People v. Mars
Citation2012 IL App (2d) 110695, 985 N.E.2d 570
Date Filed2012-12-26
Docket2-11-0695
Cited13 times
StatusPublished
Full Opinion (html_with_citations)
ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Mars, 2012 IL App (2d) 110695
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARK R. MARS, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0695
Filed December 26, 2012
Modified upon
denial of rehearing February 25, 2013
Held A pro se postconviction petition alleging that defendantâs appellate
(Note: This syllabus counsel was ineffective in failing to raise the issues of whether the
constitutes no part of murder indictment was subject to compulsory joinder and that
the opinion of the court defendantâs right to a speedy trial was violated was properly dismissed at
but has been prepared the first stage of the proceedings.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 05-CF-557; the Hon.
Review John T. Phillips, Judge, presiding.
Judgment Affirmed.
Counsel on Alan D. Goldberg and Shawn OâToole, both of State Appellate
Appeal Defenderâs Office, of Chicago, for appellant.
Michael J. Waller, Stateâs Attorney, of Waukegan (Lawrence M. Bauer
and Victoria E. Jozef, both of Stateâs Attorneys Appellate Prosecutorâs
Office, of counsel), for the People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Mark R. Mars, appeals from an order of the circuit court of Lake County
dismissing his postconviction petition at the first stage. We affirm.
¶2 BACKGROUND
¶3 On March 2, 2005, the grand jury indicted defendant on one count of first-degree murder,
alleging that he caused the death of a taxi driver, Lee Jones, while committing the forcible
felony of aggravated robbery (720 ILCS 5/18-5(a) (West 2004)). In July 2007, the State
indicted defendant on two additional counts (counts II and III) of first-degree murder, based
upon the forcible felonies of attempted aggravated robbery (720 ILCS 5/8-4(a), 18-5(a)
(West 2004)) and attempted robbery (720 ILCS 5/8-4(a), 18-1(a) (West 2004)). Defendant
moved to dismiss counts II and III of the indictment on the grounds of denial of due process
and denial of a speedy trial. The trial court granted defendantâs motion but then reversed
itself when it granted the Stateâs motion to reconsider. All three counts of the indictment
were presented to the jury. The following facts pertinent to this appeal were adduced at trial.
¶4 In the late evening hours of January 31, 2005, defendant was riding in a cab driven by the
victim. During the ride from Waukegan, Illinois, to North Chicago, Illinois, defendant
unsuccessfully demanded money from the victim and stabbed the victim in the head,
shoulder, and right arm. This was at 2:15 a.m. on February 1, 2005. When the victimâs front-
seat passenger and coworker, Motyka Gibson, called in a robbery in progress, defendant
jumped out of the cab and ran away. Gibson later identified defendant to the police as the
perpetrator from a photo lineup.
¶5 The victim was taken by ambulance from the scene to St. Therese Hospital in Waukegan.
He was admitted to the emergency room at 3:57 a.m. Nurse Dolores Kilpatrick remembered
him as a large, African-American gentleman with cuts to the back of his head and on his
arms. According to Kilpatrick, the victim was âscared, but then he really didnât want us to
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take care of him properly.â Kilpatrick testified that the victim would not allow the doctor to
stitch his wounds. At 4:30 a.m. the victim was discharged.
¶6 Lorraine Jones, the victimâs wife, testified that the victim came home on February 1,
2005, between 2 a.m. and 4 a.m. in a âwrapped up, bloodyâ condition. She noted that a cut
on his right arm on top of the wrist kept bleeding. Over the next 24 hours, the victim was in
a lot of pain and was âdelirious,â his right arm turned blue, green, and red, and it was
significantly swollen. The next day, February 2, the victimâs right arm turned black. Jones
testified that the fingers turned black first and then the blackness went up the arm. Jones
rubbed the arm with warm cloths, and when that did not ease the condition, she accompanied
the victim to Kenosha Memorial Hospital in Kenosha, Wisconsin (they lived in Kenosha),
where they arrived between 11 a.m. and 1 p.m. They waited for a while before the victim was
seen in an examining room.
¶7 Dr. Suzanne Siegel was the emergency room physician who attended the victim. She
testified that the victimâs complaint was of arm painâhe reported that he had been hit with
a heavy objectâbut when a physicianâs assistant checked the victimâs blood sugar, it was very
high and Dr. Siegel took over the case. Because the arm X rays were negative, the hospital
staff treated the injury as a âsoft tissueâ injury, iced the arm, and elevated it. The victim was
given morphine for the pain. According to Dr. Siegel, she observed small scratches and
abrasions on the victimâs arms but nothing that required stitches. Dr. Siegel testified that she
shifted her focus to caring for the victimâs diabetes, which he had reported. She administered
intravenous (IV) fluids and insulin. According to Dr. Siegel, the victim resisted treatment and
pulled out the IVs. Both Dr. Siegel and Jones kept trying to convince him to stay in the
hospital and continue his therapy. However, the victim checked himself out against medical
advice.
¶8 Jones had already left the hospital, so the victim took a cab home. He was in pain, lying
on the stairs when Jones got home. She helped him inside. She saw that the blackness on his
right arm had reached his bicep. Three hours later, a friend took the victim to St. Catherineâs
hospital in Kenosha. The victim presented himself at St. Catherineâs at 11:02 p.m. From St.
Catherineâs, the victim was taken to a hospital in Milwaukee, Wisconsin, where he died of
sepsis due to necrotizing fasciitis (flesh-eating disease), following the surgical amputation
of his right arm at the shoulder.
¶9 Dr. Jeffrey Jentzen, a forensic pathologist and the medical examiner for Milwaukee
County, performed an autopsy on the victim. Dr. Jentzen observed bruising and lacerations
to the back of the head. According to Dr. Jentzen, the victim suffered a blunt force injury to
the skull. Dr. Jentzen also examined the severed right arm. He observed a wound, also
described as a âcut,â in the right arm. There were also surgical incisions on the forearm and
the back of the hand. These were fasciotomy incisions made by the surgeons to relieve
pressure caused by swelling due to infection. Dr. Jentzen further observed necrotic tissue.
Dr. Jentzen opined that a break in the tissue of the right arm allowed bacteria into the tissues
that caused necrotizing fasciitis, whichâalmost always fatalâcaused the victimâs death. Dr.
Jentzen testified that the cut on the right arm was the âdirectâ cause of the sepsis.
¶ 10 The jury found defendant not guilty on count I of the indictment (felony murder
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predicated on aggravated robbery) and not guilty on count II (felony murder predicated on
attempted aggravated robbery), but found him guilty on count III (felony murder predicated
on attempted robbery). The trial court sentenced defendant to 43 yearsâ imprisonment. This
court affirmed on direct appeal (People v. Mars, No. 2-08-0251 (2009) (unpublished order
under Supreme Court Rule 23)).
¶ 11 On March 11, 2011, defendant filed a pro se petition for postconviction relief under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Defendant
alleged, inter alia, that his appellate counsel rendered ineffective assistance for failing to
argue that the victimâs sepsis was not causally related to the attempted robbery. Defendant
also contended that his trial counsel was ineffective because he failed to challenge the
sufficiency of the grand jury indictment, which âomitted essential elements of the charges.â
On June 8, 2011, the trial court dismissed the petition on the grounds that the petition was
submitted without a notarized affidavit and that the petition was frivolous and patently
without merit. Defendant timely appealed.
¶ 12 ANALYSIS
¶ 13 Defendant contends that the trial court erred in dismissing his petition at the first stage,
because the petition sufficiently alleged that appellate counsel was ineffective for not
challenging the Stateâs causation evidence and for not arguing that the 2007 indictment
should have been dismissed because it charged offenses subject to compulsory joinder with
the 2005 indictment and violated defendantâs right to a speedy trial. The Act provides a
method for a criminal defendant to assert that his or her conviction was the result of âa
substantial denial of his or her rights under the Constitution of the United States or of the
State of Illinois or both.â 725 ILCS 5/122-1(a)(1) (West 2010); see People v. Hodges, 234
Ill. 2d 1, 9 (2009). A defendant commences proceedings under the Act by filing a petition
in the circuit court in which the original proceeding occurred. Hodges, 234 Ill. 2d at 9. The
Act provides for three stages of proceedings. Hodges, 234 Ill. 2d at 10. At the first stage, the
trial court shall dismiss the petition in a written order if it determines that the petition is
frivolous or is patently without merit. Hodges, 234 Ill. 2d at 10. If the petition progresses to
the second stage, counsel may be appointed for an indigent defendant, and the State may
answer or move to dismiss. 725 ILCS 5/122-4, 122-5 (West 2010). If the defendant makes
a âsubstantial showingâ of a constitutional violation at the second stage, then the petition
proceeds to a third-stage evidentiary hearing. 725 ILCS 5/122-6 (West 2010). We review de
novo the dismissal of a postconviction petition without an evidentiary hearing. People v.
Kirkpatrick, 2012 IL App (2d) 100898, ¶ 13.
¶ 14 Here, the trial court dismissed defendantâs petition at the first stage. One of the bases for
the dismissal was that the affidavit verifying the petition was not notarized. The State argues
that we may affirm on this basis. Defendant asserts that our decision in People v. Turner,
2012 IL App (2d) 100819, ¶ 47, precludes affirmance on this ground. In People v. Carr,407 Ill. App. 3d 513
(2011), this court held that the defendantâs failure to have the affidavit
verifying his postconviction petition notarized rendered the petition invalid. Carr, 407 Ill.
App. 3d at 515-16. However, we refused to follow Carr in Turner and agreed instead with
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the First and Fourth Districts of the Appellate Court, which held that lack of notarization is
not a ground for affirming a first-stage dismissal. Turner, 2012 IL App (2d) 100819, ¶¶ 31-
32. The State now urges us to repudiate Turner as having been wrongly decided, while
defendant contends that the weight of authority has shifted in his favor since we decided
Carr. Defendant argues that Turner was correctly decided. Here, because the trial court also
reached the merits and dismissed defendantâs petition as frivolous and patently without merit,
we need not address the issue of lack of notarization. Instead, we will move directly to a
consideration of the merits of this appeal.
¶ 15 Defendant first contends that gross medical negligence was a supervening cause of the
victimâs death and that appellate counsel was ineffective for not raising that issue on direct
appeal. Under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), to
succeed on a claim of ineffective assistance of counsel, a defendant must show that his
counselâs performance was deficient, in that it fell below an objective standard of
reasonableness, and that counselâs deficient performance prejudiced the defendant. People
v. Houston, 226 Ill. 2d 135, 144 (2007). Prejudice is shown by demonstrating that, but for
counselâs deficient performance, there is a reasonable probability that the result of the
proceeding would have been different. Houston, 226 Ill. 2d at 144. A reasonable probability
that the result of the proceeding would have been different is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694; Houston,226 Ill. 2d at 144
. Failure to satisfy either prong of the Strickland test defeats an ineffective-assistance
claim. Strickland, 466 U.S. at 697; Houston,226 Ill. 2d at 144-45
. The Strickland principles
apply to appellate counsel. People v. Cathey, 2012 IL 111746, ¶ 23.
¶ 16 It has long been established that when the State has shown the existence, through the act
of the accused, of a sufficient cause of death, the death is presumed to have resulted from
such act, unless it can be shown that the death was caused by a supervening act disconnected
from any act of the accused. People v. Meyers, 392 Ill. 355, 359 (1945); People v. Robinson,
199 Ill. App. 3d 494, 503 (1990). If death results indirectly from a blow through a chain of
natural causes, unchanged by human action, the blow is regarded as the cause of death.
Meyers, 392 Ill. at 360. The injury inflicted by an accused need not be the sole or immediate
cause of death in order to constitute the legal cause of death. People v. Dixon, 78 Ill. App.
3d 73, 78 (1979).
â[W]here a person inflicts upon another a wound which is dangerous, calculated to
endanger or destroy life, it is no defense to a charge of homicide that the alleged victimâs
death was contributed to by, or immediately resulted from, unskilled or improper
treatment of a wound or injury by attending physicians or surgeons.â Dixon, 78 Ill. App.
3d at 79.
This is so because the death is caused by the cooperation of the initial assault as well as the
failure to prevent the assault from resulting in death. People v. Griffin, 578 N.Y.S.2d 782,
784 (N.Y. App. Div. 1991). Put another way:
â âBut if a man receives a wound, which is not in itself mortal, but either for want of
helpful applications, or neglect thereof, it turns to a gangrene, or a fever, and that
gangrene or fever be the immediate cause of his death, yet, this is murder or
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manslaughter in him that gave the stroke or wound, for that wound, tho it were not the
immediate cause *** thereof, and the fever or gangrene was the immediate cause of his
death, yet the wound was the cause of the gangrene or fever, and so consequently is causa
causati.â â United States v. Hamilton, 182 F. Supp. 548, 550 (D.C. Cir. 1960) (quoting
1 Matthew Hale, Pleas of the Crown 427 (1736)).
¶ 17 Once the State establishes a sufficient legal proximate cause of death through an act for
which the defendant is responsible, a presumption arises that the death resulted from the
culpable act of the defendant. People v. Gulliford, 86 Ill. App. 3d 237, 242 (1980). The
presumption then must be rebutted by the defendantâs presentation of contrary evidence that
the sole cause of death was the intervening gross negligence of physicians. Gulliford, 86 Ill.
App. 3d at 242. Unskilled or improper medical treatment that aggravates a victimâs
preexisting condition or contributes to the victimâs death is considered reasonably
foreseeable and does not constitute an intervening act unless the treatment is so bad that it
can be classified as gross negligence or intentional malpractice. Robinson, 199 Ill. App. 3d
at 503. Gross negligence or intentional medical maltreatment constitutes a valid defense
where it is disconnected from the culpable act of the defendant, because the intervening
conduct is abnormal and not reasonably foreseeable. Gulliford, 86 Ill. App. 3d at 241.
¶ 18 In the present case, defendant argues that Kenosha Memorialâs failure to treat the sepsis
that entered the victimâs body through the cut in his arm was an independent cause of death
relieving defendant of responsibility for the victimâs demise. In other words, defendant
claims that the victim did not die from the wound inflicted during the attempted robbery, but
died as a result of gross medical negligence, that being Kenosha Memorialâs failure properly
to treat the victimâs arm.
¶ 19 At this point, earlier in our discussion rather than later, the law of causation needs to be
clarified, because it is defendantâs position that Gulliford stands for the proposition that in
all instances gross medical negligence breaks the chain of causation and exonerates an
accused from criminal liability for his acts. Defendant misreads Gulliford. In Gulliford, the
defendant was accountable for the act of his accomplice, who struck the victim in the head
with a pipe during a robbery attempt and inflicted a wound so grievous that it resulted in a
coma. Gulliford, 86 Ill. App. 3d at 240. While the victim was comatose, his lungs collected
secretions that caused pneumonia. Gulliford, 86 Ill. App. 3d at 240-41. According to the
pathologist, the victimâs immediate cause of death was pneumonia. Gulliford, 86 Ill. App.
3d at 240. On appeal, the defendant argued that the victimâs attending neurosurgeonâs failure
to treat the pneumonia was a supervening cause of death, relieving the defendant of legal
responsibility. Gulliford, 86 Ill. App. 3d at 240. The appellate court disagreed for two
reasons: (1) there was no evidence in the record to establish gross negligence or intentional
malpractice on the part of the treating physicians; and (2) âthe alleged act or omission of the
victimâs physicians was not disconnected from the culpable act of striking the victim.â
Gulliford, 86 Ill. App. 3d at 241. In order to drive point (2) home, Gulliford then repeated,
âAs aforesaid, a supervening act will not relieve an accused from responsibility for death of
another unless that act is disconnected from the act of the accused.â Gulliford, 86 Ill. App.
3d at 241. Gulliford further explained:
âThe record supports the conclusion that the direct and proximate result of [the victimâs]
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head injuries was the onset of pneumonia from which he ultimately died. The death of
[the victim] was a natural and foreseeable consequence of the blow to the victimâs head
and the resulting dangerous wound. The legal chain of causation from the blow to the
head and the ultimate death was unbroken under the facts presented to us, and â[t]he
attending physicians and the family of the victim owe no duty to the defendant to treat
the victim so as to mitigate the defendantâs criminal liability. The defendantâs desire to
mitigate his liability may never legally override, in whole, or in part, the decisions of the
physicians and the family regarding the treatment of the victim.â â Gulliford, 86 Ill. App.
3d at 242(quoting In re J.N.,406 A.2d 1275
, 1282 (D.C. 1979)). ¶ 20 Similarly, defendantâs reliance on People v. Brackett,117 Ill. 2d 170
(1987), is
misplaced. In Brackett, our supreme court underscored the point made in Gulliford when it
stated that â[t]he 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.â
(Emphasis added.) Brackett, 117 Ill. 2d at 176. Thus, when the broken rib and other injuries
inflicted by the defendant on the 85-year-old victim during a rape and robbery caused the
victim to become weak and aspirate her food, the fact that her death was due to asphyxiation
did not exonerate the defendant. Brackett, 117 Ill. 2d at 178 (â[T]he victimâs depressed,
weakened, debilitated state was the direct result of the trauma associated with the attack upon
her. *** It was [the doctorâs] opinion that she became too weak even to swallow.â).
Therefore, in order for defendant to show that the victimâs death in our case was due to a
supervening cause relieving him of responsibility, he must show that the victimâs treatment
at Kenosha Memorial was grossly negligent and that the victimâs death was completely
unrelated to any act of defendantâs.
¶ 21 We first look at what defendant argues is evidence of gross medical negligence.
Defendantâs opening brief cites Walski v. Tiesenga, 72 Ill. 2d 249 (1978), which held that a
standard of care must be established through expert testimony except where the common
knowledge of laymen is sufficient to recognize or infer negligence. Walski, 72 Ill. 2d at 257.
The types of malpractice claims actionable without expert medical testimony are claims of
sponges left in the abdomen, instruments left after surgery, and X ray burns. Walski, 72 Ill.
2d at 257. At trial, defendant did not present expert testimony of medical malpractice or
proffer expert testimony that gross medical negligence was the sole cause of the victimâs
death. Defendantâs trial theory appeared to be that the victimâs myriad medical problems,
including diabetes, heart problems, obesity, and cancer, as well as his refusal of treatment,
led to his death. Consequently, defendant must establish that the facts surrounding the
victimâs visit to Kenosha Memorial allow us to infer gross medical negligence.
¶ 22 Dr. Siegel testified that the victim presented himself at Kenosha Memorial on February
2, 2005, at 9:30 a.m. complaining of arm pain. According to Dr. Siegel, the victim stated that
he had been hit by an object. Dr. Siegel did not recall âany major break in the skin.â She
testified that she saw some âsmall abrasions.â She said that there were â[n]o major cuts in
the arm.â She described the abrasions as âsmall scratchesâ that did not need stitches. The
evaluation of the arm included X rays to determine whether there were any broken bones.
The X rays were negative, so Dr. Siegel treated the arm for a âsoft tissueâ injury by keeping
it elevated and iced, and she prescribed morphine for the pain. Throughout the day, Dr.
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Siegel examined the victimâs arm âseveral timesâ to make sure he was keeping the arm
elevated, which he did not want to do. Dr. Siegel saw nothing about the arm that required
urgent care. She testified that she observed the arm ârepeatedly for cuts and swelling.â
¶ 23 Initially, the victim was seen on the urgent-care side of the facility, but when his blood
sugar was found to be elevated, the victim was moved to the acute-care side, where Dr.
Siegel saw him. The victim had reported that he was diabetic. At that point, according to Dr.
Siegel, there was a change in the focus of treatment from the arm to the diabetes. Dr. Siegel
testified that she was âvery concernedâ about the victimâs high heart rate and high blood
sugar. According to Dr. Siegel, once the victimâs arm X rays were negative, she felt that the
high heart rate and âhis sugarsâ were more life threatening. Dr. Siegel testified that the victim
several times pulled out his IVs, and she and Jones had to convince the victim to continue
with the treatment.
¶ 24 Dr. Robert Fields was the emergency room physician at Kenosha Memorial who came
on shift after Dr. Siegel. Dr. Siegel had endorsed the victim to Dr. Fieldsâ care. Dr. Fields
reviewed the victimâs chart and spoke with Dr. Siegel. His recollection of the victimâs
symptoms was âvery vague,â only that the victim was clinically sick and was being treated
for diabetic ketoacidosis. Dr. Fields recalled a problem with the victimâs arm, but nothing
specific about it. Shortly before 5:57 p.m., the victim indicated that he was going to leave the
hospital. Dr. Fields testified that he conveyed to the victim that he was âvery illâ and should
stay in the hospital for further care. Dr. Fields warned the victim that if he left the hospital
his âdifferent medical problemsâ could worsen and he could die. Nevertheless, at 5:57 p.m.,
the victim left the hospital against medical advice.
¶ 25 At oral argument, defendant made a number of assertions about the evidence that are not
borne out by the record. First, he argued that the physicians at Kenosha Memorial watched
the victimâs arm turn black. Dr. Siegel and Dr. Fields were the only two physicians from
Kenosha Memorial who testified, and neither of them testified that they watched the arm turn
black or that they observed that it was black. Second, defendant asserted that Dr. Siegel saw
âcutsâ on the victimâs arm. Dr. Siegel testified that she saw âsmall abrasionsâ and âsmall
scratches.â She specifically said that there were no major cuts on the arm. Third, defendant
asserted that, after the victim checked himself out of Kenosha Memorial, he exclaimed to
Jones that he had checked himself out because Kenosha Memorial would not treat his arm.
What Jones testified to was that â[the victim] told [her] that they wouldnât treat him and he
got really mad because they had him on a gurney.â The victim did not say anything to Jones
about the doctorsâ failure to treat his arm.
¶ 26 Given that the victim did not report that he had been stabbed in the arm; that Dr. Siegel
did not see anything other than small scratches and small abrasions; that X rays of the arm
were negative; and that the victimâs diabetic condition was potentially life threatening, we
disagree that the claims of negligence in the instant case are as transparent as a sponge left
in the abdomen. We do not believe that laymen could infer gross negligence. However, even
if we were to say that the treatment was grossly negligent, defendant still would have to show
that the victim died of a cause completely unrelated to the stab wound in the arm.
¶ 27 According to the death certificate in evidence, the victim died at 4 p.m. on February 3,
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2005. The immediate cause of death listed was âsepsis due to necrotizing fasciitis right arm
due to incised injury to right arm due to physical assault.â âDiabetes mellitusâ was listed as
an âother significant condition.â The manner of death was listed as âhomicide.â According
to Dr. Jentzen, sepsis is an infection that gets into the bloodstream and causes a âcascade
effect,â culminating in low blood pressure, heart failure, and death. Dr. Jentzen testified that
ânecrotizing fasciitisâ is an infection that travels through the muscle tissues and the spaces
where the fascia holds the muscle in place. Dr. Jentzen stated that necrotizing fasciitis is a
ârapidly-ascending infection.â When asked if it could have killed the victim within 60 hours
of the attack, Dr. Jentzen answered, âThat would be a classic case, yes.â Dr. Jentzen testified
that the necrotizing fasciitis originated at the site of the injury to the victimâs right arm,
which the doctor described as a cut. The infection streaked up the arm and began to affect
the lateral portion of the victimâs right chest. In the doctorâs opinion, â[T]he direct cause of
death was the incised wound to the arm causing necrotizing fasciitis resulting in sepsis.â
Although Dr. Jentzen used the words âincised wound,â it is clear that he was not talking
about the fasciotomy incisions the surgeons made to relieve pressure, because the sepsis was
already present when the fasciotomy incisions were made. Dr. Jentzen testified that, âbut forâ
the wound in the right arm, the victim would not have gotten necrotizing fasciitis. According
to Dr. Jentzen, the victimâs diabetes was a risk factor for perpetuating the infection, but did
not, of itself, cause death. According to Dr. Jentzen, the victimâs heart problems, obesity, and
cancer had no role in the death.
¶ 28 In this appeal, defendant accepts Dr. Jentzenâs opinion that sepsis due to necrotizing
fasciitis was the cause of death, but he argues that the medical staff at Kenosha Memorial
was solely responsible because of the failure to properly treat the arm. Defendant adduced
no evidence at trial that Dr. Siegelâs treatment fell below the standard of care, and for the
reasons stated above, we believe that expert testimony on the standard of care was necessary.
Dr. Siegel testified that she observed scratches and abrasions but no major cuts and that the
victim himself reported only that he had been hit with an object. When the X rays were
negative, she treated the arm by elevating it and icing it, and she checked on the arm several
times during the victimâs hospital stay. Of importance, Dr. Jentzen was not asked by either
party whether, given the victimâs statement of what happened and Dr. Siegelâs observations
of the arm, Dr. Siegel overlooked the sepsis. Therefore, defendantâs entire premise is pure
speculation. More important, any delay in treatment could not have been the sole cause of
death, because the undisputed evidence was that the infection entered through the wound
defendant caused. Dr. Jentzen was clear that, âbut forâ the cut inflicted by defendant, the
infection would not have entered the victimâs body. Defendant set the chain of events into
motion, and any supposed delay in treatment cannot legally amount to a supervening cause.
As the court in Griffin stated:
âThe factual situation is in legal effect the same, whether the victim of a wound bleeds
to death because surgical attention is not available or because, although available, it is
delayed by reason of the surgeonâs gross neglect or incompetence. The delay in treatment
is not in fact an intervening force; it cannot in law amount to a supervening cause.â
(Emphasis in original.) (Internal quotation marks omitted.) Griffin, 578 N.Y.S.2d at 784. ¶ 29 This principle is illustrated in People v. McGee,187 P.2d 706
(Cal. 1947). In McGee, the
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California Supreme Court held that the defendant was not prejudiced by the trial courtâs
exclusion of his expertâs proposed testimony that the victim would not have died of a bullet
wound inflicted by the defendant if the attending surgeon had not, grossly contrary to proper
surgical practice, failed for more than 10 hours after the victimâs admission to the hospital
to take any action to control the hemorrhage from the bullet wound. McGee, 187 P.2d at 715.
In its analysis, the California Supreme Court assumed that the 10-hour delay in treatment was
gross negligence and that the victimâs life might have been saved by prompt and proper
surgical treatment. McGee, 187 P.2d at 715. Even assuming gross medical negligence, the
court said that the delay in treatment would not be, in fact, an intervening force, because
death was a consequence of the defendantâs criminal act. McGee, 187 P.2d at 715. This is
consistent with Illinois law. Gulliford held that, for the defendant to escape liability, the
alleged act or omission of a victimâs physicians must be disconnected from the culpable act
of the defendant. Gulliford, 86 Ill. App. 3d at 241. ¶ 30 Defendant relies on People v. Stewart,358 N.E.2d 487
(N.Y. 1976). In Stewart, the
defendant was charged with stabbing and killing the victim. Stewart, 358 N.E.2d at 489. The
victim underwent surgery, and the knife wound was repaired. Stewart, 358 N.E.2d at 489.
The surgeons then set about repairing a hernia that was unrelated to the stabbing, when the
victim went into cardiac arrest and died a month later. Stewart, 358 N.E.2d at 490. At trial,
the pathologist testified to the medical reports in which the surgeons blamed the
anesthesiologist for failing to ventilate the victim, causing his cardiac arrest. Stewart, 358
N.E.2d at 490. On cross-examination, the pathologist conceded that, if the anesthesiologist
was not doing his job, that alone could have been the cause of death. Stewart, 358 N.E.2d at
490-91. On appeal, the defendantâs manslaughter conviction was reduced to assault, because
the hernia operation during which the victim suffered cardiac arrest was unrelated to the stab
wound and because, if the anesthesiologist failed to provide oxygen to the victim, that alone
could have been the cause of death. Stewart, 358 N.E.2d at 492. Stewart is inapplicable. In
our case, Dr. Jentzen never testified that the sepsis might have been, or was, caused by gross
medical negligence, and the facts as we know them do not lead to that conclusion.
Additionally, the surgeons in Stewart were operating on a hernia that was unconnected to the
stabbing when the cardiac arrest caused by malpractice occurred. Moreover, defendant
attempts to take Stewart too far when he argues that the rule is that gross medical negligence
exonerates a defendant. In In re Anthony M., 471 N.E.2d 447 (N.Y. 1984), the New York
Court of Appeals cited Stewart and then cited the rule: âEven an intervening, independent
agency will not exonerate [a] defendant unless âthe death is solely attributable to the
secondary agency, and not at all induced by the primary one.â â Anthony M., 471 N.E.2d at
452(quoting People v. Kane,107 N.E.2d 260
, 270 (N.Y. 1915)). Griffin offers the example
of a negligent administration of a deadly poison as an independent act that will break the
chain of causation. Griffin, 578 N.Y.S.2d at 783. Here, the legal chain of causation
connecting the stab wound to the victimâs arm, inflicted by defendant, to the victimâs
ultimate death was unbroken. Consequently, defendant has not set forth an arguable basis
under the first Strickland prong, that his appellate counselâs performance was deficient,
because his legal theory that gross medical negligence is always a supervening act relieving
a defendant of culpability is indisputably meritless. As defendant failed to set forth an
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arguable basis that counselâs performance was deficient, we need not consider whether he
was prejudiced by counselâs performance.
¶ 31 Defendantâs second contention of appellate counselâs ineffective assistance is counselâs
failure on direct appeal to argue that the trial court erred in not dismissing the 2007
indictment, because it was subject to compulsory joinder with the 2005 indictment and
violated defendantâs right to a speedy trial. The State argues that the issue is forfeited,
because it was not raised in the postconviction petition. Defendant responds that the petition,
if read liberally, raised the issue. The allegation in the petition on which defendant relies is
the following:
âDefense counsel failed to challenge the sufficiency of the grand jury indictment which
omitted essential elements of the charges. But for, [sic] counselâs ineffective assistance
of counselâs [sic] no trier of fact could have found petitioner guilty beyond any
reasonable doubt of first degree murder.â
¶ 32 A pro se petitioner is not required to allege facts supporting all elements of a
constitutional claim. People v. Mescall, 403 Ill. App. 3d 956, 962 (2010). Petitions filed pro
se must be given a liberal construction and are to be viewed with a lenient eye, allowing
borderline cases to proceed. Mescall, 403 Ill. App. 3d at 962. Because a pro se defendant will
likely be unaware of the precise legal basis for his claim, the threshold for survival is low,
and a pro se defendant need allege only enough facts to make out a claim that is arguably
constitutional for purposes of invoking the Act. Hodges, 234 Ill. 2d at 9. However low the
threshold, the petition must âclearly set forthâ the respects in which the petitionerâs
constitutional rights were violated. (Internal quotation marks omitted.) Hodges, 234 Ill. 2d
at 9. This means that the pleading must bear some relationship to the issue raised on appeal.
Liberal construction does not mean that we distort reality.
¶ 33 In the present case, defendantâs pro se petition alleged that his âdefense counselâ was
ineffective for not challenging the indictment on the basis that it lacked essential elements
of the crimes charged. No matter how liberally we construe the above allegation, viewing it
in context, we cannot conclude that by this allegation defendant actually raised a claim
relating to appellate counselâs failure on direct appeal to raise the issue of compulsory
joinder and violation of his right to a speedy trial. Defendant alleged in the first sentence that
the indictment lacked the essential elements to state an offense. In the second sentence, he
concluded that the defective indictment would have prevented the jury from finding him
guilty, had his counsel raised the issue. Clearly, defendant was addressing the failure of his
trial counsel to bring the allegedly faulty indictment to the trial courtâs notice and that
failureâs consequences at trial. In contrast, defendant explicitly referred to errors of appellate
counsel throughout the document when complaining of deficiencies in his direct appeal.
Defendantâs pro se petition as a whole is an organized, coherent document. It sets forth the
record facts in a logical fashion with appropriate record citations and raises specific legal
challenges with regard to appellate counsel, such as counselâs failure to raise a âBrady
Violationâ and the Stateâs failure to connect him to the sepsis that killed the victim. In short,
we do not have to comb through a morass of irrelevancies to try to figure out what defendant
meant to raise as constitutional violations. He was aware of legal concepts, such as a Brady
violation, and he was capable of articulating the type of relief he thought he was entitled to,
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such as reversal on appeal. Moreover, the subject matter raised in the above-quoted
allegation could not have been compulsory joinder and speedy trial in the context of
something his trial attorney failed to do, because trial counsel actually did bring a motion to
dismiss the 2007 indictment based on compulsory joinder and violation of defendantâs right
to a speedy trial. Thus, we agree with the State that the issues of compulsory joinder and
speedy trial are forfeited as they were not raised in the postconviction petition. Accordingly,
for the reasons set forth above, we affirm the trial courtâs first-stage dismissal of the
postconviction petition.
¶ 34 Affirmed.
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