent a note to the trial court which rea d: “Reque st cause of death r eport fr om Dr. Denton.” I n response , the trial cour t sent “People’s Exhibit #7,” which was the autopsy

repor t and the toxi colog y repor t. The cause of death was listed a s “coc aine and opiate intox ication.” The rea fter, the jury returne d a g uilty

verdic t. Defe ndant timely appea led. ¶ 27 I I . ANAL YSI S ¶ 28 A. Tende red I nstructions ¶ 29 Def

endant f irst arg ues t hat “the conflicting evidenc e reg arding the cause of Castro’s death made it imperative for t h e t ri al court to g ive the ‘proximate cause ’ instructions tender ed by the defe nse.” I llinois Supreme Court Rule 451 (e ff. July 1, 2006) states: “(a ) Use of I PI Criminal I nstructions; Requirements of Other I nstructions. Whenever I llinois Pattern J ury I nstructions, Criminal, c ontains an instruction applicable in a criminal

case , g iving due considera tion to the fac ts a

nd the g overning law, and the court deter mines that the jury should be instructed on the subjec t, the I PI Criminal inst ruction shall be used, unless the cour

t determines that it does not ac cura tely state the law .” Our revie w is de novo “bec ause the is s u e 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 the applica

ble law a nd the evidenc e.” People v . W alker , 2012 I L App (2d) 110288, ¶ 18. ¶ 30 As a p re fa ce t o o u r d i scussion of the jury -instruction issue, we point out the following leg islative history of the lang uag e r e g a r d in g causa tion in the drug -induce d homicide statute. I n 2005,

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our leg islature attempted to make the statute’s definition of cause consistent with that in other homicide statutes. Prior to J anuar y 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 the injection, inhalation or inge stion of any amount of that controlled substance, commits the offe nse of dr

ug -induce d homicide.” ( Emphasis added.) 720 I L CS 5/ 9-3.3(a ) (West 2004). Effe ctive January

1, 2006, the lang uag e of the statute was a mended 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 delivering a controlled substance to another , and any person’s death is caused by the injection, inhalation or i ng estion of any amount of t hat controlled s ubstance , commits the offense of drug -induce d homicide.” ( Emphasis added.) 720 I L CS 5/ 9-3.3(a ) (West 2010) ¶ 31 I n the d i s cu s s i on on the House floor reg arding the proposed chang e, R epre sentative Pihos stated that the c hang e wa s: “cle anup lang uag e. I t provides that a person who unlawfully delivers a controlled substance
to another and any person’s death is caused by the injection, inhalation, or inge stion of any amount of t hat controlled substance, commits the o ff en s e o f drug- induced homicide. The

rea son for the chang e is to provide clar ity in the law rela ting to drug -induce d homicide. The

causa tion lang uag e is the same as the other homicide lan gu age in the law.” (Emphasis added.) 94th I ll. Gen. Assem., House Procee din gs , Ap ri l 5, 2005, at 85 (statements of Represe ntative Pihos).

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I n the I llinois Senate, Senator Sandoval stated: “House Bill 1109 amends the drug -induce d homicide Section of the Criminal Code t o exte nd criminal liabili ty for any deaths caused as a result of unlawful delivery of a controlled subst a n ce b y i njection, inhalation or [i ng estion].” (Emphasis added.) 94th I ll. Gen. Assem., S en at e P ro ceeding s, May 18, 2005, at 39 (statements of Senator Sandoval). This abbre viated discussion indicates that the leg islature intended to chang e th e la n g u a g e

so that it mirrore d the lang uag 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) (f irst deg ree murder) ), neg lige nt ( 720 I L CS 5/9-2 (West 2010) (sec ond deg ree murder) ), or r eckle ss (720 I L CS 5/9-3 (West 2010) (involuntary manslaug hter and rec kless homicide)). There does no t ap p ea r t o have been an intent to make a signific ant chang e in the underly ing meaning of the conce pt of

causa tion. ¶ 32 We turn to the issue raised o n ap p ea l

. De fe n d ant 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

n o t h av e occur

red. A s econd instruction offe red by defe ndant s tated further that proxi mate cau s e

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

pe of harm that a rea sonable person would expect to result from defe ndant’s conduct. Def endant arg ues that he could not have anticipated that the s eq u en ce of events would result in Castro’s death. Howeve r, as the State points out, “for esee ability ” does not require that the person char g ed 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 this case , the inge stion of both

co ca i n e and morphine). See People v. Cook , 2011 I L App (4th) 090875, ¶ 18 (“A lthough the fore seea bility of 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.” ( I nterna l quotation marks omitted.)).

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¶ 33 The drug- induced- homicide statute incorpor ates the “knowing ” mental state element from section 401 of the Controlled Substanc es Act. People v . Boand , 362 I ll. App. 3d 106, 142 (2005);

see 720 I L CS 570/401(a) (West 2010). Ex plai n i n g the mental state of “knowing ly ,” the Third District Appellate Court has stated that the de fenda nt “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 Substances Act [(the Act) (720 I L CS 570/40 1 (W es t 2 004))] by unlawfully delivering a controlled substance to another , and any person dies as a result of the injection, inhalation or inge stion of any amount of that co n t ro lled 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 addit i o n al 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 that ni g ht. Howeve r, under the prox imate-c ause theory of criminal liability , liability attache s for any death proxi mately resulting from the unlawful activity

. Id. at 142. We ag ree with the State that the conce pt of “proximate cause ” was adequately explained by the lang uag e of I PI Criminal 4th 7.15. We are not convince d that the defe nse instructions would have more fully informed the jury ’s delibera tions; in fac t, the proff ere d instructions seem to confuse the conce pt of

causa tion with a fore seea

ble result. There fore , we conclude that the trial court did not err in ref using defe ndant’s tende red instruc tions on prox imate ca use.

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

endant next arg ues that h e w a s d e n ied the eff ective assistance of counsel, beca use def ense

coun s el 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 claim of ineffe ctive assistance of counsel can succe ed only if the defe ndant demonstrates both that: (1) counsel’s perf ormanc e wa s objectively

unrea sonable; and (2) it is rea sonably probable tha t, b u t f o r c ounsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. Counsel’s perf ormanc e is measure d b y “p re v ai l ing profe ssional norms.” Id

. at 688. Fur ther, “a rea sonable probability that the result *** would have been differ ent is a probability sufficie nt to undermine confide nce in the outcome”; in othe r words,

counse l ’s defic ient perf

ormanc e must have rende red the outcome of the trial “unre liable or fundamen t ally unfair.” (I nterna l quotation marks omitted.) People v. Manning , 241 I ll. 2d 319, 327-28 (2011)

. ¶ 37 The committee notes for I PI Criminal No. 7.27 state that if the trial court chooses to de fine the t erm “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 t o eff ectively relinquish the rig ht of control t o another person, so that the ot her person i s then in constructive posse ssion, there has bee n a deliver

y .

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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 Def

endant poses the question of what conduct falls within the leg al definition of “de livery .” Her e, beca

use there was a question for the fac t finder as to who actua lly “possessed” the coca ine, I PI Criminal 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 (2 d) 100592 ¶ 41, wher e “the ultimate issue” was whether any phy sical transfe r of heroin from the defe ndant to the dece ased was a delivery

. I n Coots , t h e d ef en d ant testified that the dece ased orig inated the idea of procur ing heroin and paid for it. On the other hand, the defe ndant m ad e the calls, located a supplier, and order ed the drug s. They both wer e prese nt when the supplier delivere d the heroin, but the supplier handed it to the defe ndant, who put it in her pocket. ¶ 39 This court noted that Coots was a close and difficult case on the facts and determined that “[e]it her the exis tence or the nonex istence 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 guidanc e on the m eaning of “delivery ” in the drug-induc ed homi cide statute, “mig ht well have g iven the term a broade r meaning than it deser ves to the prejudice of defe nd an t

. ” 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 limited the def inition of “delivery ” amounted to inef fec tive assistance

. ¶ 40 Her e, the State neve r alleg ed that def endant de livered e ither Xa nax or morphine to Ca stro. Thus, the linchpin of the State’s case was that Castro’s d ea t h d i rectly resulted from defe ndant’s “knowing ly delivering coca ine” to her. The State unpersua sively arg ues that the evidenc e showed 1

An exact t ime of death was not established, a fac tor that could have aff ecte d the opinions 1 -14-2013 I L App (2d) 120088

that defe ndant had exclusive possession of the coca ine until he delivere d it to Castro. Def endant’ s statements in the two interview s with the police and in his testimony at trial we re f airly 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 t h e 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 tha t the possession may not be joint; if two persons share immediate and e x clusive
contro l o r 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 b ee n s h o wn , an infere nce of g uilty knowledg e can be draw n from the surrounding fac ts and circ umstances. Id

. The fac t of possession must be shown bey 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 rela tes to the understanding betwee n the parties that they are ‘entitled’ to exercise dominion and control. Whether the understanding is based upon a joi nt venture , the contemplation or t hrea t of force, or some other abstrus e co n cept, it is not require d that leg ally consistent co n ce p t s of dominion and control be the sine qua

non . See People v. Drake , 288 I ll. App. 3d 963, 9 6 9 (1 9 9 7 ) (‘ W h ere two or more people share immediate and exclusive control or share the intention and power to exercise control,
t h er e 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 inten t an d ca p acity to

of experts as to the cause of death beca use, presumably , a more acc urate extrapolation of the blood levels of letha l drug s in the tox icolog y repor t would have be en possible. -15-2013 I L App (2d) 120088

maintain control and dominion over the contra band, and this may be proved by showing that the defe ndant controlled the premise s wh ere it was found.’) .” Coots , 2012 I L App (2d) 100592, ¶ 60 (Mc L are n, J ., specia lly concur ring ). ¶ 42 We believe that, had the jury been proper ly instructed, there is a rea sonable probability that it would have returne d a not g uilty verdic t. Under the Strickland test, defe ndant wa s p re judiced. Def ense counsel should have proff ere d the instruction reg arding delivery in its entirety , and the trial
court should have instructed the jury acc ordingl y . W e deter mine that the judgme nt should be

reve rsed a

nd that defe ndant should rec eive a new tria l. ¶ 43 I I I . CONCL USI ON ¶ 44 For

the re asons stated, the judgment of the circuit court of K endall County is rever sed and the ca use re manded f

or a ne w trial. ¶ 45 Reverse d and ca

use re manded f

or a ne w trial.

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