Final Exam University of Mississippi
School of Law
This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.
The exam consists of two parts. You will have three hours to complete the exam. Recommended times are indicated for each part. Answer all questions.
Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):
"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."
Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.
PART I. SHORT ANSWERS (120 minutes for this part--or an average of ten minutes for each question)
Instructions. Write a coherent, literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.
1. Explain the difference between individual (specific) and general deterrence and give an example of each.
2. Lil Lolady, age 92, puts a handgun in her handbag and forgets about it. Two months later she accompanies her great-grandson to the airport. She has a ticket and plans to board the airplane.
She is stopped at airport security where the handgun is found. She is charged with two crimes under state law: 1) possession of a concealed weapon without a license; and 2) attempt to possess a firearm on an aircraft. She explains that her lawyer told her that she did not need a license to carry a concealed weapon. She also insists that she forgot that it was in her purse.
The state follows the Model Penal Code. Evaluate her criminal liability for the crimes charged.
3. A mother took her infant Vic to Big Mart, a large store. The mother had not slept for two days. While the mother was standing in line to check out, Vic began to cry. The mother slapped Vic, and he cried more. In response, the mother shouted at Vic, shook him and struck him repeatedly with her first.
Everyone stared at the mother but no one intervened. The abuse lasted over two minutes. Then Vic lost consciousness. He died later that day as a result of the injuries.
The prosecutor has charged the mother with various crimes. In addition, the prosecutor is considering bringing charges against two other people, Barb Buyer, the shopper who was standing in line behind the mother and infant, and Martha Manager, the store manager who was in the back room at the time watching the entire event on the security video system.
You are clerking for the prosecutor who asks your opinion about which case is stronger. Apply the common law.
4. Bama, a resident of Alabama, went driving on the beach with his four-wheel recreational vehicle. He headed west and drove back and forth through sand and tall beach grass. He did not realize that he was driving back and forth across the Alabama-Mississippi state line. He was arrested by Mississippi law enforcement officers on the Mississippi side of the state line.
The officers had videotaped Bama’s behavior. The tape shows how strands of “sea oats” (a form of beach grass) became attached to the undercarriage of Bama’s four-wheel vehicle in Mississippi and were carried into Alabama. Bama is charged with a violation of section 97-17-84 of the Mississippi Criminal Code: “Any person who removes a plant commonly know as “sea oats” or “uniola paniculata” from the shores of this state shall be guilty of a misdemeanor and shall, upon conviction, be fined not more than Five Hundred Dollars ($500.00).”
At a trial before a judge in Mississippi, Bama agrees that his vehicle carried some beach grass as it left the state of Mississippi, but he testifies that he did not know he was in the state of Mississippi or that it was a crime to remove sea oats from the state. He also maintains that he did not know the beach grass was sea oats. The trial judge rejects all the arguments and finds him guilty.
Bama comes to you for legal advice. He asks whether he has any good grounds for appeal. Please advise.
5. Dwight lives in a city where many dogs have been stolen. Accordingly, he is careful to keep his big black dog, Luckydog, in a securely fenced area in his back yard. One day Luckydog is missing.
Dwight is very angry and starts to drink. He consumes a large amount of alcohol, becoming still angrier. Finally, Dwight decides he will go out and look for Luckydog. He drives to the other side of town where he sees a large black dog chained to a tree in someone’s yard. He gets out of the car and calls to the dog. The dog responds.
Dwight’s vision is blurred from intoxication, but he is certain now that the dog is Luckydog, Dwight enters the property, removes the chain, and takes the dog. He returns home and takes the dog to his own backyard. There he sees the real Luckydog. A neighbor had found Luckydog and returned him to Dwight’s yard.
Dwight has been charged with larceny of the dog. Please evaluate his criminal liability at common law.
6. Same facts. Evaluate Dwight’s liability under the Model Penal Code for a violation of Model Penal Code section 223.2: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof.”
7. Dimbulb went out hunting one fall day. After sitting in a tree for three hours, a large deer appeared in the distance and began to move slowly towards Dimbulb. When the deer almost reached a position where Dimbulb planned to shoot, a single engine airplane appeared overhead. The airplane was flying very low, and its noise frightened the deer. The deer fled into the forest.
Enraged, Dimbulb aimed his rifle at the airplane and fired. He missed the airplane, but the descending bullet struck Vickie, a seven-year-old child who was swinging on a swing set in her back yard half a mile away from Dimbulb.
The bullet caused serious damage to Vickie’s left ear. She suffered excruciating pain and lost much blood but was rushed to the hospital where emergency medial aid prevented further damage.
As a result of the injury, Vickie lost most of her left ear. Two months after the gunshot wound, Vickie underwent reconstructive surgery. The surgery was designed to restore her ear to its original appearance. During the surgery, Vickie experienced an adverse reaction to a routine drug and died.
Dimbulb has been charged with manslaughter. He insists he did not cause Vickie’s death. Please evaluate his potential liability in a jurisdiction that follows the Model Penal Code.
8. Fred and Wilma were married for 60 years. During Fred’s last year of life he suffered a painful debilitating disease. One day he begged Wilma to kill him to end his suffering. Wilma loved Fred dearly but did not want him to suffer.
Wilma had a prescription for sleeping pills. The doctor had warned her that an overdose could be fatal. She put a container full of the pills on the table next to Fred. She loosened the safety cap and watched silently while Fred swallowed about half the pills. He then asked her for water. Wilma went to the kitchen and returned with a glass of water. She watched as he drank the water and swallowed the remaining pills.
Wilma held Fred’s hand until he was complete still. She waited one hour and then called the police and explained what she had done. Fred was dead when police arrived.
Wilma is charged with first degree murder under a state penal code that provides: “A person who commits any of the following is guilty of first degree murder:
(a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.”
You have been assigned to defend Wilma. She insists that she could not have murdered her husband because she loved him and bore him no malice. Please explain to her whether she has a valid defense on that ground.
9. Dryver agreed to drive Kyler to a bank. The plan was for Kyler to enter the bank, display a weapon and demand money. Kyler promised Dryver that no one would get hurt.
Dyver drove Kyler to the bank and waited for Kyler in the parking lot with the engine running. He heard gunshots in the bank and drove away.
During the holdup, Kyler shot and killed a police officer. Kyler was arrested running away from the scene and pled guilty to simple murder.
Dryver is convicted of capital murder in Mississippi and sentenced to death. He asks you if he has good grounds for challenging his conviction or sentence. Please advise.
10. According to Justice James Graves’s class presentation on March 23, what is the greatest challenge for trial judges in criminal cases, and why?
11. Victim went to a party and drank until she lost consciousness. Abe found her unconscious and moved her into a bedroom. Abe then went and told Sleeze where he had moved Victim. Abe said, “Go see her. Her defenses will never be lower.”
Sleeze went to the bedroom. He removed Victim’s clothes and was in the process of removing his own clothes when Victim recovered consciousness.
Victim observed Sleeze and said, “If you don’t leave immediately I will scream” Sleaze left.
Evaluate the criminal liability of Sleeze under Mississippi law.
12. Flem and Eula were sitting around getting drunk. Flem ran out of cigarettes and asked Eula for one. Eula found that she, too, was out of cigarettes. Flem asked Eula for money to buy cigarettes, but she did not have enough money.
Flem said, “Can I borrow your car. I know where I can get some cigarettes without having to pay.”
Eula gave Flem the keys and said, “Get me some of my favorites, Honey. And don’t do anything stupid.”
Right after Flem left, Eula found a pack of cigarettes. She called Flem on his cellphone. Unable to reach him, she left a message, “I found some cigarettes. Come back right away.”
Flem did not receive the message. He drove to the Big Mart retail store in an adjacent town. He entered the store and walked around looking for cigarettes. When he found that the cigarettes were kept in a locked case, he walked towards the exit.
While he was leaving, a security guard who had been observing Flem approached him and asked him to stop. Flem punched the security guard and ran out of the store.
Evaluate Eula’s liability as an accessory under the common law for the crimes of attempted theft and assault.
PART II. ANALYTIC ESSAYS (60 minutes)
Instructions. Write a coherent, literate essay in the Blue Book that responds to the following problem.
The Case of the Break-in Broken Dreams (60 minutes)
Deborah and Val lived in Jackson, Mississippi. Over the years they committed many crimes together. They specialized in sneaking into people’s houses while the homeowners were out of town and stealing jewelry and other valuables. They did not carry weapons and did not like violence. They agreed that if they were ever caught they would give up without resisting rather than hurt anyone.
Deborah and Val had lived together for three years. Val promised Deborah he would marry her someday, but they had not married yet because Val had been previously married and had never gotten divorced.
One night Deborah and Val learned that the Riches had gone to Hawaii for a vacation. The Riches were very rich and lived in a mansion on Ritzy Drive in a suburb of Jackson.
Deborah and Val drove their van marked “Acme Heating and Cooling” to Ritzy drive and pulled into the driveway. They walked to the front door. Deborah used lock picking devices to open the lock. She pushed open the door and she and Val walked into the house.
After searching the freezer, Deborah headed to the bedrooms where she expected to find valuables hidden in the usual places. Val stopped her and suggested they have a drink. Val grabbed two bottles of whisky from the Riches’ bar.
Val and Deborah sat on the edge of the Riches’ indoor swimming pool. They removed their socks and dangled their feet in the water. After finishing the first bottle of liquor, Val and Deborah became very intoxicated. Deborah asked Val when he planned to marry her. Val responded by informing her that he had been having an affair with Deborah’s sister Sissy.
When Deborah refused to believe Val, he told her about certain tattoos that Sissy had. These tattoos were in places that were not usually visible. Deborah became angrier and angrier. When Val added, “Sissy is way better at sex than you will ever be,” Deborah flew into a rage. She swung her handbag at Val, striking him in the head. The handbag contained a hammer and other tools. The impact caused Val to fall into the swimming pool.
When Deborah was sober, she knew that Val could not swim. But she was so drunk that she did not fully appreciate the dangerous situation. She watched Val struggling in the water and laughed, “Serves you right you two-timing [expletive deleted].” After Val stopped struggling and his body became limp, Deborah’s fury subsided. She jumped in the pool and pulled out his body.
Deborah called an ambulance on her cellphone and waited until the ambulance arrived. Val was declared dead on arrival at the hospital.
You are clerking for the District Attorney. She asks you to write a memorandum evaluating Deborah’s criminal liability for homicide in Mississippi. Please write the memorandum.
PART I. SHORT ANSWERS
1. Both individual (or specific) and general deterrence are theories of punishment. Specific deterrence seeks to prevent a crime by a particular person. For example, three strikes laws are justified on the theory that the increasingly severe punishment will deter repeat offenders. General deterrence aims to prevent crimes by others. For example, capital punishment puts not only incapacitates the murderer but may deter others from committing similar crimes.
2. Though the Model Penal Code provides that possession remains a voluntary act after the thing is knowingly acquired this addresses only the act requirement. The Code also requires a culpable mental state for all crimes, and when it is silent, the mental state must be at least recklessness. Defendant may defend on the ground that her ignorance prevented her from being reckless if she was unaware of the risk that she was in possession.
She is not guilty of attempt because the Model Penal Code requires purpose, which she lacks.
3. Buyer and manager can only be guilty if they both had culpable mental states and also either performed a voluntary act or failed to act where there was a duty to act imposed by law. The law imposes duties to act in several situations: where there is a special status relationship (like mother to child or innkeeper to guest), where there is a contract, where the defendant secluded the victim from the help of others, or where the defendant’s act placed the victim at risk. While Buyer does not seem to have a duty under any of these, Manager may have a duty to protect people in the store that is either imposed by contract or by special status relationship (as agent of the owner of real property).
4. Bama has weak grounds for appeal. First, presence in the jurisdiction or other requirements for venue are not elements of the crime, and there is no required mens rea for them. Accordingly, the fact he thought he was still in Alabama is irrelevant. Second, his ignorance about the requirements of the law is not a defense. Ignorance of the law is not an excuse. Third, his ignorance about the fact that the grass was sea oats will provide a defense only if knowledge (or some mens rea) is required as to that element.
However, the statute probably imposes strict liability. It appears to be meet the criteria for a public welfare offense: it protects the environment (an area of extensive government regulation), it imposes a minor penalty, and it prohibits conduct to achieve a social policy goal rather than prohibiting conduct that is immoral or mala in se.
5. At common law, larceny is a specific intent crime because it requires the intent to steal property of another. At common law, voluntary intoxication is a an excuse when it prevents a defendant from forming the required criminal intent.
6. There is uncertainty what culpable mental state is required under the Model Penal Code language that prohibits a person who “unlawfully takes, or exercises unlawful control over, movable property of another.” This could either require recklessness (under the general default rule) or purpose, since the section goes on to add the element of “with purpose to deprive him thereof.”
The Code allows voluntary intoxication as a defense when it negatives an element. Since defendant was too drunk to realize he did not own the dog, the intoxication prevents him from having either purpose or knowledge to take property of another. But because defendant would have been aware of the risk that the property belonged to another when sober, his lack of awareness will not prevent him from being reckless under the Code. The Code specifically provides that voluntary intoxication is not available as a defense for recklessness when the actor would have been aware of the risk when sober.
7. The Model Penal Code does not have the doctrine of transferred intent. Manslaughter under the Code requires that the defendant cause the death recklessly. The Code provides that a defendant is the cause when 1) he or she is but for cause, and 2) where recklessly causing the result is the element, the actual result is within the risk of when the actor is aware. An actor is still the cause of an improbable result when it differs only in that a different person is affected.
Dimbulb’s recklessness would be based on awareness of risk of killing when he fired at the plane. The less probable death of Vickie differs only in that a different person was injured.
8. The statute prohibits “murder” with premeditation. It does not define murder, but Wilma is right that the common law definition of murder requires “malice.” She is wrong that malice requires ill will or evil motive. At common law, malice is established by intentionally (including knowingly) causing death.
This malice might be eliminated by provocation at common law, mitigating the killing to manslaughter. But Wilma does not meet any of the traditional categories of legally adequate provocation, and it is questionable whether she acted in a heat of passion.
9. Dryver as accessory to robbery is automatically guilty of capital murder when the victim is killed during the commission of the robbery. Foreseeability or knowledge are not required.
Dryver’s death sentence must be vacated because even if his participation was major, he neither intended to kill nor evicenced reckless indifference as explained in Tison v. Arizona.
10. Justice James Graves ’s identified the broad sentencing discretion and lack of guidelines as the greatest challenge for trial judges in criminal cases. This makes it difficult to know how much punishment to impose in individual cases and makes it difficult to treat similar cases similarly.
11. Sleaze committed attempted sexual battery when he designed and endeavored to engage in sexual penetration with an unconscious person, performed an overt act towards completion by removing victim’s clothes, but failed or was prevented from completing the crime. However, Sleaze may have a defense of abandonment under the Ross case in Mississippi if he was dissuaded by the victim’s verbal urging rather than any physical resistance.
12. Eula may be guilty of attempted theft. This will require a finding that she knew Flem was going to steal, which may be supported by his statement that he knew where to get cigarettes without paying. The majority rule requires an accomplice to have not just knowledge but true purpose. This is easily shown by Eula’s request for her own brand.
The act of aiding is obviously satisfied by lending the car.
Some common law jurisdictions do not recognize abandonment, but her change of mind was too late and ineffectual anyway.
Eula is probably not guilty of assault. She clearly lacks true purpose for that crime. Even under the doctrine that makes an accessory liable for crimes that are “natural and probable” consequences of their crime, it is pushing it to see an unprovoked assault as a natural and probable consequence of Flem’s failed shoplifting.
PART II. The Case of the Break-in Broken Dreams (60 minutes)
A good essay would identify and discuss the following:
Killing in the commission of burglary
Elements of burglary
Identification of intended felony (theft)
Possible limitations: killing did not further or advance burglary
Victim was cofelon
Deliberate design and acts eminently dangerous
Intent when hits with handbag
Intent when watches in water
Duty to save because placed at risk and due to marriage-like relationship
Intoxication not a defense in Mississippi if capable of telling right from wrong when sober
Reckless or wanton, utter disregard safety of other
Heat of passion, cruel or unusual manner or dangerous weapon
words and marital status—will not prevent submission to jury in Mississippi
Felony murder (felony manslaughter)—but only based on larceny (felony not listed for capital murder)