Criminal Law M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1998

General instructions

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, and 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 (recommended 60 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. Assume that the following passage from Beatrix Potter's Peter Rabbit describes the acts of human adults:

Peter, who was very naughty, ran straight away to Mr. McGregor's garden, and squeezed under the gate! First he ate some lettuces and some French beans; and then he ate some radishes; and then, feeling rather sick, he went to look for some parsley. But round the end of a cucumber frame, whom should he meet but Mr. McGregor!

Mr. McGregor was on his hands and knees planting out young cabbages, but he jumped up and ran after Peter, waving a rake and calling out, "Stop thief!"

Peter has commenced a civil action against Mr. McGregor for slander in connection with the statement that Peter was a thief.

Truth is a defense. Identify the elements of theft at common law and explain whether Mr. McGregor has a good defense under the facts.

2. Peter is prosecuted for theft of the beans and lettuce and for attempted theft of the parsley. What would his best defense be to the attempt charge and why?

3. Judge Badd went down to breakfast one morning. His brother Berry was visiting and informed the judge that their sister Pretty had been seduced by Victor Tuum. Tuum had left town, and Berry told the judge that he was going to pursue Victor and kill him. The judge tried to calm Berry down and tried to persuade him not to do anything rash. But Berry finally just shouted, "Enough talk. It's time for action."

Berry rushed out the front door. But less than a minute later Berry returned to the house to ask the judge if he could have two shotgun shells. It was not hunting season. The judge was reluctant until Berry put a one hundred dollar bill down on the table and said, "I can't wait."

The judge then gave Berry the shells but said, "Please, Berry, don't do it."

Berry promptly loaded his gun, pursued Victor, and shot and killed him in the next town with a shotgun loaded with the shells obtained from Judge Badd.

The events took place in Mississippi and Judge Badd has been charged with murder and capital murder. After the prosecution's case, the defendant moved for acquittal arguing that there was no evidence that the judge had the necessary mens rea to aid and abet the murder of Tuum.

What should the court do? Explain the mens rea required and whether the evidence is sufficient.

4. Same facts. Rightly or wrongly, the court denied the motion for acquittal, and the jury was instructed:

Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.

A person is guilty as an accessory before the fact if, with knowledge of the criminal purpose of the principal, he aids, promotes, encourages or instigates by act or advice the commission of such crime.

A supplier who furnishes equipment that he knows will be used to commit a serious crime is guilty as an accessory before the fact to such a crime.

At trial the jury convicted the defendant, and he has appealed, complaining of error in this jury instruction. You are clerking for the Mississippi Court of Appeals. Explain whether the jury instruction is erroneous.

5. For many years Barnett Sickovsky owned and operated a bar and restaurant in the town of Bedlam, Mississippi known as The Cotton Warehouse. The restaurant was housed in an old, windowless, wood-and-metal structure that had been built as a cotton gin. Bales of cotton were used for seats. The walls were covered with old paper advertisements for cotton products. The floors were strewn with sawdust and peanut shells.

In violation of applicable safety regulations, the restaurant had neither working fire escapes, exit signs, emergency lighting, nor fire extinguishers. The front door was blocked so that it did not open completely, allowing only one person to enter or exit at a time.

Sickovsky's lawyer Fred McGavran told him that the bar and restaurant was not in compliance with applicable laws. McGavran further warned Sickovsky that the Warehouse was so dangerous that Sickovsky might be found criminally liable for injuries sustained in any fire.

Sickovsky just laughed, took a long drag on his Marlboro, and said, "Man you just worry too much." But after further pressure from McGavran, Sickovsky finally agreed to sell the Warehouse to get rid of any possible problems.

On December 1, 1997, Sickovsky completed the sale of the Warehouse as a going concern to B & B Enterprises, a corporation. The corporation immediately began operation of the business. On December 2, Sickovsky began to spit up blood and went to the hospital. On December 7, Sickovsky underwent surgery to have a lung removed.

While Sickovsky was unconscious, undergoing surgery, a fire broke out at the Warehouse. The fire started when Torch Bayer, a waitress, lit a candle on one of the tables. She accidentally dropped the match on the floor while it was still lit. The match ignited a pile of sawdust and peanut shells. The fire quickly spread to the adjacent cotton bale seats and to the wall.  Soon the Warehouse was engulfed in flames and smoke.

Fifty people died in the fire. Sickovsky has been indicted for murder and manslaughter in Mississippi. You work for Fred McGavran who is defending Sickovsky. He asks you whether there are any major weaknesses in the prosecution's case against Sickovsky. Please explain.

6. One night Dameon Mephisto, a 35-year-old male, drove to the bus station to look for a prostitute. There he met a young looking girl who called herself Babe. To Mephisto Babe appeared to be about 18 years old, but he was not sure of her age and did not want to have sexual intercourse with a girl younger than sixteen because he lived in a Model state governed by the Model Penal Code, which provides:

Section 213.3. Corruption of Minors and Seduction.

(1) Offense Defined. A male who has sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse, is guilty of an offense if:

(a) the other person is less than 16 years old and the actor is at least four years older than the other person.

The offense is a felony.

Accordingly, Mephisto asked Babe how old she was. Babe answered, "Old enough to know better." Mephisto then asked her what year she was born, and she responded, "1980." He further asked whether she had a driver's license, and she responded, "Of course, but I am not going to let you card me."

After paying some money, Mephisto engaged in sexual intercourse with Babe.

Babe was in fact 15, and Mephisto has been arrested by the Model police department and charged with a violation of section 213.3. You have been appointed to represent Mephisto, and he asks you whether he has a valid defense of mistake. Please explain.

PART II. ANALYTIC ESSAYS (recommended two hours total for this part)

Instructions. Write coherent, literate essays in the Blue Book that respond to each of the following problems.

A. The Case of the Bad Bus Driver (recommended one hour)

On e day Debbie Duberson's husband Chuck came home from work early at 2:00 in the afternoon. He got a beer from the refrigerator, sat down in the living room, and calmly told Debbie that he had been having an affair with their next door neighbor Valerie Vickers. When Debbie started to cry, Chuck shook her, slapped her, told her to shut up, called her old and fat, and informed her he was going to get a divorce.

Debbie was enraged and went into the kitchen to get a butcher knife, but by the time she returned, Chuck was gone. He left behind a note that said, "Thanks for the memories." Believing that Chuck had gone next door to Valerie and still holding the knife in her hand, Debbie rushed out the door and ran towards Valerie's house.

Valerie worked as a part time school bus driver for the town of Lamarville, Mississippi school system. After driving children to school in the morning, she would park the bus at her house until it was time to return to school in the afternoon to take the students home from school.

As Debbie was running towards Valerie's house, Valerie was getting into the bus in order to drive back to school to pick up the children. When Valerie saw Debbie rushing towards her, she closed the bus door and began to drive off.

Debbie jumped up and held on to the side of the bus immediately outside the driver's window. The window was open, and Debbie screamed at Valerie, "Stop this bus. I could kill you for stealing my husband."

Valerie responded by laughing. Instead of stopping, she increased the speed of the bus until she was driving at about 40 miles per hour. Debbie was afraid to let go of the bus, fearing she would be seriously injured if she fell off it at that speed.

While the bus was speeding down the road, Debbie reached through the window with the knife and tried to stab Valerie. Valerie dodged the knife but when she moved out of the way, she lost control of the steering wheel.

The bus drove off the road, and Valerie was seriously injured in the resulting crash. Valerie never regained consciousness and was kept on life support systems for over 16 months until she was finally declared dead.

The year is 2000. You are assistant district attorney and the District Attorney asks for a memorandum that fully discusses Debbie's culpability for criminal homicide in Mississippi. Explain applicable crimes and defenses, identify elements, and discuss any special problems that may arise in prosecuting them.

B. The Case of the Spoiled Lunch (recommended one hour)

You are a third-year law student who has applied for a job with the District Attorney's office for the district that includes LaFayette County, Mississippi. Jim Hood, the District Attorney, has taken you out to lunch during your interview.

As the salad is brought to the table, Jim turns to you and says, "I remember being confused in law school about what merger meant and have not had many cases where the issue has come up. Would you please remind me what merger means, explain the purpose or purposes of the doctrine, and tell me how it is treated in Mississippi, under the Model Penal Code, and at common law in other jurisdictions." Please respond.

Criminal Law

M.H. Hoffheimer

Exam Answers

University of Mississippi

Law School Spring 1998

1. Theft or larceny at common law is the taking and carrying away of personal property of another with the intent to steal under circumstances that constitute a tort. McGregor has a good defense because Rabbit seems to have done all the elements, unless eating growing crops are real property. . .

2. Peter's best defense to the attempt charge is that he has not done an act beyond mere preparation.

3. The majority rule is that the aider must have the true purpose to aid; the minority rule is that the aider must have only knowledge of the principal's criminal purpose. The evidence clearly supports a finding that Judge Badd knew of his brother's intent to engage in a serious crime. This is sufficient evidence in all jurisdictions despite his possible lack of purpose shown by the attempt to dissuade his brother. The motion for acquittal must be denied.

4. The instruction states the minority rule and errs as a matter of law in stating the law followed by most jurisdictions that an aider or supplier must not only know the principal's criminal intent but must have the purpose of aiding the principal. The jury may infer this purpose from the aider's knowledge but must nevertheless be told that they must be persuaded beyond a reasonable doubt that the defendant had such purpose.

5. The case against Sickovsky, like the Welansky case, seems to be based on his omissions. In general omissions are not sufficient unless there is a duty to act, and defendant owed no duty to the customer-victims as invitees after he sold the business.

6. The Model Penal Code generally recognizes a mistake of fact defense only when it negatives an element of the offense. Because this statute is silent with respect to the mens rea element, it must be recklessly or higher. Thus defendant might have a defense if some mistake prevented him from being reckless, that is being aware of the significant and unjustifiable risk that the victim was 15. The problem is, his questions show that he was very much aware of the risk. . .

A. The Case of the Bad Bus Driver

Murder. Debbie may be guilty of murder under Mississippi law if she caused death with deliberate design or by means of an act eminently dangerous evincing a disregard for the value of human life. Deliberate design only means an intent to kill, not premeditation or deliberation, and may be proved by her thrusting a knife at the victim. Even if she did not intend to kill, her act likewise was eminently dangerous and evinced a disregard for life.

Capital murder. If Debbie is guilty of murder, she will be guilty of capital murder under the new provision that makes any murder on educational property capital murder. A school bus is defined by statute as educational property.

Mitigation to voluntary manslaughter. However, even if Debbie has the mens rea for murder (and capital murder), her liability may be mitigated to voluntary manslaughter. Mississippi statutes define voluntary manslaughter as a killing without malice committed in a heat of passion, but in a cruel or unusual manner or by means of a dangerous weapon. The use of the knife satisfies the cruel/unusual/dangerous weapon requirement. The real problem will be whether she was acting in an actual (subjective) heat of passion. This will be a fact question for the jury. While the form of provocation present (an assault from her husband, not the victim, and words indicating the victim's commission of past acts of adultery) would not have been legally adequate at common law, Mississippi, like most modern states, generally abandons the narrow common-law classifications and leaves the question of whether the defendant acted without malice and in a heat of passion to the jury. Ruffin v. State, 444 So. 2d 839 (Miss. 1984).

Involuntary manslaughter. In addition to forms of homicide, Debbie may be guilty of manslaughter for having caused the victim's death through culpable negligence. This criminal negligence is defined by cases as requiring reckless or wanton negligence that shows an utter disregard for the safety of others and would seem to be established by jabbing a knife at a person driving a bus at 40 mph.

Causation. For any of these homicide offenses, the state will have to prove Debbie caused the victim's death. Although the victim died in a way different than Debbie may have intended or foreseen, I think causation may be established. First, Debbie is cause-in-fact of the victim's death because without her acts, the victim would not have died at this time and in this way. Second, Debbie is legal or proximate cause because the crash happened as a natural and probable consequence of her act of stabbing at the driver.

Self-defense. Debbie will have a complete defense to all homicides if she actually and reasonably believed that it was necessary to use the deadly force to avoid death or serious bodily harm. There are problems for her defense. First, her actual belief will be a question for the jury to decide. Second, she should not be entitled to any use of force if she was the initial aggressor and provoked the victim's use of force in the first place.

Year-and-a-day Rule. The common law required for murder that death occur within a year and a day of the killer's assault. If Mississippi follows this rule, there may be a complete defense to murder and maybe manslaughter. But the Mississippi statutes do not contain this requirement, and I am not sure there are any cases that impose it.

B. The Case of the Spoiled Lunch

Merger can mean different things. It is used broadly to describe the way that conviction for an offense bars multiple conviction for those lesser included offenses that are necessarily committed as part of the greater offense. Thus one is not guilty of both robbery and the lesser offenses of theft and assault. The purpose of this sort of merger is obviously to prevent multiple convictions for a single crime.

Merger at common law was said to prevent a defendant from being convicted both of conspiracy and of the substantive offense that was the object of the conspiracy. This application of merger has been rejected in most jurisdictions. But the Model Penal Code has a version of it because it prevents a conviction of for a substantive offense and for a conspiracy to commit the substantive offense when the only object of the conspiracy was the one substantive offense. The idea of merging conspiracy is to prevent the defendant from being prosecuted more than once for the same wrongful conduct, but most jurisdictions reject merger on the ground that the conspiring is an additional evil in itself that deserves punishment.

Most of the confusion surrounding merger stems from its application in the felony murder context. Here merger provides a limit on the application of felony murder by requiring that the underlying or predicate felony must be independent or not included-in-fact in the homicide. Example of a felonies that are not independent be attempted murder or assault with intent to kill. These felonies "merge" with the homicide so that they cannot be used to support a felony murder theory. Instead the prosecution would have to prove some mens rea for murder other than the mens rea for the felony.

The merger doctrine prevents felony murder from swallowing up all other forms of murder liability and preserves the normal requirement that the prosecution prove some actual mens rea with respect to the killing rather than borrowing the mens rea from some other felony. It also serves the important function of preserving voluntary manslaughter as a distinct lesser homicide offense: without merger every heat-of-passion killing would become murder on a felony murder theory because the killer committed some felonious assault that proximately caused death.

Most states have some form of merger limits on felony murder. Where they divide is when it comes to deciding whether certain felonies (especially burglary-with-intent-to-kill or homicidal child abuse) merge. Mississippi has not addressed merger in general, but the supreme court has held that felonies listed in the capital murder statute (felonious child abuse, burglary) do not merge.

Because the Model Penal Code has no felony murder doctrine, it obviously also has no merger limitation on it.