Felonies

November 18, 2015

Felony Murder: When Self Defense is No Defense

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

First-degree murder carries the highest sentence of any single crime in all of Illinois and is subject to the mandatory minimum statute. This means that those convicted are almost guaranteed at least a 20-year prison term, and if a gun is used the mandatory minimum jumps to 45 years. Felony murder is a one type of first-degree murder.

If someone dies during the commission of a forcible felony, those committing the felony can be charged with first-degree murder. You can be charged with felony murder even if the person died accidentally or was killed by someone else, as long as a forcible felony was being committed at the time. Illinois prosecutors have even successfully brought felony murder charges in situations where a co-felon was killed by the police. A forcible felony is defined as sexual assault, robbery, burglary, arson, kidnapping, aggravated battery, and any other felony that involve the use of or threat of physical force or violence.

Self-Defense Claims are Unavailable

September 4, 2015

Chicago Man Charged with Homicide after Woman’s Fetus Dies in Car Crash

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

A Chicago man is being held on $2 million bond and is being charged with reckless homicide of an unborn child, among other charges. Bail was set at $2 million Saturday for a man accused of causing a Northwest Side crash that seriously injured a pregnant woman and killed her unborn child. On Wednesday, August 12, the Chicago man allegedly crashed into a parked Mazda Protégé in which the pregnant woman was sitting.

Fetal Homicide Laws in Illinois

Maybe you were not aware that you can be charged with murder if a pregnant woman’s fetus dies as a result of your action. Illinois statute defines and penalizes for intentional homicide of an unborn child, voluntary manslaughter of an unborn child, involuntary manslaughter and reckless homicide of an unborn child, respectively. These statutes define an “unborn child” as any human individual from fertilization until birth.

September 26, 2014

Sex Abuse Conviction Overturned Due to Inadmissible Evidence

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

An Illinois Court of Appeals reversed the conviction of an Illinois man on charges of criminal sexual abuse, finding that evidence of other sex crimes allegedly perpetrated by the defendant was inadmissible. Without that evidence, there was an insufficient basis for upholding the conviction.

People v. Puccini

The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older boys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them).

Illinois law allows evidence of prior charges or accusations of criminal sexual abuse to be admitted at trial to show the defendant’s propensity for committing sex crimes. Evidence of other alleged bad acts is admissible only if the probative value of the evidence – meaning that the evidence will assist the jury in its determination – outweighs any potentially negative effect. The fear is that evidence of prior bad acts will sway the jury to render a guilty verdict based not on the evidence in the case, but because it paints a picture of the defendant as an overall bad person. Just because a defendant committed a prior similar act does not mean he committed the act for which he is currently charged, which is why the court must carefully consider whether the evidence will unfairly sway the jury to find the defendant guilty.

When weighing the probative value of evidence, the court must consider:

The proximity in time to the charged offense;
The degree of similarity to the charged offense; and
Other relevant facts and circumstances.

On appeal, Puccini’s attorney argued that the negative effect of the two witnesses’ testimony outweighed any potential benefit. No charges were brought against Puccini for the prior alleged crimes, and they allegedly occurred almost 20 years prior. In addition, the acts were not similar. The witnesses testified that, following the abuse, which allegedly involved Puccini touching their private parts, he then masturbated, thus fulfilling the “for his own sexual gratification” element of sexual abuse.

The testimony of the young boy in the present case was inconsistent on whether Puccini masturbated following the spanking. Statements he made to the police differed from what he said at trial, and his testimony that Puccini went into another room to sexually gratify himself after the spanking was not credible. The boy testified he only heard “tapping noises” in another room, and although he initially told police he thought Puccini had an erection, he admitted that he never turned around to look at Puccini after the spanking.

The Appellate Court noted that the trial court, in rendering its decision, relied solely on the testimony of the two adult males in determining Puccini’s actions were for his own sexual gratification. Yet the earlier crimes, if committed, were worse than the crime for which Puccini was currently on trial, causing the Appellate Court to rule that the prejudicial effect of the witnesses’ testimony outweighed any probative value.

Without the testimony of the two witnesses, the Appellate Court found that there was not enough evidence to support Puccini’s conviction. In this instance, the defendant cannot be retried – double jeopardy prohibits a defendant from being tried again in order for the prosecution to provide evidence it failed to produce in the first trial. Continue reading

September 24, 2014

Sexual Assault: It Happens to Men, Too

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

A Chicago woman was arrested for her role in the alleged sexual assault of a Chicago man at gunpoint. The defendant and her friend picked up the man in their car as he walked down a Chicago street and proceeded to assault him.

Male Rape Victims

Sexual assault of a man can – and does – happen. Rape is traditionally an underreported crime, even more so for men than women. But the most recent statistics indicate that 38 percent of sexual assaults occur against men by women. Other studies estimate that 1 in 10 adult males will be the victim of a sexual assault.

The word “rape” typically elicits an image of a man forcing a woman to engage in unwanted sexual intercourse. But Illinois sexual assault laws are gender neutral. Criminal sexual assault requires penetration by any object. If the woman causes the male to penetrate her, whether forcibly or through threat of force (for example, at gunpoint, which was alleged in this case), or if she uses any object to penetrate his anus (including fingers), that constitutes penetration under the law.

Criminal sexual abuse requires an act of sexual conduct by force or threat of force (again, at gunpoint would qualify). “Sexual conduct” includes touching of sexual parts. In this case, forcing the alleged victim to fondle the woman’s breasts constitutes an act of sexual conduct that could result in a charge of sexual abuse.

Defense Against Sexual Assault

Defending a charge of sexual assault against a male is no different than defending a charge of sexual assault against a female. In the above case, as in the majority of sexual assault cases, there were no eyewitnesses other than the three parties involved. Therefore, the case comes down to “he said-she said.”

Some sexual assault claims are fabricated in an attempt to retaliate against the alleged offender for some perceived transgression, or else stem from a sense of regret that the sexual conduct occurred. This is especially true in cases that begin consensually. In such cases, a careful review of the circumstances leading up to the alleged crime is necessary to determine whether the crime was fabricated as an attempt to save face, or to retaliate against the alleged perpetrator.

In the case mentioned above, where the victim willingly entered the defendant’s vehicle, it is possible the man originally intended to purchase sex. An investigation into his criminal background could reveal prior arrests and/or charges of solicitation or attempted solicitation. This, in turn, could support a defense that, after the parties engaged in consensual sex, the defendant committed an attempted robbery, and the man retaliated by filing the sexual assault claim. Continue reading

September 17, 2014

Defense of Imperfect Self-Defense in Illinois Murder

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

Everybody knows a defendant can invoke a claim of self-defense to defend against charges of murder, manslaughter, or other violent crimes that result in injury or death to another person. What you may not know is that a claim of imperfect self-defense can reduce a murder charge from first-degree to second-degree.

Illinois Imperfect Self-Defense

Under Illinois law, a homicide qualifies as second-degree murder if the defendant can show he acted under a sudden and intense passion due to provocation by the victim, or he actually, but unreasonably, believed he was acting in self-defense. This is know as imperfect self-defense. Imperfect self-defense is an affirmative defense, which means the defendant carries the burden of proof. If the defendant can successfully prove one of those factors existed at the commission of the crime, then the jury may find the defendant guilty of second-degree murder, rather than first-degree murder.

A defendant cannot be charged with attempted second-degree murder; he can only be found guilty of second-degree murder by proving the existence of one of the two mitigating factors. A charge of second-degree murder includes all of the elements of first degree murder: the defendant must have intentionally planned to kill the victim, or he knew there was a strong probability his actions would result in causing the victim great bodily harm or death. It is then up to the defendant to convince the jury he was either in a blind rage due to the victim’s actions (also known as the “heat of passion” defense), or he believed, however unreasonably, that his life was in jeopardy.

Here is one example of how imperfect self-defense would apply. An individual suffering from a mental illness that causes paranoia or delusions may plead imperfect self-defense if he actually, though unreasonably, believed the victim was about to cause him great bodily harm or death. In that case, the defendant believed his use of force against the victim was justified, even if, from an objective viewpoint, it was not.

Imperfect self-defense may also arise in cases of murder that occurred in the heat of passion. For example, a wife who walks in on her husband and his lover flies into a rage, grabs a gun in her nightstand drawer, and shoots them both dead. The wife knew her actions were likely to cause the death of her husband and his lover (she may even have intended it), but she was in such a blind rage due to his betrayal that she could not control herself. In this case, the defense could argue the charge be reduced to second-degree murder. Continue reading

September 3, 2014

Sexual Assault of Woman in Buffalo Grove

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

A Buffalo Grove woman reported being awoken in her bed at 4 in the morning to a strange man straddling her in what police are calling an attempted sexual assault. The woman allegedly fought the man off, and he escaped through a patio door. No arrests have yet to be made.

Defense Against Illinois Attempted Sexual Assault

While there is currently no suspect in the case and no charges have been filed, this case is an excellent example of many issues that arise in home invasion and sexual assault cases, and illustrates the importance of hiring an experienced Chicago sex crimes attorney. An acquittal in a case like this depends on the criminal defense attorney’s ability to show the jury how the prosecution’s evidence does not rise to the level of reasonable doubt.

Chicago sexual assault attorney David L. Freidberg has more than 17 years of experience handling all types of sex crimes cases, and knows what it takes to win an acquittal or achieve a reduction in charges. Issues that David L. Freidberg and his team of forensic experts would examine in an attempt to pick apart the prosecution’s case include:

Identification of suspect. The woman was awakened from a deep sleep at 4 in the morning. Groggy from sleep and seeing the alleged assailant in the dark make any identification from a police lineup questionable, as she only had a brief, darkened view of him. Her description of him to the police was extremely generic, with no real identifying characteristics that could distinguish him from any other white male of similar age and build.

Lack of forced entry. The suspect allegedly escaped through an open patio door; there were seemingly no signs of forced entry. The lack of forced entry raises doubts that this was a home invasion. Perhaps the alleged victim had invited the man in to her home earlier that evening, and then changed her mind and kicked him out because she has a boyfriend, fiancé or husband and felt guilty or got caught. Claiming home invasion and attempted sexual assault was a means to avoid their anger.

Earlier home invasion in the neighborhood. Police reported that a similar home invasion (minus the attempted sexual assault) occurred a month ago in the same condominium complex. It is possible that this was the work of the same individual, and perhaps he was upping his game. Or, going along with the scenario that the alleged victim was trying to save face, it could be that she was aware of the prior home invasion and tacked that on to her story of attempted sexual assault, thinking it would make her story sound more believable.

Lack of physical evidence. Because there was no sexual assault, there is likely no DNA evidence that can tie any future suspect to the attack. Even if a DNA sample can link the suspect, the presence of DNA in the form of semen only proves that sexual intercourse happened. It does not prove the sex was non-consensual.

David L. Freidberg would thoroughly examine the evidence to see if these and any other issues could be raised to cast doubt on the victim’s story and the prosecution’s ability to prove it beyond a reasonable doubt. Continue reading

September 1, 2014

Chicago Police Chief Charged with Felony Theft

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

A former Chicago police chief is set to stand trial in late September on charges of felony theft of government property, misallocation of funds and official misconduct. The police chief, who pled not guilty to the charges in February 2013, is accused of stealing more than $140,000 from the city’s drug asset forfeiture fund.

Chicago Felony Theft Charge

Felony theft of Illinois government property occurs when the defendant obtains or exerts control over property in the custody of any law enforcement agency. Felony theft of government property is a serious crime that imposes harsher penalties than other theft categories – in this case, a Class X felony due to the amount of money allegedly stolen and the fact that it was stolen from a government agency. A Class X felony carries the potential for a minimum of six years in prison, with a maximum of 30 years.

The defense attorney recently filed a motion requesting that the prosecution provide more details on the intent element and on the transactions themselves. This is an important motion, as it deals with an essential element of the crime, and whether the defendant should have been charged with a lower class of felony.

Intent to Deprive

Felony theft is a specific intent crime, which means that in order to prove guilt, the prosecution must be able not only to prove that the defendant took the money knowing he was not entitled to it, but that he also intended to permanently deprive the rightful owner of the use of the property, or used it in such a manner that would deprive the rightful owner of the use of the property.

How does this work in terms of defense? Let’s assume that the prosecution can prove that the defendant knew he was not entitled to the money when he took it. The prosecutor still must prove that the defendant intended to permanently deprive the city of its right to the money. It may be possible, therefore, to make the argument that at the time the defendant took the money, he intended to repay it; that he simply had fallen on hard times, and was using it as a stopgap measure until he was able to obtain other income.

Class 1 v. Class X Felony Theft

The defense attorney also requested more information on the details of each interaction. In Illinois, theft from a government agency is a Class 1 felony if the value of the property stolen was $500 or less.

Although the total value of the money allegedly stolen by the defendant was $140,000, the law does not specifically state that the total value is cumulative. Meaning, if the amount allegedly stolen was taken in numerous increments of $500 or less, an argument could be made that each separate occurrence should be charged as Class 1, rather than a Class X, felony. This would result in a significant reduction in sentence if the defendant is found guilty – up to three years in prison for a Class 1 felony versus the potential 30-year sentence for a Class X felony. Continue reading

August 21, 2014

Felony Murder Rule in Chicago Homicide

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

A 15-year-old Chicago boy was charged in February with the murder of his friend, a 16-year-old Chicago boy, who was shot in the head during the commission of an armed robbery. But this case has a twist – the victim was killed by an off-duty police officer, who himself was the victim of an attempted armed robbery by the victim and his friend. So how can the boy be charged with murder when he did not pull the trigger? Because of a controversial law known as the felony murder rule.

Illinois Felony Murder Rule

A criminal defendant can be charged with first degree murder in Illinois if the victim was killed while the defendant was “attempting or committing a forcible felony other than second degree murder.” Forcible felonies include armed robbery, burglary, sexual assault, or any other violent felony.

Although the full statute states that “a person who kills an individual” is the one charged with first degree murder, under the proximate cause theory of felony murder, the defendant does not have to be the one who actually killed the victim. Instead, the defendant can be charged for the death because the death was so closely related to the commission of the underlying felony.

The felony murder rule is based, then, on the assumption that any person committing a forcible felony – such as armed robbery – should realize that one of the risks is that somebody, either the victim or one of the assailants, may be killed. It does not matter if the assailant had no intention of killing anybody. Maybe the weapon was brought along just to scare the victim. Perhaps, even, it was not loaded, so there was no possible way the assailant could kill the victim.

But under the felony murder rule, intent is irrelevant. The only thing that matters in proving felony murder is that the underlying crime was a forcible felony. This makes defending against the charge extremely difficult, since the prosecution does not need to prove intent for the first-degree murder charge to stick.

Self-defense is not a defense to a charge of felony murder. Self-defense is the justified use of force against an unjustified force. Since armed robbery is the unjustified use of force, a person charged with felony murder could not argue that he was protecting himself from the victim.

Defending against a felony murder charge is fact intensive and depends on the circumstances surrounding each case. It may be possible to defend against a felony murder charge if the facts show that the defendant abandoned the plan before it happened (for example, if in this case the defendant had fled the scene as soon as he realized his friend had a gun).

Or, if the underlying crime began as a non-forcible felony, it may be possible to argue that the defendant could not have known the underlying crime could lead to murder because it did not begin as a forcible felony (for example, if the defendant and his friend had been robbing a vacant car and were then approached by the owner, at which point it escalated to a forcible felony).

Because there are so few defenses to a charge of felony murder, and because they are all fact sensitive, it is extremely important that you speak with a criminal defense attorney immediately if you are being charged with felony murder. While intent regarding the murder is irrelevant, intent regarding commission of the underlying crime may be partially relevant, and it is important to discuss those facts with a criminal defense attorney who understands the felony murder rule prior to making any statements to the police. Continue reading

August 20, 2014

Chicago Attempted Murder Charge and Self-Defense

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

A Chicago man was recently charged with attempted murder for allegedly stabbing another man in the chest. Based on the bare facts, it seems like a slam dunk case. The stabbing took place in a bar, in full-view of dozens of witnesses who, along with the victim and a third-party who was involved in the argument, can presumably identify the defendant as the suspect. But by examining all the facts surrounding the stabbing, a good criminal defense can be crafted that may result in outright acquittal or a reduction in charges.

Criminal Defense to Attempted Murder

In any attempted murder charge, the first step is to determine whether the defendant can plead the affirmative defense that he acted in self-defense. An affirmative defense means that the burden of proof is on the defendant (normally, the burden of proof in criminal cases is on the prosecution) to prove the facts that justify his defense. In a claim of self-defense, it is up to the defendant to prove that he was justified in using deadly force; it is not up to the prosecution to disprove that deadly force was justified (although most prosecutors will make that part of their case).

Under Illinois law, a defendant will be found to have justifiably used force and acted in self-defense if he can prove that he “reasonably believed” that force was necessary to defend himself or someone else against the victim’s use of force. However, force that is likely to cause death or great bodily harm – such as a stabbing in the chest – is justified only if the defendant reasonably believed that he was himself in danger of death or great bodily harm from the victim.

To prove a self-defense charge, a criminal defense attorney would examine all of the circumstances that led up to the stabbing, including statements by the victim, defendant and any eyewitnesses, to determine whether any of the facts would support a claim of self-defense. Facts that may support a self-defense claim may include:

Whether the victim made any threats to the defendant that would have made him reasonably believe that either he or his companion was in imminent danger;
Whether the victim had a weapon;
Whether the victim made any gestures that a reasonable person would have felt were of a threatening nature and indicative of a threat of bodily harm (such as reaching for a weapon);
Whether the defendant and the victim had a history that would have caused the defendant to have a reasonable belief of imminent harm; or
Whether the victim’s injuries were likely to cause death or great bodily harm, or if they were just minor wounds made to sound more deadly by describing them as “stab wounds to the chest.”

The presence of these or any other factor that would have caused a reasonable person to be placed in imminent fear of injury or death would result in a finding of self-defense, leading to an outright acquittal.

Chicago Aggravated Battery Charge

If, after a review of all the facts, it does not appear that a claim of self-defense can be sustained, a skilled defense attorney would seek a reduction of charges. In this case, an examination of the facts may show that while the defendant did in fact stab the victim, the charge should be aggravated battery, not attempted murder.

Aggravated battery occurs when the defendant inflicts great bodily harm to a third-party. The difference between aggravated battery and attempted murder is that in aggravated battery, the defendant did not intend to kill the victim; instead, he only intended to harm him or, perhaps, attempted only to scare him by brandishing the knife (which would be aggravated assault) and the stabbing was an accident. If an examination of the facts showed that the defendant never intended to kill the victim – or even that he never intended to stab him – then the charges could be reduced to aggravated battery, which involves much less prison time than a conviction on attempted murder. Continue reading

August 18, 2014

Plea Agreement Results in No Prison Time for Role in Illinois Kidnapping

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

A Waukegan woman was sentenced to 24 months of probation and six months intermittent imprisonment, to be served via electronic monitoring and home confinement, for her role in the kidnapping, beating and sexual assault of another woman. The defendant helped her cousin, who was sentenced to 40 years in prison, kidnap his ex-girlfriend, but was not involved in the sexual assault or beating. The defendant was initially charged with aggravated kidnaping, but the charge was reduced to kidnaping due to her testimony against her cousin.

Chicago Plea Agreement

This is a case where the prosecution and judge made the right call, and highlights the importance of having an effective and experienced criminal defense attorney.

The defendant admitted to participating in the kidnapping, although she had no idea when she and her cousin stopped at the victim’s home that the kidnapping would happen. In the case of kidnapping, the fact that she was unaware of her cousin’s intentions is irrelevant. Under Illinois law, a kidnapping occurs when a person “knowingly…carries another from one place to another with intent secretly to confine that other person against his or her will.” Once the victim was placed in the defendant’s car and she drove off, she committed the act of kidnapping, because she knew she was transporting the victim to another location against her will.

The judge in the case admonished the defendant for failing to contact police once she realized what was going on. In this situation, it is probably safe to assume that since the defendant had no idea her cousin intended to kidnap the victim, she was shocked that he was capable of not only kidnapping, but the subsequent beating and repeated sexual assaults. She likely feared for her safety, which caused her to assist in kidnapping the victim and prevented her from reporting the sexual assault to police during the 21 hours the assault occurred.

While that fear was insufficient to get the charges against her completely dropped, it was a sufficient mitigating factor that, when combined with her willingness to cooperate with the prosecution and testify against her cousin, was enough to get the charges against her reduced.

An experienced criminal defense attorney knows that a jury trial is not always the wisest option. Sometimes the circumstances of the case, coupled with the willingness of the prosecution to negotiate, necessitate accepting a plea agreement. Accepting a plea agreement should not be considered defeat. Plea agreements, when properly structured through skillful negotiation by an experienced criminal defense attorney, not only save the defendant the stress and uncertainty of trial, but usually result in minimal prison time.

In this case, the defendant only served five months in prison following her arrest. Although home confinement and electronic monitoring is no fun, it is a better outcome than a conviction for aggravated kidnapping, which can add up to 25 years to the regular 18 – 30 months imprisonment handed down for kidnapping. Continue reading