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Criminal Law FLASHPOINTS December 2020

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Felony Murder Based on Aggravated Discharge

In People v. Shafer, 2020 IL App (4th) 180343, the Fourth District of the Illinois Appellate Court explained the complicated relationship between intent-to-kill murder, felony murder, aggravated discharge of a firearm, and second-degree murder. The Shafer court reversed the defendant’s conviction for felony murder that was predicated on aggravated discharge because the jury reduced the companion charges of intentional and strong-probability murder to second-degree murder. The court ultimately held that when there is an intent to kill (even when mitigated to second-degree murder), then there cannot be a predicate felony for felony murder. 2020 IL App (4th) 180343 at ¶52.

In Shafer, the defendant was planning to get away from three men who were looking for him. The defendant got into an argument with his girlfriend while they were at a friend’s house. The defendant pushed her outside of the residence. When someone knocked on the door, the defendant looked out a window and saw one of the men that was looking for him. He saw another man appear by a window and heard a gunshot. The defendant picked up a gun and shot twice through the door, unintentionally killing his girlfriend. He testified that he intended to shoot one of the men outside who had a gun. 2020 IL App (4th) 180343 at ¶9.

The state charged the defendant with intentional murder, strong-probability murder, felony murder premised on aggravated discharge, unlawful possession of a weapon by a felon, and aggravated discharge of a firearm. 2020 IL App (4th) 180343 at ¶5. The jury found him guilty of second-degree murder on the intentional and strong-probability counts, felony murder, unlawful possession of a weapon by a felon, and aggravated discharge of a firearm. 2020 IL App (4th) 180343 at ¶¶1, 11.

The defendant argued on appeal that his felony murder conviction should be reversed because the predicate aggravated discharge of a firearm offense was not a valid predicate offense under the facts of the case.

The appellate court noted that the first-degree murder statute specifically excludes second-degree murder as a predicate offense for felony murder. 2020 IL App (4th) 180343 at ¶21, citing 720 ILCS 5/9-1(a)(3). Under the felony murder rule, the perpetrator of the forcible felony is liable for felony murder if the forcible felony foreseeably caused someone else’s death. 2020 IL App (4th) 180343 at ¶20.

The Shafer court discussed the split of authority in the appellate courts regarding when aggravated discharge can serve as the predicate offense for felony murder, and the court ultimately sided with the decision in People v. O’Neal, 2016 IL App (1st) 132284, 66 N.E.3d 390, 408 Ill.Dec. 598.

In O’Neal, the defendant was found guilty of second-degree murder on his intentional murder and strong-probability murder charges and of felony murder based on aggravated discharge of a firearm, along with aggravated discharge of a firearm. 2016 IL App (1st) 132284 at ¶3. The evidence showed that he had shot at an approaching van that he thought was occupied by rival gang members. One of the defendant’s shots instead killed his friend, who was sitting in a car across the street. 2016 IL App (1st) 132284 at ¶1.

The O’Neal court held that the predicate aggravated discharge felony was inherent in the murder itself because proof of the murder and proof of the aggravated discharge were one and the same. The O’Neal court stated it was not a situation in which the defendant completed the aggravated discharge, which then set into a course of motion the events that lead to the victim’s death. The O’Neal court also held that the defendant did not act with an independent felonious purpose that was independent of the murder itself, e.g., having one purpose if the shot hit the intended victim and a different felonious purpose if the shot missed and hit someone else instead. Under transferred intent, he had only the same intent to kill rather than having one intent at the rival gang and another intent at the victim. 2016 IL App (1st) 132284 at ¶¶59, 63. Therefore, since there was not an independent felonious purpose, the O’Neal court reversed the felony murder convictions. 2016 IL App (1st) 132284 at ¶4.

In People v. Figuerora, 381 Ill.App.3d 828, 886 N.E.2d 455, 319 Ill.Dec. 692 (1st Dist. 2008), the First District upheld the defendant’s convictions for intentional murder, felony murder, and aggravated discharge of a firearm when the defendant stood up in a sunroof of a car and shot at pursuing vehicles, but one of the shots ended up killing a child who was outside playing baseball. 886 N.E.2d at 462. The appellate court stated that the defendant had the felonious purpose of killing his targets instead of killing the victim. Therefore, he had an independent felonious purpose, and the aggravated discharge was not an inherent act in the victim’s murder. 886 N.E.2d at 464.

The Shafer and O’Neal courts disagreed and declined to follow the Figuerora court’s implication that the defendant’s act of missing his targets and instead hitting the victim was an act that was extrinsic to the murder of the victim. O’Neal, supra, 2016 IL App (1st) 132284 at ¶71; Shafer, supra, 2020 IL App (4th) 180343 at ¶33. The Shafer court explained that the transferred-intent rule was already in the first-degree murder statute and that, accordingly, a defendant is liable for murder of an unintended victim if he or she had the mental state for murder. 2020 IL App (4th) 180343 at ¶¶33 – 34.

The Shafer and O’Neal courts also disagreed with another First District decision in People v. McGee, 345 Ill.App.3d 693, 801 N.E.2d 948, 280 Ill.Dec. 3 (1st Dist. 2003). In McGee, the appellate court upheld a felony murder conviction based on aggravated discharge when the defendant shot at a rival gang, but a baby in a stroller instead was struck and killed. 801 N.E.2d at 951. The McGee court concluded that the aggravated discharge involved conduct with a different felonious purpose from the conduct that killed the baby. 801 N.E.2d at 952 – 953.

However, the Shafer court disagreed with the McGee court’s implication that transferred intent constituted an independent felonious purpose. 2020 IL App (4th) 180343 at ¶41. The O’Neal court likewise noted that the law already deemed that if a defendant intended to kill an individual, then he or she is deemed to have intended to kill the innocent bystander. 2016 IL App (1st) 132284 at ¶59.

The Shafer court further explained that, in a “bad-aim” case, the question was whether the defendant had an independent felonious purpose. The court said that the answer was “no” because, under the murder statute, the felonious purpose was to kill that individual or another. Thus, it was the same purpose regardless of whether the intended victim or an unintended victim was killed. 2020 IL App (4th) 180343 at ¶35.

After analyzing the above conflicting precedent, the Shafer court concluded that the jury found that the defendant had the intent to kill someone because they found him guilty of second-degree murder. This was because the defendant intended to kill someone when he shot through the door. 2020 IL App (4th) 180343 at ¶52.

However, the court reiterated that the Illinois Supreme Court held long ago in People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 911 (1975), that felony murder does not include an intent to kill. 2020 IL App (4th) 180343 at ¶47. The predicate felony is possible only when there is no intent to kill. Id., citing People v. Boyd, 356 Ill.App.3d 254, 825 N.E.2d 364, 369, 292 Ill.Dec. 108 (4th Dist. 2005). Accordingly, the Shafer court elected to follow Boyd and O’Neal over Figuerora and McGee.

Since the Shafer’s intent to kill was mitigated to second-degree murder, then the intent to kill did not allow for a predicate felony. Therefore, there could not be a felony murder conviction. 2020 IL App (4th) 180343 at ¶52.

Prosecutors and defense attorneys should familiarize themselves with the caselaw about felony murder based on aggravated discharge to determine whether their respective cases fit a potential felony murder scenario. Since there is a split of authority on what constitutes an independent felonious purpose and when aggravated discharge can be the predicate felony for felony murder, trial courts should follow the precedent of the appellate court of their district. Otherwise, trial courts can follow the precedent that they feel is correct if there is a conflict. See Sidwell v. Griggsville Community School District 4, 208 Ill.App.3d 296, 566 N.E.2d 838, 840, 152 Ill.Dec. 961 (4th Dist. 1991) (discussing which precedent courts must follow).


Adam Bolotin, Pissetzky Law, LLC, Chicago | 312-883-9466
Matthew Chivari, Student at DePaul University College of Law

Fourth Amendment Stops and Arrests in Concealed Carry Era

The standards governing when police officers have authority to stop citizens should be engrained in all lawyers’ subconscious. Even those who hold the vaguest memories of law school criminal procedure should remember that the Fourth Amendment protects citizens from unreasonable searches and seizures. U.S.CONST. amend. IV. When those protections kick in and to what extent, however, is not as simple, even for those practicing criminal law. Factor in Illinois’ everchanging gun laws that regulate who can possess a firearm and under what circumstances, and the point at which an investigation of a person armed with a gun becomes unreasonable is more difficult to discern. Thankfully, a stream of appellate court decisions has provided clarity.

Before diving in, a refresher on Fourth Amendment basics is important. The Fourth Amendment’s “ ‘essential purpose’ . . . is to impose a standard of reasonableness upon the exercise of discretion by government officials,” including police officers. People v. Jones, 215 Ill.2d 261, 830 N.E.2d 541, 548, 294 Ill.Dec. 129 (2005). Reasonableness is always at the forefront of Fourth Amendment analysis. Accordingly, not every police encounter with citizens ripens into a formal “seizure” that implicates Fourth Amendment protections. Indeed, before determining whether officers had the requisite authority to stop an individual, courts must first determine what type of seizure occurred, if one occurred at all. Courts divide police encounters into three tiers based on the officer’s degree of intrusion on an individual’s liberty to go about his or her day: (1) full-blown arrests that must be supported by probable cause; (2) brief investigatory Terry stops (see Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968)), which require only reasonable articulable suspicion of criminal activity; and (3) consensual encounters that involve no show of authority or compelled response by the police and therefore do not implicate the Fourth Amendment or its protections. People v. Flunder, 2019 IL App (1st) 171635, ¶25.

Unfortunately, there is no bright-line test that distinguishes Terry stops from full-blown arrests. People v. Vasquez, 388 Ill.App.3d 532, 902 N.E.2d 1194, 1207, 327 Ill.Dec. 808 (1st Dist. 2009). Instead, courts turn to a non-exhaustive list of several factors, commonly referred to as the Ludemann factors (see People v. Ludemann, 222 Ill.2d 530, 857 N.E.2d 187, 306 Ill.Dec. 94 (2006)), which include (1) the time, place, length, mood, and mode of the encounter; (2) the number of officers present; (3) whether the officers used handcuffs or weapons or otherwise formally restrained the individual; (4) the officers’ intent; (5) whether the officers told the individual he or she did not have to cooperate or that he or she was free to leave; (6) whether the officers transported the individual anywhere; and (7) whether the officers told the individual that he or she was under arrest. 902 N.E.2d at 1209.

After determining the type of Fourth Amendment seizure, courts then weigh whether the circumstances facing the officer satisfy the appropriate standard: either probable cause for a full-blown arrest or reasonable suspicion for a Terry stop. Probable cause exists “where the facts known to the officer at the time would lead a reasonable person standing in his shoes to conclude that a crime has been committed and that [person] committed that crime.” People v. Surles, 2011 IL App (1st) 100068, ¶28, 963 N.E.2d 957, 357 Ill.Dec. 559. This probability need not rise to the level of proof beyond a reasonable doubt but must be “more than bare suspicion.” People v. Jones, 215 Ill.2d 261, 830 N.E.2d 541, 551, 294 Ill.Dec. 129 (2005). Reasonable suspicion is less than probable cause but must be more than a hunch and supported by specific articulable facts. People v. Williams, 2016 IL App (1st) 132615, ¶¶44 – 45, 62 N.E.3d 318, 407 Ill.Dec. 73.

Notably, the circumstances must support the belief a crime has been committed. When analyzing the constitutionality of gun-related investigations, the “crime” requirement is at the forefront because Illinois law no longer criminalizes the mere possession of a firearm outside one’s home. People v. Aguilar, 2013 IL 112116, 2 N.E.3d 321, 377 Ill.Dec. 405. In 2013, the Illinois legislature enacted the Firearm Concealed Carry Act, 430 ILCS 66/1, et seq. The act permits any person issued a valid Concealed Carry License (CCL) to “(1) carry a loaded or unloaded concealed firearm, fully concealed or partially concealed, on or about his or her person; and (2) keep or carry a loaded or unloaded concealed firearm on or about his or her person within a vehicle.” 430 ILCS 66/10(c). In 2015, the Illinois legislature enacted P.A. 99-29 (eff. July 10, 2015), which amended the unlawful use of weapons (UUW) statute, 720 ILCS 5/24-1. Under the revised statute, a person does not violate the UUW statute if he or she transports a firearm under one of the following conditions: (1) the firearm is broken down in a nonfunctioning state; (2) the firearm is not immediately accessible; (3) the firearm is unloaded or enclosed in a case; or (4) the firearm is “[c]arried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act.” 720 ILCS 5/24-1(a)(4).

These amendments to the UUW statute and the Illinois Supreme Court’s decisions recognizing the right to possess a gun outside one’s home drastically altered how courts review Fourth Amendment motions. People v. Wilson, 2020 IL App (1st) 170443, ¶33 (“Suspicion and presumption of illegality are no longer the default for officer observation of gun possession on private property.”). Rather, to effectuate a lawful Fourth Amendment seizure, “the police needed probable cause to believe, not only that defendant possessed a gun, but that his possession was illegal.” [Emphasis added.] People v. Thomas, 2019 IL App (1st) 162791, ¶23, 143 N.E.3d 1199, 437 Ill.Dec. 107. When sufficient probable cause exists to support the belief that a person is illegally possessing a firearm is incredibly fact specific, a threshold that luckily has become clearer in recent years.

The First District’s decision in People v. Craine, 2020 IL App (1st) 163403, provides a good starting point. In Craine, the officer heard gunshots, began driving his unmarked squad car toward the area he believed the gunshots came from, and saw Craine standing on a porch. 2020 IL App (1st) 163403 at ¶31. Craine looked in the officer’s direction, “[p]lac[ed] his right hand on his right hip as if he was trying to conceal something,” and tried to enter the house. 2020 IL App (1st) 163403 at ¶31. Craine’s holding of his right side led the officer to believe that he “might have a gun on him,” so he ran after Craine. Id. Crain attempted to close the door to the house, but the officer pushed through, placed Craine in handcuffs, and frisked him. Id. Although the officer found no weapon or contraband on Craine during the frisk, additional officers subsequently entered the home, searched it, and seized a firearm and cannabis from Craine’s bedroom. 2020 IL App (1st) 163403 at ¶¶11, 18. Craine moved to suppress the firearm and cannabis, arguing the officers had no basis to believe he committed any crime and therefore had no reason to enter his home and conduct the search. The trial court denied the motion, and Craine appealed.

Analyzing Craine’s argument, the First District held the circumstances “were insufficient to suggest that [Craine] had committed or was committing a crime and thus that probable cause to arrest existed.” 2020 IL App (1st) 163403 at ¶32. Specifically, the officer had no basis to believe Craine had anything to do with the gunshots; the officer saw Craine after hearing the shots, believed Craine was at least a block or two away from where the shots occurred, did not see a gun in Craine’s hand, and did not have any indication that Craine fired the shots. 2020 IL App (1st) 163403 at ¶32. The officer’s observations, the court held, boiled down to Craine merely being present in an area of criminal activity, which is insufficient to establish probable cause. Id. Similarly, the court reasoned Craine’s “flight” into his home was “not sufficient to establish even the reasonable suspicion necessary” to support a Terry stop and therefore could not provide a basis to arrest him. 2020 IL App (1st) 163403 at ¶33, citing In re D.L., 2017 IL App (1st) 171764, ¶29, 147 N.E.3d 114, 438 Ill.Dec. 845, and People v. Harris, 2011 IL App (1st) 103382, ¶15, 957 N.E.2d 930, 354 Ill.Dec. 336.

While Craine held that the suspect’s grabbing of his waist and flight did not amount to probable cause or reasonable suspicion of a crime, the First District rejected a clearer observation of a gun in Wilson, supra. The court held that officers observing the defendant openly carry a firearm on private property did not amount to probable cause to stop because the officers had no reason to believe the defendant was not the property owner or invitee. 2020 IL App (1st) 170443 at ¶¶29, 33, citing 720 ILCS 5/24-1(a)(10)(iv) (concealed carry permit required only when person is not “on his [or her] land or in his [or her] own abode . . . or on the land or in the legal dwelling of another person as an invitee with that person’s permission”). However, the defendant’s subsequent flight from the officers, which went through multiple properties, provided the officers with probable cause to believe the defendant openly carried the firearm across multiple properties in violation of the UUW statute. 2020 IL App (1st) 170443 at ¶32.

Circumstances providing mere suspicion of gun possession alone, as weighed in Craine and Wilson, are plainly distinguishable from cases like People v. Thomas, 2019 IL App (1st) 170474, 129 N.E.3d 584, 432 Ill.Dec. 366. In Thomas, the investigating officers had suspicions not that Thomas simply possessed a gun, but that he did so illegally. 2019 IL App (1st) 170474 at ¶40. The officer observed Thomas flee into an apartment building while holding a handgun and hand the gun to another person, who promptly threw it as Thomas continued to flee into a second-floor apartment before closing the door behind him. 2019 IL App (1st) 170474 at ¶¶4 – 7. These circumstances, the court held, amounted not only to reasonable suspicion but also to probable cause to believe that Thomas did not possess a Firearm Owners Identification (FOID) Card or CCL. 2019 IL App (1st) 170474 at ¶38. The court further held Thomas’s transfer of the gun to the second individual and possession of the gun in a semi-public place provided the officers additional probable cause to believe that he violated additional sections of the Firearm Owners Identification Card Act, 430 ILCS 65/0.01, et seq., and Firearm Concealed Carry Act. Id.

The First District used a similar statutory application when an officer observed an individual possess a gun within a vehicle in People v. Balark, 2019 IL App (1st) 171626, 147 N.E.3d 811, 439 Ill.Dec. 136. There, the officer initiated a traffic stop after observing a vehicle run a red light. 2019 IL App (1st) 171626at ¶5. After approaching the vehicle, the officer saw Balark, who was seated in the vehicle’s passenger seat, place a black pistol with an extended magazine into the glove compartment. 2019 IL App (1st) 171626at ¶38. The officer subsequently searched the glove compartment and seized a firearm and some cannabis. 2019 IL App (1st) 171626at ¶10. Balark appealed and argued the trial court should have suppressed the weapon because the officer had no basis to believe his possession of the weapon was unlawful when he arrested him and later seized the firearm. 2019 IL App (1st) 171626at ¶34.

The First District disagreed. Reviewing the UUW statute, the court stressed that Illinois does not permit the open carry of firearms from within a vehicle. 2019 IL App (1st) 171626at ¶58. More specifically, and as detailed above, Illinois law permits only concealed carry license holders to possess concealed firearms on or about their person while in a vehicle. 2019 IL App (1st) 171626at ¶67. Because the officer observed the defendant hold the firearm in his hand, move it about the vehicle, and then place it inside the glove compartment, the court held Balark plainly failed to follow the statute’s requirement to keep the firearm concealed while in the vehicle. Thus, even if the officer had no reason to believe Balark did not possess a FOID Card and CCL, the officer had more than probable cause to believe that Balark violated the UUW statute to lawfully arrest him and seize the weapon. 2019 IL App (1st) 171626at ¶72.

Though most cases generally analyze Fourth Amendment standards following a seizure, it is important to remember Fourth Amendment protections against unreasonable searches do not disappear during consensual encounters. Upholding these protections, the First District weighed whether officers have the authority to frisk an individual and disarm him or her to protect their safety during consensual encounters in Flunder, supra.

Officers saw Flunder standing at the driver’s side door of a vehicle parked next to a gas pump at a gas station. 2019 IL App (1st) 171635 at ¶5. The officers pulled up to him and asked what his business at the gas station was and whether the vehicle belonged to him. Flunder replied that the vehicle belonged to his cousin, and the officers asked if he had a driver’s license. During the conversation, Flunder fidgeted with his clothes and bent down out of the officer’s sight. Id. “[O]ut of ‘fear for [his] safety,’ ”the officer walked around the vehicle and frisked Flunder. 2019 IL App (1st) 171635 at ¶¶6 – 8. During the frisk, the officer felt what he believed to be a firearm and asked Flunder what it was. Flunder responded that it was a “pea shooter.” 2019 IL App (1st) 171635 at ¶6. The officer reached into Flunder’s pocket and seized the firearm. Id. After the officer removed the firearm, Flunder did not produce a valid FOID Card or CCL. 2019 IL App (1st) 171635 at ¶8.

Flunder was subsequently charged and moved to the suppress the weapon, arguing the officer had no reasonable grounds to stop or search him. The trial court granted the motion, and the state appealed. On appeal, the First District first stressed that Terry protective pat-downs must be preceded by the right to make a stop, either via reasonable suspicion or probable cause. 2019 IL App (1st) 171635 at ¶34. If the officer lawfully effectuates a constitutional Fourth Amendment seizure, the officer may perform the protective pat-down only if the officer develops reasonable suspicion that the person is armed and dangerous. Id.

With these standards in mind, the court held that an officer’s mere belief that the person is “presently armed” does not support the right to frisk because Illinois law allows individuals to carry concealed firearms if they possess a valid concealed carry license. 2019 IL App (1st) 171635 at ¶27. The court further asserted that an officer need not frisk a person he or she is consensually speaking with to protect himself or herself because “the officer may protect himself by not engaging in the confrontation.” 2019 IL App (1st) 171635 at ¶34, quoting People v. F.J., 315 Ill.App.3d 1053, 734 N.E.2d 1007, 1012, 248 Ill.Dec. 716 (1st Dist. 2000). Moreover, the court reiterated that prior cases unsparingly have held that frisks convert consensual encounters into at least Terry stops, thereby requiring officers to develop reasonable suspicion to continue the encounter prior to frisking. 2019 IL App (1st) 171635 at ¶35, citing In re Mario T., 376 Ill.App.3d 468, 473, 875 N.E.2d 1241, 314 Ill.Dec. 954 (1st Dist. 2007), and People v. Wells, 403 Ill.App.3d 849, 857 (1st Dist. 2010).

Rejecting the state’s initial argument, the Flunder court stressed that the question is not whether the person is presently armed but whether the officer reasonably believes the person is dangerous, i.e., that the officer reasonably fears for his or her or others’ safety. 2019 IL App (1st) 171635 at ¶36. Even if the officer had reasonable suspicion to effectuate the prerequisite stop, the court held nothing Flunder did substantiated the officer’s claimed reasonable belief that Flunder was armed and dangerous to support the frisk’s constitutionality.

Flunder’s reaching toward his pants pocket was a simple response to the officer’s request for his driver’s license. Id. As for Flunder bending down out of the officer’s view, the court highlighted that the officer quickly walked around the vehicle and stood directly in front of Flunder before frisking him. 2019 IL App (1st) 171635 at ¶37. When the officer did so, he did not draw his weapon, did not ask Flunder to put his hands in the air or on the vehicle, and did not see Flunder fidget or reach toward his pocket, run, or flee. Id. Finally, Flunder’s admission to possessing a gun during the search did no better because, as detailed above, it is perfectly legal to possess a gun and carry it concealed if the person has a FOID Card and CCL. 2019 IL App (1st) 171635 at ¶38. The officer, however, never asked Flunder whether he had either card before frisking or retrieving the weapon. Id. Therefore, the officer had no basis to believe Flunder possessed the gun illegally or dangerously at the time of the frisk. Id. These facts, the court held, did not support a finding “that the officer’s fear was reasonable.” 2019 IL App (1st) 171635 at ¶39. Accordingly, the gun was properly suppressed. Id.

When reviewing motions to suppress guns, judges are asked to enter orders that allow those caught illegally possessing a weapon to go free, an undoubtedly more difficult request to grant as gun violence tears through cities like Chicago. Speaking to this tall task, the Flunder court stressed, while “suppression may seem like a drastic remedy,” courts have no ability to “know how many men, if any, were stopped before one was found with a gun because only the ones who are charged move to suppress.” 2019 IL App (1st) 171635 at ¶40. “The Fourth Amendment,” the court continued, “is a blunt-edged sword,” it must protect those “with contraband and the ones without it.” Id.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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