Arrests

November 26, 2014

Three Chicago Men Charged with Murder in Old Town Shooting

by Law Offices of David L. Freidberg, P.C.

Three Chicago men were charged with murder for the shooting death of a Chicago resident recently. The men are accused of pulling up alongside the victim’s car and opening fire; the victim later died of a gunshot wound to his arm after trying to flee the scene.

Co-Defendants and the Felony Murder Rule

In August I discussed the case of a young Chicago boy who was charged with the murder of his friend, even though the friend was shot and killed by an off-duty Chicago police officer. The officer killed the victim during an attempted armed robbery. The defendant was charged with murder under what is known as the felony murder rule, which allows all persons involved in the commission of a felony to be charged with first-degree murder for any deaths that occur during the commission of the crime.

That same rule may apply to the defendants in this case. At present, they are each being held on charges of murder, though authorities have not yet determined (or have not yet made public) who the shooter was. Eyewitness statements indicate that a passenger was the shooter.

Whether or not the rule would apply in this case depends on if the defendants intended to commit a crime when the shooting occurred. For example, if they were driving around in the middle of the night looking for a person to rob, then they could all be charged with first-degree murder since the victim was killed while they attempted to carry out the robbery.

If, however, they were driving around aimlessly just to pass the time, as teenagers often do, and the driver and the second passenger had no idea that the shooter intended to fire at the victim when they stopped the car, then they have an argument for having the murder charges dismissed or reduced.

Weapons were found in the vehicle when the boys were arrested, but carrying weapons does not prove intent to commit a crime. They could be charged with fleeing the scene, obstruction of justice, or other crimes, but if there is no evidence that they intended to commit a felony, or that they knew the shooter planned to commit a felony, then they cannot be charged with murder under the felony murder rule.

Plea Bargain in Chicago Cases Involving Multiple Defendants

Cases involving multiple defendants offer an increased opportunity to strike a plea deal with the prosecution, especially in murder cases where one person was ultimately responsible for the victim’s death. The co-defendants may be able to offer testimony showing that the shooter had a prior beef with the victim, and that the murder was premeditated. In exchange for such testimony, the prosecution may be willing to reduce the first-degree murder charges against the two co-defendants not involved in the shooting, because the testimony raises the probability of winning a first-degree murder conviction against the shooter.

In these cases, having a criminal defense attorney who has established good working relationships with Chicago prosecutors is vital.

November 14, 2014

Chicago Man Violates Terms of Bond, Faces Additional Charges

by Law Offices of David L. Freidberg, P.C.

A Chicago man out on bond was arrested last week and charged with unlawful possession of a weapon by a felon, cocaine possession and marijuana possession. The defendant was arrested after Sheriff’s Office personnel noticed crack cocaine on a plate on the defendant’s dining room floor; a subsequent search uncovered a fully loaded AK-47 and a .357 revolver and marijuana.

Search Incident to Electronic Monitoring Violation

Sheriff’s Office personnel came to the defendant’s home after his electronic monitoring device indicated that he was out past curfew. Upon arriving, Sheriff’s Office personnel determined that the defendant had had a legitimate reason for having left the residence. They then entered his home.

At this point you may be thinking, “Wait, don’t the police need a search warrant to enter a person’s home?” Under normal circumstances, you would be correct. Except in certain instances – such as when an officer has probable cause to suspect illegal activity – a police officer may not search a person or his home without first obtaining a search warrant from the court.

But in this case, the defendant was on electronic monitoring as part of his bond requirements for an unrelated drug possession charge. And in order to participate in electronic home monitoring, defendants must consent to allow Sheriff’s Office personnel entry into their home at any time. So when officers showed up at the defendant’s door, he had no choice but to let them in, or else risk being in violation of the terms of his release.

Now this does not mean that officers had the right to search his home. And in fact had they completed a search of his home, after determining that the defendant was authorized to have left the home, the drugs and gun paraphernalia they uncovered would likely be inadmissible in court. Unfortunately for the defendant, the crack cocaine was sitting right there, in plain view on the defendant’s dining room floor – and police officers do not need a warrant of any kind to make an arrest for illegal activity being conducted in plain view.

Once the defendant was arrested for possession of crack cocaine, the police were authorized to search the remainder of his home as a search incident to arrest. This doctrine permits law enforcement to conduct a search to make sure there are no weapons in the defendant’s immediate control that could be used to harm officers and to uncover additional evidence of illegal activity related to that already uncovered.

Chicago Conditions of Release

This case helps illustrate how an experienced defense attorney can skillfully negotiate anything from conditions of release to a plea deal with probation, but in the end that time and effort can be quickly undone if the defendant does not use common sense and stays out of trouble. This is particularly true when the defendant is release on electronic monitoring, where part of the conditions of release include consent for law enforcement officers to enter the defendant’s home at any time.

For this particular defendant, and many more like him, it is going to be that much harder for his criminal defense attorney to successfully negotiate a similar bond release, and bolsters the prosecution’s case for the initial drug charge. The criminal defense attorney and the defendant are a team working to achieve the best possible result, whether that is an outright dismissal of all charges, an acquittal, or a reduction in charges or reduced sentencing. But in order for the criminal defense attorney to be successful, the defendant must not do anything to jeopardize his defense.

November 5, 2014

Cook County Correctional Officer Arrested in Undercover Sting

by Law Offices of David L. Freidberg, P.C.

A Cook County correctional officer was charged with theft for allegedly purchasing a watch he knew was stolen property. The arrest was the result of a joint operation by the Cook County Sheriff’s Office and the Federal Bureau of Investigation, part of the Sheriff’s Office’s continued effort to cut down on corruption and officer misconduct at the Cook County Jail.

Chicago Theft Defense

A Chicago theft crime occurs if a person “obtains control over stolen property knowing that the property was stolen, or under such circumstances as he or she would reasonably believe that the property was stolen.”

Whether control over the stolen property was “knowing” is a major requirement of the crime and, if the prosecution cannot prove beyond a reasonable doubt that the defendant knew the property was stolen, the defendant cannot be convicted, even if the property was stolen. So in cases of theft, the primary defense would be that the defendant did not know, nor was it reasonable for him to know, that the property was stolen.

In this case, the defendant allegedly received information from a prison inmate (who was working with the Sheriff’s Office and FBI as part of the sting) that he could purchase stolen property from a third party outside the prison. However, unless the inmate was wired, it would come down to the word of a prison inmate – who presumably was offered some type of incentive to participate, whether it was a reduced sentence or privileges within the prison – versus the corrections officer regarding whether the prison inmate told the corrections officer the property was stolen.

It is true that the defendant was unwise in taking the inmate’s advice on where to get a good deal on a watch. But bad judgment does not mean the defendant knew the property was stolen. Perhaps he thought the inmate was telling him about a great deal on a watch in exchange for privileges or some other reward.

Even if the inmate was wired, and the recordings would prove that the defendant knew the property was stolen, an argument could be made that the defendant was acting out an unauthorized sting of his own – that his plan was to check out the warehouse the inmate directed him to, see if the property was stolen, and then report the theft ring to the authorities, perhaps hoping that the bust would gain him a promotion or some other accolades.

If, however, the facts show that the defendant did, in fact, know that the property was stolen when he purchased it, then defense would turn to getting the charges reduced and seeking a reduced sentence. The defendant was charged with a Class 3 felony, based on the fact that the watch he purchased had an approximately value of $1,200. In order to get the charges dropped to a class A misdemeanor, the defense would need to prove that the actual value of the watch was $500 or less.

There may also be a defense of entrapment, which I discussed in an earlier blog entry. A defendant is not guilty of the charged offense if he can prove that his conduct was incited or induced by an agent of a public officer. Here, the prison inmate was part of the sting operation at the direction of the Sheriff’s Office and FBI; therefore, he was acting as their agent. If the defendant can prove that the inmate’s behavior was so egregious that it would cause any reasonable person to have gone and purchased the property, then the defendant will be acquitted.

October 29, 2014

Illinois Freedom from Location Surveillance Law Now in Effect

by Law Offices of David L. Freidberg, P.C.

A new law designed to protect Illinois residents from police officers using an individual’s cell phone tracking capability to determine their whereabouts passed the Illinois Legislature in August and went into effect immediately. The law, called the Freedom from Location Surveillance Act, was designed to prevent law enforcement from obtaining an individual’s location based on current or future data information without first obtaining a warrant.

Probable Cause to Obtain Location Based Information

Spurred, in part, by concerns over the revelation that the NSA was recording private citizen phone calls, the Location Surveillance Act prohibits law enforcement from obtaining certain location based information unless they can show probable cause that the individual whose location is sought has committed, is committing, or is about to commit a crime, or the location itself is evidence of a crime.

For purposes of the law, “location information” is any information obtained concerning the location of the device that is generated by the device being used (for example, a phone with GPS that automatically pinpoints your location once the device is turned on).

Any evidence obtained in violation of this law will be inadmissible in court as a violation of the defendant’s Fourth Amendment right against unlawful search and seizure.

There are, however, exceptions to the law. Police officers are not required to obtain a warrant prior to tracking location under the following circumstances (this is not an exhaustive list, but rather those related to potential criminal activity):

If location information is available to the general public, such as a Facebook, Instagram, Twitter or other social networking site, metadata attached to images and video, or by the individual’s IP address;
To obtain information from an electronic device attached to an individual as a condition of release, parole or probation;
To locate a missing person or track the location of a suspected child abduction;
If the situation involves clear and present danger of imminent death or great bodily harm to a kidnapping or hostage victim;
If information is necessary to protect law enforcement or person acting at their command; or
In an organized crime conspiracy.

If location information is obtained under one of the emergency exceptions, law enforcement must obtain a court order authorizing retrieval of the information within 72 hours of starting the location surveillance. If the order is not granted, or the application is not made, then surveillance must stop immediately, and any information already obtained is inadmissible.

Note that the law only prohibits law enforcement from using electronic information to determine your current or future location without a warrant. Police are able to obtain your past location information without first obtaining a warrant. This means that if the police suspect that you were involved in a crime – say, a robbery of a Fullerton Avenue gas station last Tuesday – they may use electronic data to determine if you were near the vicinity of the gas station at the time of the robbery, without first obtaining a warrant. Continue reading

October 20, 2014

Former Chicago Police Commander Convicted of Torture Released from Prison

by Law Offices of David L. Freidberg, P.C.

Former Chicago Police Commander Jon Burge was released from prison earlier this month, after serving a three and one-half year sentence for lying to federal investigators regarding alleged torture committed by himself and Chicago police officers under his command.

For more than 20 years, Burge and those under his command used electric shocks, beatings, burnings and other torturous tactics on more than 100 African-American criminal defendants on Chicago’s south side, often leading to false confessions and wrongful imprisonment.

Chicago Police Brutality

As a criminal defense attorney, I work with police officers on a daily basis. And while we are adversaries, the majority of the Chicago police officers I have interacted with throughout nearly two decades practicing criminal law are honorable men and women who perform their job honorably.

Unfortunately, as the Jon Burge case proves, not all police officers are to be trusted. Some are racist, or homophobic, or sexist, and are unable to separate their personal beliefs from their police work. This causes them to convict the suspect from the get go, or ignore evidence that could disprove the defendant’s guilt.

Others become complacent in their jobs, failing to follow proper police procedures. And still others let the power go to their head, and believe they are untouchable.

Many often decry about criminal defendants getting off on “technicalities”. These “technicalities” could lead to not guilty verdicts for a variety of reasons that have little to do with the actual issue of the defendant’s guilt or innocence, such as:

Failure of the police to read the defendant his Miranda rights (thus negating any later confession);
Lapses in the chain of command over evidence;
Improper procedures followed in police line-ups or eyewitness identification, or;
Defendant failing to be provided a speedy trial.

But officers like Burge and those under his command are one of the reason why these “technicalities” exist. The rules of criminal procedure are vital components of the criminal justice system, put in place to ensure that all defendants are afforded a fair hearing. They work to ensure that defendants are not the victims of police officers who rush to judgment. And they exist to minimize the chance that defendants who are truly innocent are sent to prison.

Sometimes, as in the case of many of the criminal defendants imprisoned based on false confessions elicited from Burge and those under his command, the system fails. Improper, often brutal, tactics are used to elicit false confessions, which are then used as a basis for conviction.

Most people believe that the police, who are sworn to serve and protect, would not engage in such barbaric practices. So when the defendant, as so many arrested and charged under Burge, claims they were tortured, or that their “confession” was given under duress, they are not believed. Yet false confessions are more common than you may think. Suspects often confess to crimes they did not commit, after (wrongly) being led to believe the police has evidence that incriminates them, thinking that they will receive a lesser sentence, or will be let go if they “cooperate” and tell the police what they want to hear.

The result of these false confessions? Innocent men and women spending decades behind bars for a crime they did not commit. That is why, if you are arrested for a crime, your first call should be to an attorney. An experienced criminal law attorney can put an end to barbaric police tactics and prevent you from making a false confession – before it’s too late. Continue reading

October 17, 2014

Chicago to Allow Post-Conviction DNA Testing

by Law Offices of David L. Freidberg, P.C.

A law signed by Illinois Governor Pat Quinn in August allows Illinois prison inmates who pled guilty to murder, rape or any other crime where DNA evidence is present, to petition the court to have that evidence tested in an attempt to have their conviction overturned.

Illinois Post-Conviction DNA Testing Law

Prior to enactment of the amendment, Illinois inmates were only allowed to petition the court for post-conviction DNA or other forensic testing if they were found guilty at trial. Entering a guilty plea prior to a verdict being handed down made inmates ineligible for post-conviction DNA testing.

The amended law changes that. Under the law as amended, inmates who pled guilty prior to trial may petition the court if they can prove that:

Identity was the issue that led to their guilty plea; and
The evidence to be tested has remained in the chain of custody sufficient to establish that it has not been altered in anyway.

In order to file the petition, the DNA evidence must not have been available when the defendant entered his guilty plea, or new testing techniques must have been developed. In addition, the defendant must prove that the evidence

raise(s) a reasonable probability that the defendant would have been acquitted if the results. . .had been available prior to the defendant’s guilty plea. . .even though the results may not completely exonerate the defendant.

The change is one that is long overdue and provides necessary relief to those wrongfully convicted. According to the Bluhm Legal Clinic at Northwestern University School of Law, 165 Illinois inmates have been exonerated thanks to post-conviction testing of DNA and other forensic evidence. Many of these men and women were convicted based on eyewitness misidentification – according to the Innocence Project, nationwide 72% of inmates exonerated thanks to post-conviction DNA testing were convicted based on eyewitness testimony.

In addition to false convictions based on eyewitness misidentification, research has shown that many other innocent men and women plead guilty to crimes they did not commit. They do so for a variety of reasons, including:

police intimidation;
inhumane investigation tactics, such as withholding of food or sleep; or
fear of receiving a harsher sentence at the hands of an unfair or biased jury.

Others are the victims of unscrupulous tactics by the prosecution, such as withholding of evidence, or shoddy police investigative work, such as when the police fail to completely investigate a case because they feel they “got their man.”

Knowing that an untold number of innocent Illinois residents plead guilty to crimes they did not commit because of these and other reasons, Illinois State Senator Kwame Raoul sponsored the law specifically to address these inequities. Imprisonment for a crime they did not commit is bad enough – and not allowing them to have newly discovered DNA evidence tested to help exonerate them, based simply on the fact that they chose to plead guilty rather than face the uncertainty of trial, is piling injustice on top of injustice. Continue reading

October 9, 2014

Rules of Criminal Procedure

by Law Offices of David L. Freidberg, P.C.

An Aurora man convicted of murder in 2009 will have a second chance at post-conviction relief after the Illinois Supreme Court ruled that a judge’s dismissal order was filed one day too late.

Illinois Post-Conviction Relief and People v. Perez

Ivan Perez was convicted of the 2004 murder of Francisco Reyes, and the conviction was upheld all the way to the Illinois Supreme Court. Perez then filed a pro-se (without representation) petition seeking post-conviction relief.

Post-conviction relief can be granted if the court finds evidence of a “substantial denial” of the defendant’s Constitutional rights in the proceedings that resulted in the conviction. Once the petition is filed, the trial court has 90 days to enter an order either granting or dismissing the petition.

The court wrote an order dismissing Perez’ petition as frivolous on the 90th day. However, the clerk of court did not file-stamp the order until the 91st day. Perez appealed the dismissal, arguing that it was not done within the 90-day period.

The Illinois Supreme Court agreed with Perez, and ruled that an order is “entered” not on the day the judge signs it, but the date it is file-stamped by the court clerk. Because of this, the trial court’s dismissal was not timely, and Perez is entitled to proceed to the second stage of post-conviction relief proceedings.

Illinois Rules of Criminal Procedure

The press and public often talk about criminals getting off on, or a conviction being reversed because of, a technicality. But these ‘technicalities’ are extremely important to ensure that every defendant gets a fair trial. This is especially important in cases where conviction can result in lengthy prison terms (Perez was sentenced to 60 years) or even death.

If you think of court as a game, then these technicalities are the rules by which the game is played. And legally, they are called just that – the rules of criminal procedure. Rules such as the defendant’s right to remain silent, his right to a speedy trial, the right to cross-examine witnesses, and even the prosecution’s burden of proving guilt beyond a reasonable doubt, are all in place to ensure that the game is played fairly.

Even with these rules, the key players try to cheat. Police fabricate evidence and use intimidation and harassment to obtain false confessions. Prosecutors withhold evidence that sheds doubt on the defendant’s guilt. Witnesses lie. Imagine how much more flagrant these behaviors would be if the rules of criminal procedure were not in place, and the players could act as they pleased.

The majority of the time, these so-called “technicalities” do not result in the defendant being acquitted or the charges against him being dismissed. Instead, as in Perez, the result is the defendant getting a second chance at the trial being done right. But it also means that the prosecution gets a second chance to gain a conviction as well. Most of the time, the outcome in the second trial is the same as the first – the defendant is acquitted and sentenced.

And sometimes, the defendant is innocent. Since 1998 the Center on Wrongful Convictions at Northwestern University School of Law has helped to exonerate 40 innocent men and women. These people spent time in prison for crimes they did not commit, many due to wrongdoing by law enforcement and prosecutors who believed they were right and didn’t want “the rules” to get in the way. These innocent men and women cannot get back the time they lost with their family and friends, or the time they lost building their career. They were traumatized not just by the false conviction and years of damage to their reputation, but by the horror of being in prison.

It is these innocent people that the rules of criminal procedure are in place to protect. Imagine how many more would be falsely imprisoned if the rules were not in place. Continue reading

September 29, 2014

Corporal Punishment of Illinois Children: Child Abuse or Parent’s Prerogative?

by Law Offices of David L. Freidberg, P.C.

The recent indictment of Minnesota Viking’s running back Adrian Peterson on charges of child abuse, which stemmed from his admission that he disciplined his young son with a switch, is raising questions over just what constitutes corporal punishment, and when it crosses the line from discipline to child abuse.

Chicago Spanking Laws

Under Illinois law, it is considered child abuse if a parent “inflicts excessive corporal punishment” upon his or her child. The use of the qualifier “excessive” makes clear that a Chicago parent is allowed to use corporal punishment when disciplining his or her child. But the law fails to define what pushes the corporal punishment, which may include spanking, hitting, pinching, slapping, or any other type of action with the intent of inflicting pain, from permissible to excessive.

The Illinois courts have dealt with the issue of corporal punishment at various times, consistently ruling that “parental rights of discipline are limited by a standard of reasonableness.” But they cite no examples of what constitutes unreasonableness.

How, then, is a parent to know whether discipline of a child will result in criminal charges? Unfortunately, they cannot, since there is no clear cut answer. What is reasonable today may be unreasonable tomorrow, depending on society’s changing views of corporal punishment. It can even vary depending on the type of punishment inflicted, the region, and the terms that are used to describe the punishment.

Cases such as these highlight the importance of obtaining experienced legal counsel. The sole basis of whether a parent’s physical discipline of his or her child qualifies as excessive under the law comes down to a reasonableness standard.

Defending against child abuse charges that stem from corporal punishment requires the ability to not only thoroughly examine all the circumstances to make a case for reasonableness, but also the ability to make a jury understand why the parent believed his or her method of discipline was reasonable. It also requires an examination of medical evidence regarding any alleged injuries, as well as photographs taken following the incident.

Whether the punishment is reasonable will rest in part on the severity of the discipline and whether it caused any injury. That requires a careful examination of any photographic evidence and testimony from qualified medical experts on the lasting impact, if any, from the discipline.

Photographs taken immediately after the incident may show red marks or other visible evidence of the physical discipline. But any type of physical contact can leave an imprint. Instead, the real question is whether that imprint remained, or whether it faded away shortly after the incident occurred. Physical marks that disappear shortly after the discipline would disprove excessive use of corporal punishment. If there are no follow-up photographs, medical testimony from David L. Freidberg’s team of medical experts could help jurors understand that an “injury” that looks bad in a poorly taken photograph actually faded away in an hour or two.

Eyewitness testimony is also important in disproving the excessive nature of the discipline. For example, if the child was running around playing like normal shortly after the punishment, as opposed to limping, that would go toward disproving that the punishment was excessive. Continue reading

September 11, 2014

Was Chicago Police Officer Falsely Charged with Child Sexual Abuse?

by Law Offices of David L. Freidberg, P.C.

A Chicago police sergeant was relieved of his duties after being charged with one count each of predatory criminal sexual assault and aggravated criminal sexual abuse of a 9-year-old girl. The alleged victim is the daughter of the sergeant’s co-worker, and defense attorneys claim that the nature of the relationship between the accused and the alleged victim’s mother will make clear why allegations were made.

False Allegations of Child Sex Abuse

The defendant’s attorneys have not yet elaborated on the nature of their client’s relationship with the victim’s mother. We can assume, however, that the defense will attempt to prove that she is, in some way, a jilted lover – that the two either had a prior romantic relationship that the defendant ended, or that he previously rebuffed her advances – or a disgruntled employee, and is retaliating with false allegations of sexual abuse.

It may seem impossible that anyone would make false allegations of sexual assault as retaliation. Punishments for a sexual assault conviction are serious, involving lengthy prison sentences and sex offender registration requirements. Even the charges themselves, whether they are ultimately dropped or if the case ends in acquittal, carry a stigma that can forever damage the accused’s professional and personal reputation. Somebody would have to carry a huge grudge to falsely accuse another person of sexual assault.

Unfortunately, false allegations of sexual assault are not uncommon. They arise far too frequently in hotly contested child custody cases, as a way to ensure that custody is not awarded to the father. If the child is young, she is susceptible to being coached or having false memories of abuse planted. They will often repeat the false story because they want to please the mother (or whichever party is coaching them).

In a case of false allegations, there are two victims – the accused, and the child who is put in the middle. In these cases, the defense attorney must walk a fine line between zealously defending his client and not causing further harm to the child. In this particular case, there are two children who may have been coached – the alleged victim and her brother, who was the first to witness the alleged abuse and notify his mother.

In cases such as these, where there appears to be some type of bad blood between the accused and the child victim’s parent, it is imperative for the defense attorney to not only have a clear understanding of the relationship between the two adults, but to also explore the mother’s background to determine whether there is a pattern of false allegations of any kind against former lovers or co-workers.

An independent evaluation of the alleged victim by a child psychologist trained in treating not only victims of child sexual abuse, but also those who have been coached to make false allegations, is also vital, especially if the statement the alleged victim made to the authorities was done so in the presence of her mother. A review of the victim’s statement to police, along with a viewing of any tape recording made of the interview, is also necessary, in order to see if the mother was present and coached the child in any way.

September 9, 2014

Chicago Man Guilty of Aggravated Discharge of Firearm by Common Design

by Law Offices of David L. Freidberg, P.C.

The Illinois Supreme Court recently upheld a Chicago man’s conviction on a charge of aggravated discharge of a firearm toward a police officer, despite the fact that the defendant did not fire the weapon and claims he was unaware the shooter was armed.

Illinois Common Criminal Design Rule

In People v. Fernandez, Fernandez was convicted of a single charge of aggravated discharge of a firearm toward a police officer (he was initially charged with one count of burglary and two counts of aggravated discharge, but the trial court merged the three charges into a single charge). Fernandez and his friend drove to a church under the Dan Ryan Expressway, where the friend attempted to burglarize a vehicle. Fernandez’ friend was approached by a police officer and opened fire as Fernandez drove away.

Fernandez claimed he had no idea that his friend had a gun.

A Chicago resident commits the crime of aggravated discharge of a firearm toward a police officer if he “knowingly or intentionally” discharges a firearm in the direction of a police officer. If Fernandez did not fire the weapon, how, then, could his conviction have been upheld?

In a previous post I discussed the felony murder rule, which allows a defendant who commits a forcible felony to be charged with murder if the victim dies during the commission of the felony, even though the defendant did not cause the victim’s death. The theory behind the felony murder rule is that forcible felonies are inherently dangerous crimes, so the defendant should know there is high likelihood that the victim will be injured or killed.

The common design rule is the felony murder equivalent to non-forcible felonies. Under the common design rule, if two or more people are involved in a common design agreement, any acts committed by one party in furtherance of that common design “are considered to be the acts of all parties . . .and all are equally responsible for the consequences of those further acts.”

Fernandez argued that because he did not know that his friend was armed, he cannot be held responsible for aggravated discharge of a weapon toward a police officer, and because he did not know his companion planned to commit that crime. The court rejected this argument, stating that because Fernandez admitted that he intended to help his friend burglarize the vehicle (by knowingly driving him around town looking for vehicles to burglarize), he is equally responsible for his friend’s conduct. “Conduct”, the court stated, “encompasses any criminal act done in furtherance of the planned and intended act.” In this case, Fernandez’ companion discharged his weapon toward the police officer in furtherance of the burglary, i.e., in an attempt to evade arrest.

Therefore, under the common design rule, just as in the felony murder rule, intent is irrelevant. What is relevant is whether the defendant intended to commit the underlying crime. If the prosecution can prove that, then all parties to the crime are responsible for the actions of the others.