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QUESTION 5
Don has owned Don's Market in the central city for twelve years. He has been robbed and burglarized ten times in the past ten months. The police have never arrested anyone. At a neighborhood crime prevention meeting, apolice officer told Don of the state's new "shoot the burglar" law. That law reads:
Any citizen may defend his or her place of residence against intrusion by a burglar, or other felon, by the use of deadly force.
Don moved a cot and a hot plate into the back of the Market and began sleeping there, with a shotgun at the ready. After several weeks of waiting, one night Don heard noises. When he went to the door, he saw several young men running away. It then dawned on him that, even with the shotgun, he might be in a precarious position. He would likely only get one shot and any burglars would get the next ones. With this in mind, he loaded the shotgun and fastened it to the counter, facing the front door. He attached a string to the trigger so that the gun would fire when the door was opened. Next, thinking that when burglars enter it would be better if they damaged as little as possible, he unlocked the front door. He then went out the back window and down the block to sleep at his girlfriend's, where he had been staying for most of the past year.
That same night a police officer, making his rounds, tried the door of the Market, found it open, poked his head in, and was severely wounded by the blast. Don is charged with assault and battery.
QUESTION:
Discuss Don's potential defenses.
DISCUSSION FOR QUESTION 5
- Don lacked the mens rea for Assault^ Criminal assault includes both a specific intent to commit a battery, and a battery that is otherwise unprivileged committed with only general intent. Perkins and Boyce, Criminal Law, 2d ed, Foundation Press at 173. As Don intended the act, he had the necessary mind set for assault unless his act was otherwise excused. If Don committed an unprivileged assault on his victim, the fact that his victim turned out to be a police officer is not a defense to the charge of Assault. See States v. Feola, 420 U.S. 671 (1975). (^) I.
- Defense of Self and of^ P r o ~ e r t v^ All jurisdictions excuse the use of deadly force in the reasonable apprehension of imminent and serious bodily harm. & Perkins sunra at 11 13. Since Don was not on the premises defendmg himself at the time of the shooting, however, harm to himself was not imminent.
At common law and in the majority of jurischctions, defense of property does not excuse deadly force unless there is an imminent risk to the person. Perkins s w r a a t 11 15. Once again, no such risk appears here.
- "Shoot the Burglar" Defense. This applicability of this defense hinges on both a mistake of fact -- that a burglar would be shot -- and a mistake of law -- that the grocery was his residence.
c. Mistake of fact.^ Don believed the^ intrGder^ would be a burglar. Had it been a burglar, his act would arguably have been privileged under the shoot-the-burglar statute. Whether it would or would not have been so privileged, however, the mistake of fact defense generally requires an objectively reasonable belief in the fact mistaken. Perkins and Boyce, sunra at 1046. The MPC makes an exception where the mistake negates. mens rea; MPC 2.04; this exception is not applicable here, see Answer 1, above. If the trier of fact finds Don unreasonable in his belief that a burglar would be shot, this defense is unavailable. If on the other hand Don is found reasonable in his belief, it only avails him if in fact he also qualified under the shoot-the-burglar statute.
d. Mistake of Law. The shoot-the-burglar statute enables a citizen to defend his or her "residence." If Don's grocery, under these facts, was his residence, then this defense might work. If it was not, however, (he had been, under the facts, living elsewhere with his girlfriend), although Don reasonably believed it was, his mistake was one of law. At common law and in the majority of jurisdictions, a mistake of law will not releive one of criminal liability. Perkins, sunra at 1029. Don may argue an exception here, however. The Model Penal Code provides for a mistake of law when made in reasonable reliance upon an official, if erroneous statement of law made by a public officer charged with its enforcement, Model Penal Code Sec. 2.04(3)@),in Don's case the police officer. This defense is doubtful, however, because, under the facts given, although the officer informed Don of the shoot-the-burglar statute, there is no evidence the officer said anything to Don about his residence.
QUESTION 1
Matthew asked Drake if he could buy a gun from him. Drake agreed to sell a gun to Matthew at an agreed upon price. Later, Drake and his friend John decided they would only pretend to sell Matthew the gun. Their intent was to "rip off" Matthew. They figured they would point the gun at Matthew and scare him into letting them keep the money and the gun.
The next day, Matthew, Drake, and John met to complete the transaction. They got into Matthew's car and drove to a nearby parking lot. Matthew gave Drake the money and Drake gave the gun to Matthew. Drake then told Matthew that he wanted to show Matthew an interesting feature, and asked Matthew to give the gun back to him. Matthew complied. Drake then loaded the gun, and he and John got out of the car with the money and the gun. Drake pointed the gun at Matthew's head and said 'You better not say anything about this to anybody." At that moment the gun fired, killing Matthew.
QUESTION:
Discuss what common law felony crimes Drake could be charged with, and what arguments he might make to counter those charges. (The jurisdiction where the trial is to be held follows the majority rule.)
DISCUSSION FOR QUESTION 1
Drake could be charged with the following common law felonies: conspiracy to commit robbery, robbery, felony murder, and murder. With respect to the murder charge, Drake might more appropriately be convicted of the lesser included offense of manslaughter. If convicted of all crimes charged, the murder or manslaughter and robbery convictions would merge into the felony murder conviction. The conspiracy conviction would not merge into the robbery or felony murder convictions.
The elements of conspiracy are: (1) an agreement between two or more people, (2) with the specific intent to enter an agreement, and (3) with the specific intent to commit a crime. The majority rule is that the conspirators must also commit an overt act in furtherance of the conspiracy. Wharton's Criminal Law (15th Edition), $ 8 678-684.
Here, Drake and John expressly agreed to sell Matthew a gun and then to retain both the money and the gun. The day after they entered into their agreement, they acted on their plan, thus committing overt acts in furtherance of the conspiracy.
Robbers
The elements of robbery are: a taking of the property of another person from his person or in his presence by force or intimidation and without his consent with the intent to permanently deprive the victim of the property. The threats must be of immediate death or serious physical injury to the victim, and must be made either before or immehately after taking the property. Wharton's Criminal Law (15th Edition), 55 454, 455, 457-63.
Here, after selling Matthew a gun and accepting his money, the gun became Matthew's property. Drake took the gun back with the intent to permanently deprive Matthew of the gun (contrary to his representation that he only wanted to show Matthew a feature of the gun, Drake never intended to give the gun back to Matthew). And, although Matthew gave the gun back to Drake when Drake said he wanted to show Matthew a feature of the gun, Matthew did not consent to letting Drake keep the gun permanently. Drake took the gun from Matthew's person, and pointed the gun a t his head while cautioning him not to say anything, thus satisfying the requirement that the property be taken by force or threat.
Some examinees might argue that Drake is guilty of larceny rather than robbery. The elements of larceny are: the taking and carrying away (asportation) of the property of another without the victim's consent and with the intent to permanently deprive him of the property. The primary difference between larceny and robbery is that robbery involves the use of force or threats, while larceny does not. Here, Drake clearly used threats to steal the gun, so is guilty of robbery.
DISCUSSION FOR QUESTION 1
Page Three
would exercise under the circumstances. To determine whether a person acted negligently, an objective standard is used. Here, a t the very least, by pointing a loaded gun a t Matthew's head, Drake ignored the substantial risk that Matthew would be shot. 2 Wharton's Criminal
- Law (15th Edition),^^99 168, 169, 171.
Lesser included offenses merge into greater offenses. A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime.
Here, if Drake were convicted of all crimes charged (conspiracy to commit robbery, robbery, felony murder, and murder or manslaughter), some of his convictions would merge. Specifically, because the robbery was the underlying felony for the felony murder conviction, it is a lesser included offense of felony murder, and would merge into the felony murder conviction. Boulies v. People, 770 P.2d 1274 (Colo. 1989).
Moreover, a criminal defendant cannot be convicted of two murder-related charges involving the same victim. (^) People v. Hickham, 684 P.2d 228 (Colo. 1984). In addition, murder and manslaughter are lesser included offenses of felony murder. Thus, if Drake were convicted of either murder or manslaughter in addition to felony murder, the murder or manslaughter conviction would merge into the felony murder conviction. People v. Hickham, suma.
Conspiracy does not merge with the completed offense. Thus, conspiracy conviction would not merge into either the felony murder or robbery convictions.
- Recognition of Conspiracy Issue
Seat score )I( Please use blue or black Den
la. A n^ agreement between two or more people with the intent to commit a crime requiring overt act.
and write numbers clearly
- Recognition of Larceny Issue 2.
2a. Wrongful taking and carrying away of another's property with intent to permanently deprive. 2a.
- Recognition of Robbery Issue
3a. Taking property from the presence of another by force or intimidation and with intent to permanently deprive. 3a.
- Recognition of Assault Issue 4.
4a. Attempted battery or intentional creation of reasonable fear of imminent bodily harm. 4a.
- Recognition of Murder Issue 5.
5a. Kdling of another with malice aforethought.
5b. Malice aforethought can be established by intent to kill, intent to seriously injure, depraved heart, or felony murder. 5b.
6. Recognition of Involuntary Manslaughter Issue
6a. Kdling^ of another with criminal negligence.
7. Recognition of Merger Issue
DISCUSSION FOR QUESTION 2
- Possible C r i m e s
Darrell potentially is guilty of either murder or manslaughter, and burglary.
A. M u r d e r
Elements of Crime
Murder is the unlawful killing of a human being with malice aforethought. 2 Wharton's Criminal Law (15th Edition), $5 114 and 139; Model Penal Code, 5 210.2.
In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the defendant has the intent to kill, or the intent to inflict great bodily injury. 2 Wharton's Criminal Law (15th Edition), 5 139. Intentional use of a deadly weapon gives rise to a permissive inference of intent to kill. Wilson v. State, 832 S.W.2d 777 Vex. App. 1992); Peonle v. Muldrow, 332 N.E.2d 664 (Ill. App. 1975); see also 2 Wharton's Criminal Law (15th Edition), 5 141.
Here, unless Darrell acted under a sudden heat of passion & Section B, infra), the
state should be able to prove the elements of murder without difficulty. Darrell killed Victor, another human being. When Darrell fired the gun (a deadly weapon) a t Victim, the most reasonable assumption under these circumstances is that he intended to kill Victor, or a t least cause serious bodily injury to him. Thus, he acted with the requisite malice aforethought.
B. M a n s l a u g h t e r
A killing that otherwise constitutes murder is mitigated to voluntary manslaughter a t common law if it occurs in a "sudden heat of passion." The elements of the provocation mitigator are: (1) the provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person, such as to cause him to lose his self- control; (2) the defendant must have in fact been provoked by the victim; and (3) there must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool off. With respect to the third element, the provocation need not occur immediately before the act causing death, and the fact finder should consider the particular emotional state of the defendant, the nature of the provocation, and the attendant circumstances. Coston v. Peonle, 633 P.2d 470 (Colo. 1981); Peoi~lev. Wadlev, 890 P.2d 15 1 (Colo. App. 1994); see also 2 Wharton's Criminal Law 45 155-57, 166; Model Penal Code, 8 210.3(1)@).
Here, Darrell learned that Victor had molested Kate. This probably constitutes a sufficiently provoking act to arouse a sudden and intense passion in the mind of an ordinary person such a s to cause him to lose his self-control. Thus, the first two elements of the offense will probably be met.
DISCUSSION FOR QUESTION 2
Page Two
Whether the three-day delay between the time Darrell learned of the molestation and the time he killed Victor was a suficient interval to allow a reasonable person to function rationally after having been severely provoked is a more difficult question, though the answer is probably yes.
At common law, the elements of burglary are an unlawful breaking and entry into a dwelling of another person a t night with the intent to commit a felony therein. United States v. Brandenburg, 144 F.2d 656 (3rd Cir. 1944); Sanchez v. P e o ~ l e ,142 Colo. 58, 349 P.2d 561 (1960); see also 3 Wharton's Criminal Law 55 316-19, 328; Model Penal Code, 8 221.1. A "breaking" requires only minimal force, and it is enough if the defendant merely opens a closed but unlocked door. United States v. Evans, 415 F.2d 340 (5th Cir. 1969); see
-^ also^^3 Wharton's Criminal Law, 15th Edition)^ 8318.^ Because Darrell's relationship with Victor was already estranged, and the two men had not spoken for over a year, we can assume t h a t Darrell did not have Victor's consent to enter his house. Darrell's entry into Victor's house on Monday night satisfies the requirement of an unlawful breaking and entry into the dwelling of another a t night.
Darrell might claim that, when he entered Victor's house, he did not intend to kill Victor, but only to confront him about his having molested Kate. The fact that Darrell had a gun, however, suggests t h a t he a t least intended to commit assault by using the gun to threaten Victor with serious bodily harm, if not to kill him. Moreover, if a felony is actually committed, the fact-finder may infer that the defendant intended to commit the felony a t the time of the breaking and entry. Davis v. State, 165 So.2d 918 (Ala. App. 1969); State v. Rood, 462- P.2d 399 (Ariz. App. 1969); 3 Wharton's Criminal Law (15th Edition), 8 328. Thus, Darrell will probably be found guilty of burglary.
2. Possible Defenses
There are no defenses (other than denial of the elements of the charged offenses) available to Darrell. Darrell, however, might seek to defend the murderimanslaughter charge by asserting the defense-of-another defense. More specifically, he might claim that he was acting to protect Kate from Victor. Under the defense-of-another defense, a person is justified in using deadly force to protect another person from a n imminent unlawful deadly attack. However, a defendant h a s the defense of defense of others only if he reasonably believed or it reasonably appeared to him that the person he assisted had the legal right to use force in her own defense. A person may use deadly force in self-defense if she is: (1) without fault, (2) confronted with unlawful force, and (3) threatened with imminent death or great bodily harm. A person may not use deadly force to defend herself if harm is merely threatened a t a future time. Peonle v. Hawthorne, 190 Colo. 437, 548 P.2d 124 (1976); see &, a 2 Wharton's Criminal Law (15th Edition), $8127 and 130; Model Penal Code, 553. and 3.05.
Seat m
Please use blue or black pen and write numbers clearly
Murder - the killing with "malice aforethought," of another human being.. 1.
Malice aforethought -- 1) intent to kill, 2) intent to cause great bodily injury, 3) "depraved and malignant heart," 4) intent to commit another felony. 2.
Facts support intent to kill or cause great bodily injury. (^) 3.
Killing during the course of burglary amounts to felony murder. 4.
Manslaughter -- the intentional killing, with provocation, of another. (^) 5.
Manslaughter established where provocation sufficient to cause sudden and intense passion; 6.
subjective and objective provocation; and (^) 7.
no cooling off period. 8.
Burglary -- unlawful breaking and entering into the dwelling of another at night with intent to commit felony therein. 9.
Consideration of defense of others.
QUESTION 2
One evening while sitting in a bar, after having had a few drinks, Carrie thought of a way to get some fast cash. She stumbled from the bar to Valerie's house. The house appeared to be empty, so she went to the back door, found it unlocked and went inside where she grabbed some jewelry and cash. Then, in an attempt to cover- up her crime, she poured gasoline around the house, lit a fire, and ran. Unbeknownst to Carrie, Valerie was sleeping inside the house and died in the fire.
QUESTION:
Discuss crimes Carrie may have committed and any defenses to her actions. (Carrie lives in a jurisdiction that follows traditional common law principles.)
DISCUSSION FOR QUESTION 2
Page 2
Potential Defense
The only potential defense that Carrie may raise with regard to the above acts
is that she was voluntarily intoxicated and thus unable to intend to commit any of the
above-mentioned crimes. Generally, voluntarily intoxication is not a defense to any
crime. State v. Davis, 81 Ohio App. 3d 706, 612 N.E.2d 343 (1992). An exception to
the general rule is that voluntary intoxication may be a defense when specific intent
is a necessary element of the charged offense in that the intoxication was significant
enough to preclude the formation of such intent. Id. Voluntary intoxication therefore
may be a defense to the specific intent crimes of burglary and larceny. Nevertheless,
there would have to be proof that Carrie was so intoxicated as to not be able to form
the requisite intent.
Seat (^) - - Score Please use blue or black pen and write numbers clearly
Recognize the crime of burglary 1.
Identify the elements of burglary (breaking and
entering into the dwelling house of another at
night with the intent to commit a felony).
Even though door was unlocked, Carrie's entry constituted
?breaking." 3.
Recognize the crime of larceny. 4.
Identify elements of larceny (the taking and carrying
away of the personal property of another with the
intent to unlawfully and permanently deprive the owner
of its use).
Recognize the crime of arson.
Iden* the elements of arson (the malicious burning of the
dwelling house of another).
Recognize the crime of felony murder.
Iden* elements of felony murder (causing of the death of an
individual in the course of a felony).
Recognize the potential defense of voluntary intoxication.
Recognize that voluntary intoxication applies only to specific
intent crimes.
DISCUSSION FOR QUESTION 7
Murder
The defendant may be guilty of murder. Murder at common law is the unlawful killing of another human being with malice aforethought. The
prosecution must prove beyond a reasonable doubt both that the defendant caused-
death and that he had malice. See generally 4 W. Blackstone, Commentaries on the
Laws of England * 195, 198 (T. Cooley ed. 1884), Joshua Dressler, Understanding
Criminal Law 467 (2d ed. 1995), W. LaFave & A. Scott, Criminal Law 611 (2d ed.
Malice may be established by a) intent to kill (i.e., purpose or knowledge
death will result), b) intent to inflict serious bodily injury (i.e., a grave injury that
impairs health seriously), Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950), Dressler, supra, at 475-76, c) extremely reckless conduct that evidences "a
depraved heart regardless of human life," 4 Blackstone, supra, 199-200;Dressler, supra, at 477-78; LaFave & Scott, supra, at 612-25, or d) intent to commit a felony (felony murder).
In this case malice may be proved by Dixon's intent to kill and his intent to
inflict serious bodily injury. His intent may be inferred from the natural and probable results of his act (the stabbing with the knife), see Dressler, supra, at 471,
though the jury must not be instructed that such inferences are required. Francis v. Franklin, 471 U.S. 307 (1985)(holding that a jury instruction violated due process when it told jury to presume defendant intended natural and probable
consequences of his acts but that presumption could be rebutted, because such an instruction might cause reasonable jurors to conclude that defendant bore burden of proving his own lack of intent, thus shifting the burden of proof from the state).
Manslaughter
The defendant may be guilty of manslaughter. Manslaughter at common law is the unlawful killing of another human being without malice. See ~enerallv id. at 652; 4 Blackstone, supra, 191. A killing may be unlawful yet without malice in one of two ways. First, a killing that would otherwise suffice to establish m a h e may be found to be mitigated by circumstances that establish actual and adequate provocation where the defendant killed in a "heat of passion." (This is voluntary manslaughter.) Second, a killing that would not satisfy any of the criteria of malice
will, nevertheless, be unlawful and constitute manslaughter where the defendant
acted with criminal or culpable negligence in causing the death. (This is involuntary manslaughter.) Dressler, suma, at 468; LaFave & Scott, suma, at 652,
To prove voluntary manslaughter, the state must first prove all the elements for murder. But murder will be mitigated (lowered) to manslaughter if Dixon acted
in a "heat of passion" as a result of actual and adequate provocation. Traditionally,
the state bore the burden of proving absence of provocation in order to prove murder, but it is not unconstitutional for a state to define mitigating circumstances as an f i r m a t i v e defense and to require the defendant prove such provocation. Patterson v. New York, 432 U.S. 197 (1977). The facts may support the inference
that Dixon acted in a rage or "heat of passion" provoked by the victim's conduct, so actual provocation may be present. But at common law, even if he acted in such a rage, this "heat of passion" must result from certain recognized or legally adequate forms of provocation. Provocation is adequate where it is sufficient to arouse a sudden and intense passion in a reasonable person, without sufficient time for cooling off. And a forcible assault by the victim on the defendant would provide legally adequate provocation. LaFave & Scott, suwa, 655-56; Dressler, supra, a t
- In this case, however, Vickers arguably did not assault defendant but rather employed legitimate defensive force in response to defendant's own assault. A defendant who provokes a blow may not claim it as adequate provocation to mitigate homicide to manslaughter. LaFave & Scott, s u m a 655..
Dixon is guilty of involuntary manslaughter if he caused the victim's death with criminal or culpable negligence. At common law, manslaughter is a death that results from an unlawful act or from an act done "in an unlawful manner and without due caution and circumspection." 4 Blackstone, suDra, at * 192. Such criminal or culpable negligence "involves a gross deviation from the standard of care that reasonable people would exercise in the same situation." Dressler, sums, a t 498. Stabbing someone twice with a knife is evidence of (at least) criminal negligence with respect to the resulting death. There is no question that the defendant caused the victim's death; but for his stabbing the victim, the victim would not have died a t this time and in this way. The defendant was also the legal or proximate cause of Victim's death, because the defendant's stabbing caused the victim's death in the natural and continuous sequence of events. Commonwealth v. Rhoades, 401 N.E.2d 342 (Mass. 1980). While foreseeability is not required by all jurisdictions, id., it is present in this case. Moreover, causation is still more readily established for manslaughter because of the general doctrine that "one is guilty of involuntary manslaughter who intentionally inflicts bodily harm upon another person, as by a moderate blow with his fist, thereby causing an unintended and unforeseeable death to the victim... " LaFave & Scott, sunra, 681 (citing many cases).
Defenses
The defense of self defense is available when a defendant who employs deadly force had a reasonable actual belief that he faced the imminent danger of death or great bodily harm. P e o ~ l ev. Lavoie, 155 Colo. 551, 395 P.2d 1001 (1964). Dressler, supra, 200-0 1. In most jurisdictions and at common law there was no retreat requirement: a defendant might stand his ground and employ protective force even if it were possible to flee safely. People v. Lavoie, 395 P.2d 1001 (1964).
