People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58)
Prepare for a PhD on criminal causation in this drug overdose case.
Defendant was charged with drug-induced homicide after her friend overdosed.
The victim died in the bathroom of her mother’s apartment in Wheaton.
Friends and family had gathered to celebrate her release from prison. Taylor and other family members had gathered there to celebrate Taylor’s release from prison the previous day. The victim called defendant to arrange a ride home for the victim’s girlfriend.
Defendant gave heroin, crack cocaine, a syringe, and a crack pipe to the victim when she arrived at the residence. The pipe and syringe were wrapped in a dirty sock that had blood on it. Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower.
After talking to the victim’s girlfriend over the phone the nephew alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom.
They eventually removed the doorknob but still could not open the door. Joshua called 911. Officers arrived and forced the door open. Victim was unresponsive. The officers carried her to the living room and performed CPR. Paramedics arrived a few minutes later and transported her to the hospital, where she was pronounced dead.
The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.
The Cause of Death
The forensic pathologist who performed the autopsy testified that the victim died of heroin and cocaine intoxication due to intravenous drug use. The victim had fresh needle puncture wounds on her arm.
The pathologist testified that it was clear that she had recently ingested heroin. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.
There is no “safe” amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by the victim could have been fatal by itself. It was also possible that the victim had consumed drugs earlier in the day.
A DuPage County jury convicted defendant of drug-induced homicide (720 ILCS 5/9-3.3(a)). She was sentenced to 9 years.
The main issue in this case revolves around how we define causation in a drug-induced homicide and exactly what the jury instructions should say about this.
Specifically, the reviewing court had to consider whether the trial court erred in using IPI Criminal 4th No. 7.15 (Supp. 2011) to define causation rather than instructing the jury according to the principles set forth by the Supreme Court in Burrage. See Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014).
The trial court was required to use this instruction rather than defendant’s proposed causation instructions if it contained a correct statement of the law. The principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 (Supp. 2011) properly sets forth the law of causation applicable to defendant’s case.
“Cause In Fact” v. “Proximate Cause”
Generally, when a crime requires both an act by defendant and a specified result of that act, the defendant’s act must be both the “cause in fact” of the result and the “proximate” or “legal” cause of the result.
The first requirement means that the defendant’s act must be an actual cause of the result.
The second requirement means that the result that actually occurs “must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention), or the result or manner which his reckless or negligent conduct created a risk of happening (in the case of crimes of recklessness and negligence) that the defendant may fairly be held responsible for the actual result.” Usually, this is also called a “foreseeability” requirement.
Barring unusual circumstances, it would seem that only cause-in-fact will be at issue in drug-induced homicide cases.
Illinois Drug-Induced Homicide Statue
The relevant portion of the drug-induced homicide statute provided:
“A person who violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance, commits the offense of drug-induced homicide.”
The statute already spells out what act a defendant must commit, what harm must occur, and how the harm must occur, and the only mental state requirement is the defendant’s knowing delivery of a controlled substance. See People v. Faircloth, 234 Ill. App. 3d 386, 391 (1992) (“[t]he defendant 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 defendant is responsible for that person’s death”).
Moreover, the federal courts in construing the analogous portion of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)) have concluded both before and after Burrage that there is no foreseeability requirement.
IPI Criminal No. 7.15
The trial court further gave Illinois Pattern Jury Instructions, Criminal, No. 7.15 (4th ed. Supp. 2011) (hereinafter IPI Criminal 4th No. 7.15 (Supp. 2011)), which is titled “Causation in Homicide Cases Excluding Felony Murder.”
Thus, the jury was instructed that:
“In order for you to find that the acts of the defendant caused the death of [the victim] the State must prove beyond a reasonable doubt that defendant’s acts were a contributing cause of the death and that the death did not result from a cause unconnected with the defendant. However, it is not necessary that you find the acts of the defendant were the sole and immediate cause of death.”
Defendant objected to the use of this instruction.
The Contributing Cause Rule in Illinois
IPI Criminal 4th No 7.15 is described as the “Causation in Homicide Cases Excluding Felony Murder” instruction.
There is no question that IPI Criminal 4th No. 7.15 (Supp. 2011) is a correct statement of Illinois causation principles. The question is if Illinois has gotten it right. Each of these propositions is taken directly from this court’s case law.
The “But-For” Test
The easiest way to establish cause-in-fact or “actual” cause is through the “but-for” test.
This is established by showing that “but for the conduct the result would not have occurred.”
“Contributing Cause” Test
IPI Criminal 4th No. 7.15 (Supp. 2011) spells out causation principles the way they have been consistently defined by the Illinois courts.
As the Supreme Court noted in Burrage, however, some jurisdictions apply either a “substantial factor” or “contributing cause” test to determine cause-in-fact. Illinois has consistently stated causation requirements in terms of contributing causation. See, e.g., People v. Brown, 169 Ill. 2d 132, 152 (1996); People v. Gacho, 122 Ill. 2d 221, 244 (1988); People v.Brackett, 117 Ill. 2d 170, 176 (1987); People v. Love, 71 Ill. 2d 74, 81 (1978); Cunningham v. People, 195 Ill. 550, 572-73 (1902).
In Brown, 169 Ill. 2d at 152, this court stated: “In order to prove a defendant guilty of murder (other than by accountability), the prosecution must prove, inter alia, that an act of the defendant contributed to the victim’s death. (People v. Brackett (1987), 117 Ill. 2d 170, 177.) The defendant’s act, however, need not be the sole or immediate cause of death; rather, it is sufficient if the defendant’s act contributed to cause the death.” In Brackett, 117 Ill. 2d at 176, this court stated: “The courts in Illinois have repeatedly held that an intervening cause completely unrelated to the acts of the defendant does relieve a defendant of criminal liability.
The converse of this is also true: when criminal acts of the defendant have contributed to a person’s death, the defendant may be found guilty of murder. It is not the law in this State that the defendant’s acts must be the sole and immediate cause of death.
One is Broader Than The Other
In most cases, even though cause-in-fact requirements are stated in terms of “contributing cause,” the defendant’s act will be a “but-for” cause of the victim’s death. It is clear, nevertheless, that in Illinois the concept of “contributing causation” is broader than “but-for” causation.
3 Bullet Example
In Brown the state only proved defendant fired one of the 3 bullets that lead to his death.
The pathologist could not say which bullet lead to the victim’s death but each bullet contributed to the death. There is no question that, under this court’s long-standing “contributing cause” theory of causation, strict “but-for” causation is not always required.
Clearly, we believe defendant should be criminally culpable.
Accelerated Death Example
The acceleration rule holds that a person is still liable for another’s death even if he merely hastens the death of
somebody who was already dying.
Say for example, a person shoots a man dying of cancer. Did he not just commit murder?
Should Illinois Follow Burrage?
The question therefore becomes whether there is any reason why the Supreme Court’s decision in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. That case was merely interpreting a federal statute and was not making any constitutional proclamations obligating the states.
Strictly speaking Illinois doesn’t have to follow the rule laid out in Burrage.
What Happened In Burrage?
In that case, the defendant sold heroin to a longtime drug user who died of an overdose. The victim had injected oxycodone earlier in the day, and was found dead in his bathroom the morning after defendant sold him the heroin.
The medical evidence showed that the victim had in his system heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. Morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range.
The victim died of mixed drug intoxication.
The forensic toxicologist testified that the heroin was a contributing factor in the victim’s death because it interacted with the other drugs to depress his respiratory and/or central nervous system. The pathologist could not say whether he would have lived had he not taken the heroin.
A jury convicted the defendant of distribution of heroin with death resulting from the use of that substance. The federal Controlled Substances Act imposes a 20-year mandatory minimum sentence when a defendant unlawfully distributes a schedule I or II drug and “death or serious bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012).
In Burrage, the Supreme Court considered the meaning of the phrase “results from” in section 841(a)(1), (b)(1)(A)-(C) of the federal Controlled Substances Act (21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012)), which imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” The jury instruction in that case required the government to prove that the defendant’s distribution of the controlled substance was a contributing cause of the victim’s death. Burrage, 571 U.S. at ___, 134 S. Ct. at 886.
The Court held that the common understanding of “results from” is “but-for” causation, i.e., that the harm would not have occurred but for the defendant’s conduct.
The Supreme Court acknowledged that some jurisdictions consider a cause-in-fact to be something that was a “substantial” or “contributing” factor in producing a given result. Id. at ___, 134 S. Ct. at 890. However, the Court noted that Congress had not written the statute in contributing cause language but had instead used the phrase “results from,” which language is commonly understood to import “but-for” causality.
The Court explained that it was against these traditional background principles that Congress had legislated when it enacted the statute at issue.
The Court then held that, “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.”
Because the government had conceded that there was no evidence that Banka would have lived but for his use of the heroin he received from the defendant, the Court reversed his conviction.
Nothing in Burrage requires this court to abandon its long-standing definition of causation in homicide cases. Burrage was decided as a matter of federal statutory interpretation, and it is therefore not binding on state courts. We are free to follow it if we find it persuasive and to ignore it if we do not.
We find that the Burrage analysis counsels against us abandoning the contributing cause standard.
The trial court thus did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011), which correctly sets forth the causation test used in Illinois.
Illinois Goes Another Way
The question facing this court is what the Illinois legislature meant when it used the word “caused” in the phrase “any person’s death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance.” See 720 ILCS 5/9-3.3(a) (West 2012).
After careful consideration, we have chosen not to abandon our contributing cause standard based on the Burrage dictum.
Just as Congress was legislating against a backdrop of cases defining “results from” as meaning “but-for” causation, the Illinois legislature was legislating against a backdrop of causation in homicide cases meaning the “contributing cause” standard set forth by this court in cases such as Brown and Brackett.
Thus, we presume that when the legislature used the phrase “caused” in section 9-3.3(a) it intended the meaning that Illinois courts have consistently given to this word in homicide cases.
Plus, There Is Clear Legislative Intent
Moreover, as the appellate court noted in Kidd, we have clear evidence that this was the legislature’s intent. The statute previously used the phrase “results from,” but the legislature amended the statute in 2006 to change that phrase to “caused by.”
When the amendment was up for discussion in the House, Representative Pihos explained: “The reason for the change is to provide clarity in the law relating to drug-induced homicide. The causation language is the same as the other homicide language in the law.” 94th Ill. Gen. Assem., House Proceedings, Apr. 5, 2005, at 85 (statements of Representative Pihos).
The Kidd court explained that the legislative history showed that “the legislature intended to change the language so that it mirrored the language of other homicide statutes, which refer to ‘acts which cause the death’ of an individual, whether such act is intentional (720 ILCS 5/9-1 (West 2010) (first degree murder)), negligent (720 ILCS 5/9-2 (West 2010) (second degree murder)), or reckless (720 ILCS 5/9-3 (West 2010) (involuntary manslaughter and reckless homicide)).” Kidd, 2013 IL App (2d) 120088, ¶ 31.
Thus, it is clear that “caused by” in the drug-induced homicide statute was intended to have the same meaning that “cause” has always had in Illinois homicide cases, and the Illinois courts have consistently used a “contributing cause” standard.
And They Just Ain’t Worried Like SCOTUS Was
The Supreme Court was also concerned that the contributing cause standard would treat as a cause-in-fact “every act or omission that makes a positive incremental contribution, however small, to a particular result.” Burrage, 571 U.S. at ___, 134 S. Ct. at 891.
But as the Supreme Court itself acknowledged, courts deal with this problem by excluding insubstantial causes. Moreover, the same criticism could be made of the “but-for” test, as the Supreme Court itself acknowledged earlier in the opinion.
The Court explained that, even if other forces are combining to produce a particular result, something that contributes incrementally to the outcome is a cause-in-fact if it was the “straw that broke the camel’s back.” Id. at ___, 134 S. Ct. at 888. Thus, under the “but-for” test, a cause may be minor, but if the outcome would not have happened without it, it qualifies as a cause-in-fact.
Some contributing cause jurisdictions deal with this problem by invoking a “substantial factor” requirement, and the government argued that its proposed test would exclude causes that are “too insubstantial” or “not important enough. ”
But the Court was concerned with the government’s inability to quantify what is too insubstantial and the fact that “presumably the lower courts would be left to guess.” Id. at ___, 134 S. Ct. at 892. For all of the above reasons, we disagree with the Supreme Court that a contributing cause standard raises due process or other concerns, and we choose not to follow the Burrage dictum.
No Danger Of Innocent Conduct Being Criminalized
It is difficult to see how this instruction creates a danger of a defendant being convicted of an offense that he or she had nothing to do with.
Consider the situations we have discussed earlier in this opinion, i.e., several persons putting poison in a person’s drink, two different people wounding the defendant with gunshots, multiple people beating a person to death, or someone providing a controlled substance that combines with other substances to cause a person’s death. All of these situations, in which “but-for” causation often cannot be established but contributing causation can, are not attempts to connect the defendant with an injury that he or she “had nothing to do with.”
Moreover, these are not, in the words of the appellate court, situations in which the defendant “might have caused the victim’s death.” (Emphasis omitted.) 2017 IL App (2d) 141143, ¶ 78.10 Rather, they are situations in which the defendant’s act contributed to the victim’s death as it actually happened.
For all of these reasons, we believe that a “contributing cause” standard better captures the ordinary meaning of “cause” than a strict “but-for” standard. Although establishing “but-for” cause is sufficient to establish cause-in-fact and will be established in the majority of cases, we do not believe that “but-for” cause is always necessary to establish cause-in-fact. A contributing cause standard better comports with the ordinary understanding of the word “cause” in cases of multiple causation.
This court has defined criminal causation in terms of a contributing cause standard for over a century. Nothing in Burrage requires us to abandon that standard, and nothing in Burrage convinces us that we should abandon that standard.
We disagree with its conclusion that we should replace the contributing cause standard with a “but-for” requirement. We agree with the appellate court, however, that the trial court did not err in using IPI Criminal 4th No. 7.15 (Supp. 2011). That instruction properly sets forth causation principles as determined by this court, and therefore, Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) required the trial court to use it.
For the above reasons, we affirm the judgment of the appellate court, although we do not agree entirely with the appellate court’s reasoning. We hold that, as a matter of state law, IPI Criminal 4th 7.15 (Supp. 2011) properly sets forth the principles of causation established by this court and therefore the trial court did not err in using it. We reject the appellate court’s conclusion that use of this instruction raises “grave due process concerns,” and we are not convinced by the Supreme Court’s dictum in Burrage that we should abandon the “contributing cause” standard.