Criminal Law M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1997

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."

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. What are the elements of larceny and robbery at common law?

2. Part of the initiation of new members into the Sigma Iota Kappa Omicron fraternity at the University of Northern Mississippi included a ritual in which the new members were blindfolded, bound hand and foot, and placed in the trunks of the cars of older members. The older members then drove a short distance to a lakeside picnic area, where the new members were released. Then, the new and old members would take off their shirts, break raw eggs on each other, and exchange jubilant hugs, prior to imbibing various alcoholic beverages.

The fraternity had practiced this initiation for several years. But in the summer of 1996, Vic Dahm, one of the new members, died in the trunk of one of the cars on the way to the picnic. The official cause of death identified by the medical expert was "death not due to natural causes from a mixture of carbon monoxide poisoning, oxygen deprivation, fright, and heat exposure."

A second new member, Val Triest, who had been placed in the same car trunk with Vic Dahm almost died and suffered minor brain damage from the same causes, but he survived.

Freddy "Rumbles" Denton, was the older fraternity member who owned and drove the car in which Vic died and Val was injured. Denton was also the person who blindfolded them, bound their hands, and placed them in the trunk.

Denton earned his nickname "Rumbles," because for years he had driven an old car with a broken muffler. As a result, his car made loud rumbling noises and emitted clouds of smoke from the exhaust pipe. Two weeks before the fatal initiation ritual, Denton had had his transmission repaired. At that time the mechanic told him that he should fix his muffler. Denton had just laughed at the advice, but the mechanic informed him that the defective exhaust system was dangerous because it emitted carbon monoxide and other poisonous fumes. But Denton had responded, "Man, I have been driving this old car for years with a broken muffler, and nothing bad has happened. You just worry too much."

Mississippi Code section 97-3-105 provides:

(1) A person is guilty of hazing in the first degree when, in the course of another person's initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury.

(2) Any person violating the provisions of subsection (1) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than Two Thousand Dollars ($2,000.00) or imprisonment in the county jail for not more than six (6) months, or both.

(3) A person is guilty of hazing in the second degree when, in the course of another person's initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person.

(4) Any person violating the provisions of subsection (3) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00).

(5) The provisions of this section shall be in addition to other criminal laws, and actions taken pursuant to this section shall not bar prosecutions for other violations of criminal law.

Denton is charged with violating this statute. Identify problems the prosecutor may have with establishing his guilt.

3. Same facts. You are working for the prosecutor who asks you to identify homicide crimes that Denton may have committed under Mississippi law, to list the material elements of the crimes, and to identify any major problems with establishing Denton's guilt of the crimes.

4. Same facts. The prosecutor also asks whether Denton may be guilty of attempted murder or attempted manslaughter with respect to Val. Please explain whether Casey is guilty of criminal attempt under the law of Mississippi.

5. Linda Loser and Flem Snopes fell in love and decided to live together. Linda moved into Snopes's house. They talked about marriage but never finalized their plans.

One day Linda bought Snopes a nice new cuckoo clock, and she decided to go to Snopes's house early in order to surprise Snopes by mounting it on the bedroom wall before he returned home. As she entered the bedroom, Linda heard a voice say, "Make haste."

Linda was shocked to discover Snopes in bed with another woman. Linda flew into a rage, grabbed her clothes and toothbrush, and stormed out of the house. She left the clock behind.

Linda went to her brother Hank's house and told him what had happened. They talked for hours, and Linda and Hank consumed over two bottles of wine during the conversation. Linda kept crying, and Hank kept sympathizing with her and offering to do anything he could to help.

Linda got more and more angry as she talked to Hank and realized how badly she had been treated by Snopes. She was especially angry about the new cuckoo clock, and she asked Hank to go to Snopes's house the next day to destroy the clock.

Hank agreed to destroy the clock and asked if she wanted him to do anything else while he was there. Linda replied, "I don't care what you do. You can take anything you want as far as I'm concerned or burn the place down."

The next evening, after dark, Hank waited until Snopes left the house. Hank then walked to the rear of the house, broke a window, and climbed inside. Hank was planning to smash the clock but he could not find it. Nevertheless, Hank did not want to disappoint his sister, and he himself was angry at Snopes. So Hank piled up old newspapers in the middle of the living room and set them on fire. He then fled.

A neighbor saw smoke coming from Snopes's house and called the fire department. One of the firemen who responded to the call, Bill Williamson, suffered a stroke while fighting the fire and died.

Linda has been indicted for murder for the death of Williamson. The prosecution is employing a felony murder theory. Explain any weaknesses in the prosecution's theory. Apply the common law.

6. Same facts. The neighbor recognized Hank when he ran from the house and was able to identify him to the police. Officer Friendly then went to Hank's house to arrest him. He knocked on the door and announced, "Police, open up!"

Hank opened the door, and Officer Friendly asked, "Are you Hank Loser?"

Hank responded, "None of your beeswax." Hank then punched Officer Friendly in the face and ran out the front door.

Officer Friendly was knocked to the floor by the blow. When he rose, he saw Hank running towards a car parked on the street. Officer Friendly honestly believed Hank was the suspect and he honestly believed that if he did not stop Hank, Hank would get in the car and escape. Officer Friendly accordingly shouted, "Halt, or I'll shoot." When Hank continued to flee, Officer Friendly took careful aim at Hank's left leg and fired. The shot hit Hank in the leg, and he fell to the ground. Officer Friendly took Hank into custody. Hank subsequently pled guilty to various crimes.

Hank's lawyer has sent Hank's medical bill for treatment of the gunshot wound to the police department, demanding it pay Hank's damages. The department forwarded the bill to the city attorney. You are working for the city attorney who has concluded that the city has no liability if there was lawful justification for Officer Friendly to shoot Hank. Your assignment is to explain whether Officer Friendly was justified in shooting Hank. Please advise.

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 Contrite Confessor (recommended one hour)

Dameon Knievel was arrested when he appeared partially clad in women's clothes at the police station in Lamarville, Mississippi and confessed to the stabbing death of his mother. His mother was a police officer with the Lamarville force, and he stabbed her while she was taking a shower.

Knievel has pled not guilty and not guilty by reason of insanity to charges of capital murder, murder, and manslaughter. The evidence against Knievel consisted of his voluntary confession, the medical examiner who testified that the victim died of multiple stab wounds, and an expert who identified Knievel's fingerprints on the knife. Knievel's confession included this explanation for his behavior.

I did not want to kill her. I knew it was against the law. But I kept hearing a voice, louder and louder, shouting "Mothers can't be cops! Mothers can't be cops!" I picked up the knife, and the knife pulled me down the hall. I tried but could not let go. It was like my hand was glued to it. I know now that the devil had taken control of my hand. That is why I am confessing. I stabbed her but I did not want to. The devil made me do it. Please execute me so I never do anything like this again.

Also in evidence was Knievel's medical record, which showed that he had been hospitalized on two occasions in the past in connection with attacks on his mother. On both occasions he had claimed that he had heard voices that urged him to kill his mother. During one of these hospitalizations, Knievel was overheard telling a fellow patient, "These doctors are fools. I am really as sane as they are, but I know how to fake insanity so that no court in the world will be able to convict me." The statement was entered in his medical record.

Two psychiatrists also examined the defendant and studied the record in this case. They agreed that Knievel suffers from severe, chronic schizophrenia, paranoid type. But they differed as to whether Knievel was legally insane at the time of the killing.

Dr. Fibes, the state's expert, testified that the defendant was legally sane at the time of the killing. Dr. Fibes opined that Knievel suffered some delusions but that Knievel exaggerated his lack of control. Dr. Fibes explained that this exaggeration of symptoms together with Knievel's previous statements about his ability to feign insanity were manifestations of Ganzer Syndrome (a condition in which one attempts to appear less sane than one is in order to get advantages of being thought insane). Dr. Fibes concluded that at the time of the killing Knievel's delusions coexisted with a fixed conscious desire to kill. On cross examination, Dr. Fibes conceded that in twelve years as an expert psychiatric witness he had never reached the opinion that a criminal defendant was not sane.

Dr. Wellby, the defendant's expert, testified that the defendant was legally insane at the time of the killing. His opinion was based on exactly the same evidence as Dr. Fibes's. He discounted the defendant's claims in his medical record about his own sanity and ability to convince the legal system that he was insane. Dr. Wellby explained that such statements were further evidence of insanity. According to Dr. Wellby, such statements only showed the defendant's lack of insight into his own illness and were manifestations of McGavran Syndrome (a condition manifested by a bitter or sarcastic view of the medical and legal professions). On cross examination Dr. Wellby admitted that he was compensated at the rate of $500 per hour for his expert psychiatric opinion in criminal cases. He further conceded that in nine years of serving as an expert, he had never reached the opinion that a defendant was not criminally insane.

You are the trial judge. There is no jury. Is Knievel guilty or not? Please provide a complete evaluation of Knievel's liability for homicide under Mississippi law, identifying elements of relevant offenses, discussing applicable defenses, and explaining who bears the burden of proof on disputed facts. Your decision should specifically explain whether you believe Knievel's confession and what difference its credibility makes to your decision.

B. The Case of the Curious Curator's Curio Case (recommended one hour)

Jackie Krator was delighted when he was selected as the new head of the state History Museum. His duties included supervision of all museum employees and control of all museum exhibits.

Krator went on several tours of the museum and became familiar with its collection. One of his favorite parts was the exhibit of the doctor's office from the late 1800s. Part of this exhibit were the contents of the old doctor's medicine bag. These items were prominently displayed in a glass case, and they included hypodermics, saws, a stethoscope, bandages and other supplies. It never occurred to Krator that there might be something wrong with the two little vials exhibited in the glass case that contained white powder and were labeled "morphine" and "cocaine" respectively.

One day, the museum's security guard informed Krator that someone had smashed the display case and stolen the two vials and other items. Krator called the police, and the police soon apprehended the thief, Slyme Kreep, a well known drug addict who lived in the neighborhood.

Kreep was arrested in his apartment where he was discovered next to the dead body of Trudy Clueless. Police have determined that Clueless died of a drug overdose caused when Kreep mixed together the white powders stolen from the museum and injected half of the mixture into Clueless. Kreep had planned to use the other half of the mixture, but when Clueless went into convulsions and died, he did not inject the other half of the drugs into himself. The police lab has tested the powders and established that they are almost pure morphine and cocaine. Kreep pled guilty to various offenses.

Krator thought Kreep's convictions would put an end to the tragic episode. Thus Krator was shocked when police arrested him in his office and led him away in handcuffs. Krator has been charged with 1) two counts of felonious possession of morphine and cocaine (for the possession of the drugs in the display case at the museum), 2) one count of aiding and abetting the unlawful distribution of morphine and cocaine (for assisting Kreep's transfer of the drugs to Clueless), and 3) one count of murder (for the death of Clueless). The jurisdiction has adopted the following statute:

Section 23.07.1(a). Possession of controlled substance. Possession of any substance listed in schedule A is a felony in the third degree.

Schedule A lists both morphine and cocaine.

Discuss fully whether Krator should be found guilty of the crimes charged. Consider his liability separately under both the common law and the Model Penal Code.

Criminal Law M.H. Hoffheimer

Exam Answers University of Mississippi

Law School

Spring 1997

1. The elements of larceny at common law are: taking and carrying away the personal property of another with the intent to steal. The elements of robbery are: larceny from a person by force or intimidation.

2. The main problem is with the mens rea. Denton obviously did not intentionally injury or create risks of injury. But whether he did so "recklessly" depends on 1) whether recklessness in this statute requires awareness of risk, and 2) whether he was aware of the risk (which he denied).

3. Possible homicide crimes include murder (if Denton's behavior constitutes acts "eminently" dangerous evincing a depraved heart regardless of human life), misdemeanor manslaughter (as he may have caused death during the commission of the misdemeanor, and as the misdemeanor seems to satisfy any additional requirement of inherent dangerousness), and the catchall manslaughter statute (if his negligence was sufficiently reckless or wanton and of such character to show utter disregard for the safety of others). The major problems will be showing that he was sufficiently blameworthy to satisfy the mens rea elements of these offenses.

4. No. Mississippi requires specific intent ("design and endeavor") for attempt. At most defendant was extremely reckless.

5. Defendant's guilt would depend on the theory that she was guilty as accomplice to some felony (arson, burglary) during which the victim was killed. But she is not guilty of arson because she had no purpose to encourage or aid the arson (as required by most jurisdictions); nor did she even have knowledge of the principal's intent to commit arson (as a minority of jurisdictions require). Nor is she guilty of burglary, because the principal was not guilty of burglary: there was no intent to commit a felony when he broke and entered. (Destroying her own clock is not a crime, and he only later formulated the intent to commit arson).

6. The police officer was not justified to use deadly force to apprehend this unarmed suspect unless he had reason to believe the fleeing suspect presented a threat of serious physical harm to the officer or others if not stopped. It is possible that the suspect's acts of arson that caused death and his assault on the officer satisfy this test, but the officer was not justified if he only shot in order to apprehend the suspected felon (even for a serious crime).

A. The Case of the Contrite Confessor (recommended one hour)

A good answer needed to discuss thoroughly:

1. Defendant's liability for murder requires finding of voluntary act, but if his confession is believed, his body was not under his conscious control, and he may have lacked the voluntary act.

2. The obvious basis for murder in Mississippi is "deliberate design," which requires an intent to kill.

The prosecutor bears the burden of proving such intent, and this burden is usually satisfied by the inferences that are made about the normal consequences of an actor's behavior. But the Constitution prevents such inferences from shifting the burden to the defendant. (The defendant does not have to prove he did not intent to kill.) If the defendant's evidence is credible, he appears to have lacked the intent to kill.

3. Because the insanity defense if properly raised, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant was sane by proving that at the time of the stabbing the defendant had the mental capacity to realize and appreciate the nature and quality of his acts and to distinguish between right and wrong with reference to the acts he committed.

It is doubtful whether the defendant was insane. The definition of insanity in Mississippi (following the M'Naughten Rule) does not recognize irresistible impulse (or control test followed by the A.L.I.). The defendant's confession indicates that he was fully aware of what he did and he admitted that "I knew it was against the law," though some jurisdictions require a fuller moral appreciation of the wrongfulness of conduct.

4. If the elements of murder are proven beyond a reasonable doubt, then there is a problem with the defendant's guilt of capital murder. Mississippi makes the murder of a peace officer (including a city police officer) capital murder when the killer 1) knows the victim is a peace officer, and 2) either kills her while she is acting in her official capacity or by reason of an act performed in her official capacity. Here capital murder might be established (killer obviously knew victim was police officer) but only if it can be proved beyond a reasonable doubt that his killing her because she was police officer was "by reason of an act" (perhaps joining the police department?) she did as a police officer.

B. The Case of the Curious Curator's Curio Case (recommended one hour)

A good answer needed to discuss thoroughly:

Possession offenses

1. Whether the statute imposed strict liability at common law. The statute's silence does not mean it is strict liability.

2. Whether the Model Penal Code's requirement of a voluntary act of possession is established under the facts when the defendant was vaguely aware of what he had control of but apparently did not appreciate its significance.

Aiding and abetting offenses

1. Most common law jurisdictions require the specific intent to aid the principal (which is not present). A minority require only knowledge of the principal's purpose (but even that is not present).

2. The Model Penal Code requires the accomplice have the purpose of aiding (which is not present).


1. Because there is the possibility defendant has committed a felony (if the statute imposed strict liability for possession), there is a possibility of felony murder liability if he caused death during or as a result of the felony. But many jurisdictions limit felony murder to felonies that are inherently dangerous (looking at the elements in the abstract). And merely possessing (not using or distributing) even these poisonous drugs does not seem to meet this test.

2. There is no murder liability under the Model Penal Code. The only remotely possible mens rea would be extreme recklessness, but the defendant was not reckless because he was not actually aware of any risk at all.