Articles Posted in Aggravated Battery

Hilulaohaio-225x300Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.

The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.

The Importance of the Motivating Factors

3scbuulajgg-matthew-hamilton-300x200It is a nightmare scenario when a defendant is accused of having injured a police officer in the line of duty. Both the courts and probation office are reluctant to give defendants any benefit of doubt or leeway in such circumstances. The message is clear: You mess with public officials and the public will mess with you by way of aggravated sentencing guidelines. Although such cases are a true test of defense skills, it can certainly help to solidify some of the key aspects of criminal defense. Many trainer attorneys might benefit from handling such a case. The key ingredients of the crime are summarized in the provisions of 720 ILCS 5/12-3.05.

Understanding the Crime and its Ingredients

It helps to first understand the general crime of battery and then assess the aggravating features in as far as they relate to the current case. First of all, the defense team must take note of the important technicality that battery for these purposes excludes the discharge of a gun. That is an entirely separate crime with more serious consequences for the defendant if one of the victims was a police officer. In any case, there is a requirement that the defendant knowingly committed the constituent acts which include causing bodily harm or disfigurement. The harm clause also refers to permanent disability.

Two Chicago store clerks who were the victims of an armed robbery opened fire on the alleged assailants recently. Following the robbery, the manager of the 7-11 saw a vehicle parked in the alley; when he and the employee approached with guns, the alleged assailants opened fire. The clerks fired off eight shots before the alleged assailants fled.

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Self-Defense: By the Victims or the Armed Robbers?

This case raises an interesting question of whether the victims were justified in their use of force against the armed robbers, and whether they could face potential charges of aggravated battery or aggravated assault for firing upon the alleged assailants.

Illinois law allows an individual who used force against another to claim self-defense if “he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” The law further states that a person can only use force intended to, or likely to cause, death or great bodily harm – such as firing a gun – “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Illinois law does not allow a person to claim self-defense if force was used during an escape from commission of a forcible felony, or initially provided the use of force himself. It also cannot be claimed if the person asserting the defense initiated the contact, unless he indicates his desire to withdraw from his initial use of force.

So in a typical convenience store robbery, the alleged victims would have been justified in pulling their weapons and firing if they had done so during the commission of the crime. One assailant allegedly held a gun to the clerks’ head and threatened to blow his head off if he didn’t hand over the money. Under the self-defense law, the clerk and his boss would have been justified in pulling their weapons and firing because there was a reasonable belief that their lives were in imminent danger. They also would have been justified in using force, even if the assailant hadn’t made the threat, because armed robbery is a forcible felony.

But the circumstances surrounding this case are not so straightforward. The clerks pulled their guns after the armed robbery had been committed and the assailants fled the store. So there is a question of whether the clerks’ use of force was justified, or whether the assailants themselves could claim self-defense.

At the point where the clerks approached the assailants with their weapons, there was no longer a need to defend against another’s use of imminent force, there was no fear that either of them were in danger of suffering great bodily harm, and the forcible felony had been completed. This doesn’t appear like the typical “escape” scenario, because the clerks did not chase the assailants out, guns drawn. Instead, the assailants left with the money, and the clerks then saw a car in the alley on their security cameras. They then chose walk out and confront the assailants, not even sure if the people in the car were the assailants. Their actions could be considered retaliation or vigilante justice rather than self-defense.

You may be thinking, “But when the clerks approached, the assailants drew their weapons and opened fire, so the clerks were justified.” That may be true. It may also be true that the assailants (assuming they even were the assailants) were now in fear for their lives and opened fire to protect themselves from imminent bodily harm. Yes, the law says that a person who initiated force cannot then claim self-defense if force is used against them. However, the initial aggressor can claim self-defense if he indicated a desire to disengage. Here, the fact that the assailants fled the scene could show an indication on their part to disengage from their initial threat of force, so that the clerks’ approach with guns drawn was now an improper use of force.

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A 92-year-old woman was acquitted of aggravated assault against an off-duty Chicago police officer, but still faces two counts of misdemeanor battery in an incident that left her 86-year-old husband dead. The woman and the police officer’s wife were also shot.

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The two couples were neighbors who had a longstanding dispute over what relatives and neighbors of the two couples described as petty differences – snow being dumped on each other’s sidewalks and littering on the lawns. On the day in question, the officer allegedly heard his wife and the defendant arguing, and came out to see the defendant throwing dirt over the fence at his wife and hitting her with a broom.

At some point, the defendant’s husband went back inside the home and returned with a gun, firing at the officer’s wife and hitting her in the chest and arm. It was then that the police officer returned fire, killing the husband and hitting the defendant in the arm.

Aggravated Assault of Chicago Police Officer

As I have discussed previously on this blog, an assault is committed if the defendant “knowingly places another person in reasonable apprehension of receiving a battery”. However, assault against a police officer is automatically aggravated assault. In this case, the officer and his wife claimed that the defendant committed aggravated assault because she allegedly reached for her husband’s gun after he had been shot.

A judge acquitted the defendant of aggravated assault, ruling that the prosecutor hadn’t provided enough evidence to support the charge. This was the right call based both on circumstances and the law.

First, circumstances. While the officer and his wife allege that the defendant reached for her husband’s gun after he’d been shot, the chaos that no doubt surrounded the shooting would have made their recollection of the incident suspect. While it is possible the defendant did reach for her husband’s gun – whether to retaliate or to protect herself from further gunshots – the more logical scenario is that she was reaching toward her husband to help him. And since he’d been holding the gun when he was shot, it was likely either in his hands or close to his body, which could have caused the officer and his wife to misconstrue her action. Because of these conflicting scenarios, it casts reasonable doubt on the defendant’s motives, thus necessitating her acquittal.

Now the law. Aggravated assault of a police officer occurs if the assault took place:

  • While the officer was performing official duties;
  • To prevent performance of official duties; or
  • In retaliation for performing official duties

In this case, the officer was not performing his official duties – he was off-duty. So even if the defendant had been reaching for her husband’s gun, the most she could have been charged with was simple assault, as the officer was not acting in any official capacity.

Chicago Battery Charge

The defendant was charged with battery for allegedly throwing dirt at her neighbor and hitting her with a broom. This may seem laughable – potential jail time for throwing dirt on somebody? A battery charge for hitting her neighbor with a broom? How hard could a 92-year-old woman actually hit somebody? Unfortunately for the defendant, the law makes no distinction for the extent of the injury. The slightest touch qualifies as a battery, even if it does not cause any physical damage.

But the prosecution must prove that the defendant did in fact strike the neighbor. If the dirt was thrown in the wife’s direction, but never hit her, or if the defendant simply waved the broom in the air, again not hitting her, the battery charge would have to be dismissed. Or if the wife committed a battery against the defendant first, there could be a claim of self-defense. Or the police officer and his wife could be exaggerating, or even fabricating, the battery claims, in an attempt to make themselves appear less blameworthy. These avenues would all have to be explored pre-trial in an attempt to get the charges reduced or dismissed entirely.  Continue reading

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 AggraOLYMPUS DIGITAL CAMERAvated 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

A Chicago man was charged last week with aggravated discharge of a firearm after firing shots at another vehicle on the Dan Ryan Expressway. The victim’s car sideswiped a second vehicle, causing it to crash into a center divider. Additional charges are expected to be filed.

Chicago Aggravated Discharge of Firearm  

A person commits the crime of aggravated discharge of a firearm in Illinois if the firearm is discharged “in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.” Aggravated discharge of a firearm is a Class 1 felony, and carries with it the possibility of 4-15 years in prison.   car-accident-2-774605-m

There is no need to prove intent to harm in order to be convicted of aggravated discharge of a firearm. Just having fired the weapon in the direction of a vehicle is enough.

The police indicate that additional charges may be filed. One potential charge may be for aggravated battery. This crime occurs when a person discharges a firearm and causes injury to another person. In this case, the alleged shooter could potentially face two counts of aggravated battery – one against the person the shots were fired at, and a second for injuring the driver of the second vehicle.

The alleged shooter can be charged with aggravated battery in this case – even though he did not directly cause the injury to the second driver – because his action of discharging the firearm set in motion the chain of events that caused the second driver to be injured.

Defenses to Illinois Charge of Aggravated Discharge of Firearm

In this case, as the firearm was discharged toward a moving vehicle, it would seem there is little room to make the argument that the defendant did not reasonably know the vehicle fired at was occupied. However, that does not mean there are no available defenses.

In any criminal case, the first line of defense would be to determine whether the eyewitnesses identified the correct individual. In this case, the shooting happened while the vehicles were driving on the expressway at high speeds. It also occurred at night. Both these facts tend to make it more difficult for the eyewitnesses to identify the shooter, so a careful review of their testimony is necessary to ensure the police arrested the right man.

Close examination of the forensic evidence in this case is necessary to ensure that the prosecution charges the correct person. In this situation, the vehicle from which the shots were fired was occupied by the alleged shooter and a passenger. A team of experts would examine the forensic evidence to make sure there are no other possible explanations regarding the shooter’s identity.

Evidence that may be present to cast doubt on the shooter’s identity could include:

  • Gunpowder residue found on the passenger’s hands, which could indicate that she was the shooter;
  • Lack of gunpowder residue found on the alleged shooter’s hands, which could disprove that he was the shooter;
  • The passenger’s fingerprints being found on the weapon, and;
  • Lack of the alleged shooter’s fingerprints on the weapon.

While acquittal is always the goal, if it seems unlikely from a review of the evidence that acquittal is possible, an attorney would seek to reduce the charges to reckless discharge of a firearm. This would require review of the weapon to determine if the evidence can support a conclusion that the discharge was unintentional and due to a defect or other mechanical problem with the weapon. Forensic experts would assist in examining the weapon to determine whether the discharge was due to a weapon malfunction. Continue reading

Illinois Supreme Court Decision Overturned in Double Jeopardy Case

The United States Supreme Court ruled unanimously this month that the Illinois Supreme Court “manifestly erred” when it ordered the retrial of a criminal defendant on charges of aggravated battery and mob action. The retrial, the Court found, would have violated the defendant’s right to be free from double jeopardy.

The rule against double jeopardy is one of the cornerstones of criminal defense. The United States and Illinois Constitutions both provide criminal defendants explicit protection against double jeopardy.

Section 10 of the Illinois Constitution states that “No person shall be . . .twice put in jeopardy for the same offense.” This means that once a criminal defendant has been acquitted (found not guilty) of a crime, he cannot be retried – even if evidence is later uncovered that affirms his guilt.

In Crist v. Bretz,the U.S. Supreme Court ruled that “jeopardy attaches when the jury is empaneled and sworn.” Because U.S. Supreme Court decisions regarding constitutional issues also apply to state laws, this rule applies to Illinois criminal cases,

It is a very clear rule that the Supreme Court has consistently applied time and again. Yet in Martinez, both the Illinois Appellate and Supreme Courts failed to get it right.

Martinez v. Illinois

In 2006, the defendant was arrested and charged with aggravated battery and mob action against two victims. After numerous continuances by the prosecution to try and locate the victims, who were the main witnesses, and delays due to Martinez and his defense attorney, the trial was eventually scheduled to begin in May 2010 (Martinez obviously waived his constitutional right to a speedy trial).

On the day of trial, the victims still could not be located. The trial judge refused to grant any more continuances, but offered to postpone the starting time of the trial to later in the day, and to issue subpoenas for their arrest. The prosecution denied both offers and indicated that it would not participate in the case. The jury was sworn in, and the prosecution refused to give opening statements or call any witnesses. The trial judge then granted the defendant’s motion for a directed finding of not guilty, which means the defense attorney requested that the defendant be acquitted since the prosecution, in failing to put on any evidence, had no case against him.

The prosecution appealed, and the defendant argued that double jeopardy applied. His argument was rejected by both the Illinois Appellate and Supreme Courts, who ruled that because the state had put on no evidence, he was in no real danger of ever being found guilty during the first trial.

Martinez then appealed to the U.S. Supreme Court, which overturned the Illinois Supreme Court’s ruling based on his petition alone. The rule stated above – that double jeopardy attaches the moment the jury is sworn in – is so clear, the Court had no desire to hear oral arguments on the issue.

Double jeopardy does not apply in all cases. The defendant may be retried if there is a mistrial, or if the prosecution seeks a dismissal. In fact, the U.S. Supreme Court noted that in this case, the trial judge offered to dismiss the case, which would have allowed the prosecution to retry Martinez if the victims could be located. The prosecutor failed to take the court up on this offer. Continue reading

Chicago police received 48,141 reported incidents of domestic violence in 2013, including reports of assault, battery and unauthorized use of a motor vehicle. During that same time period they received 171,077 domestic violence-related calls. Domestic violence is a serious issue that affects not only the parties involved, but collateral victims as well, most notably the children. Most of the focus on domestic violence revolves around men as the batterer and women as the victim. But a recent Chicago murder highlights the fact that men can also be victims of domestic violence.

Chicago Domestic Dispute Ends With Woman Fatally Stabbing Boyfriend

killer-hand-1-1153640-mMiata Phelan, a 24-year-old pregnant woman who lives in Chicago, stabbed and killed her boyfriend, 28-year-old Larry Martin, on Cinco de Mayo. Why? Because he allegedly purchased gifts for his eight-year-old son and his cousin on a trip to the mall and nothing for her, even though her birthday was the next day.

Prior to the stabbing, Phelan reportedly kicked and scratched Martin in the car as punishment for his selfishness, and then took off with the vehicle when Martin stopped to run another errand, forcing him and his eight-year-old son to walk home, where he found the front door of the house locked. When he was finally able to get inside, Phelan stabbed him in the side with a knife – in full view of his son – screaming, “I hope you die.”

 

Martin died a few hours later at the hospital; Phelan was charged with first-degree murder.

Multiple Domestic Violence Charges in Single Incident

Although Phelan is charged with murder, this incident contains many elements of domestic violence and highlights the escalation of abuse, albeit in a compacted time frame. Each action on its own could be a crime under Illinois’ domestic violence laws:

 

  • Verbal abuse: screaming and calling Martin selfish because he seemingly failed to buy her a birthday present gift
  • Battery: kicking and scratching
  • Theft: driving away in Martin’s car
  • Aggravated battery:the stabbing
  • Murder:end result of the stabbing

Like many domestic violence cases, the violence escalated from verbal to physical abuse, with this case ending on the most extreme end of the physical abuse scale. In this case that escalation seemingly occurred in the same episode, although it is unclear if Phelan had a history of escalating domestic violence against Martin, and this was the culmination of months of abusive behavior.

Had Martin survived – and assuming he left her – Phelan’s actions would have subjected her to civil penalties as well as criminal. Martin would have most likely been able get an order of protection against Phelan, which could have resulted in her being forced to move out of the couple’s home, and could have caused her to lose her job. Her ability to gain custody of the couple’s unborn child would also have been adversely affected, as violence against one parent is a factor the court considers when making an award of child custody.

Absent the murder, this case is typical of many domestic violence incidents and demonstrate how much a single incident of domestic violence can impact numerous aspects of a person’s life. A skilled criminal defense attorney understands these long-lasting ramifications and is experienced in defending against domestic violence charges and civil orders of protection. Continue reading