CRIMINAL LAW FINAL EXAM JOHNF.KENNEDYUNIVERSITY SCHOOL OF LAW Fall 2013 Ian Kelley MODEL / SAMPLE ANSWER

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1 CRIMINAL LAW FINAL EXAM JOHNF.KENNEDYUNIVERSITY SCHOOL OF LAW Fall 2013 Ian Kelley MODEL / SAMPLE ANSWER N.B. There were several different approaches susceptible to producing passing grades. The below answer is a model in that it provides a fairly complete analysis of all of the issues as they appeared on the exam as I wanted them approached; at the same time, a student may have placed greater or lesser emphasis on one or another issue, or even included approaches not explored here, which would also have produced passing results. A model answer by its nature is more comprehensive than expected of an exam sufficient to produce a passing grade. Question One People v. Alex Solicitation of David Is Alex guilty of Solicitation? To solicit at the common law is to ask, entice, induce, or counsel another to commit a crime; under the Model Penal Code, it is to command, encourage, or request another to commit a crime. Under the Common Law, the solicitation must be received in order for the crime to be completed; under the MPC, it is enough that the solicitation was made. Here, Alex, sent a text to David asking him to be lookout; under either the Common Law (asking) or the MPC (requesting) he undertook an act which would constitute Solicitation. However, David didn t get the text because his phone was broken. As such, the communication was not received. Because the solicitation was made but was not received, Alex would not be charged with Solicitation at Common Law but would be charged with Solicitation under the MPC. Conspiracy with Billy and Charlie A Conspiracy is an agreement to do an unlawful act coupled with an overt act in furtherance. Here, Alex and Billy decided they were going to commit larceny at a neighbor s house, after which Charlie agreed to be the lookout. This manifests the agreement; when they met that night outside the house, that was an overt act towards the commission of the crime. Alex will be liable for Conspiracy. -1-

2 Burglary Burglary is the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein. Breaking Any enlarging of the entry / portal is sufficient to constitute a breaking. Here, Alex entered the house. That he did so with a key is of no moment; his opening the door is sufficient to constitute a breaking. Entering Any crossing of the plane of the dwelling is sufficient; when Alex entered the house he committed the entry. Dwelling house of another This element speak to the unpermitted, or trespassory, quality of the entry. We are told this is a neighbor s house, clearly a dwelling; although Billy had the key, no facts suggest that Alex had any right to be in the house (much less for his felonious purpose). Because the entry was trespassory, this element is met. With the intent to commit a felony therein This is the specific intent (the mens rea) of the crime; one must harbor this intent at the time of the act (the actus reus) constituting the crime. Here, Alex s purpose at the home was to take [a video game console] from a neighbor s house ; this larcenous intent (as discussed below) constitutes the intent to commit a felony therein. Because Alex broke and entered the neighbor s house with the intent to commit larceny therein, he will be charged with Burglary. Homicide Homicide is the killing of a human being by another human being. Murder Common Law At Common Law, Murder is an unlawful homicide committed with malice aforethought. Malice aforethought describes four states of mind the intent to kill, the intent to cause great bodily injury, acting with an abandoned or malignant heart (a state of depraved recklessness), or felony murder. Here, Alex walked up behind Vincent and stabbed him in the neck with a kitchen knife. While we re told nothing about Alex s motive, we re assisted by the presumption that a person intends the ordinary consequences of their actions. Stabbing someone from behind in the neck with a kitchen knife certainly suggests an intent to kill or cause great bodily injury, but at a minimum is so depraved as to constitute an abandoned or malignant heart; Alex will be charged with Murder. -2-

3 Felony Murder At Common Law, any homicide which occurred during the perpetration of a felony constituted felony murder and thus malice aforethought. Modernly there are considerable restrictions placed on the rule the felony must be inherently dangerous (either in the commission or the abstract), the felony giving rise to liability must be independent of the conduct which caused the death itself. Here, it is debatable whether the death occurred during the perpetration of the felony; while the time which we could call during the perpetration of the felony the res gestae ordinarily extends to the time until the felon has reached a place of apparent safety, the burglary was in a general sense completed when he crossed the threshold, and the larceny had not yet begun. More directly, the cause of the death was not some independent consequence of Alex s other felonies Vincent died because Alex stabbed him, not because of some other occurrence incidental to one of the other felonies. As such, the better theory of Alex s liability is directly as Murder rather than Felony Murder. Manslaughter - Voluntary At Common Law, Murder can be mitigated to the lesser crime of Manslaughter if it was accomplished under a heat of passion (so called seeing red ) brought on by adequate provocation (one of several specific conditions enumerated by case law). Such a crime deliberate, yet mitigated is Voluntary Manslaughter. Here, Alex wasn t seeing red he walked up behind Vincent calmly. No facts suggest a heat of passion; Alex will not be able to mitigate his Murder to Manslaughter. Manslaughter Involuntary At Common Law, involuntary manslaughter is an unlawful homicide without malice aforethought that is, with either mere recklessness or an extraordinary, gross negligence. Here, Alex acted in a deliberate fashion neither reckless nor negligent. He will not be charged with Involuntary Manslaughter. Murder MPC Under the MPC, a murder is a homicide committed purposely (as one s conscious object), knowingly (with a high certainty of the event s happening) or with an extreme recklessness manifesting an indifference to human life. -3-

4 As discussed above, Alex s stabbing Vincent from behind in the neck with a knife suggests either a purpose or a knowledge that Vincent would die; at a minimum, it was wholly indifferent to Vincent s life. Alex will be charged with Murder. Manslaughter MPC Under the MPC, Manslaughter is either a murder committed under circumstances or extreme mental or emotional disturbance for which there is a reasonable explanation (akin to CL voluntary manslaughter) or under circumstances of mere recklessness (roughly akin to CL involuntary manslaughter). Nothing about the calm actions suggested any particular extreme mental or emotional disturbance; likewise, his actions were likely purposeful, but were surely more than merely reckless. Alex will not be able to mitigate his Murder to Manslaughter under the MPC. Larceny Larceny is the trespassory taking and carrying away the personal property of another with the intent to permanently deprive the owner. Here, Alex s taking of the neighbor s video game console was without permission and therefore trespassory; it was, additionally, the personal property of another. When he put the video game console in a box and walked back towards the door, he asported - carried away - the console, that he dropped the box in response to the dog is of no moment. Any asportation, no matter how slight, is sufficient to constitute the act; because he asported the console with the intent to steal it, he will be charged with larceny. It may be argued that this was also a Robbery a Larceny accomplished by force or fear, threat or violence. Because the homicide occurred prior to the actus reus of the Larceny, arguably the violence was not the mechanism by which the Larceny occurred, and thus Alex will not be liable for that crime (into which the Larceny would merge, were Alex in fact liable for Robbery). Defense Infancy At Common law, children between the ages of 7 and 14 are rebuttably presumed to be without criminal capacity. Because Alex is 13, he may assert this defense. The crime was one that required advance planning and multiple parties, and was in fact partially responsible for the planning of the crime; he is at the far end of the rebuttable presumption, and the above facts toll in favor of his having criminal capacity. This defense will be raised but may not be effective for the above reasons. Defense Diminished Capacity One may claim that for reasons of mental defect impairing the ability to form criminal intent, that one s diminished capacity either prevents the formation of the mens rea of the crime or renders the defendant less morally culpable. Here, Alex has a low IQ and may therefore raise the defense of Diminished Capacity, which may render him less liable for the various crimes. -4-

5 People v. Billy Solicitation of Charlie Solicitation is defined above. Here, when Billy asked Charlie to be the lookout a communication clearly received, in that Charlie agreed Billy became liable for Solicitation under both the Common Law and the MPC. Conspiracy with Alex and Charlie Conspiracy is defined above. For reason of the same agreement and actions as discussed under the analysis of Alex s liability, Billy will be liable for Conspiracy. Beyond Alex s liability, Billy s liability for the Conspiracy threatens other legal theories of culpability as discussed below. At Common Law, the Conspiracy does not merge with the target offense; under the MPC, the Conspiracy will merge with the underlying, target offenses. Attempt Burglary An attempt is a partial but ineffective act towards the commission of a crime which one specifically intends to commit. Was Billy close enough to the Burglary so as to be liable for attempt? Under the Model Penal Code, an attempt is a substantial step towards the crime. Under that broad standard, Billy had taken several substantial steps recruiting his brother, showing up at the house, bringing the key. Under the MPC, those several steps were likely substantial enough for Billy to be charged with Attempt Burglary. Under the Common Law, several tests have emerged to adjudge when preparation ripens into perpetration. One such is the physical proximity test, wherein an attempt ripens when all things necessary to complete the crime are present. Here, Billy was at the door of the site of the crime, with the key and his co-conspirators; everything necessary for the crime was present, and under this view he would be liable. On the other hand, res ipsa loquitor; Billy was not chased off of the crime by anything other than noise; he was not caught before he committed the crime, he simply chose not to go forward. Under this view, Billy may not be liable for the crime. Depending on the Common Law approach taken to analyzing Billy s potential liability, he may be charged with Attempt Burglary or may not. Note that because Attempts merge into the target crimes, to the degree that Billy is liable for the Burglary as discussed below, the Attempt will merge thereto. Note further that one who attempts a crime may abandon that attempt by voluntarily ceasing his attempt and taking some affirmative step to manifest the abandonment of his criminal purpose. Here, when Billy said I m out, and walked away, he was arguably abandoning his criminal purpose so as to shield himself from liability for Attempt; on the other hand, that his change of heart flowed from his hearing noise inside the house leaves some doubt as to -5-

6 whether his abandonment was truly voluntary or merely a reaction to circumstances such that, for policy reasons, it would be undesirable to shield him from liability. Accomplice Liability Burglary, Larceny, Murder? An accomplice to a crime is one who aids, encourages, or otherwise facilitates the perpetration of the crime; one must intend to help the crime, and one must intend that the crime occur. An accomplice, like a co-conspirator, is liable for the foreseeable crimes which flow from his assistance (under another view [not discussed in class but discussed in the reading], an accomplice is only liable for those crimes which he intends to help; inasmuch as Billy intended to assist the burglary and the larceny (subject to the possible termination of his liability, as discussed below) he will be subject to accomplice liability for those crimes; as to the Murder, his liability as an accomplice will track his liability as a co-conspirator and be subject to a question of foreseeability, as discussed below. It sometimes occurs that an accomplice will not be liable if the principle is found not to be liable under a justification-based defense; inasmuch as Alex s only defenses are excuse based infancy and diminished capacity Billy will not be relieved of liability for this reason. Conspiracy Liability Burglary, Larceny, Murder? Conspirators are liable for all of the foreseeable crimes which flow from the conspiracy, that is, all of the crimes which a person might think to be within the reasonable contemplation of the conspiracy. As such, Billy will be liable for the Burglary and the Larceny those were the very target crimes of the conspiracy itself. Foreseeability for the Murder? As discussed above and also as relevant to the discussion of accomplice liability, Billy will only be liable for the Murder if it was foreseeable. On the one hand, Burglary does not as an ordinary matter contemplate homicide, and it was not discussed by the parties; on the other hand, he heard a noise in the house; this makes a death flowing from Alex s actions more foreseeable. The most relevant fact given is that Alex was prone to rash and even sometimes violent actions. To the degree that this fact was known to Billy, it surely makes the Murder foreseeable. If so, Billy will be liable for the Murder as well. Defense Renunciation as to the Conspiracy At Common Law, the conspiracy being complete upon the overt act, there is nothing from which to withdraw, and there is no way to terminate one s liability for the Conspiracy. Under the Model Penal Code, one may avoid liability for the conspiracy by working to thwart the Conspiracy under circumstances manifesting a complete and total renunciation of his criminal purpose. Here, the voluntariness of his renunciation is unclear (as discussed above) and indeed he did not take any step to thwart the Conspiracy (as discussed below) he simply left. He will likely be unable to successfully assert this defense under the MPC as to the Conspiracy. Defense Withdrawal as to the Burglary, Larceny, and Murder -6-

7 Under either the Common Law or the MPC one may withdraw from a Conspiracy, and thus shield oneself from liability for the target crimes (and the foreseeable ones flowing from them) by notifying one s co-conspirators of one s withdrawal and encouraging them to abandon the Conspiracy, or by notifying the police. Here, Billy did nothing to discourage Alex (or Charlie) from going through with the crimes he just shrugged and said I m out. This is an insufficient Withdrawal to shield him from liability. Defense Termination of Accomplice Liability One may terminate one s liability as an accomplice by stopping one s participation in the crime in such a fashion as to deprive the principle of the assistance of one s abetting. Here, although Billy left and stopped helping with the crime, he left the key still in the lock. The key being the very instrumentality which allowed Alex to commit the underlying crime, Billy s walking away did not deprive Alex of his assistance; as such, he will still be liable under a theory of Accomplice Liability. People v. Charlie Conspiracy with Alex and Billy Conspiracy is defined above; Charlie agreed to be the lookout, and met at the site of the crime; for the very reasons that Billy was liable as a co-conspirator, Charlie will be as well. Accomplice Liability Burglary, Larceny, Murder? The requirements for Accomplice Liability are discussed above. Here, Charlie stood watch, assisting the crime from his assigned position as lookout. It is irrelevant whether his assistance served to actually help the crime; that his efforts served to encourage the crime, and that he intended to help and intended the crime to occur, renders him liable as an Accomplice, subject to the same foreseeability contours discussed above under Billy. Conspiracy Liability Burglary, Larceny, Murder? Charlie was a co-conspirator for the reasons discussed above, and will be subject to liability for the foreseeable crimes of the conspiracy as discussed above. He may have a stronger case than Billy that Alex s act of Murder was not foreseeable he was much younger than the other two, was less likely perhaps to know of Alex s personality tendencies, and was a later recruit to the conspiracy, but those facts are not known to us. To the degree that the crimes which flowed from the Conspiracy were foreseeable, Charlie will share in liability therefore. Defense of Infancy -7-

8 An individual under the age of seven is conclusively presumed to be without criminal capacity. Because Charlie is six years old, he will be insulated from liability this will serve as a complete defense to all of the crimes. Question Two People v. Karen Attempt Murder of Henry Murder is an unlawful killing with malice aforethought, that is, an intent to kill, an intent to cause great bodily injury, acting with such depraved indifference as to constitute an abandoned or malignant heart, or felony murder. Under the MPC, a Murder is a homicide committed purposely, knowing, or under circumstances manifesting an extreme indifference to human life. An attempt requires a specific intent to commit the underlying crime, and in the context of a so-called complete attempt is characterized by the person trying to commit the crime but failing to do so. Here, Karen, enraged, retrieved a gun from her car and fired at Henry. On its face, this suggests an intent to kill him, or to cause him great bodily injury, the mens rea for Murder at Common Law; under the MPC, it suggests that it was her purpose her conscious object to kill Henry. Karen will be liable for Attempt Murder. Attempt Manslaughter of Henry The attempt dimensions of this analysis are the same as the above Attempt Murder analysis. At Common Law, Murder could be mitigated to the lesser crime of Manslaughter when committed in a heat of passion upon adequate provocation; the homicidal acts must quickly follow the provocation, that is, there must be no time to cool off ; one must in fact be acting in a heat of passion, a seeing red type of condition, and there must be a causal connection between the heat of passion and the adequate provocation (being the sort of provocation that would cause a person of reasonable firmness to act for the moment from passion rather than reason). Here, Karen came home and found [her husband] Henry in bed with Lois. The sudden discovery of a spouse s infidelity is a specifically enumerated act of adequate provocation at Common Law; the facts suggest that this discovery enraged her, which probably constitutes the heat of passion. Karen did, however, have a time to cool off she walked to her car to get the gun, and returned a couple of minutes later. If that amount of time is sufficient as a policy matter to constitute a reasonable cooling off period, she will be unable to mitigate her Attempt Murder to Attempt Manslaughter. On the other hand, her finding Henry and Lois hurriedly getting dressed was -8-

9 perhaps another provocation which would support her renewed heat of passion, in which case she would be eligible to mitigate her Attempt Murder to Attempt Manslaughter. Under the Model Penal Code, Murder could be mitigated to the lesser crime of Manslaughter when it occurred under circumstances of extreme mental or emotional distress for which there is a reasonable explanation. Here, Karen was clearly in a state of emotional distress; she was enraged, under circumstances the sudden discovery of infidelity which a reasonable person would allow to give rise to such rage. We know nothing of precisely what was in her mind, but inasmuch as the MPC does not speak to the issue of a cooling off period, if her emotional distress at her discovery seems reasonable to the trier of fact, she will be eligible to mitigate her Attempt Murder to Attempt Manslaughter. Murder / Manslaughter of Lois Both Murder and Manslaughter are discussed above, and the policy issues attending the heat of passion / extreme mental or emotional disturbance play out the same in the death of Lois as they do in the Attempt homicide of Henry. Here, while circumstances intervene to prevent Karen s acting on her intention, she pointed the gun at Lois; having just fired at Henry, it is reasonable to surmise that she intended to kill (at Common Law) or had as her conscious object the purpose of killing Lois (at MPC) so as satisfy the mens rea for those crimes. Lois, however, died by a different mechanism; Karen pointed the gun at her and Lois ran out the back door of the house, falling into, and drowning in, the swimming pool. The question becomes one of causation. Proximate Cause in the Death of Lois Karen is no doubt the but for cause of Lois death but for Karen pointing the gun at her, she would not have run out the door as she did and fallen into the pool. Was Karen, however, the proximate, or legal cause of Lois death? There are several tests for proximate cause, of which foreseeability is the touchstone. Was Lois falling into the pool and drowning the sort of thing that a person would reasonably expect to follow the chain of events which preceded it? This was Karen s house; she knew there was a pool in the backyard. Having just shot at Henry, and turning the gun towards Lois, it seems reasonable to expect that Lois would flee, and that in her flight she ran blindly into the backyard, falling into the pool, is not the sort of thing so unexpected that we would call it unforeseeable. As a foreseeable consequence of Karen s actions, it was an intervening act but not a superceding one as such, it does not break the chain of causation, and for policy reasons we would hold Karen liable for the foreseeable consequences of her act, that is, we would hold her liable for Lois death. Under the MPC foreseeability is the beginning and the end of the inquiry. Under the Common Law, there are several additional tests which might be considered. Was the intervening act responsive to, or coincidental to, Karen s actions? It was clearly responsive; Lois didn t run out -9-

10 the door and coincidentally get hit by lightning, say, nor did she run out the door for no reason her running out the door was a response to Karen s actions, and as such would not be a superceding act under one approach taken by the Common Law. We might also ask whether Lois died after reaching a place of apparent safety, the point at which causation is cut off under another Common Law approach. Lois clearly had not; she was in the pool in the backyard of the person who was trying to kill her, mere moments after being shot at. Lois not having reached a place of apparent safety, the intervening act of her falling into the pool would not break the chain of causation under this other Common Law approach. Under any of the above approaches, Karen is the proximate cause of Lois death, and will be held liable therefore. One may ask whether Karen had a duty to act on Lois behalf, but inasmuch as Karen was the one who actually tried to kill her this is a more acute analysis to ask on Henry s part, as discussed below. Defense of Intoxication Karen had spent a day of drinking at a bar and was very drunk. She may raise the defense of intoxication. As a general matter voluntary intoxication is disfavored as a defense, but will give rise to a potential defense if it serves to negative the mens rea of a specific intent crime under the Common Law, or if it serves to negative some element of the offense under the MPC. Although neither Murder nor Manslaughter are specific intent crimes, Attempt is, and thus she may raise the defense; indeed, she was so drunk at the time of the acts in question that she could barely see straight (although this fact may also have come from her being blind with rage, so to speak. Still, the intoxication must actually prevent the formation of the mens rea or negative an element of the offense; however drunk she was, her faculties were such that she could go to her car and get her gun, and return and shoot at Henry before then pointing the gun at Lois. While the specific intent quality of the crimes might allow her to raise the defense, it is unlikely to succeed, as her actions suggest that her intoxication, however severe, did not prevent her from forming the intent necessary for both of the attempt crimes. People v. Henry Statutory Rape of Lois Statutory Rape involves sex with an individual under the age of consent, which for our purposes is 18 years. It is a strict liability crime, meaning that there is no mens rea requirement. Here, Lois was 17 years old. Henry was having an affair with her; as such, he will be liable for Statutory Rape of this 17 year old. That she had a driver s license showing that she was 19 is of no moment; this mistake of fact, whether reasonably or unreasonably relied on by Henry, is irrelevant in the context of a strict liability crime. Murder of Lois -10-

11 To the degree that we would hold Henry liable for Lois death through his inaction, we would follow the homicide approach discussed above. He watched from the window as Lois drowned in his pool; this would be an act greater than mere recklessness, and would rise to the level of a depraved heart (under the Common Law) or manifest an extreme indifference to human life (under the MPC). To the degree that Henry is liable, he would be liable for Murder. Duty The above being said, it is not clear that Henry had a duty to act on Lois behalf. As a general matter, the law implies no duty to act for the benefit of another, although certain conditions and status relationships create such a duty. Lois was their babysitter, which creates a sort of contractual duty, but the nature of that contractual duty is for Lois to have to act on behalf of their child it does not imply duty in every direction and in every relationship beyond the babysitting one. Lois was Henry s lover, not his spouse, and the cases we ve read do not suggest that this relationship gives rise to a legal duty. One may argue that Henry is the one who put Lois in harm s way that he created the risk but this is a stretch; it is not as if he hit her with his car; he no more created the risk than the person who sold Karen the gun. Finally, one may argue that he secluded Lois from anyone else helping her, but in fact there was no one else there to help her; to the degree that his taking Karen by the hand and having sex with her prevented Karen s acting on Lois behalf, this happened only after Lois had drowned in the pool. As such, there was no clear legal duty on Henry s part to act on Lois behalf, and he will therefore not be liable for Lois death. Rape of Karen Rape is sexual intercourse by a man, with a woman not his wife, without her consent. Traditionally there needed as an evidentiary matter to be some showing of force or, more commonly, resistance on the part of the person raped; modernly that approach has been abrogated. Here, Henry, a man, had sex with Karen, a woman. The consent issue may be argued as a close call; she cried throughout, but did not protest or otherwise resist Henry, which perhaps could be argued to be a show of consent, although it s an iffy argument. Also, Karen within the past few minutes had been characterized as very drunk, and perhaps was unable to give consent; again, the consent issue seems like a close call, and Henry may argue that, even if consent was absent, he made a mistake of fact as to the lack of consent; if such a mistake was a reasonable one, it would serve as a defense to this general intent crime. None of the above is dispositive, however, because Henry and Karen were married. Because the elemental definition of Rape is that it occur with a woman not one s wife, Henry would not meet the elements and would not be charged with the Rape of Karen. Question Three People v. David -11-

12 Murder of Vicky Felony Murder at Common Law At Common Law, Murder is an unlawful homicide with malice aforethought, that is, accompanied by the intent to kill, the intent to cause great bodily injury, acting with such depravity as to constitute an abandoned or malignant heart, or Felony Murder. Traditionally, any homicide which occurs during the commission of a felony constituted Felony Murder; modernly, because the doctrine is disfavored, a variety of qualifiers modifying the rule have arisen. Inherently Dangerous Felony Under one variant, the Felony Murder rule applies only to inherently dangerous felonies, itself a characterization subject to a split of authority on whether one speaks of the felony as being inherently dangerous in the abstract, or in its particular commission. We know little of the underlying felony beyond the fact that it involved the Robbery of the headquarters of a motorcycle gang which culminated in a car-chase. Robbery inherently involves force or fear, or threat or violence for these purposes, and knowing nothing else, we will assume Robbery to be an inherently dangerous felony in the abstract, and also in its commission. Independent Felony / Merger doctrine Under this limitation, the felonious act giving rise to the death must have an independent felonious purpose from the underlying felony to which we tie the Felony Murder. Here, the underlying felony was the Robbery, whose purpose by definition was different than the deaths which flowed therefrom. Res Gestae Things done. To say that the death must occur during the commission of the felony is to beg the question as to when the felony ended. While the Robbery was complete, and David was being chased by the motorcyclists, he had nonetheless not reached a place of apparent safety, the time when we measure the felony to be concluded for Felony Murder purposes. The felony, for these purposes, was still ongoing. Agency vs. Foreseeability In some jurisdictions, one is liable only for those deaths which occur at the hands of cofelons to the crime, one s agents. In other jurisdictions, one is liable for any foreseeable deaths resulting from the crime. This jurisdictional split is the relevant question to this issue. Here, Vicky was killed when one of the motorcyclists whom David had just robbed fired a shot from a handgun and hit Vicky. Under jurisdictions following the agency approach, David would not be liable for this death; the motorcyclist was his antagonist, not his agent. Under jurisdictions following the foreseeability approach, we ask whether the death was within the contemplation of a reasonable person whether it was foreseeable. While the particular mechanism of the death a bullet bounced off the car and hit Vicky seems odd, the idea that someone might get shot in the Robbery of the headquarters of a motorcycle gang seems within reasonable contemplation; Vicky s getting shot was a foreseeable consequence of David s actions, and under such jurisdictions David would be liable for the Murder of Vicky on a theory of Felony Murder. Murder of William Felony Murder at Common Law -12-

13 The contours of the Felony Murder doctrine are discussed above. This is a much more straightforward issue we are still clearly within the res gestae of the crime, as David has reached no place of apparent safety he was in fact panicking. We have no issues of co-felons or agents William died because of David s direct acts. David would be liable for the Murder of William under a Felony Murder theory (and a much more direct theory, discussed below). Murder of William Common Law The rule for Murder is discussed above. Putting aside the Felony Murder dimensions, David accelerated his car, running straight into William, who at the time was standing directly in front of the car, clearly within David s line of sight. David clearly intended to kill or cause great bodily injury to William, or so we may surmise, as we are assisted by the presumption that one intends the ordinary consequences of one s actions. That David had no particular animus towards William and was merely panicking is perhaps relevant to a defense or to mitigation, but does not speak to his intent one intends both those things which are one s conscious objects and those things that one knows to a substantial certainty will occur. In this sense, David intended to hit William and will be liable for his Murder under a theory of malice aforethought. Manslaughter of William Common Law Murder can be mitigated to manslaughter at Common Law when it occurs under a heat of passion upon adequate provocation. A heat of passion is that condition where one sees red and acts from that emotional place. Here, although David was panicking, it is not clear that this was a heat of passion in the sense that the term is used under Common Law; further, as to the adequacy of the provocation, although an extreme battery may give rise to adequate provocation, it is not clear that the banging on the side windows was such provocation, nor does it appear that William was doing the banging. To the degree that David is entitled to mitigation for his crime, it is better understood under a traditional defense theory, either of necessity or self-defense, discussed below. Murder of William MPC Under the Model Penal Code, Murder is a homicide committed purposely, knowingly, or under circumstances manifesting an extreme indifference to human life. As discussed above under the Common Law Murder analysis, David s accelerating straight into William manifested either a substantial certainty ( knowingly ) that he would be killed, or at the least an extreme indifference to William s life. David will be liable for William s Murder under the MPC. Manslaughter of William MPC Under the MPC, Murder can be mitigated to Manslaughter when it occurs under conditions of extreme mental or emotional distress for which there is a reasonable explanation. Here, David was panicking as his car was being banged on, which suggests a condition of mental or emotional distress; his eligibility for this mitigation will likely turn on whether this condition is -13-

14 founded on a reasonable explanation it was all occasioned, it should be noted, by his having just robbed the headquarters of the gang banging on his windows. Such mitigation, based as it is on reasonableness, will be a policy question. Murder of Peter CL and MPC The rules for Murder under both the Common Law and the MPC are discussed above. Here, the Felony Murder dimensions are no longer in the equation; inasmuch as he was sure he wasn t being followed, he had reached the place of apparent safety which terminates the res gestae of Felony Murder. That being said, he did not resist accelerating and striking Peter, under an urge to do harm to all motorcyclists. This manifests an intent to kill / commit great bodily injury under the Common Law or a purpose / knowledge / extreme indifference to human life under the MPC, making him liable for Peter s Murder under either approach. Defense of Self as to William One may claim self-defense predicated on a reasonable belief that the use of deadly force is necessary to prevent the imminent application of unlawful deadly force by the aggressor. Here, it is not clear that William was the aggressor, but even assuming that he was, the defendant must not invite or provoke the harm; while David was not the aggressor in a physical sense, there is a sense where he provoked the very harm he sought to avoid. On the other hand, he was at the time of the death seeking to retreat and was no longer an aggressor in any meaningful sense; a gun had already been fired and his fear for his life seems reasonable. This question may turn on the degree to which we perceive William to be the aggressor in the situation. Defense of Property as to William One may never use deadly force to defend mere personal property. This defense is unavailing. Choice of Evils / Necessity / Duress as to William Under the necessity defense, one may choose a lesser evil if there is no adequate alternative, if the harm caused is not disproportionate to the harm sought to be avoided, and if the actor did not cause the harm sought to be avoided. Here, the harm was precisely proportionate to the harm sought to be avoided one life was saved, one was lost. Further, David arguably caused the conditions which brought him to the harm he was now seeking to avoid. Under the Duress defense, there must be an immediate threat of death or serious bodily injury, coupled with a well-grounded fear that the threat would be carried out and no reasonable opportunity to escape the threatened harm; it must be a threat that a person of reasonable firmness would be unable to resist. Like Necessity, however, the actor must not have recklessly placed himself in the situation; for that reason, this defense is unlikely to prevail. -14-

15 Further, neither of the above defenses are available at Common Law to homicide. The MPC does not explicitly embrace this prohibition, so David may be able to raise such a defense in an MPC jurisdiction, subject to the concerns about his bringing himself to the harm. Insanity as to Peter Under both the Common Law and the Model Penal Code, an individual who is insane at the time of his crime is entitled to an excuse-based defense on that basis. David hit his head and suffered a brain injury prior to his hitting Peter, potentially animating this defense. Several tests have historically been applied: M Naughten Under this test, a person because of mental disease or defect is insane if they do not understand the nature and quality of their actions. Here, David knew just what he was doing; indeed, he recognized the urge to be wrongful. As such, because he appreciated the nature of his actions (i.e., that he was running down a motorcyclist) he would not be eligible for an insanity defense in a M Naughten jurisdiction. Irresistible Impulse Under this test, a person is insane if, owing to a diseased condition of the mind the person, although knowing that the act is wrong, is irresistibly driven by an insane impulse to commit it. This seems to describe this situation well David recognized the urge was wrongful, but could not hold himself back from hitting Peter. He would be eligible for an insanity defense in an Irresistible Impulse jurisdiction. Durham / Product Test Under this test, one is not criminally liable if the unlawful act was the product of a mental disease or defect. Here, the facts suggest that his decisions regarding Peter were owing to the brain injury. Thus, in a jurisdiction following this test, David would be eligible for the insanity defense. MPC 4.01 Under the Model Penal Code, A person is not responsible for criminal conduct if at the time of the conduct as a result of mental disease or defect he lacked the substantial capacity either to appreciate the criminality / wrongfulness of his actions, or to conform his conduct to the requirements of the law. Here, while David recognized that the urge was wrongful, he nonetheless could not hold himself back from hitting Peter, which seems like an inability to conform his conduct to the requirements of the law. Thus, in an MPC jurisdiction, David would be eligible for an insanity defense in the death of Peter. -15-