2 Crimes Essay 1 Model (UPDATED)-2.docx

PRACTICE QUESTION 1: MODEL ANSWER 1.a. Dan’s Liability for Art’s Death Common Law Murder At common law, murder is an unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant acts with 1) intent to kill, 2) intent to inflict serious bodily injury, 3) rec...

PRACTICE QUESTION 1: MODEL ANSWER 1.a. Dan’s Liability for Art’s Death Common Law Murder At common law, murder is an unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant acts with 1) intent to kill, 2) intent to inflict serious bodily injury, 3) reckless indifference to an unjustifiably high risk to human life, or 4) intent to commit a felony. There are no facts to suggest that Dan acted with intent to kill, intent to inflict serious bodily injury, or reckless indifference to an unjustifiably high risk to human life. Felony Murder Any death caused during the course of an enumerated felony is murder. Most courts limit the felony murder doctrine to inherently dangerous felonies, such as burglary, or robbery. For malice to be satisfied under the felony murder rule, (1) the defendant must have committed or attempted to commit the underlying felony, (2) the felony must be independent of the killing, (3) death must have been a foreseeable result of the felony, and (4) the killing must have occurred before the defendant had reached a place of temporary safety. Underlying Felony—Robbery Robbery, an inherently dangerous felony, is the taking of personal property of another from the other’s person or presence, by force or threats of immediate death or physical injury to the victim, with the intent to permanently deprive him of it. Here, Bert took $750 from the cash register at Vince’s Convenience Store while Dan and Art pointed guns at Vince. Although Bert did not take the money from Vince by force, pointing a gun at Vince is a threat of immediate death. Running out of the store with the money, indicates that Dan, Art, and Bert intended to permanently deprive Vince of his $750. Therefore, Dan, Art, and Bert committed a robbery, which satisfies the underlying felony element of the felony murder rule. Felony Is Independent of the Killing Here, the underlying felony, robbery, is independent because a killing is not a necessary element of robbery and a robbery is not a necessary element of homicide. Death Was Foreseeable Art’s death was foreseeable because the robbers used deadly weapons (guns) in order to commit the robbery. Thus, it would be reasonable to expect the robbers, the victim, or bystanders could be seriously injured if those guns were actually fired, or if a victim used a gun to defend herself. Defendant Hadn’t Reached Temporary Safety Here, Art was killed while fleeing the scene of the crime. Because the felons were still fleeing, they had not yet reached a place of temporary safety. Redline Exception to Felony Murder Under the Redline exception, which is followed in most jurisdictions, the defendant is not liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police. Dan, Art, and Bert were co-felons, yet it was Vince, the robbery victim, who shot and killed Art as they were making their escape. Therefore, because he was killed in an act of resistance by the victim, Dan will not be liable for Art’s death even though he meets the other elements of the felony murder rule. For the reasons explained above, Dan cannot be convicted of common law murder on these facts. First Degree Murder First degree murder, although defined by statute, most often refers to an intentional killing that is deliberate and premeditated. As explained above, Dan did not kill Art so Dan did not act with premeditation and deliberation. Therefore, Dan could not properly be convicted of first degree murder for Art’s death. Second Degree Murder Most statutes define second degree murder as all murder that is not first degree murder. Because the second degree murder analysis is the same as the analysis for common law murder (above), Dan could not properly be convicted of second degree murder, either. For the reasons discussed above, Dan could not be convicted of either first degree or second degree murder for Art’s death. 1.b. Dan’s Liability for Bert’s Death Common Law Murder See rule above. Intent to Kill Intentionally using a deadly weapon, such as a gun, permits an inference of intent to kill. Here, Dan probably intended to kill Bert when he shot and killed him. Therefore, Dan acted with intent to kill when he shot Bert. Intent to Inflict Serious Bodily Injury In addition, Dan likely shot Bert with to inflict serious bodily injury. A gun is a deadly weapon, and only minimal effort is required to cause serious injuries. Pointing a gun at Bert and shooting him at close range increases the likelihood that serious injuries would result. Therefore, Dan acted with intent to inflict serious bodily injury when he shot Bert. Reckless Indifference Dan also acted with reckless indifference to an unjustifiably high risk to human life. Pulling out a loaded gun increases the likelihood that someone will be seriously injured, which shows reckless indifference to an unjustifiably high risk to human life. Felony Murder The felony murder rule would not apply to Bert’s death because Dan and Bert had already reached the safety of Chuck’s house since they were dividing up the robbery proceeds when the dispute arose. Conclusion: Dan could be convicted of common law murder because he unlawfully killed Bert with malice aforethought. First Degree Murder As explained above, Dan cannot be convicted of first degree murder unless the killing was deliberate and premeditated. Deliberate means the defendant made the decision to kill in a cool and dispassionate manner. Premeditated means the defendant actually reflected on the idea of killing, even if only for a brief period. Dan shot and killed Bert after becoming “enraged,” which implies that he did not make the decision in a cool and dispassionate manner. Although premeditation can occur in a short time, there is nothing to suggest that Dan actually reflected on the idea of killing Bert. It wasn’t until Bert insisted on taking most of Dan’s share of the robbery proceeds for himself that Dan became angry enough to shoot him. Due to the spontaneity of the shooting, Dan cannot be convicted of first degree murder on these facts. Second Degree Murder As explained above, Dan killed Bert with malice aforethought because he acted with intent to kill, intent to cause serious bodily injury, as well as reckless indifference to an unjustifiably high risk to human life. Because only one theory is necessary to satisfy the malice requirement Dan met the requirements for second degree murder when he shot Bert. Therefore, unless there are mitigating circumstances to reduce the murder to voluntary manslaughter, Dan could be convicted of second degree murder. Voluntary Manslaughter Voluntary manslaughter is an intentional killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: (1) it was a provocation that would arouse a sudden and intense passion in the mind of an ordinary person, causing him to lose self-control, (2) the defendant was in fact provoked, (3) there was not sufficient time between the provocation and the killing for the passions of a reasonable person to cool, and (4) the defendant in fact did not cool off between the provocation and the killing. Dan would have a hard time showing that a disagreement over money would arouse sudden and intense passion in the mind of an ordinary person, especially since Bert offered a plausible reason for believing he deserved a greater share of the money than Dan. After all, by using his own car to escape, Bert arguably incurred more risk than Dan and Art. Further, words alone are likely insufficient to constitute adequate provocation. Dan will be able to establish that he was in fact provoked, however, since he became enraged by Bert’s demand for more money. Assuming that Bert’s demand constituted adequate provocation, there did not seem to be enough time between the provocation (Bert’s demand) and the killing to allow a reasonable person to cool off. The division of the robbery proceeds likely was not capable of being put off until a later date, so they couldn’t take time to cool off before resuming negotiations. Further, Dan did not in fact cool off between the provocation and the killing; rather, the disagreement seemed to escalate very quickly, and there was little, if any, time between Dan becoming enraged and actually shooting Bert. Despite being able to show three of the elements, Dan’s crime will not be reduced to voluntary manslaughter because he cannot show that there was adequate provocation. Conclusion: For the reasons discussed above, Dan could not be convicted of first degree murder, but he could properly be convicted of second degree murder. 2. Chuck’s Crimes Accomplice Liability A principal is one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. An accomplice, however, is one who, with intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime. An accomplice is responsible for the crimes she committed or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable. Here, Dan, Art, and Bert were the principals because they all participated in the robbery directly. Dan and Art held the guns and Bert took the money from Vince’s cash register. Because there are no facts to indicate that Chuck knew about the plan to rob Vince’s store, Chuck could not have aided, counseled, or encouraged Dan, Art, and Bert (the principals) before the robbery. Further, Chuck was not even present during the robbery. It appears that Chuck only became aware of the robbery when Dan and Bert went to his house to divide up the stolen money. By that time, the robbery had already been completed, and since one cannot aid in the commission of a completed crime, Bert could not be convicted as an accomplice to the robbery, In addition, given the spontaneous nature of Dan shooting Bert, Chuck likely was unaware that Dan was about to commit murder, so he could not have aided, counseled, or encouraged Dan (the principal) before he shot and killed Bert. Mere presence at the scene of a crime will not automatically result in accomplice liability, and therefore, Chuck may not be convicted as an accomplice in either the convenience store robbery or Bert’s murder. Accessory After the Fact An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that she has committed a felony, in order to help the felon escape arrest, trial, or conviction. The felony must have been completed at the time aid is rendered. Here, Chuck was clearly aware that Dan and Bert had committed the convenience store robbery, which was a felony, because he threatened to tell the police about the robbery unless they agreed to give him a share of the stolen money. Chuck helped Bert and Dan evade law enforcement by providing them with a safe haven, and by agreeing not to tell the police. Therefore, Chuck could properly be convicted as an accessory after the fact. Extortion Extortion is obtaining property from another by means of threats to do harm or expose information. As explained above, Chuck threatened to tell the police about the robbery unless Dan and Bert paid him to keep quiet. Therefore, once Bert gave Chuck $150 in exchange for his silence, the crime was complete and Chuck could be convicted of extortion. Receipt of Stolen Property Receipt of stolen property is receiving possession and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person, with the intent to permanently deprive the owner of his interest in it. Chuck knew the $150 Bert gave him was stolen during the robbery because Dan and Bert were at his house dividing up the stolen money. Since he intended to keep the $150 for himself, Chuck may be convicted of receipt of stolen property. 3. Dan’s Motion to Dismiss 6th Amendment Right to a Speedy Trial The 6th Amendment right to a speedy trial does not attach until the defendant has been arrested or charged. Thus, once Dan was arrested on August 2, 2002, his 6th Amendment right to a speedy trial attached. To determine whether a defendant’s right to a speedy trial has been violated, the court will consider the totality of the circumstances, weighing several factors: (i) the length of the delay; (ii) the reason for the delay; (iii) whether the defendant asserted his right; and (iv) prejudice to the defendant. The remedy for a violation of the defendant’s right to a speedy trial is dismissal with prejudice. Length of the Delay After Dan requested to have the trial on October 15, 2002, the initial trial date was set for January 5, 2003. It is not likely that the denial of Dan’s request for a trial 2½ months after he was charged is a violation of his right to a speedy trial because the court set a date fairly soon thereafter. However, only 2 days before the trial was set to begin, Dan’s trial was continued to September 1, 2003. This 8-month delay is relatively long, especially because Dan had been sitting in jail without bail 13 months from the time he was arrested and formally charged on August 1, 2002. Reason for the Delay One of Dan’s strongest arguments is that the prosecutor’s reasons for delaying the trial are simply not compelling enough to warrant infringing upon his constitutional rights. The prosecutor had known about the upcoming trial for at least 2 ½ months, and he could have planned accordingly. Although it is not entirely clear why the prosecutor’s desire to go on vacation and to attend meetings and legal education classes warranted delaying the trial for 8 months (from January 3 to September 1), these events do not appear to warrant such an extended delay. Thus, the prosecutor’s excuses are not in the interest of justice, and therefore, do not weigh in the prosecution’s favor. Whether the Defendant Asserted His Right Here, Dan waited until September 2, 2003, the day after the trial began, to move to dismiss the charges. Although he objected to the prosecutor’s request to continue on January 3, 2003, Dan did not assert his 6th Amendment right by moving to dismiss the charges until after the trial had begun. This factor will likely weigh against Dan, especially since he was clearly capable of making timely requests to the court, as he did with the request for the October 15, 2002 trial date. Prejudice to the Defendant Dan was denied bail and was, therefore, sitting in jail for 13 months before trial. The prosecutor’s request for a new trial date was granted on January 3, 2003, which was only two days prior to the start of the first scheduled trial date. Consequently, Dan has suffered prejudice in terms of time spent incarcerated without a determination of guilt by a jury. Conclusion: Although three of the factors weigh in Dan’s favor, on balance, the court is likely to give significant weight to Dan’s delay in asserting his right, especially since Dan was capable of making timely requests, as discussed above. Accordingly, Dan’s motion should be denied, and the court should not dismiss the charges against him.