2015 IL App (1st) 131552

No. 1-13-1552 

Opinion filed June 30, 2015. 

Third Division

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

v. 

BYRON BROWN, 

Defendant-Appellant. 

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Appeal from the Circuit Court

of Cook County. 

No. 09 CR 14369 (02) 

The Honorable 

Steven J. Goebel, 

Judge, presiding. 

______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion. 

Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion. 

OPINION

¶ 1 Following a jury trial, defendant Byron Brown was convicted of felony murder based on 

a fatal traffic accident that occurred while he and his co-offender, Rodney Jones, fled from the 

scene of a residential burglary. Brown contends the State did not prove him guilty beyond a 

reasonable doubt because he could not have foreseen that his codefendant's "irrational and 

dangerous" driving during their escape would result in the victim's "almost inevitable" or "likely" 

death. We affirm.
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¶ 2 The jury properly found Brown guilty of felony murder where the evidence showed he 

committed a residential burglary and then, with his codefendant at the wheel, sped away from the 

police. Jones failed to stop at intersections, which resulted in a fatal traffic accident. During the 

commission of the residential burglary, Brown and Jones set in motion a chain of events that 

caused the death. 

¶ 3 During deliberations, the jury requested a definition of foreseeability. After defense 

counsel agreed the court should not provide the jury with a definition, the jury was instructed to 

continue deliberating. Brown argues that because foreseeability was a "sharply disputed issue at 

trial, and the key to acquittal," defense counsel was ineffective for failing to provide a definition 

to the jurors when they requested one. But, the jury received instructions that fairly and 

accurately stated the applicable law. Defense counsel's decision to offer no definition of 

foreseeability to the jury's question during deliberations was trial strategy and, therefore, cannot 

serve as a basis for an ineffective assistance of counsel claim. Counsel spent the majority of his 

closing argument defining foreseeability to fit the defense theory. 

¶ 4 BACKGROUND

¶ 5 The evidence at trial showed that on July 3, 2008, a burglary occurred at the single family 

bungalow on South Langley, Chicago, where Anthony Shaw and Jocelyn Hunter lived. Hunter 

ran a club about a mile away from her home, and on the date of the burglary, Shaw arrived at the 

club around 3:30 p.m. to help her clean and stock. When Shaw and Hunter left their house, it was 

locked and undamaged. Around 6 p.m., a friend of Shaw's came into the club to tell Hunter and 

Shaw that someone had broken into their home and was still there. Shaw tried to call the police

but was unsuccessful. 
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¶ 6 Shaw and his friend left the club and went to the home. As Shaw looked down the alley 

toward his house, he saw "some guys" standing against a neighbor's garage. Shaw drove toward 

78th Street and flagged down the marked police car of Officer John Kennedy and his partner, 

Officer Passerelli. Shaw told them about the burglary and pointed down the alley in the direction 

of his house. Coming toward them from the alley was a white Suburban SUV. The SUV did not 

stop as it came out of the alley and drove the wrong direction on 78th Street. The officers 

activated their lights and sirens and pursued the SUV which increased its distance from the 

police car by failing to slow down at any intersections, as the police car did. Officer Kennedy 

broadcast a radio description of the SUV and its direction to alert fellow officers. When the SUV 

turned right, Officer Kennedy was four blocks behind it on 78th Street.

¶ 7 When the officers arrived at the intersection of 76th and State, they saw an accident 

ahead. The SUV they had been pursing rested against a light pole on the northeast corner. The 

officers pulled behind the SUV. Officer Kennedy did not see anyone inside the SUV. Those 

gathered nearby pointed east and said three men from the SUV had run in that direction. Officer 

Kennedy ran in that direction toward an alley. He radioed to let other responding officers know 

that the suspects were on foot and which direction they went. At the time, Officer Kennedy did 

not know that another vehicle was involved in the accident. 

¶ 8 When Officer Kennedy returned, he learned another car, a Cadillac, had been involved 

and came to a halt farther north on State Street against a fence. Officer Kennedy saw people 

trying to help the woman inside, who was later identified at Tommye Freeman. She died from 

her injuries at a hospital.

¶ 9 Officer Johnson received Officer Kennedy's radio broadcast alerting him that a white 

SUV "used in a burglary" had crashed at 76th and State. Officer Johnson arrived there, saw an 
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accident had happened and received the radio transmission that three African-American males 

had run east from the SUV. Officer Johnson began looking for the suspects on foot. He entered 

the rear yard at 7532 South Michigan, where he saw Brown crouching alone in the basement 

stairwell. 

¶ 10 After Shaw identified Brown as someone he believed had been in the SUV, Brown was 

transported to the 6th district police station. During a custodial search, police found on Brown

two yellow bracelets, a checkbook, and a cross. Officer Johnson looked inside the SUV and 

noticed several large items he believed were proceeds from the burglary—two televisions, 32 

and 50 inches, and two laptops, one gray and one silver. Officer Johnson removed the items from 

the SUV and inventoried them at the 6th district police station. 

¶ 11 Officer Kennedy learned that the BP gas station on the northwest corner of 76th and State 

had video surveillance equipment recording the intersection. Officer Kennedy obtained the 

videotape that showed the accident. The recording was played for the jury. 

¶ 12 When Shaw entered his house, he found his bedroom had been ransacked and numerous 

items taken, including a 32-inch television, a 50-inch television and some tools. Later that night, 

when Hunter returned home, she noticed her son's checkbook was missing, as well as her tennis 

bracelet and other jewelry. Shaw went to the police station and identified the property the 

officers had recovered as items from his home. 

¶ 13 Officers Johnson and Vivanco interviewed Brown around 7:30 p.m., after Officer 

Johnson gave him his Miranda warnings. Officer Vivanco testified at trial that in response to his 

question to Brown about how he was involved in the car accident and burglary, Brown replied: 

"Man, you know I was there. Everyone knows I was there. There were people out 

there. They have cameras at the gas station."
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Vivanco testified that Brown told him he ran because "he was scared." Vivanco further testified 

Brown stated:

"He knew he was going to be—something bad was gonna happen. The two guys 

that he was with, they knew that the victim had a lot of TVs and computer at his 

house, he just went along with them but he knew something bad was gonna 

happen." 

¶ 14 Evidence technician officer Steven O'Connell processed and photographed the crime 

scene of the residential burglary. He recovered fingerprints. After the burglary division learned 

Tommye Freeman had died from her injuries, they notified the homicide detective division and 

Detective Wade Golab was assigned to the case. Detectives recovered a hat from the scene of the 

accident that looked like it could have come from one of the suspects. 

¶ 15 Evidence technician Edward Grabarek took a buccal swab from Rodney Jones on 

September 10, 2008. Jones's DNA matched the DNA found on the driver's side airbag of the 

white SUV; Jones was arrested and charged with Freeman's murder.

¶ 16 In late 2008, Detective Brogan contacted Detective Golab and told him he had 

information about a phone call Brown placed to Ronesha Foots; Golab received a copy of a 

recording of the call. Foots testified Brown was the father of her daughter and they were dating 

in July 2008. On July 3, 2008, she said Brown was with her, but he left when he received a call 

from Jones and Pierre Skipper. Later that day, Foots got a call that police had arrested Brown. 

¶ 17 Evidence technician officer Edward McCartan collected evidence from the white SUV. 

He recovered blood from the outside doors and recovered the following from inside the vehicle: 

a cigarette butt, chapstick, a water bottle, a CD, a red T-shirt, an airbag, and a pair of gym shoes. 

The items were inventoried and sealed.
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¶ 18 Deborah McGarry, a forensic scientist and an expert in the field of latent fingerprint 

examination and analysis, examined the fingerprint samples. She compared latent prints lifted 

from the residential burglary scene to the prints of Jones and Brown and found them to match. 

¶ 19 Forensic evidence determined that the DNA found on the SUV's driver's side door and 

airbag matched Jones's DNA. The DNA from the recovered cigarette found inside the SUV and 

the baseball hat recovered at the scene after the accident matched Brown.

¶ 20 At the conclusion of the State's case, Brown moved for a directed verdict, which the court 

denied. The defense rested and the parties presented closing arguments. 

¶ 21 Jury Instructions and Deliberations 

¶ 22 The parties extensively argued jury instructions. The trial court ultimately determined 

that a modified version of Illinois Pattern Jury Instructions, Criminal No. 7.15A (IPI) would be 

given. 

"A person commits the offense of first degree murder when he commits the 

offense of residential burglary and the death of an individual results as a direct

and foreseeable consequence of a chain of events set into motion by his 

commission of the offense of residential burglary. It is immaterial whether the 

killing is intentional or accidental or committed by a confederate without the 

connivance of the defendant. A person may be held responsible for a death that 

occurs during an escape following the commission of residential burglary." 

The court added the last sentence, which defense counsel objected to. 

¶ 23 During deliberations, the jury sent out a note, "Is there a legal or more complete 

definition of the term foreseeable?" As the parties debated how to respond to the jury question, 

defense counsel stated that he was "not aware of any definition we could give them." The State 
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could not find a definition in the IPI and agreed with defense counsel. Defense counsel suggested 

they could use a dictionary definition and a discussion ensued regarding using civil jury 

instructions. Although a definition of foreseeability was found in Black's Law Dictionary, the

parties agreed the court should tell the jurors to continue deliberations. The jury was told, "You 

have heard all of the evidence and you have all of the instructions. Please continue to deliberate." 

¶ 24 The jury returned a guilty verdict of first degree murder. Brown filed a posttrial motion 

for a new trial or judgment notwithstanding the verdict, arguing the court erred in failing to 

instruct the jury that a felon is responsible for those deaths which occur during a felony and 

which are the foreseeable consequence of the initial criminal act and that the trial court should 

have provided a definition of "foreseeable" in response to the jury's question. The trial court 

denied Brown's posttrial motion. The court sentenced Brown to 25 years' imprisonment and 

denied his motion to reconsider the sentence. 

¶ 25 ANALYSIS

¶ 26 Brown contends the State failed to prove him guilty beyond a reasonable doubt of felony 

murder because he could not have foreseen that his codefendant's "irrational and dangerous" 

driving during their escape from committing residential burglary would "likely" or "almost 

inevitably" result in the victim's death. 

¶ 27 Sufficiency of the Evidence of Felony Murder 

¶ 28 The relevant inquiry when faced with a challenge to the sufficiency of the evidence 

involves, after viewing the evidence in the light most favorable to the prosecution, whether any 

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). As a reviewing court, we will not 

substitute our judgment for that of the trier of fact on questions concerning the weight of the 
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evidence or the credibility of the witnesses. Id. at 375. We will not reverse a criminal conviction 

unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable 

doubt of the defendant's guilt. Id. 

¶ 29 The jury convicted Brown of felony murder predicated on residential burglary. A person 

commits first degree murder when he or she "kills an individual without lawful justification *** 

if, in performing the acts which cause the death: *** he [or she] is attempting or committing a 

forcible felony." 720 ILCS 5/9-1(a)(3) (West 2008). The forcible felony was the residential 

burglary. 720 ILCS 5/2-8 (West 2008).

¶ 30 Illinois adheres to the "proximate cause" theory of liability for felony murder, meaning

"liability attaches under the felony-murder rule for any death proximately resulting from the 

unlawful activity." People v. Lowery, 178 Ill. 2d 462, 465 (1997). "A felon is liable for those 

deaths which occur during a felony and which are the foreseeable consequence of his [or her]

initial criminal acts." Id. at 470. Additionally, a defendant may properly be held responsible for a 

death that occurs during an escape following the commission of a forcible felony. People v. 

Klebanowski, 221 Ill. 2d 538, 549 (2006); see also People v. Hickman, 59 Ill. 2d 89, 94 (1974) 

(time and activities involved in escaping to a place of safety are part of crime). 

¶ 31 Brown argues that as a passenger in the SUV during the escape he could not reasonably 

have foreseen that Jones would drive in an "irrational and dangerous" manner and, accordingly, 

cannot be held responsible for Freeman's unforeseeable death. As further support for his position, 

Brown offers the fact that neither he nor Jones carried weapons during the commission of the 

residential burglary. Brown argues this fact shows they had no intention of using force to escape, 

and from this, he contends the victim's death could not be a foreseeable consequence of his 

actions in carrying out the residential burglary because he never contemplated the use of force or 
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violence. According to Brown, Jones did not merely lose control of the car while speeding 

during their escape, but "made the unexpected and irrational decision to ignore the stoplight and 

drive directly into heavy traffic in an intersection—conduct that impeded escape and put himself 

and his passengers at the risk of death and injury." Brown maintains that the State failed to show 

how the accident was the "almost inevitable" result of the burglary, making the victim's death 

reasonably foreseeable.

¶ 32 To sustain a conviction for felony murder, the State need not prove the defendant 

contemplated "that his actions would result specifically in death," only that he or she intended to 

commit the underlying felony. People v. Hudson, 354 Ill. App. 3d 648, 655 (2004) (citing People 

v. Causey, 341 Ill. App. 3d 759, 769 (2003)). To sustain its burden, the State must prove the 

defendant "set in motion a chain of events which were or should have been within his 

contemplation." Lowery, 178 Ill. 2d at 467. Moreover,"[i]t is unimportant that defendant did not 

anticipate the precise sequence of events that followed [the forcible felony]." Id.; see also People 

v. Brackett, 117 Ill. 2d 170, 180-81 (1987) (defendant did not have to foresee victim would die of 

asphyxiation while being fed in nursing home following rape and beating to sustain felony 

murder conviction). 

¶ 33 The facts presented establish Brown's guilt for the residential burglary and the murder of 

an innocent victim during his escape from the burglary. Although Brown did not perform the acts 

that caused Freeman's death—"irrational and dangerous" driving—he did participate in the 

residential burglary and the escape that culminated in Freeman being the victim in a fatal car 

accident. Brown's participation in the forcible felony set in motion a chain of events that led to 

Freeman's foreseeable death. It was sufficient for Brown to have contemplated that, to avoid 

liability, his actions would require escape from the home without capture. Freeman's death
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directly resulted from Brown's actions in committing the residential burglary and attempting to 

escape capture.

¶ 34 The evidence presented to the jury showed that on July 3, 2008, a burglary at Hunter and 

Shaw's home and the removal of personal items occurred. A friend told Shaw about the burglary 

and that the burglars remained at the home. He immediately went home and as he approached, 

Shaw saw a group of men in the alley. Shaw flagged a nearby police car. As Shaw explained

what had transpired, he pointed in the direction of his house and then both Shaw and the officers 

saw a white Suburban SUV coming toward them down the alley from Shaw's house. The SUV 

did not stop as it came out of the alley and proceeded in the wrong direction down 78th Street. 

The police pursued the SUV with sirens and lights activated, but the SUV did not slow down or 

brake. Instead, the SUV increased the distance between it and the police car by failing to stop as 

it crossed intersections. When the SUV turned, the police car was four blocks behind. When the 

officers arrived at the intersection of 76th and State, they could see the SUV resting against a 

light pole on the northeast corner having been in an accident. Brown, who had run, was found 

hiding in a basement stairwell behind a nearby home. When the police questioned Brown about 

the events, he said he "knew something bad was gonna happen." Neither Brown nor Jones 

carried weapons during the burglary and none were found at the location of the accident.

¶ 35 Brown argues that because the absence of weapons during the resident burglary

establishes that he and Jones never contemplated the potential use of violence, "it was even less 

foreseeable to a reasonable person in Brown's position that codefendant would recklessly 

endanger lives of other drivers during flight from the police." In support for his position, Brown 

cites People v. Belk, 203 Ill. 2d 187, 192 (2003), and argues the State offered no evidence that he 

could reasonably foresee that Jones would endanger lives should police pursue them. He also
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relies on language from Lowery and Hudson in arguing the State could not show Freeman's death 

was "almost inevitable" (Lowery, 178 Ill. 2d at 467) and "likely" from his actions ((internal 

quotation marks omitted) People v. Hudson 222 Ill. 2d 392,401 (2006)). 

¶ 36 Our supreme court has determined that a defendant does not have to anticipate the precise 

sequence of events leading to the fatality. Lowery, 178 Ill. 2d at 470. In People v. Dekens, 182 

Ill. 2d 247, 254 (1998), the supreme court reaffirmed this principle, explaining that "the focus of 

the proximate cause theory is on the chain of events set in motion by the defendant." Focusing on 

the chain of events Brown's actions set in motion, we agree with the State that liability for 

Freeman's death is warranted as a foreseeable consequence.

¶ 37 We find People v. Hickman, 59 Ill. 2d 89 (1974), cited by the State, more in line with the 

facts than the cases cited by Brown. In Hickman, a police officer pursing fleeing burglars was 

mistakenly shot and killed by another officer who mistook the pursing officer as one of the 

burglars. Id. at 94. In finding the defendant guilty of felony murder, our supreme court noted that 

"commission of the burglary, coupled with the election by defendants to flee, set in motion the 

pursuit by armed police officers." Id. The shot that killed the officer responded to the escape of 

the fleeing burglars and, therefore, constituted a direct and foreseeable consequence of the 

defendant's commission of the crime. Id. Relying on Hickman, the State argues the application of 

the felony murder doctrine does not depend on the identity of the person whose physical action 

specifically caused the decedent's death but, instead, on whether the fatality was a foreseeable 

consequence of the defendant's forcible felony. See also People v. Cervantes, 408 Ill. App. 3d 

906 (2011) (discussing foreseeable conduct in context of resisting police officer, court held it 

reasonably foreseeable that pursing officer might be injured when defendant chose to run from 

police in icy and snowy conditions). 
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¶ 38 Brown's participation in the residential burglary, coupled with his choice to escape the 

consequences of his actions by fleeing with Jones, set in motion the circumstances that 

concluded in the fatal accident. Put another way, had Brown not participated in the residential 

burglary and then fled, Freeman would not have been killed. That Brown claims he and Jones 

were unarmed during the forcible felony is irrelevant. As our supreme court has indicated, " ' 

"[i]t is unimportant that the defendant did not anticipate the precise sequence of events that 

followed *** His unlawful acts precipitated those events, and he is responsible for the 

consequences." ' " People v. Klebanowski, 221 Ill. 2d 538, 548 (2006) (quoting Hickman, 59 Ill. 

2d at 94 (quoting People v. Smith, 56 Ill.2d 328, 333-34 (1974))). 

¶ 39 After considering the evidence in the light most favorable to the State, we affirm Brown's 

conviction. Any rational trier of fact could have found Brown guilty beyond a reasonable doubt. 

As a matter of law, Brown is responsible for Freeman's death, which occurred during his escape 

from the commission of the residential burglary. Brown's participation in the burglary set in 

motion a chain of events that ultimately caused the death.

¶ 40 Ineffective Assistance of Counsel

¶ 41 To establish ineffective assistance of counsel, a defendant must show both a deficient 

performance by counsel that falls below an objective standard of reasonableness and prejudice, 

meaning a reasonable probability that absent counsel's error, the result would have been 

different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to satisfy either prong 

dooms the claim. People v. Givens, 237 Ill. 2d 311, 331 (2010). 

¶ 42 Jury instructions convey to the jury the law that applies to the evidence presented. 

People v. Herron, 215 Ill. 2d 167, 187 (2005) (citing People v. Fuller, 205 Ill. 2d 308, 343 

(2002)). Jury instructions should not be misleading or confusing. People v. Bush, 157 Ill. 2d 248, 
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254 (1993). "[T]he general rule is that the trial court has a duty to provide instruction to the jury 

where it has posed an explicit question or requested clarification on a point of law arising from 

facts about which there is doubt or confusion." People v. Childs, 159 Ill. 2d 217, 228-29 (1994). 

The trial court, however, may properly exercise its discretion to "decline to answer a jury's 

inquiries where the instructions are readily understandable and sufficiently explain the relevant 

law, where further instructions would serve no useful purpose or would potentially mislead the 

jury, when the jury's inquiry involves a question of fact, or if the giving of an answer would 

cause the court to express an opinion which would likely direct a verdict one way or another." Id.

at 228. How the trial court responds to a jury question during deliberations ordinarily falls within 

the discretion of the trial court "so that the trial court's decision will be disturbed on appeal only 

if that decision constituted an abuse of discretion." People v. Falls, 387 Ill. App. 3d 533, 537 

(2008). 

¶ 43 In response to the jury's note asking for the definition of "foreseeable," both parties 

indicated they were inclined to tell the jury to continue deliberating. The State informed the court 

it had briefly looked for a definition in the IPI, but had not found one. The court personally asked 

Brown if he agreed with instructing the jury to continue deliberating and he did. Defense counsel 

then stated: 

"Judge, if I can throw something out there? I know there is an alternative of 

getting a definition from a source other than the IPI, a regular dictionary ***. I 

don't have a definition here." 

The court then inquired whether the parties had a way to access the civil IPI. Defense counsel 

indicated he could use the Internet; the State expressed its hesitation to look to civil instructions, 

but reserved opinion on the matter. The trial judge retired to chambers and consulted Black's 
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Law Dictionary for the definition of "foreseeability." The court read aloud the definition, "the 

ability to see or know in advance hence the reasonable anticipation that harm or injury is a likely 

result of acts or omissions." The court then took a brief recess. 

¶ 44 Back on the record, the State indicated it could not find a definition in the civil IPI. 

Defense counsel stated he did not feel comfortable with the parties drafting anything in response 

to the jury question and suggested instructing the jury to continue deliberating. With no objection 

from either party, the court instructed the jury it had heard all of the evidence and had the 

instructions, so it was to continue deliberations. 

¶ 45 Brown argues Illinois Supreme Court authority or the Black's Law Dictionary definition 

of foreseeability could have easily been incorporated into a response to the jury's note. Brown 

suggests the jury's note shows the jury struggling with how foreseeable Freeman's death had to 

be to support a felony murder conviction. Brown contends defense counsel's failure to propose a 

response defining "foreseeable" was objectively unreasonable, leaving the jury with no guidance 

on how likely the victim's death needed to be to find Brown guilty of felony murder. Brown 

maintains that a "properly instructed" jury would have concluded that because Brown and Jones 

did not arm themselves before the burglary, "they did not plan to avoid potential apprehension 

with violence" and, therefore, the fact that someone could be killed by their actions was not 

reasonably foreseeable. Brown insists that Jones' "irrational behavior" caused Freeman's death, 

an unforeseeable consequence of the residential burglary.

¶ 46 As support, Brown cites People v. Lowry, 354 Ill. App. 3d 760, 766-67 (2004), in which 

this court determined trial counsel ineffective for failing to offer the pattern instruction defining 

"knowledge" in response to the jury's question. The defendant was charged with aggravated 

battery and armed robbery. Id. at 761. During deliberations, the jury asked whether " 'knowingly' 
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" implied " 'that it wasn't an accident, or can it be accidental and knowing?' " Id. at 762. The 

attorneys and the court agreed to respond that the jury had been instructed on the law, heard all 

of the evidence, and should keep deliberating. Id. On appeal, we reversed and remanded for a 

new trial. We held that because the jury's question expressed confusion about the meaning and 

application of the term "knowingly," the question should have been answered with the pattern 

instruction and, therefore, trial counsel was ineffective for failing to request the instruction. Id. at 

765-66, 768. 

¶ 47 Brown contends that, just as in Lowry, defense counsel should have asked the court to 

respond to the jury's note because the jury sought clarification on an important point of law and 

counsel's failure to do so constitutes ineffective assistance. See also People v. Coots, 2012 IL 

App (2d) 100592, ¶¶ 46-52 (counsel's acquiescence in trial court's decision not to answer jury's 

question for definition of "delivery," in drug-induced homicide case, was objectively 

unreasonable). 

¶ 48 Unlike in Lowry, the trial court's refusal to define foreseeability for the jury did not create 

"a serious danger that the jury would (and did) convict defendant based on facts that were legally 

insufficient to establish [the crime]." Id. ¶ 51. 

¶ 49 The State relies on People v. Hicks, 2015 IL App (1st) 120035, in which we held that the 

trial court in a robbery prosecution need not define "force" when the jury requested a definition. 

In holding as it did, the Hicks court cited to People v. Bradley, 192 Ill. App. 3d 387, 393 (1989), 

which held that words with a "commonly understood meaning" need not be defined for the jury. 

Hicks, 2015 IL App (1st) 120035, ¶ 54. We find unpersuasive Brown's contention that Hicks was 

wrongly decided. 
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¶ 50 The instructions tendered to the jury accurately state the applicable law concerning felony 

murder. See People v. Hudson, 222 Ill. 2d 392, 408 (2006) (same language used to instruct jury 

here "simply and concisely stated the law on proximate cause"). Thus, the claim of ineffective 

assistance of counsel fails—the trial court made the appropriate decision in declining to provide 

the jury with a definition of "foreseeable" because the jury instructions correctly stated the law. 

¶ 51 Moreover, during closing arguments, defense counsel contended that the fatal car 

collision was not a foreseeable result of Brown's actions. Counsel urged the jury to pay attention 

to the language of the jury instruction, specifically foreseeability. Counsel defined foreseeability 

for the jury as "was it planned, contemplated, did they consider this was going to happen. Those 

are ways of talking about foreseeability." Defense counsel's argument encouraged the jury to 

adopt a "common sense" interpretation of foreseeability that fit the defense theory. Brown's 

counsel argued the evidence showed Brown did not foresee getting into a car and putting anyone 

in danger. Defense counsel told the jury: 

"So what is foreseeable? What evidence or lack of evidence can help you make a 

decision as to whether or not this was foreseeable? Well, there is one big and 

obvious answer for that. If you foresee violence as being the result of the 

residential burglary that you are admittedly part of, do you foresee that? What 

might you being with you? A weapon. A gun. A knife." 

Counsel implored the jury to use "common sense" concerning what the State needed to prove to 

show the victim's death as foreseeable. Defense counsel asked the jury to consider Brown's lack 

of a weapon as evidence Brown did not foresee violence resulting from his actions. 

¶ 52 Notably, counsel's decision to stand on the instructions provided to the jury constitutes 

reasonable trial strategy. Providing the jury with an additional dictionary definition or one from 
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case law would have undermined defense counsel's instruction to the jurors that they should rely 

on their own "common sense" definition of foreseeability. 

¶ 53 We reiterate that to support an ineffective assistance claim, a defendant must show both 

counsel's representation fell below an objective standard of reasonableness and also that the case 

was prejudiced as a result; failure to meet either prong precludes a finding of ineffective 

assistance of counsel. Strickland, 466 U.S. at 687. Defense counsel's decision as to what jury 

instructions to tender involves a matter of trial strategy that is generally immune from ineffective 

assistance claims. See People v. Douglas, 362 Ill. App. 3d 65, 75 (2005). 

¶ 54 The trial court properly instructed the jury on the law and, under the circumstances 

presented, defense counsel acted reasonably in going along with the court's instruction to the jury 

to continue deliberating without the aid of a definition of foreseeable. Brown had competent 

representation. 

¶ 55 CONCLUSION

¶ 56 The State introduced sufficient evidence from which a reasonable trier of fact could find 

Brown guilty of felony murder beyond a reasonable doubt. During the course of the commission 

of the residential burglary, Brown set in motion a chain of events that led to a fatal car accident 

while he tried to evade police capture. We affirm Brown's conviction.

¶ 57 Defense counsel's decision not to provide a definition of foreseeability to the jury at its 

request constitutes sound trial strategy in the face of a legally sufficient jury instruction and

defense counsel's theory that the jury rely on "common sense." Thus, the ineffective assistance of 

counsel claim must fail.

¶ 58 Affirmed.