Chicago criminal defense attorney

A Chicago man was charged with aggravated battery with a firearm, reckless discharge of a firearm and vehicular invasion following a shooting at a Cook County Preserve soccer field on Labor Day that injured one other man. The alleged shooter then tried to flee the scene by stealing a vehicle.

Chicago Defense to Aggravated Discharge of a Firearm

A person commits the Illinois crime of aggravated discharge of a firearm if he “discharges a firearm in the direction of another person.” In this case, we would first challenge the validity of the defendant’s identification as the shooter, looking first at whether gunpowder residue was found on the defendant’s hands or clothes, or whether his fingerprints were found on the weapon.

We would also challenge any eyewitness descriptions of the shooter. There were approximately 2,000 people present at the soccer game, given the chaos that ensued after the shots were fired, eyewitnesses would have difficulty accurately describing the shooter, let alone determining who fired the weapon. Another important point concerns whether the eyewitness descriptions of the shooter match the defendant. If the witness descriptions do not match, it would indicate a different person was responsible for the gun’s discharge.

Assuming eyewitnesses could positively identify the defendant as the individual who discharged the firearm, or if gunpowder residue shows the defendant fired the gun, a successful defense would require a thorough examination of the weapon to determine whether discharge was due to a malfunction. If the weapon discharged due to malfunction, the defendant cannot be charged or convicted of reckless discharge. David L. Freidberg’s team of forensic experts would examine all of the evidence surrounding discharge of the weapon to determine whether another explanation exists for its discharging.

Chicago Defense to Aggravated Battery

A person commits the Illinois charge of aggravated battery based on use of a firearm if he discharges that firearm and causes injury to another person. In this case, we would employ many of the same defenses as in the aggravated discharge of a firearm: challenge the identification of the shooter, as well as any evidence indicating he was actually the shooter. Forensic experts would thoroughly examine the defendant for evidence of gunpowder residue on his hands or clothes (or review police reports on these findings) to determine if the prosecution can prove, beyond a reasonable doubt, the defendant fired the weapon.

If the evidence proves the defendant did in fact fire the weapon, we would again examine whether there is another reason the weapon discharged, other than through the defendant’s intent. A charge of aggravated battery based on use of a firearm requires the defendant “knowingly” discharge the weapon. If the weapon malfunctioned, he did not knowingly discharge the weapon. Continue reading

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.

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