grade of murder requires intentional killing which is killing by means of lying in wait or

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1 Criminal Law 6 Professor Steiker May 11, 2007 Grade: B+ Goyle s killing: I recommend we charge Snape with first degree murder of Goyle. This grade of murder requires intentional killing which is killing by means of lying in wait or deliberate and premeditated killing. When Snape asked Goyle to meet him in the parking lot where her shot Goyle, Snape was likely lying in wait for Snape so that he could kill Goyle. Snape was also willful, intentional and deliberate in his killing of Goyle. This can be inferred from the fact that he took his.22 caliber pistol to meet Goyle, killed him and hid the body so that Lord Voldemont would not make heads roll for the bumper sticker insult. In Pennsylvanis, based on Commonwealth v. Carroll, all you need for deliberation and premeditation is formation of intent to kill and no time is too short for this. Snape had hours. Under the murder statute, either lying in wait or the willful and premeditated killing is sufficient to establish intentional killing, Snape meets both criteria. Therefore, I would so charge him. I recommend we also charge Crabbe with first degree murder based on Pinkerton for the murder of Goyle. Goyle, Crabbe and Snape were clearly engaged in a conspiracy because they agreed to kidnap and did kidnap Dumbledore. Based on Pinkerton, conspirators may be charged with the crimes of their co-conspirators if the crimes are (a) reasonably foreseeable and (b) within the scope of the conspiracy. The killing was in furtherance because they sought, in part, to cover-up discovery of the conspiracy since Crabbe was concerned that Goyle might defect. Crabbe may argue that the killing of Goyle was not reasonably foreseeable. He may argue that the plan was to do a friendly kidnapping whereby no one was supposed to get hurt except perhaps for Dumblefore loosing some sweat. We can argues that it was foreseeable that once they engaged in a serious felony, one serious enough to trigger felony murder liability as defined 1

2 by the legislature, it was foreseeable that people might get injured and possibly killed. We can argue that in addition to being foreseeable at the initiation of the kidnapping, it was also reasonably foreseeable as a result of his actions involving placing the sticker prominently on Goyle s car, getting Snape to come see the car, and then telling Snape what Goyle had said about turning him in. We can rely, to some degree, on cases like Alvarez where courts have held that agreeing before participating in a drug deal that no guns are to be used, but then having one of you co-conspirators produce a gun and kill someone is insufficient to establish that the death was not foreseeable because the crime is inherently dangerous. This charge will be a close call but it is possible that we will win. Since it s close, we should also charge 3 rd degree murder (below). I recommend we also charge Crabbe with third degree murder (Involuntary Manslaughter) for Goyle s death. Crabbe was worried about Goyle defecting and wanted to take care of the problem. He knew that Snape would flip when he saw the sticker and was told of Goyle s suggestions about turning him in. His actions were designed to achieve one goal: take care of the Goyle. He knew that Snape had few options for taking care of Goyle and that Snape was particularly unstable especially when it came to Voldemont. Therefore, his actions in causing Goyle s death were grossly negligent that is, a gross deviation from what a reasonable person would do. Crabbe should not be charged directly with first degree murder because there is no indication that he intended Goyle s death. He should not be charged as an accomplice to first degree murder because purpose is required and there is no indication that he knew it was practically certain that Goyle would be killed. He also should not be charged with second degree murder because Goyle s murder was not committed during commission of a felony or in immediate flight thereafter. 2

3 Snape may present an insanity defense. The insanity defense requires he lack substantial capacity either (a) to appreciate the criminality (wrongfulness) of his conduct [cognitive], or (b) to conform his conduct [volitional] to the requirements of law. However, Snape was clearly aware of what he was doing, understood the significance of his actions and therefore their criminality. There is also no indication that he could not conform his conduct to the law. In fact, there is every indication that he could. Also, all indications are that if he did have a mental disease or defect it manifested itself only by criminal conduct which is a form of insanity that cannot be used as a defense under the MPC. Therefore, there is a good chance that an insanity defense will fail. Snape may also claim duress based on his concern for the head rolling that Voldemont might initiate. This defense will fail because he was not coerced to kill by the use of, or a threat to use, of unlawful force against his person or the person of another. Also, a reasonable person in his situation would not have killed Goyle. Similarly, Snape may claim that he is only culpable for Voluntary Manslaughter-Unreasonable Belief Killing. However, his belief, that Voldemort would make heads roll, even if true, would be insufficient for self-defense or defense of others because deadly force was not immediately necessary based on a reading of reading 3.04(1). Dumbledore s killing: I recommend we charge Snape and Crabbe with second degree murder for the death of Dumbledore. This for of murder may be charged when one causes death negligently while perpetrating one of several itemized felonies. Here, Snape, Crabbe and Goyale, kidnapped Dumbledore and kept him in the rented moving van where he died. Kidnapping is one of the itemized felonies. Dumbledor s death was caused recklessly because their actions were gross deviations from what a reasonable person would do. Their actions do not raise to 3

4 recklessness because they were not conscious of substantial and unjustified probability of harm. They had no idea that he might die. The thought the worst that might happen to him is that he d sweat. In fact, the provided him lots of water to make sure he did not die. Unfortunately (for them), he did die. Snape and Crabbe may claim that Dumbledore killed himself. However, this defense is unlikely to work. They placed him in the van and left him no choice but to have to drink the water. Snape may also try the insanity defense discussed before. For the same reasons discussed above, it will fail. However, if the defense was successful, it should have no effect on the charges against Crabbe. Snape s Confession: I would not admit the confession against Snape in the prosecution s case in chief because he was responding to interrogation in custody and had not been read his Miranda rights. The three factors used in Mathiason, decide when a party is in custody is (a) whether they are free to go, (b) told under arrest and (c) coming to the station voluntarily. Here, Snape came to the station voluntarily and he had not been told that he was under arrest. However, he was not told that he was not under arrest as in Mathiason. Also, once at the station, the officers continued to interrogate him for over an hour. Then, when they left the room, the officers locked the door. The Supreme Court held in Mathiason that custody is determined from the view of reasonable person in defendant s situation. A reasonable person who had been told that he had to come to the police station to clear up the issue of whether he was involved in a murder, not told that he was not under arrest and locked in a room so that he could not leave when the officers who were interrogating him for over an hour left could conclude that he was in custody. As such, his Miranda warning was required. In addition, the officers, after interrogating him and realizing Snape s belief in Voldemont, knew or reasonably should have known were likely to illicit an incriminating response (Innis). This case is distinguishable from Innis because 4

5 in Innis, the officer had to basis to believe that comments about handicapped children might illicit a confession. Here, after questioning Snape for an hour, they had reasonable basis for thinking this. I would admit the confession for impeachment against Snape. It is also important to not that his will was not overborne real 5 th Amendment. I would admit the confession against Crabbe (barring any other grounds) in case in chief and for impeachment because he has no standing. Goyle s Body and bullets found in it: I would admit the body and bullets in cases against Snape and Crabbe. Neither has standing to object to admission. Also, extracting the bullets is a normal part of criminal investigations. If Goyle was alive and objected to extraction of the bullets, he would have standing and the police would not be allowed to extract them. The Gun and Receipt found in Snape s home: I would admit the gun and receipt against Snape because, although consent was given during prearrest custody, the evidence would have been discovered inevitably. Ordinarily, consent is sufficient to for a search when it is given while the person giving consent is not in custody. Here, Snape had been taken to the police station. He is in custody, having confessed to a very serious crime. He knows he is about to be arrested and more than likely he will be held at the police station for some time. These conditions are appreciably different from giving consent at home when an officer knocks on your door. Viewed objectively, it is possible that any consent given in such conditions will not be voluntary. However, I would admit the evidence based on the inevitable discovery exception. The officers had the evidence they needed and were, in fact, about to head to the magistrate to get a warrant for Crabbe s arrest. Had Snape not consented, they would have completed a affidavit for a search warrant based on the information they had and the confession and would 5

6 have almost certainly obtained a search warrant. I would also admit the gun and receipt against Crabbe since he has no standing to object. Key chain and rental agreement from Crabbe s apartment: I would not admit the key chain and rental agreement against Crabbe. Crabbe has a reasonable expectation of privacy that society is willing to grant him in his apartment. The officers did not have a search warrant wehen they executed the arrest warrant. Therefore, after the seized Crabbe, they had no authority to search his apartment. Although Maryland v. Buie allows a protective sweep when making an arrest in a home, the officer must have reasonable and articulable suspicion with rational inferences that reasonable warranted the officer in believing the area swept harbored an individual dangerous to officers. Here, Crabbe was asleep. Additionally, Snape and Crabbe were the only parties to the crime and Snape was already in custody. Therefore, there was no reasonable basis for believing that the closet might be harboring a dangerous individual. Had the officer had reasonable basis for the protective sweep, the key would be admissible because as in Buie, the key would have been in plain view and, having a reasonable basis that the key was involved in the crime, he would have reason to seize it. The envelope, on the other had, would be inadmissible under those conditions because according to Hicks, moving the envelope was a search which required probable cause and the officer did not have probable cause. I would not admit the key chain and rental agreement against Snape because he has no standing. Question #II The single doctrine from the MPC that would be most worth incorporating into our state s criminal code is the doctrine of renunciation of criminal purpose for conspiracies (MPC 5.03). Common law does not allow renunciation. Incorporating this doctrine would be a benefit 6

7 to our state as it will serve as inducement for those involved in conspiracies to thwart the success of the conspiracy as a means for avoiding prosecution. At common law, as we currently have in our state, conspiracy is a crime of agreement. The crime is complete once the agreement has been made. As such, there is no inducement for those involved in conspiracies that have or might have a change of heart and desire to abandon their involvement to do so. This is the most important doctrine from MPC to adopt because of the significant problems that conspiracies represent for law enforcement and those harmed by the conspiracies. It is because of our recognition of these problems that we punish conspiracies. They are more likely to succeed due to multiple individuals polling resources, they are more likely to be more significant crimes because of the number of individuals, and they are more difficult to stop. Therefore, as a way of committing crimes that we consider so dangerous as to warrant extra punishment, we should make every effort to discourage them especially efforts that could include the conspirators themselves thwarting the conspiracies. The MPC conspiracy renunciation (5.03(6)) requires that the conspirator (a) thwart the success of the conspiracy and (b) manifest a complete and voluntary renunciation of criminal purpose. These are both very desirable. Thwarting the success of the conspiracy could potentially save law enforcement resources and avoids any harm that the conspiracy might cause. A member of the conspiracy is in the best position to thwart the conspiracy from the inside since he ll know exactly what members of the conspiracy are doing, planning, and perhaps even simply, who they are. Also, a conspirator (or any criminal) who manifests a complete and voluntary renunciation of criminal purpose is one fewer criminal who law enforcement officers have catch. He is also one few criminal on the street who might commit a crime something we all benefit from. There is the added benefit that knowing that a coconspirator may get a defense to the 7

8 conspiracy by thwarting the conspiracy may serve to discourage conspiracies in the first place. Together, the thwarting of ongoing conspiracies and renunciation of criminal purposes that this addition to our common law will provide will benefit the police and the state as a whole. This addition will be most useful in conspiracies that the police are unlikely to discover but have members who would like to remove themselves from the conspiracy by renunciation. For example, a conspiracy that involves gangs or the mob. Those are often very difficult to solve. If there is an individual involved who had committed no other crimes except to agree but want to renenciate the conspiracy, under common law he my be likely to not do so especially if other members have already committed other crimes in furtherance of the conspiracy for which he would be liable were he to tern himself in. Under the MPC, he would renunciate his criminal purpose and thwart the conspiracy before additional crimes are committed. For these reasons, dangerousness of conspiracies and benefits that having conspirators thwart their conspiracies can have, I believe this is the most important doctrine to adopt from the MPC. Question #III The grading of homicide based on mens rea and the supreme courts avoidance of mens rea when considering cases involving vehicle stop and search cases are particularly unalike. Grading homicide by mens rea (excluding felony murder) provide an appropriate culpability regime whereby the crime charged is fitted to the level of guilt of the individual. This is not the case with vehicle stop and searches. In stop and search cases, the Supreme Court will not look beyond whether the officer had a valid reason, any valid reason, to make the stop. As a result, unlike homicide where the crime is tied to mens rea and culpability is avoided by adjusting mens 8

9 rea, for vehicle stops and searches the way to avoid evidence seized during searches from being excluded is to not get caught that is, to find another reason for the stop. For example, the crime of intentional murder discourages individuals from intentionally murdering others. The hefty prison sentences serve as a huge disincentive to committing intentional murder. This is not the case with vehicle stops and searches. Each time an officer stops a car for one reason and proffers another, and evidence obtained from the search is not excluded, he is encouraged to continue that practice. Because often the officer will have or can find an alternative reason for the stop and search, when evidence is excluded the lesson he learns is to be careful about having alternative reasons. Unlike murder where the message is do not kill, for stop and searches the message to the officer is do not get caught. This is the wrong message. Therefore, the Supreme Court s approach could be informed bay the hundreds of years of common law development that give us homicide grading. Obviously this is not a problem everywhere. There are probably many places where these kinds of stops are not of concern. However, this is sufficiently probablamatic in enough places that it may warrant looking to mens rea that is, incorporating homicide type grading. The advantage of looking to mens rea is that anytime an officer considers stopping and searching a car for a prohibited reason, whether on not he has an alternative reason, he will be discouraged from doing so because he will be aware that hiding behind the alternative reason excuse may not convince a judge. With this approach, the officer will have an incentive to perform stops only with the appropriate mens rea as opposed to performing stops whenever he can find a convenient excuse. Of course there are concerns of increased litigitation and difficulty of determining mens rea. Increased litigation should not be a significant problem considering the ills this approach 9

10 seeks to cure (protection of constitutional rights) because the individuals will probably already be in court and the determination as to the mens rea of the officer will be a small part of whatever proceeding in court. Also, determining mens rea, although sometime fact intensive, is not impossible as the courts do that all the time. 10