Chicago Criminal Lawyer Blog

July 31, 2015

Police Pursuit and Shootout on I-55 Leads to Two Arrests

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

A Herald report indicated that Luke Bertolini, a Manhattan, IL resident, is facing several charges in relation to a shootout near Channahon, including aggravated unlawful use of a weapon, reckless discharge, and criminal damage to property. According to the report, Bertolini was in a restaurant in Wilmington when he ran out and started shooting a gun. He apparently asked the bartender, “Can you fight?,” then went outside and fired two or three shots in the marina. After the shots were reported, county and state police arrived to assist. Bertolini had left the restaurant before they arrived in a yellow vehicle driven by a blond female. Witnesses in the restaurant seemed to indicate the Bertolini seemed to be under the influence of drugs at the time.

The police later located Bertolini’s vehicle driving north on I-55, and the police officer who spotted the vehicle activated his emergency lights to stop it. After stopping, Bertolini exited from the passenger side of the vehicle with two handguns. He then exchanged gunfire with the police, but was apprehended without anyone being struck. Police also arrested the female driver of the vehicle.

Firearm Crimes in Illinois

In Illinois, a person is guilty of aggravated unlawful use of a weapon when he or she knowingly carries or has a vehicle or concealed somewhere in his body any pistol, revolver, stun gun or taser or other firearm while present on any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town. Additionally, the firearm must be uncased, loaded and immediately accessible at the time of the offense or the firearm possessed uncased, unloaded and the ammunition for the weapon was immediately accessible.

A related charge is reckless discharge of a firearm. A person is guilty of this offense if he or she discharges a firearm in a reckless manner which endangers the bodily safety of another. Additionally, if this crime was committed by a passenger of a moving motor vehicle with the knowledge and consent of the driver, the driver is also accountable for the conduct and may be similarly charged. To determine whether the discharge was reckless, the prosecution would have to prove the the suspect consciously disregarded a substantial risk that discharging his or her weapon would pose a danger to the safety of another in a way that does not reflect what a reasonable person would do in a similar situation.

Reckless discharge can be elevated into an aggravated crime if the suspect fired the weapon in the direction of another person or group of people, into a vehicle or structure from outside, or if the suspect used a silencer.

Penalties for Conviction of a Weapons Charge

Aggravated unlawful use of a weapon is considered a Class 4 felony that can result in a sentence of one to three years in prison and a fine of up to $25,000. Courts are permitted to sentence defendants to probation. A second offense is considered a Class 2 felony with a mandatory prison sentence from 3 to 7 years, which is non-probationable.

WIth regard to aggravated reckless discharge of a firearm, this is considered a Class 1 felony. It is punishable with a 4 to 15 year term in prison, and a maximum fine of up to $25,000.

July 29, 2015

Fatal Hit-and-Run in Chicago Results in Reckless Homicide Charge

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

According to a report from the Tribune, a woman from Oak Lawn was charged with reckless homicide, along with several other crimes, after a fatal hit-and-run accident on Oak Park Avenue. The accident occurred shortly after midnight when the suspect, Jacqueline Cummings, was driving her 2005 Jeep Grand Cherokee and struck Maria Domantay, sideswiped a police car, and fled. The Tinley Park police were at the scene handling a separate traffic accident when the hit-and-run occurred. The victim was pronounced dead in the emergency room at Silver Cross Hospital, and according to preliminary autopsy results, Domantay died due to multiple injuries from being struck by a vehicle.

Cummings was also charged with failure to report an accident involving death, failure to yield the right of way to an emergency vehicle, improper lane use, failure to reduce speed to avoid an accident, failure to signal, and use of a wireless phone in an emergency zone.

Reckless Homicide in Illinois

According to Illinois statutes, a person commits reckless homicide if he or she unintentionally kills an individual while driving a motor vehicle recklessly. Even though the individual did not mean to kill anyone, his or her reckless manner of driving caused someone’s death.

The most important question in reckless homicide cases is whether the suspect’s conduct can be considered reckless. The law defines recklessness as someone’s conscious disregard of a substantial and unjustifiable risk that his or her actions are likely to cause death or great bodily harm to another, and that disregard is grossly different from the standard of care that a reasonable person would exercise in the situation. To be reckless is to take an unnecessary risk that most people would consider likely to harm others.

Penalties for Reckless Homicide

Reckless homicide is a Class 3 felony in Illinois, with a possible prison sentence of two to five years upon conviction. However, the charge can be enhanced with a more serious penalty in other circumstances. For example, if a defendant committed reckless homicide on a public thoroughfare where children were going to and from school with a school crossing guard present, the offense is enhanced to a Class 2 felony with a sentencing range of 3 to 14 years in prison. This is also the case if the reckless homicide occurs in a work zone or the defendant failed to comply with a lawful traffic control order from a police officer. The same is true if the victim is a family or household member of the defendant. There are other enhancing circumstances found in Illinois statute that may impose more serious penalties for a reckless homicide conviction.

July 24, 2015

Florida State Quarterback Charged with Battery

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

On June 30, Florida State University quarterback De’Andre Johnson was charged with misdemeanor battery from an incident in which he allegedly punched a 21-year-old woman in a bar. According to prosecutors, Johnson was involved in a confrontation with the woman after she cut in front of him while they were waiting to place their orders at a bar near the Florida State campus. Witnesses stated that the woman raised her arms and heard her yell “no” twice before Johnson grabbed her and punched her in the face. Court documents stated the woman was trying to defend herself while she was being pushed and grabbed by Johnson.

Johnson’s lawyers indicated that Johnson was acting in self-defense, stating that the woman raised her fist and shouted racial epithets at him when he accidentally made contact when he was walking up to the bar. Johnson allegedly tried to deescalate the situation, but the woman kneed him in the groin area and tried to hit him before he retaliated. The lawyer stated that he did not react until the woman struck him twice.

Battery

In Illinois, battery is a criminal offense that may either be a misdemeanor or felony, depending on whether there is a serious injury. Illinois criminal code states that battery occurs if a person intentionally or knowingly causes bodily harm to an individual or makes physical contact of an insulting or provoking nature. It is normally a Class A misdemeanor offense that carries a possible one-year prison sentence and a fine of $2,500. Illinois courts may sentence a battery defendant to probation as opposed to imprisonment, and order community service and counseling.

Self-defense

A defendant against a battery charge may raise self-defense to justify his or her actions. In order to prove that the defendant was acting in self-defense, he or she must prove the following:

The defendant believed that force was necessary. The defendant claiming self-defense must have a reasonable belief that the force he or she used was necessary. In this case, Johnson has to prove that he needed to respond by punching the woman in the face in order to defend himself. If all the woman did was say an insulting comment without any indicator that she was about to physically attack him, then Johnson may not be able to succeed in his self-defense claim. However, if Johnson can prove that the woman kneed him in the groin and actually tried to hit him twice, he may be able to prove that he actually believed that he needed to use force to defend himself.
The amount of force used is reasonable. In addition to believing that force was necessary, a defendant has to also prove that the amount of force used was reasonable. Here, Johnson would have to prove that punching the woman in the face with enough force to cause a black eye was reasonable in light of her use of force against him.
The defendant’s action was against imminent unlawful force against him or her. Johnson can only use self-defense if he can prove that he was defending himself against the imminent use of unlawful force against him. This threat of force must be imminent. If the prosecution can prove that all the victim did was issue verbal insults without showing an imminent attack on Johnson, he would likely not prevail in asserting self-defense.

July 23, 2015

Burglary Suspect in Illinois Hobby Lobby Arrested

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

A prolific shoplifter, who was previously convicted of stealing $ 2 million in merchandise from Toys “R” Us stores in 2012, was arrested and charged with burglary for attempting to steal paintbrushes from a Hobby Lobby in Lombard, IL. According to a report, the suspect, Ignatius Pollara of Tamarac, IL, served two years in jail for the Toys “R” Us thefts, which involved 139 store locations in 27 states. He now faces charges in DuPage County.

Allegedly, Pollara took paintbrushes from a Hobby Lobby in Lombard, IL and hid them in his pants near the small of his back. After doing so, Pollara tried to leave the store and was immediately apprehended. Police in DuPage and Cook County were alerted beforehand that Pollara was planning a trip to the Chicago area from Florida. They tailed Pollara in the Chicago area, where he spent four nights in different motels, each near a major shopping center. Additionally, police placed a tracking device on Pollara’s rental car, and a search of the vehicle revealed suspected stolen merchandise. He is charged with one count of felony burglary.

Retail Theft vs. Burglary

Here, Pollara was charged with burglary. A person commits burglary in Illinois if he or she enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and does so with the intent to commit a felony or theft inside. Prosecutors have to prove beyond reasonable doubt that the charged individual entered (or remained) with the intent to commit theft or some other felony. Pollara was apprehended attempting to leave the Hobby Lobby with hidden items taken from the store. His pattern of staying in motels near retail stores, along with stolen merchandise found in his car, may be used as evidence to prove that he entered the hobby lobby with the intent to commit theft inside.

Illinois has stringent retail theft or shoplifting laws. In Illinois, a person is guilty of retail theft if he or she knowingly takes possession of, carries away, transfers, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale in a retail establishment with the intention of retaining such merchandise of depriving the merchant permanently of the possession, use, or benefit of such merchandise, without paying the full retail value.

If the value of the items was $300 or less, the retail theft is a Class A misdemeanor. If the value was greater, the defendant can be charged with a Class 4 felony. However, if the defendant has a prior conviction of retail theft, or any theft-related offense such as robbery, armed robbery, residential robbery, possession of burglary tools or home invasion, the offense is automatically a Class 4 felony.

Burglary Penalties

Burglary is considered a Class 2 felony in Illinois, which is punishable by three to seven years in prison. However, if the suspect had not been convicted of a class 2 felony or greater within the previous ten years, up to four years of probation may be available. If the burglary involved someone’s home, it is considered residential burglary, which is much more serious. It becomes a Class 1 felony, which is punishable from four to fifteen years in prison and probation is unavailable.

July 16, 2015

Champaign Police “2014 Officer of the Year” Charged with Sexual Assault

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

A Champaign police officer was charged and arraigned in Champaign County on charges of aggravated criminal sexual assault, criminal sexual assault, and aggravated domestic battery, according to a news report. The suspect, Jerad Gale, is alleged to have anally penetrated a 23-year-old woman and tried to strangle her by covering her nose and mouth and pressing her head into a pillow. The woman was Gale’s former girlfriend, a University of Illinois student, who went to UI police on May 5 to inform them about an alleged assault by Gale that happened on November 9, 2013. According to the Champaign county prosecutor in charge, the woman had been in a relationship with Gale from November 2012 to November 2013.

Another woman came forward with allegations against Gale in Piatt County. The woman dated Gale between 2008 and 2012 and lived with him in Monticello where Gale worked as a police officer for three years. Gale was charged and arraigned on two felony counts of criminal sexual assault.

Sexual Assault in Illinois

In order to be convicted of criminal sexual assault in Illinois, prosecutors must prove beyond a reasonable doubt that an individual committed an act of sexual penetration and:

Used force or threat of force;
The victim was unable to understand the nature of the act or was unable to give knowing consent;
The victim was a family member under 18 years old; or
The individual was 17 years of age or older and holds a position of authority, trust, or supervision over the victim who is between 13 and 17 years old.

For a first conviction, the crime is a Class 1 felony and carries a mandatory prison term of four to fifteen years. For a second conviction, it is considered a Class X felony and carries between six to thirty years of imprisonment. Subsequent convictions can result between thirty to sixty years or life imprisonment.

Criminal sexual assault becomes aggravated if it involves the following aggravating factors:

dangerous weapon;
bodily harm;
threatening the life of the victim or another;
commission of another felony;
the victim is sixty years old or older;
the victim is physically disabled;
the accused delivered any controlled substance to the victim;
the accused was armed with a firearm or discharged a firearm; or
The accused discharged a firearm during the offense that caused great bodily harm or death to another person.

Additionally, aggravated criminal sexual assault occurs when an individual commits an act of sexual penetration and:

the victim is eight years old or under and the accused is under seventeen years old.
the victim is between nine through 12 years of age and force or threat of force is involved, and the accused is under seventeen years of age; or
the victim is severely or profoundly mentally disabled.

Aggravated criminal sexual assault is a Class X felony and, for first convictions, carries between six and thirty years of mandatory imprisonment with possible extended terms of ten, fifteen, twenty, twenty-five years, or a natural life term. For second or subsequent convictions, the mandatory prison term is for the accused’s natural life.

Here, Gale is accused of having caused bodily harm to one of the victims during the act of penetration as he allegedly tried to strangle her and pressed her head into a pillow. This may be considered as an aggravating factor, unless Gale can successfully prove consent as a defense.

July 14, 2015

Illinois Man Sentenced for Aggravated Domestic Battery

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

On July 8, David J. Marks was sentenced to serve three years in the Illinois Department of Corrections followed by a four-year term of mandatory supervised release for his conviction of aggravated domestic battery. He pled guilty to the charge last month.

According to a news report, Marks was arrested in the parking lot of a Best Buy store in Carbondale after a battery incident was reported. According to the officers, they arrived at the Best Buy parking after two private citizens heard the victim cry for help and intervened, which allowed the victim to escape. The victim told police that Marks, her ex-boyfriend, came to her home and abducted her against her will. When they arrived at the Best Buy parking lot, Marks allegedly used a seatbelt to try to strangle her and prevented her from leaving the vehicle. After the private citizens intervened, Marks drove off but was later apprehended.

Domestic Battery Laws in Illinois

Under Illinois statute, a person is guilty of domestic battery if he or she causes bodily harm or makes physical contact of an insulting or provoking nature with any family or household member. The statute does not distinguish between minor or serious injuries – therefore, even minor scratches, bruises, or cuts will suffice for a charge of domestic battery. Even when no injury results from physical contact, a charge may still be brought if the contact was insulting or provoking.

A “family or household member” includes the following individuals:

Spouses or ex-spouses;
Parents, children, stepchildren and other persons related by blood or by marriage;
Individuals who share or formerly shared a common home;
Individuals who have or allegedly have a child in common, or individuals who share or allegedly share a blood relationship through a child;
Individuals who have or have been dating or are engaged; and
Individuals with disabilities and their personal assistants and caregivers.

A first offense of domestic battery is usually charged as a Class A misdemeanor. However, if the defendant has a prior domestic battery conviction, has violated an order of protection, or if other aggravating factors are present, then it is a Class 4 felony. Aggravating factors include causing great bodily harm, permanent disability or disfigurement, if the victim was pregnant when the alleged battery occurred, or battery involving a deadly weapon or strangulation. In the case above, Marks pled guilty to attempting to strangle the victim, which is why he was convicted of aggravated domestic battery.

Penalties for Domestic Battery

The maximum penalty for a Class A misdemeanor is up to one year in jail and a fine of $2,500. Normally, first offenders are eligible for court supervision in most misdemeanor cases. However, with regard to domestic battery, defendants are not eligible for court supervision and the mandatory minimum sentence involves a conviction. A conviction for domestic battery can never be expunged or sealed from a defendant’s record. Therefore, domestic battery is considered to be a more serious offense than other misdemeanors. If the charge is for aggravated domestic battery, is a Class 4 felony and carries a possible sentence of one to three years imprisonment.

July 9, 2015

Convicted Burglar Sentenced to 15 Years in Prison

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

Ronald E. Kelley Jr., originally from Carterville, IL, was convicted of burglary and attempted residential burglary on April 7 according to a news report. On June 24, he was sentenced to fifteen years in prison for attempted residential burglary and eight years for burglary. He was also required to serve a three-year period of mandatory supervised release on each count.

Kelley was charged with burglarizing an automobile before trying to enter a home in Murphysboro, IL. A woman who lived at the home told dispatchers that she saw a man halfway through her bathroom window. He retreated from her window and fled when she confronted him. The woman later identified the man as Kelley.

According to the police, the woman and car burglary victim gave the same description at the time of the alleged incidents. Officers later found Kelley walking down a road near the homes and searched him. During the search, they found property on Kelley which they identified as having been stolen from a third victim.

Illinois Burglary Law

Under Illinois law, a person commits burglary if he or she enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, or railroad car without authority, and does so with the intent to commit a felony or theft inside. If convicted, burglary is considered a Class 2 felony in Illinois, which is punishable from three to seven years in prison. Up to four years of probation may be available if there are no convictions of a class 2 felony or greater within the previous ten years. However, if the burglary involved someone’s home, it is considered residential burglary, which is much more serious and considered a class 1 felony. Residential burglary is punishable from four to fifteen years in prison and probation is unavailable.

Possible defenses to burglary may include negating the first element of the offense by proving that the individual had the consent of the owner or occupier of the property to enter. In these cases, there would be no unauthorized entry. Even if the defendant misunderstood the owner and erroneously believed he had permission, the belief in the consent, if reasonable, may be enough to defeat a charge of burglary.

Also, burglary requires that a person have the specific intent to commit theft or a felony once inside the property. If a person was intoxicated, it may be a valid defense to the degree that it kept the defendant from forming the specific intent.

The Reliability of Eyewitness Testimony

As in the case above, eyewitness testimony is often the lynchpin evidence used by prosecutors to achieve a burglary conviction. However, according to the Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing. Eyewitness testimony plays a role in more than 70% of convictions overturned through DNA testing nationwide. In eyewitness identifications, witness memory is often impacted by a variety of factors that occur from the time of the crime onwards, and human memory is vulnerable and easily contaminated. Therefore, eyewitness testimony is often not as accurate as juries often believe it to be, and police eyewitness identification procedures can have a major effect on the accuracy of identifications.

July 7, 2015

Saint Xavier Football Player Charged with Burglary

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

A Saint Xavier University football player and criminal justice major, Jonathan Gilbreth, was charged with one felony count of burglary on June 26, 2015, according to a news report. At around 3:10 a.m., police responded to a security alarm at an Oak Lawn tobacco store where they saw a man running from the area behind the store. After a brief foot chase, police caught Gilbreth at a nearby backyard and found him in possession of tobacco products from the store. A witness also saw Gilbreth hit the glass door to the tobacco store just before the security alarm went off.

Burglary laws in Illinois

According to Illinois statute, a person commits burglary if he or she:

Enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and
Does so with the intent to commit a felony or theft inside.

Entering without permission is not enough – prosecutors have to be able to prove that the individual entered (or remained) with the intent to commit theft or some other felony. Here, the police witnessed Gilbreth running from behind the store and found him in possession of products from the store. It is likely the police will have a strong case with circumstantial evidence where Gilbreth’s actions are only consistent with an intent to steal. Additionally, the intended crime does not have to occur – it is enough that an unauthorized entry occurred with a corresponding criminal intention.

Possible defenses to burglary may include negating the first element of the offense by proving that the individual had the consent of the owner or occupier of the property to enter. In these cases, there would be no unauthorized entry. Even if the defendant misunderstood the owner and erroneously believed he had permission, the belief in the consent, if reasonable, may be enough to defeat a charge of burglary.

Also, burglary requires that a person have the specific intent to commit theft or a felony once inside the property. If a person was intoxicated, it may be a valid defense to the degree that it kept the defendant from forming the specific intent.

Penalties for Burglary as a Felony

If proven, burglary is considered a Class 2 felony in Illinois, which is punishable from three to seven years in prison. However, if the individual had not been convicted of a class 2 felony or greater within the previous ten years, up to four years of probation may be available.

However, if the burglary involved someone’s home, it is considered residential burglary, which is much more serious. It becomes a Class 1 felony, which is punishable from four to fifteen years in prison and probation is unavailable.

July 3, 2015

Suspected Arsonists Sought

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

Illinois state police are investigating a series of six fires that occurred last January that they believe were intentionally caused by two suspected arsonists. The fires involved a historic school house, a house whose occupants managed to run out of the house before it was engulfed, and sheds adjacent to main buildings, all along the same street in Marissa, IL.

Arson in Illinois

Under Illinois law, arson is a Class 2 felony that carries a potential three to seven-year prison sentence. It is the willful act of destroying someone else’s property valued at $150 or more by setting it on fire without permission from the owner. Even if you partly own the property, it is still considered arson if you don’t have a co-owner’s permission permission to set it on fire.

If the property is someone’s residence or is a place of worship, the act of arson becomes a Class 1 felony which is punishable by four to 15 years in prison.

Finally, arson can be counted an aggravated act and is classified as a Class X felony if the perpetrator knows that one or more persons are inside the building, or where someone suffers great bodily harm, permanent disability or disfigurement, or where a fireman or policeman on duty at the scene is injured.

A charge of arson may also be coupled with a charge of possession of explosives or explosive/incendiary devices. According to Illinois statutes, a person commits criminal possession of explosives or incendiary devices if he or she possesses, manufactures, or transports such devices and either intends to use the device to commit any offense. This is also classified as a Class 1 felony and comes with a sentence of four to 30 years in prison.

Expert Testimony in Arson Cases

Often, an arson case will hang on expert testimony from various fire investigators. However, over the years, problems have been identified with the reliability of expert testimony from fire investigators. Unlike other forensic sciences, fire investigations often involve the collection of burn patterns and debris alongside reports by the police, fire fighters, other fire investigators, and medical professionals. They often conduct interviews with eyewitnesses, victims, and the defendant who may disclose potential motives for arson such as vandalism or financial woes. This extra factual information about the offender and events surrounding the fire can be subjective and incorporate the investigator’s thinking on the events or motives of the fire, rather than the plain forensic evidence. This is often undisclosed to juries, and they are left to treat fire investigators’ testimonies as scientific even if they incorporated subjective and non-scientific information into their conclusions. Additionally, the fire investigator may be unknowingly influenced by all of this extra information and may impact his or her opinions and testimony. It may lead the investigator to rule out natural or accidental causes because of the bias that he or she unknowingly develops.

Additionally, there are a lot of differences in procedures and training between state, region, county, police and fire departments and fire investigators. There is no consistent standard across courts and jurisdictions for fire experts to be certified investigators. Much of the fire investigation field’s knowledge base is based out of individual and anecdotal experience about fires, and there is no formal training or specialization required to conduct fire investigations.

June 30, 2015

Murder Conviction Reinstated by Illinois Supreme Court

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

The Illinois Supreme Court reversed the decision of a lower court of appeals and reinstated the first-degree murder conviction and 70-year sentence of Mark Downs, who shot and killed a 6-year-old boy, Nico Contreras, in his sleep. The convicted murderer fired a gun into a bedroom window at the Aurora home of the victim’s grandparents on July 10, 1996. During the trial. the court instructed the jury that it was their duty to define reasonable doubt in the case, which an appeals court ruled was incorrect and caused the conviction and sentence to be reversed. However, the Illinois Supreme Court said that the instruction given by the judge was correct and that the jury convicted Downs with a proper understanding of reasonable doubt.

No Jury Instruction for Reasonable Doubt in Illinois

In this case, the jury sent a note to the court asking whether its definition of reasonable doubt was 80 percent, 70 percent, or 60 percent. The U.S. Supreme Court has said that the U.S. Constitution does not require or prohibit a definition of reasonable doubt, and in Illinois, trial courts (and attorneys for the prosecution or the defense) are not allowed to provide jury instructions that define reasonable doubt. This is because “reasonable doubt” is difficult to define, and trial judges usually end up substituting other phrases that are equally difficult to understand. Therefore, the Illinois Supreme Court has ruled in the past that “reasonable doubt’ should speak for itself without any attempt at a definition from the trial court.

When Downs appealed his conviction and sentence, he argued that the trial court’s instruction to the jury that it was their duty to define reasonable doubt in this case was erroneous because it violated the prohibition on instructions about reasonable doubt. According to the appellate court, the only acceptable answer would have been to tell the jury that reasonable doubt is not defined as a percentage, and to just inform them that reasonable doubt is the highest standard of proof in law, and that they had received all of the instructions needed to answer its question. However, the Illinois Supreme Court disagreed, saying that in decisions going back a hundred years, it has consistently held that the term “reasonable doubt” doesn’t need to be defined because the words themselves are enough to convey its meaning.

First-degree murder

The shooting occurred during a period in the 1990s when Aurora experienced a long period of street gang violence. It was at this time that Downs and an accomplice, Elias Diaz, reportedly targeted Nico’s uncle for belonging to a rival gang. Elias Diaz allegedly planned the shooting and drove the getaway card. He was convicted and received a 60-year term.

Here, Elias Diaz did not actually carry out the killing. However, there was testimony during the trial that he drove two men to Nico’s house and ordered Downs to shoot a man whom he believed was a rival gang member. Diaz thought that the rival gang member at one time occupied the bedroom in which Nico slept and ordered the shooting to occur there.

In Illinois, first degree murder is defined as performing an act that causes someone to die with the intent to kill that individual or someone else, and with the knowledge that the act will probably cause death or great bodily harm to that individual or someone else. For first-degree murder, it is not necessary that you are the one to actually carry out the act of killing. Ordering someone to commit the act is enough to satisfy the definition.

Additionally, a person will still be guilty of first-degree murder even if the person who dies was not the intended target of the intent to kill. Here, the actual target was Nico’s uncle, and not Nico. However, the Illinois statute explicitly allows the intent to be transferred, and that even if someone else was killed other than the intended victim, it would still be considered first-degree murder.