People v. Avdic
236 N.E.3d 84
Ill. App. Ct.2023Background
- Defendant Dzevad Avdic (19) drove a group to a planned marijuana sale in Skokie; he remained in his car while two associates entered the seller’s vehicle. The seller (Spitz) and her passenger Maxwell Gadau were shot; Hicks (a co-defendant/shooter) killed Gadau and wounded Spitz; the group fled and divided the marijuana.
- Defendant was not the shooter and was not in the seller’s car when the shooting occurred; three witnesses (including two codefendants) testified that the plan was a mere "snatch-and-grab."
- Police obtained surveillance video and cell‑phone records linking the phone number used to set up the sale (ending in 6050) to Avdic’s household and to cell towers near the scene; Avdic was arrested pursuant to a stipulation of facts and then interviewed.
- At trial the State charged felony murder (based on armed robbery) and attempted murder (accountability); Avdic was convicted and sentenced to mandatory minimum terms totaling 56 years.
- On appeal Avdic challenged denial of his motion to quash/arrest suppression, several refused jury instructions (IPI 7.15A proximate cause, IPI 2.01/2.01B lesser‑included robbery, IPI 5.01A intent for attempt), the court’s answer to a jury question, and sufficiency/double jeopardy.
- The appellate court reversed and remanded for a new trial, holding the trial court erred in refusing key jury instructions (IPI 7.15A, IPI 2.01/2.01B, IPI 5.01A); suppression denial and evidentiary sufficiency were upheld and retrial is not barred.
Issues
| Issue | State's Argument | Avdic's Argument | Held |
|---|---|---|---|
| Probable‑cause to arrest / motion to quash | Facts (video, texts, tower data, CLEAR link to Avdic) gave reasonable belief defendant possessed the 6050 phone and aided/abeted the crime | Officers lacked probable cause to arrest Avdic because the State had not shown he possessed/used the 6050 phone at the time of the offense | Denial of motion to quash affirmed: stipulated evidence supported probable cause |
| Felony‑murder proximate‑cause instruction (IPI 7.15A) | Foreseeability element not required for some felony‑murder subtypes; instruction unnecessary because jury had adequate guidance | Jury should be instructed that death must be a direct and foreseeable consequence of defendant’s conduct (proximate cause) because Avdic was not the shooter and evidence supported a "snatch‑and‑grab" theory | Trial court erred in refusing IPI 7.15A; there was some evidence making causation/foreseeability an issue and error was not harmless — remand for retrial on felony murder |
| Lesser‑included offense instruction (robbery) (IPI 2.01 / 2.01B) | Not disputed that robbery was pleaded; State argued defendant’s own defense theory was simple theft so instruction not required | Jury should have been instructed on robbery as a lesser included offense so they could convict of robbery (or theft) without finding felony murder | Court erred in refusing lesser‑included robbery instruction; jury could rationally convict of robbery but not felony murder; error not harmless |
| Specific‑intent instruction for attempted murder (IPI 5.01A) | Jury need not be given the pattern definitional instruction on "intent" where standard attempted‑murder instruction supplies element; Powell and similar authority justify omission | Instruction defining "intent" should have been given (pattern IPI 5.01A); trial court improperly found the pattern wording "confusing" and refused it | Trial court erred in refusing IPI 5.01A; omission not harmless given accountability theory and lack of evidence defendant had specific intent to kill |
Key Cases Cited
- People v. Lowery, 178 Ill. 2d 462 (supreme court adopts proximate‑cause theory for felony murder)
- People v. Hudson, 222 Ill. 2d 392 (clarifies proximate‑cause elements and jury instruction sufficiency regarding foreseeability)
- People v. Dekens, 182 Ill. 2d 247 (applies proximate‑cause theory where an officer’s actions caused the death)
- People v. Kessler, 57 Ill. 2d 493 (discusses accomplice/accountability principles in co‑felon killings)
- People v. Smith, 233 Ill. 2d 1 (predicate felony is a lesser‑included offense of felony murder)
- People v. Powell, 159 Ill. App. 3d 1005 (attempted murder requires specific‑intent element; instruction issues)
- People v. Sullivan, 72 Ill. 2d 36 (prosecutor misuse of codefendant pleas; need for limiting instruction)
- People v. Herron, 215 Ill. 2d 167 (harmless‑error standard for preserved instructional errors)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)