An Outline of Criminal Law

Yin Huang

May 1, 2010

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Contents

1 The Nature of Punishment 41.1 Kansas v. Hendricks . . . . . . . . . . . . . . . . . . . . . . . 41.2 Ewing v. California . . . . . . . . . . . . . . . . . . . . . . . . 51.3 Apprendi v. New Jersey . . . . . . . . . . . . . . . . . . . . . 6

2 The Actus Reus 72.1 Proctor v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 72.2 Jones v. United States . . . . . . . . . . . . . . . . . . . . . . 82.3 United States v. Maldonado . . . . . . . . . . . . . . . . . . . 92.4 People v. Newton . . . . . . . . . . . . . . . . . . . . . . . . . 102.5 Martin v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 112.6 People v. Grant . . . . . . . . . . . . . . . . . . . . . . . . . . 112.7 Robinson v. California . . . . . . . . . . . . . . . . . . . . . . 122.8 Johnson v. State . . . . . . . . . . . . . . . . . . . . . . . . . 13

3 The Mens Rea 153.1 Regina v. Faulkner . . . . . . . . . . . . . . . . . . . . . . . . 153.2 Regina v. Prince . . . . . . . . . . . . . . . . . . . . . . . . . 163.3 People v. Ryan . . . . . . . . . . . . . . . . . . . . . . . . . . 173.4 People v. Bray . . . . . . . . . . . . . . . . . . . . . . . . . . . 183.5 United States v. Baker . . . . . . . . . . . . . . . . . . . . . . 193.6 Cheek v. United States . . . . . . . . . . . . . . . . . . . . . . 203.7 Commonwealth v. Twitchell . . . . . . . . . . . . . . . . . . . 213.8 Hendershott v. People . . . . . . . . . . . . . . . . . . . . . . 223.9 State v. Cameron . . . . . . . . . . . . . . . . . . . . . . . . . 23

4 Intentional Homicide 244.1 Francis v. Franklin . . . . . . . . . . . . . . . . . . . . . . . . 244.2 United States v. Watson . . . . . . . . . . . . . . . . . . . . . 254.3 People v. Walker . . . . . . . . . . . . . . . . . . . . . . . . . 264.4 Ex Parte Fraley . . . . . . . . . . . . . . . . . . . . . . . . . . 274.5 Rowland v. State . . . . . . . . . . . . . . . . . . . . . . . . . 284.6 People v. Berry . . . . . . . . . . . . . . . . . . . . . . . . . . 294.7 People v. Wu . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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5 Unintentional Homicide 315.1 Commonwealth v. Welansky . . . . . . . . . . . . . . . . . . . 315.2 State v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . 32

6 Reckless Murder 336.1 Mayes v. People . . . . . . . . . . . . . . . . . . . . . . . . . . 33

7 Felony Murder 347.1 State v. Martin . . . . . . . . . . . . . . . . . . . . . . . . . . 347.2 People v. Hickman . . . . . . . . . . . . . . . . . . . . . . . . 357.3 People v. Gladman . . . . . . . . . . . . . . . . . . . . . . . . 367.4 People v. Cavitt . . . . . . . . . . . . . . . . . . . . . . . . . . 377.5 State v. Shock . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

8 The Death Penalty 408.1 Olsen v. State . . . . . . . . . . . . . . . . . . . . . . . . . . . 408.2 McCleskey v. Kemp . . . . . . . . . . . . . . . . . . . . . . . . 41

9 Rape 439.1 Brown v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 439.2 People v. Dorsey . . . . . . . . . . . . . . . . . . . . . . . . . 449.3 People v. Barnes . . . . . . . . . . . . . . . . . . . . . . . . . 459.4 State v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . 469.5 In the Interest of M.T.S. . . . . . . . . . . . . . . . . . . . . . 479.6 State v. Moorman . . . . . . . . . . . . . . . . . . . . . . . . . 489.7 Commonwealth v. Fischer . . . . . . . . . . . . . . . . . . . . 48

10 Conspiracy 5010.1 Griffin v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 5010.2 United States v. Recio . . . . . . . . . . . . . . . . . . . . . . 5110.3 People v. Lauria . . . . . . . . . . . . . . . . . . . . . . . . . . 5210.4 United States v. Diaz . . . . . . . . . . . . . . . . . . . . . . . 53

11 Defensive Force, Necessity, and Duress 5411.1 People v. La Voie . . . . . . . . . . . . . . . . . . . . . . . . . 5411.2 People v. Gleghorn . . . . . . . . . . . . . . . . . . . . . . . . 5511.3 State v. Leidholm . . . . . . . . . . . . . . . . . . . . . . . . . 5611.4 People v. Goetz . . . . . . . . . . . . . . . . . . . . . . . . . . 5711.5 The Queen v. Dudley & Stephens . . . . . . . . . . . . . . . . 59

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11.6 People v. Unger . . . . . . . . . . . . . . . . . . . . . . . . . . 60

12 Insanity 6112.1 People v. Serravo . . . . . . . . . . . . . . . . . . . . . . . . . 61

13 Attempt 6313.1 State v. Lyerla . . . . . . . . . . . . . . . . . . . . . . . . . . 6313.2 People v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . 6413.3 McQuirter v. State . . . . . . . . . . . . . . . . . . . . . . . . 6513.4 People v. Rizzo . . . . . . . . . . . . . . . . . . . . . . . . . . 6613.5 People v. Staples . . . . . . . . . . . . . . . . . . . . . . . . . 6713.6 People v. Lubow . . . . . . . . . . . . . . . . . . . . . . . . . 68

14 Complicity 6914.1 State v. Ochoa . . . . . . . . . . . . . . . . . . . . . . . . . . 6914.2 State v. Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . 7014.3 People v. Beeman . . . . . . . . . . . . . . . . . . . . . . . . . 7314.4 Wilson v. People . . . . . . . . . . . . . . . . . . . . . . . . . 7414.5 State v. Etzweiler . . . . . . . . . . . . . . . . . . . . . . . . . 75

1 The Nature of Punishment

1.1 Kansas v. Hendricks

1.1.1 Overview

Hendricks disputed his involuntary commitment to a mental institution underKansas’s Sexually Violent Predator Act.

1.1.2 Facts

Hendricks had been been imprisoned for a long history of child molestation.At a previous trial, he admitted having an uncontrollable urge to molestchildren and that the treatment he had received was ineffective. Shortlybefore his release, Kansas enacted the Sexually Violent Predator Act, whichmandated the involuntarily commitment of repeat offenders. Kansas soughtto commit Hendricks under the Act, but Hendricks argued that the Actviolated the constitutional prohibition against double jeopardy and ex postfacto laws.

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1.1.3 Issue

(1) Does involuntary commitment under the Act constitute double jeopardy?(2) Is the Act itself an ex post facto law?

1.1.4 Holding

(1) Involuntary commitment under the Act is not double jeopardy. (2) TheAct is not an ex post facto law.

1.1.5 Reasoning

It is important to realize that not all detainment constitutes punishment.The Act addresses concerns fundamentally different from those of criminallaw. It does not serve purposes of retribution of deterrence. Persons absolvedof criminal responsibility may nonetheless be committed under it. The Actbases involuntary commitment not on criminal intent but on the presence ofa mental abnormality or personality disorder.

1.2 Ewing v. California

1.2.1 Overview

Ewing was given a sentence of twenty-five years to life under a “three strikes”law. He argued that the sentence amounted to cruel and unusual punishmentprohibited by the Eighth Amendment.

1.2.2 Facts

Ewing was on parole from a nine-year prison term when he stole severalgolf clubs whose combined value amounted to well over $1,000. As a result,he was convicted of felony grand theft. Having committed several feloniesbefore, including a robbery and several residential burglaries, the California“three strikes” law mandated a sentence of twenty-five years to life.

1.2.3 Issue

Does the sentence Ewing received under the “three strikes” law amount tocruel and unusual punishment?

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1.2.4 Holding

The sentence does not amount to cruel and unusual punishment.

1.2.5 Reasoning

The Supreme Court has long deferred to state legislatures in matters of crim-inal punishment, and the Court should do so here. In general, a punishmentdoes not qualify as cruel and unusual unless it is grossly disproportionate tothe crime. Few challenges based on the Eighth Amendment grounds havebeen successful outside the context of the death penalty. Ewing’s offenseconsists not only of shoplifting golf clubs. Rather, one should take into ac-count his long history of criminal behavior, and the state should be allowedto exercise its discretion in setting policy with regard to criminal punishment.

1.3 Apprendi v. New Jersey

1.3.1 Overview

Apprendi claimed that a statute law authorizing lengthened sentences forhate crimes violates the constitutional guarantee of due process.

1.3.2 Facts

Apprendi fired several shots into the home of an African-American family. Hepleaded guilty to second-degree possession of a firearm. During questioning,Apprendi mentioned that the crime had been partly motivated by a desire todrive blacks from the neighborhood, though he later retracted this statement.The sentence for possession of the firearm was five to ten years, but a statutemandated a sentence of ten to twenty years if that conduct also qualified asa hate crime. The trial judge subsequently found by a preponderance of theevidence that Apprendi was motivated by racial bias and accordingly handedhim the increased sentence.

1.3.3 Issue

Must any factor increasing the maximum sentence of a crime be proven to ajury beyond a reasonable doubt in order to comport with the constitutionalguarantee of due process?

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1.3.4 Holding

Any such factor must be so proven to a jury.

1.3.5 Reasoning

The law has historically required the offense and the corresponding punish-ment to be stated clearly so that the accused may have a fair opportunity tobuild a defense. If the law authorizes a higher degree of punishment becausea crime was committed under particular circumstances, then the presence ofthose circumstances must be proven beyond a reasonable doubt. Such is thecase here. An accusation of racial bias affects the mens rea and adds racialmotivation as an element of the crime. Like any other element, this elementmust be proven beyond a reasonable doubt.

2 The Actus Reus

2.1 Proctor v. State

2.1.1 Overview

Proctor challenged a conviction for owning a premises with the intention tosell liquor thereon.

2.1.2 Facts

Proctor was convicted under an Oklahoma statute that made it a crime tokeep a premises with the intention to sell alcoholic beverages thereon.

2.1.3 Issue

Is the statute void for failing to state conduct that constitutes a crime?

2.1.4 Holding

The statute is void for failing to state conduct that constitutes a crime.

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2.1.5 Reasoning

The Oklahoma legislature may not criminalize otherwise legal conduct bycoupling that conduct with some criminal intent. In order to define a crime,a statute must declare a particular act unlawful. Here, the only act is theadmittedly lawful one of keeping a premises. Criminality turns entirely on theintent to use the premises for an unlawful purpose at some undefined futuretime. Although the intent to commit a crime may be as morally blameworthyas the actual commission of the crime, the legislature nonetheless cannotcriminalize intent alone.

2.2 Jones v. United States

2.2.1 Overview

Jones argued that she could not be convicted for failing to take care of anewborn child.

2.2.2 Facts

Jones had agreed to care for a child whose mother had given birth to him outof wedlock. Several months later, the police removed the child to a hospital,where he was diagnosed with malnutrition and severe diaper rash. Despitefeeding, the child died shortly thereafter. Jones argued that she could notbe convicted absent proof beyond a reasonable doubt that she owed a dutyof care to the child.

2.2.3 Issue

Does conviction for negligent omission require proof that the accused failedto perform a legal duty?

2.2.4 Holding

Conviction for negligent omission requires such proof.

2.2.5 Reasoning

In general, one can be held criminally liable for a negligent omission (1) wherea statute imposes a legal duty to care for another, (2) where one has some

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special relationship to another, (3) where one has assumed a contractualduty to care for another, and (4) where one has voluntarily assumed thecare of another and so secluded the helpless person as to prevent others fromrendering aid. Because critical facts relevant to these criteria have yet to bedetermined, Jones is entitled to a new trial.

2.3 United States v. Maldonado

2.3.1 Overview

Maldonado appealed a conviction for possession of cocaine with the intentto distribute.

2.3.2 Facts

Rafael Angel Zavala Maldonado (“Zavala”) was arrested during a drug dealin which the other party, Santos, was an informant for the United Statesgovernment. Acting on behalf of a dealer named Palestino, Zavala had metSantos in a hotel room. Santos arrived carrying a bag of cocaine, which heintended to convey to Palestino. Despite that Zavala made several phone callsurging Palestino to hurry to the room, Palestino did not appear. Seeing thatSantos was becoming anxious, Zavala suggested that they leave the cocainein the room so they could drink sodas. Zavala was subsequently arrested andconvicted.

2.3.3 Issue

May the doctrine of constructive possession be used to impute possession ofthe cocaine to Zavala?

2.3.4 Holding

The doctrine of constructive possession may be used to impute possession ofthe cocaine to Zavala.

2.3.5 Reasoning

Although Zavala did not have physical possession of the cocaine, he gainedcontrol over it when Santos agreed to leave it in the hotel room. Even though

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his control was not complete, Zavala had the power to prevent Santos fromunilaterally leaving with the cocaine. The intent to distribute is shown by thecircumstances under which the events took place. Through his phone callsto Palestino and his reassurances to Santos, Zavala showed a clear intent tofacilitate the sale of drugs.

2.4 People v. Newton

2.4.1 Overview

Newton appealed a conviction for possession of a firearm on the groundthat he did not enter voluntarily into the circumstances under which he wasarrested.

2.4.2 Facts

Newton, who had a physical disability, had boarded a plane in the Bahamaswhile carrying a concealed pistol. At some time during the flight, he ap-parently engaged in unruly behavior. The captain, who had become awarethat Newton was carrying a firearm, decided to land the plane at John F.Kennedy International Airport in New York. The rationale for the landing,however, was unclear; the landing was never specifically attributed to New-ton’s behavior. Newton was then arrested by New York police and convictedunder a New York statute forbidding the possession of firearms.

2.4.3 Issue

Should the conviction be overturned on the ground that Newton did notenter New York voluntarily?

2.4.4 Holding

The conviction should be overturned.

2.4.5 Reasoning

The flight was not intended to land in the United States or to traverse terri-tory subject to jurisdiction of the United States. The landing was an inter-ruption that cannot be attributed to voluntary action by Newton.

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2.5 Martin v. State

2.5.1 Overview

Martin appealed a conviction for unruly conduct.

2.5.2 Facts

Martin was arrested at home. While en route to the police station in a policecar, he manifested a drunken condition by using loud and profane language.Martin was convicted for being drunk on a highway, but he challenged theconviction on the ground that he did not commit the crime voluntarily.

2.5.3 Issue

Should Martin’s conviction be overturned because his conduct was not vol-untary?

2.5.4 Holding

The conviction should be overturned.

2.5.5 Reasoning

Martin was forcibly carried onto the highway by the police.

2.6 People v. Grant

2.6.1 Overview

Grant appealed convictions for aggravated battery and for obstructing a po-lice officer on the ground that his actions were involuntary.

2.6.2 Facts

Grant was drinking at a bar when a fight between two other patrons brokeout. The police were called to the scene, where they arrested the brawlingpatrons. As the patrons were being led outside, a large group of remainingpatrons formed around the arresting officers and cheered for the arrestedpatrons. Grant, who was among the crowd, suddenly attacked Officer Von-derahe, whereupon he was subdued and arrested by Officer Yarcho. After

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Grant was taken to the county jail, he suffered a grand mal convulsive seizureand required treatment at a hospital. Grant later testified that he remem-bered nothing of the attack on Officer Vanderohe. Officer Yarcho testified ittook him great force to restrain Grant at the scene of the bar brawl, thoughit took four men to wrestle Grant into the ambulance during his seizure atthe jail. Officer Yarcho also testified that Grant appeared to be lucid at thetime of arrest. A psychiatrist testifying for Grant stated that Grant sufferedfrom a form of epilepsy that may have prevented him from controlling hisactions. The jury was instructed only on the defense of insanity, not on thedefense of involuntary action.

2.6.3 Issue

Should Grant’s conviction be overturned on the ground that the jury wasnot properly instructed as to the defense of involuntary action?

2.6.4 Holding

Grant’s conviction should be overturned.

2.6.5 Reasoning

It is possible for a defendant to lack voluntary control over his actions withoutbeing insane. Grant’s attack on Officer Vonderahe may have occurred duringan episode of automatism brought on by his condition. If such is the case,then his conviction by the court below cannot be sustained. A finding thatGrant is susceptible to automatism does not, however, automatically absolvehim of all responsibility. Rather, Grant should be entitled to a new trial,where a jury may determine whether he was indeed acting involuntarily.Even if the jury finds Grant’s actions to be involuntary, the trial court maynonetheless convict him on the ground that he had voluntarily aggravatedhis propensity for involuntarily violence through heavy drinking.

2.7 Robinson v. California

2.7.1 Overview

Robinson appealed a conviction under a statute that criminalizes drug ad-diction.

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2.7.2 Facts

Robinson was arrested after a police officer noticed track marks on his bodyand heard him admit to occasional use of narcotics. He was subsequentlyconvicted under a statute criminalizing drug addiction.

2.7.3 Issue

Should Robinson’s conviction be overturned on the ground that the statusof drug addiction is not a valid crime?

2.7.4 Holding

Robinson’s conviction should be overturned.

2.7.5 Reasoning

Drug addiction should be treated as a disease rather than a “continuous” of-fense as envisioned by the state. It is hardly conceivable that any state wouldattempt to convict a person for being mentally ill or having some other dis-ease, and there is no sound basis for distinguishing these recognized diseasesfrom drug addiction. Although drug addiction might call for quarantine orother kinds of confinement, it certainly does not merit punishment.

Justice Harlan, concurring. In convicting Grant, the state has attemptedto punish the bare desire to commit a criminal act.

Justice White, dissenting. The conviction was for the regular, repeated,or habitual use of narcotics immediately prior to Grant’s arrest. It shouldbe upheld.

2.8 Johnson v. State

2.8.1 Overview

Johnson appealed a conviction for delivering cocaine to her newborn son viathe umbilical cord.

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2.8.2 Facts

Johnson gave birth to a son. She admitted to having used cocaine the pre-vious night. Shortly after the birth, a toxicology test indicated that thenewborn’s blood contained a breakdown product of cocaine. Testimony fromthe obstetrician showed that the umbilical was functioning normally duringdelivery and that it continued to deliver blood to the infant for sixty to ninetyseconds following birth, until it was clamped. The state prosecuted Johnsonon the theory that she had “delivered” cocaine to her newborn son via theumbilical cord.

2.8.3 Issue

Has Johnson delivered a controlled substance to a child within the meaningof the law?

2.8.4 Holding

Johnson has not delivered a controlled substance to a child.

2.8.5 Reasoning

The evidence does not show that any cocaine derivatives passed from motherto child during the sixty- to ninety-second period between the delivery of thechild and the clamping of the umbilical cord. There is no support for thetheory that any person-to-person delivery of drugs within in the meaning ofthe statute took place. Furthermore, there is also no evidence to suggest thatJohnson timed her doses of cocaine in such a way as to convey the drug to herson. Upholding the conviction in this case would also contradict the policyunderlying the law. The legislature has expressly stated that the statute isnot intended to authorization prosecution for the birth of a drug-dependentchild. Although the problem of drug-addicted mothers is serious, it shouldnot be remedied through piecemeal prosecution.

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3 The Mens Rea

3.1 Regina v. Faulkner

3.1.1 Overview

Faulkner appealed a conviction for burning down a ship.

3.1.2 Facts

Faulkner, a seaman aboard a ship, had sneaked into a cargo hold to stealsome rum. He was attempting to stopper a hole he had drilled in a rum caskwhen a lighted match, which he was using to illuminate the dark hold, ignitedthe rum. The fire then spread throughout the ship, ultimately causing it tosink.

3.1.3 Issue

Should Faulkner’s conviction be overturned on the ground that he had nointention of burning down the ship?

3.1.4 Holding

Faulkner’s conviction should be overturned.

3.1.5 Reasoning

Barry, J. The Crown has proposed that one who commits a crime shouldbe liable for all consequences stemming from the criminal act regardless ofwhether those consequences were intended. This construction is too broad,and no authority has ever been cited to support it.

Fitzgerald, J. In order to convict a person for the consequences of a crim-inal act, it should be shown that those consequences were the necessary orlikely results of the act. There is no reason to hold that a defendant shouldbe liable for every consequence of his criminal conduct.

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O’Brien, J. The law plainly states that intent is a prerequisite to con-viction. In a prior case, it was held that a person who throws a rock withthe intent to strike a person but whose bad aim causes that rock to break awindow instead is not criminally liable for breaking the window.

Keogh, J. The conviction should stand. Faulkner burned down the shipwhile committing a crime, and he should be held liable.

3.2 Regina v. Prince

3.2.1 Overview

Prince appealed a conviction for taking an underage girl from the possessionof her father.

3.2.2 Facts

Prince tried to elope with a girl under the age of sixteen. There is no doubt asto the facts supporting the conviction, but Prince argued that his convictionshould be overturned on the ground that he mistakenly believed the girl tobe older than sixteen.

3.2.3 Issue

Does Prince’s belief that the girl was older than sixteen constitute a defenseto the crime?

3.2.4 Holding

Prince’s belief does not constitute a defense.

3.2.5 Reasoning

Blackburn, J. It is difficult to believe that the legislature intended theconviction to depend on the defendant’s knowledge as to whether his actionsconstituted a crime. The point of the statute is to punish those who haverelations with underage girls.

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Bramwell, B. The conviction should be upheld. Prince’s actions were notonly unlawful but morally wrong. Anyone who takes a young girl from herfather does so at the risk that she will later turn out to be underage.

Denman, J. Although Prince might have a defense if he had taken thegirl away in order to protect her from abuse or some other danger, no suchjustification is present here. Having violated the statute, he cannot nowclaim that he should be acquitted simply because he did not know that thegirl was underage.

Brett, J. In general, a defendant should assume the risk that a potentiallyunlawful action will indeed turn out to be unlawful.

3.3 People v. Ryan

3.3.1 Overview

Ryan appealed a conviction for knowingly possessing a certain amount ofhallucinogenic drugs.

3.3.2 Facts

Ryan had purchased some hallucinogenic mushrooms. The mushrooms wereto be delivered by a courier service. An investigator learned of the trans-action and intercepted the package, delivering it to Ryan while posing asan employee of the courier service. Ryan was arrested immediately afteraccepting the package. Subsequent chemical analysis of the mushrooms re-vealed that a sample contained more than 796 milligrams of psilocybin, thehallucinogenic ingredient. Ryan was convicted under a statute that madeit a felony to “knowingly and unlawfully possess” more than 625 milligramsof any hallucinogen. Ryan appealed on the ground that he did not knowwhether the psilocybin content exceeded the statutory limit.

3.3.3 Issue

Should the term “knowingly” be applied to the weight of the hallucinogenicsubstance as well as the possession of the mushrooms themselves?

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3.3.4 Holding

The term should be so applied.

3.3.5 Reasoning

In general, a criminal statute should be construed to apply the requirementof mens rea to every element of a crime unless the statute plainly indicatesotherwise. This principle is meant to avoid the inadvertent imposition ofstrict liability, and it has been expressly adopted by the state legislature.This interpretation also harmonizes with the evident rationale underlyingthe criminal law, which categorizes similar offenses based on the amount ofdrugs possessed. The state’s argument that proving knowledge with regardto weight would frustrate prosecution holds little water. Knowledge of weightcan be inferred from a buyer’s discussion of quantity and other aspects ofthe drug.

3.4 People v. Bray

3.4.1 Overview

Bray appealed a conviction for being a felon in possession of a concealablefirearm.

3.4.2 Facts

Bray had been convicted in Kansas for being an accessory after the fact toa crime. In that incident, he had unwillingly become involved in the crimeafter he drove a friend away from the crime scene. He cooperated fully withthe investigation and completed probation. The evidence shows that Brayhad lingering uncertainties about whether the conviction was a felony. Onmultiple occasions, he answered written questions about his criminal historyby offering a detailed explanation of the circumstances. At some point, Braypurchased two handguns. He was subsequently convicted for being a felon inpossession of firearms.

3.4.3 Issue

Should Bray’s conviction be overturned because of his doubt as to whetherhe was a felon?

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3.4.4 Holding

Bray’s conviction should be overturned.

3.4.5 Reasoning

Knowledge that one is a felon becomes relevant where there is doubt thatthe defendant knew he had committed a felony. It would be unreasonable toexpect Bray to know his status, as even the prosecutor was hard-pressed todetermine whether the Kansas offense had been a felony or misdemeanor.

3.5 United States v. Baker

3.5.1 Overview

Baker appealed a conviction for trafficking in counterfeit goods.

3.5.2 Facts

Baker was convicted of selling counterfeit Rolex watches. He did not disputethat he intentionally dealt in the watches or that he knew the watches werefake. He challenged the conviction solely on the ground that he did not knowthat his conduct amounted to a criminal offense.

3.5.3 Issue

Should Baker’s conviction be overturned because he did not know that thesale of counterfeit watches was a crime?

3.5.4 Holding

Baker’s conviction should not be overturned.

3.5.5 Reasoning

The statute requires only that Baker knew he was dealing in counterfeitgoods. It does not require the specific knowledge that such conduct amountsto a crime.

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3.6 Cheek v. United States

3.6.1 Overview

Cheek appealed a conviction for tax evasion.

3.6.2 Facts

For several years, Cheek had been increasingly delinquent in paying his taxes.He had initially claimed more and more allowances to reduce his tax burden,but eventually he failed to file his taxes altogether. At trial, he testifiedthat he had attended seminars given by a group that believed that incometaxes were unconstitutional and that the Sixteenth Amendment authorizedonly taxes on profits as opposed to income. Cheek claimed that he held agood-faith belief that his refusal to pay taxes was lawful. He argued that hisacts did not have the willfulness necessary to support a conviction.

3.6.3 Issue

Should Cheek’s good-faith belief in the lawfulness of his actions, if acceptedby the jury, be accepted as a defense?

3.6.4 Holding

Such good-faith belief should be accepted as a defense.

3.6.5 Reasoning

Because the tax code is so complex, Congress has allowed leniency for in-dividuals who fail to pay taxes because of good-faith misunderstandings. Ifa jury finds that Cheek really did believe that the Internal Revenue Codedid not treat wages as taxable, then any pertinent part of the convictionshould be overturned. It is not necessary that a claim of good-faith beliefbe objectively reasonable. By contrast, Cheek’s claim that certain taxes areunconstitutional should be treated differently. This claim is a studied con-clusion and reveals full knowledge of the provisions at issue. If Cheek hadwanted to dispute the constitutionality of his taxes, he should have filed firstand then taken up the issue with a tax court.

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3.7 Commonwealth v. Twitchell

3.7.1 Overview

Twitchell appealed a conviction for the involuntary manslaughter of his child.

3.7.2 Facts

Twitchell and his wife practiced Christian Science. Among the beliefs ofChristian Science were that illnesses should be cured through spiritual healingrather than ordinary medicine. When their son fell ill as a result of compli-cations from an anomaly known as Meckel’s diverticulum, they attempted tocure him using spiritual healing. As a result of the lack of medical attention,the child developed peritonitis and died. Twitchell argued that a convictionwould be unfair because he and his wife had relied on a statement of theAttorney General of Massachusetts, which facially precluded prosecution forfailure to provide medical attention.

3.7.3 Issue

Is reliance on an official statement of the law a defense to involuntary manslaugh-ter?

3.7.4 Holding

Such reliance is a defense to manslaughter.

3.7.5 Reasoning

The relevant statute provides no complete protection against a charge ofinvoluntary manslaughter. It shields individuals from prosecution only fornegligent conduct, not the wanton or reckless conduct underlying involun-tary manslaughter. Twitchell, however, has meritoriously contended that theportions of the statute he read failed to give a fair warning as to the crime.That excerpt contained no clear statement regarding criminal liability forinvoluntary manslaughter, and it is likely that Twitchell would have acteddifferently had he known of this possibility. Twitchell was attempting tocomply with the law insofar as his religious beliefs would allow.

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3.8 Hendershott v. People

3.8.1 Overview

Hendershott appealed a conviction for third-degree assault.

3.8.2 Facts

Hendershott had been living in the rooming house of Patricia Styskal whenproblems developed in his relationship with Styskal. Annoyed by his heavydrinking, Styskal finally ordered him to move out. The same night, he re-turned to the house and assaulted Styskal by striking, kicking, and chokingher. During trial, Hendershott offered evidence that he suffered from adultminimal brain dysfunction, which prevented him from having the requisiteawareness required to cause harm “knowingly” or “recklessly.” The trialcourt refused to admit this evidence on the ground that such mental stateswere required only for specific-intent crimes. Because third-degree assaultwas not a specific-intent crime, the trial court concluded that the evidencewas unnecessary.

3.8.3 Issue

Should evidence of a defendant’s impaired mental state be admitted eventhough the crime does not require specific intent?

3.8.4 Holding

Such evidence should be admitted.

3.8.5 Reasoning

To bar the evidence that Hendershott has offered would prevent him fromraising a defense on the issue of his mental state and thereby create a pre-sumption of liability as to that element of the crime. The result is an imper-missible lightening of the prosecution’s burden to prove the mental elementof the crime beyond a reasonable doubt. The prosecution cannot argue thatthis defense would tread on territory reserved for the insanity defense, as itsburden of proof cannot be lightened simply because the defendant is legallysane. There is no merit to the prosecution’s argument that psychiatric evi-dence presents evidentiary problems. Finally, the prosecution cannot argue

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that Hendershott should not be acquitted because he is mentally impaired.Any mental impairment could be treated outside the criminal justice system.

3.9 State v. Cameron

3.9.1 Overview

Cameron appealed a conviction for second-degree aggravated assault, posses-sion of a weapon with intent to use it unlawfully, and fourth-degree resistingarrest.

3.9.2 Facts

The victim had been playing cards with some friends on an empty lot whenCameron approached them and disrupted their game. The card playersmoved their card table to a different part of the lot. Cameron, however,followed them and overturned the table. The players righted the table andresumed the game. Cameron then attacked the victim with a broken bottle,causing injuries requiring thirty-six stitches. When the police were sum-moned to the scene, she threw a bottle at their vehicle, shouted obscenities,and tried to fight them off. Cameron argued that her conviction should beoverturned on the ground that she was too drunk to form the intent necessaryfor the crimes.

3.9.3 Issue

Should Cameron’s conviction be overturned because of her voluntary intoxi-cation?

3.9.4 Holding

The conviction should not be overturned.

3.9.5 Reasoning

In general, voluntary intoxication negates the mens rea required for specific-intent crimes, such as those for which Cameron was convicted. Here, however,there was insufficient evidence to show credibly that Cameron was so drunkas not to be able to form specific intent. Although she was carrying a quart of

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wine at the time of the crime, she admitted that she drank relatively little ofthe wine and that she gave away a substantial amount. Her testimony as toher own intoxication amounts to little more than conclusory descriptions ofher condition. Cameron’s own detailed account of the assault shows that herintoxication, if any, was insufficient to negate the element of specific intent.

4 Intentional Homicide

4.1 Francis v. Franklin

4.1.1 Overview

Francis appealed a conviction for second-degree murder.

4.1.2 Facts

Francis, a prisoner, was visiting a dentist’s office under the supervision ofprison guards when he escaped and managed to seize a gun from one of theguards. Taking the dentist’s assistant hostage, he unsuccessfully attemptedto find an escape vehicle. Francis and his hostage eventually ended up at thefront door of Franklin, the victim. Francis knocked on Franklin’s door whilepointing the pistol at the door. When Franklin answered and saw the gun, heslammed shut the door, whereupon the gun discharged. The bullet traveledthrough the door, struck Franklin in the chest, and killed him. Seconds later,the gun discharged again, but this time the bullet went into the ceiling ofthe Franklin residence. At the time of his arrest, Franklin made a formalstatement that he had accidentally fired the gun in response to the slammingdoor. He challenged his conviction on the ground that the trial court hadimproperly instructed the jury by stating that intent was to presumed unlessthat element was specifically rebutted.

4.1.3 Issue

Did the trial court give an improper jury instruction in stating that intentwas to be presumed?

4.1.4 Holding

The trial court gave an improper jury instruction.

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4.1.5 Reasoning

The trial court’s instruction stated that “[t]he acts of a person of sound mindand discretion are presumed to be the product of the person’s will, but thepresumption may be rebutted. A person of sound mind and discretion ispresumed to intend the natural and probable consequences of his act, butthe presumption may be rebutted.” These instructions could mislead a rea-sonable jury to believe that the element of intent was automatically satisfiedunless specifically disproved by the defense. The result is an impermissiblelightening of the prosecution’s burden to prove the element of intent beyonda reasonable doubt. Even if the instruction is understood as a mandatoryrebuttable presumption as opposed to a conclusive assertion, it would stillimproperly shift the burden of proof from the prosecution to the defense.

4.2 United States v. Watson

4.2.1 Overview

Watson appealed a conviction for premeditated murder.

4.2.2 Facts

Watson was sitting in a parked stolen car when two police officers investigat-ing the theft of the car ordered him to halt. Watson bolted from the vehicleand fled into an apartment, where he made a phone call to ask whether thepolice were still pursuing him. Shortly thereafter, Officer Lunning enteredthe room to arrest Watson. As Lunning was about to handcuff Watson, Wat-son broke free and caused Lunning’s gun to drop to the floor. The two thenwrestled for several moments, until Watson managed to pin Lunning to thefloor. Watson then picked up the gun and pointed it at Lunning, whereuponLunning pleaded twice that “[i]t wasn’t worth it.” Watson then shot andkilled Lunning.

4.2.3 Issue

Do Watson’s actions allow a reasonable jury to draw an inference of premed-itation?

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4.2.4 Holding

Watson’s actions allow such an inference.

4.2.5 Reasoning

Premeditation consists of deliberating whether to kill and the subsequentdecision to do so. Although a defendant need not have considered a killingfor a specific amount of time, that time must be long enough to show that thekilling was not carried out impulsively or in the heat of a fight. Here, Watsonhad the opportunity to decide whether to kill Officer immediately after hepinned Lunning to the floor and after Lunning had pleaded “[i]t wasn’t worthit.” That Watson chose to shoot even though there was nothing to prevent hisescape also suggests that Watson deliberately chose to kill Lunning. Thesefacts allow an inference of premeditation.

4.3 People v. Walker

4.3.1 Overview

Walker appealed a conviction for murder.

4.3.2 Facts

Walker was chatting with some friends on a front porch when the deceased,McClinton, approached them and demanded that they gamble with him.When Walker and his friends refused, McClinton became belligerent, threat-ening the group with a knife. Eventually Walker and another from the groupmanaged to force McClinton off the porch despite that McClinton was swing-ing his knife all the while. Eventually Walker threw a brick and knocked downMcClinton. Walker then took McClinton’s hand, which was still holding theknife, and thrust the knife into McClinton’s throat. Walker argued that hisactions constituted voluntary manslaughter, not murder.

4.3.3 Issue

Do Walker’s actions support a conviction for voluntary manslaughter as op-posed to murder?

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4.3.4 Holding

Walker’s actions support a conviction for voluntary manslaughter.

4.3.5 Reasoning

Walker was justifiably provoked into killing McClinton. McClinton wasthreatening one and all. The affray was a continuous one.

4.4 Ex Parte Fraley

4.4.1 Overview

Fraley petitioned for a writ of habeas corpus for the purpose of being releasedon bail while awaiting a charge of murder.

4.4.2 Facts

Fraley had evidently been nursing a grudge against Parker, the deceased,because Parker had killed his son nine or ten months before. One night,when Parker was leaning against the railing in the front of a drugstore, Fraleyapproached him and shot him twice in quick succession. Fraley then firedseveral more shots into Parker before turning around and walking away. Aftergoing some distance, Fraley then turned back and snapped the head of thenow-deceased Parker while saying, “I told you I’d kill you.” Fraley arguedthat his grudge against Parker had been festering for some time and that thekilling was done in the heat of passion.

4.4.3 Issue

Does provocation nine to ten months before a killing make that killing aninstance of voluntary manslaughter as opposed to murder?

4.4.4 Holding

Such past provocation does not make the killing an instance of voluntarymanslaughter.

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4.4.5 Reasoning

The courts have held that as little as fifteen minutes is enough to serve as ad-equate “cooling time” following provocation. At any rate, whether adequatecooling time has elapsed should be determined relative to the amount of timenecessary for a reasonable person’s temper to cool. Nine or ten months wascertainly enough time for Fraley to cool off.

4.5 Rowland v. State

4.5.1 Overview

Rowland appealed a conviction of murder.

4.5.2 Facts

Rowland’s wife was staying with a friend. When he went to visit her onenight, he noticed that the horse of another man, Thorn, was hitched at thedoor. He then heard his wife and another man talking in the back room.His suspicions aroused, he tried to enter through the back door but found itlatched. Rowland then entered through the front door. Upon reaching theroom where his wife was staying, he found her with Thorn. She and Thorn,startled, ran from the house. As they were fleeing, Rowland’s wife blew outthe lamp. Rowland, firing his gun in the dark and intending to hit Thorn,shot and killed his wife instead.

4.5.3 Issue

Was Rowland adequately provoked so that his actions constituted voluntarymanslaughter as opposed to murder?

4.5.4 Holding

Rowland was adequately provoked.

4.5.5 Reasoning

There is no doubt that Rowland’s wife and Thorn were engaging in adultery.In some states, the courts have held that a man who kills his unfaithful wife

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or the paramour cannot be convicted at all. It would be unreasonable toexpect Rowland not to have been provoked.

4.6 People v. Berry

4.6.1 Overview

Berry appealed a conviction for murder on the ground that his emotionalstate reduced the crime to voluntary manslaughter.

4.6.2 Facts

Berry had married Rachel Pessah, the victim, but their relationship quicklyturned sour. Three days after the marriage, Pessah went to Israel for someweeks. When she returned, she told Berry that she had fallen in love withanother man, Yako, during her visit to that country. Pessah then persistentlytaunted Berry by alternately offering and withdrawing her intimacy. Herconduct enraged Berry, who finally strangled her with a telephone cord.

4.6.3 Issue

In light of the circumstances, should the trial court have instructed the juryon voluntary manslaughter?

4.6.4 Holding

The trial court should have instructed the jury on voluntary manslaughter.

4.6.5 Reasoning

The “heat of passion” necessary to reduce murder to voluntary manslaughterneed not consist specifically of anger or rage. Rather, it can be any violent,intense, high-wrought, or enthusiastic emotion. Here, the evidence suggeststhat Berry was indeed aroused to such a heat of passion by Pessah’s continuedprovocation. The prosecution’s argument that Berry had sufficient coolingtime is flawed. Berry’s actions were the culmination of a sustained course ofprovocation.

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4.7 People v. Wu

4.7.1 Overview

Wu appealed a conviction for murder on the ground that the trial court failedto instruct the jury as to her cultural background.

4.7.2 Facts

Helen Wu (“defendant”) was already divorced following her first marriagewhen she met Gary Wu (“Wu”). Sometime thereafter, Wu told contacteddefendant and told her that his own marriage was unsatisfactory. The twothen discussed the possibility of marrying, and defendant was led to be-lieve that Wu would marry her. Wu subsequently divorced his wife, and heand defendant evidently conceived the victim, Sidney, before marrying. Theprospects of marriage then dimmed, and defendant returned to Macau whileSidney stayed with Wu in the United States. Following their separation, de-fendant and Wu engaged in several disputes as to Sidney’s living situation.During these exchanges, defendant gained information that led her to be-lieve that Wu was not treating Sidney well. These suspicions came to a headduring a subsequent visit with Sidney, during which Sidney himself told herthat Wu was favoring the children of a new girlfriend. Desperate that thedeath of Sidney’s paternal grandmother would leave no one to care for him,defendant strangled him.

At trial there was evidence tending to show that defendant’s mental statehad been influenced by Chinese views of illegitimate children. The trial court,however, refused to tell the jury that it may consider cultural influences.

4.7.3 Issue

Is cultural background a valid consideration for the purposes of determiningwhether a person was adequately provoked to kill?

4.7.4 Holding

Cultural background is a valid consideration.

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4.7.5 Reasoning

The prosecution argues that defendant killed Sidney out of her desire to exactrevenge on Wu. There is, however, an equally valid alternative interpretationof her motives. Expert testimony from the trial shows that it is entirely pos-sible that defendant killed Sidney during a fit of despair. The determinationof her mental state entails the consideration of any cultural influences thatmight have contributed to her view of the situation.

The court should also have instructed the jury on the defense of uncon-sciousness. There is evidence tending to show that defendant was unawareof her actions at the time of the killing.

5 Unintentional Homicide

5.1 Commonwealth v. Welansky

5.1.1 Overview

Welansky appealed a conviction for involuntary manslaughter.

5.1.2 Facts

Welansky had operated his nightclub for nine years prior to the incident inquestion. Shortly before the incident, he was hospitalized after suddenlyfalling ill. During his stay in the hospital, he assumed that the operation ofthe nightclub would continue as usual. A few days later, an employee of thenightclub lit a match in order to find and replace a broken light bulb. Thematch inadvertently set fire to an artificial palm tree, and the fire spreadrapidly throughout the building. Although several emergency exits existed,those exits were either locked or blocked by heavy objects. Unable to escapethe building, 492 patrons died, many of them piled up against the exits.

5.1.3 Issue

Does Welansky’s operation of the nightclub constitute wanton and recklessconduct?

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5.1.4 Holding

Welansky’s operation of the nightclub constitutes wanton and reckless con-duct.

5.1.5 Reasoning

Conduct rises to the level of wantonness or recklessness when the actorchooses to engage in that conduct despite knowing that it poses a signifi-cant risk of harm to others. This standard is both subjective and objective.It is subjective in that a defendant who in fact knew of the danger cannotescape liability even if that danger would not have been apparent to the aver-age person. It is objective in that a defendant is presumed to know of dangersthat would be obvious to the average person even if the defendant was in facttoo foolish to realize that danger. Here, it does not matter that Welanskywas not responsible for starting the fire. Rather, his duty was to protect hispatrons from fires started for any reason. By allowing the emergency exitsto be blocked, he engaged in wanton and reckless conduct.

5.2 State v. Williams

5.2.1 Overview

Williams appealed a conviction for statutory manslaughter following thedeath of his infant child.

5.2.2 Facts

Williams and his wife had an infant child. Neither he nor his wife wereeducated, he having only a sixth-grade education and she having only aneleventh-grade education. The child began to suffer a toothache about twoweeks before his death. During that time, William and his wife noticedswelling and discoloration of the cheek. Although they gave their son aspirin,they were hesitant to consult a doctor for fear that the appearance of thechild would lead authorities to suspect abuse. The autopsy revealed that anabscessed tooth had become infected and gangrenous. The child’s inabilityto eat because of the bad tooth led to malnutrition, which weakened hisimmune system and caused him to develop the pneumonia that killed him.The evidenced showed that there was a space of about five days during which

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the symptoms of gangrene were apparent and when prompt treatment wouldhave saved the child.

5.2.3 Issue

Does the conduct of Williams and his wife support a conviction for statutorymanslaughter?

5.2.4 Holding

Their conduct supports such a conviction.

5.2.5 Reasoning

Any person whose negligence proximately causes the death of another maybe convicted of statutory manslaughter. Negligence here means only thefailure to take the caution that a reasonable person would take under similarcircumstances. Although this standard should not be taken to suggest thatevery refusal to take a child to a hospital constitutes negligence, Williamsand his wife knew that medical care was available yet refused to take theirchild to a doctor despite his continuing symptoms.

6 Reckless Murder

6.1 Mayes v. People

6.1.1 Overview

Mayes appealed a conviction for reckless murder.

6.1.2 Facts

Mayes had come home drunk. His mother, wife, and daughter were homewhen he arrived, and he behaved belligerently toward them. After throwinga tin quart measure at his daughter, his wife and daughter started to headfor the bedroom. Mayes then threw a beer glass at his wife, which struck theoil lamp she was carrying. The burning oil from the lamp splashed onto herbody, and Mayes apparently did nothing to help her. His wife died a weeklater from the burns.

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6.1.3 Issue

Do the facts support a conviction for reckless murder?

6.1.4 Holding

The facts support a conviction for reckless murder.

6.1.5 Reasoning

Mayes was acting with malicious intent, and such intent makes his actionmurder. It does not matter that he may not have been targeting anyone inparticular when he threw the beer glass. He knew that the action was likelyto cause injury regardless of the specific outcome, and he should be heldliable for the consequences if they include the death of another. This is nota case in which the death can be characterized as accidental.

7 Felony Murder

7.1 State v. Martin

7.1.1 Overview

Martin appealed a conviction for felony murder.

7.1.2 Facts

Martin had arrived at a party already intoxicated from beer and marijuana.At the party, he and several friends continued to drink until one of his com-panions was embroiled in an altercation with another guest. The host thendemanded that Martin and his group leave. On the way out, Martin lit a firethat eventually engulfed the building, killing a guest who had fallen asleepafter becoming drunk. Although there was some question as to how the firewas started, it was established at trial that Martin was responsible. Thetrial court convicted Martin of felony murder, and Martin appealed on theground that the jury was not given the appropriate instructions.

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7.1.3 Issue

Do the facts require a jury instruction as to whether Martin’s conduct gaverise to the “probable consequence” of the death of another guest?

7.1.4 Holding

The facts require such an instruction.

7.1.5 Reasoning

Legislatures and courts have historically been reluctant to make decisionsthat might give rise to strict-liability crimes. To that end, the New JerseyCode and the Model Penal Code allow a conviction for felony murder onlywhen the victim’s death is a “probable consequence” of the principal crime.Although neither set of rules gives a precise meaning for “probable conse-quence,” the term has been interpreted to mean something close to the ideaof “reasonable foreseeability” in civil torts. The point is that there are somedeaths so remote from the principal crime that the perpetrators cannot beheld liable for them. Whether liability should attach must be determined byevaluating the connection between the death and the crime as a whole. Atone extreme, a robber cannot be held liable if a bank teller is electrocutedwhile activating the alarm. At the other extreme, a robber is liable for thedeath of an innocent bystander even if that bystander is killed by the defen-sive gunfire of the shop owner. Here, the trial court should have instructedthe jury not to convict Martin if it found that the death was too remote fromMartin’s conduct.

7.2 People v. Hickman

7.2.1 Overview

Hickman appealed a conviction for a felony murder committed during thecourse of a burglary.

7.2.2 Facts

Hickman and an accomplice were surprised by the police when they emergedfrom a building they had just burglarized. The pair fled into nearby bushes.A police officer then gave chase but lost sight of the suspects. Several seconds

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thereafter, the officer saw a person emerging from some bushes while carryinga gun. When the person failed to comply with the officer’s command tohalt, the officer opened fire with his shotgun and killed the person. Theperson turned out to be a detective. Hickman was convicted of causing thedetective’s death.

7.2.3 Issue

Should felony murder in Illinois be extended to include situations in whichthe criminal does not directly inflict the fatal harm on the victim?

7.2.4 Holding

Felony murder should be so extended.

7.2.5 Reasoning

The relevant statute states that “A person who kills an individual withoutlawful justification commits murder if, in performing the acts which causedeath . . . [h]e is attempting or committing a forcible felony other thanvoluntary manslaughter.” The accompanying legislative comments show thatthe statute is intended to apply not only to instances of direct killing but alsoto situations in which the perpetrator, in committing the felony, creates asituation that proximately results in the death of another. Although Hickmanadverts to a case in which one robber was not held liable for the death of hisaccomplice, that case is not relevantly similar to the current one because theperson killed there was not an innocent bystander.

7.3 People v. Gladman

7.3.1 Overview

Gladman appealed a conviction for a felony murder committed during thecourse of a robbery.

7.3.2 Facts

Gladman had solicited a ride to a shopping center, where he used a gun torob a deli. He walked away from the scene of the robbery and proceeded

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to a bowling alley located about half a mile away. In the meantime, therobbery was reported to the police, which responded by dispatching policecars to nearby intersections and to the vicinity of the crime scene. While inthe parking lot of the bowling alley, Gladman saw a police car approach andhid under a parked car. Patrolman Rose, the sole passenger of the police car,then ordered Gladman to come out from hiding and drop his gun. Gladmanshot Rose, who died at the scene.

7.3.3 Issue

Was the jury properly allowed to conclude that Gladman committed thehomicide during immediate flight from the robbery?

7.3.4 Holding

The jury was properly allowed to reach that conclusion.

7.3.5 Reasoning

Earlier rules established felony murder by considering circumstances such aswhether the robber had abandoned his loot or whether he had escaped fromthe crime scene. These distinctions have resulted in inconsistent criteria.Under current principles, the jury should determine whether a robber wasstill fleeing at the time of a homicide. The jury, of course, should considerfactors such as whether the police were in pursuit, how far the robber hadfled, an so forth. Here, the shooting occurred less than fifteen minutes andless than half a mile away from the scene of the crime. Gladman, seeingthe police car, apparently believed that the police were on his trail. Underthese circumstances, the jury could properly conclude that the homicide wascommitted in the course of Gladman’s flight.

7.4 People v. Cavitt

7.4.1 Overview

Cavitt appealed a conviction for a felony murder committed in the course ofa burglary.

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7.4.2 Facts

Cavitt and an accomplice planned to burglarize the home of one Betty McK-night. With the cooperation of Mianta McKnight, Betty’s stepdaughter, theduo entered the home and tied up Betty, leaving her on a bed when theyleft with the loot. Before they left, they also tied up Mianta to make it lookas if she were also a victim. By the time Mianta freed herself, Betty hadalready died from asphyxiation. At trial, Cavitt produced evidence to showthat Mianta may have had her own motives to asphyxiate Betty.

7.4.3 Issue

Was Cavitt properly convicted even though there was an alternative expla-nation for the death of the victim?

7.4.4 Holding

Cavitt was properly convicted.

7.4.5 Reasoning

Conviction for a felony murder requires a (1) temporal, (2) causal, and (3)logical connection between the murder itself and the underlying felony. Thepoint of this requirement is that there must be something more than a merecoincidence of time and place between the crime and the killing before aconviction can be sustained. Even so, the standard does not require that thekilling directly further the felony; all that is necessary is some connectionbeyond mere coincidence. Here, Cavitt and his accomplice tied up BettyMcKnight as a planned part of the crime. Cavitt cannot be exoneratedsimply because one of his cohorts might be blamed for the death.

7.5 State v. Shock

7.5.1 Overview

Cavitt appealed a conviction for first-degree murder.

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7.5.2 Facts

Cavitt beat the child of a relative so viciously that the child died severaldays afterwards. He challenged a jury instruction stating that he may beconvicted of first-degree murder even though he intended to inflict upon thevictim only serious bodily injury as opposed to death.

7.5.3 Issue

May Cavitt be convicted of first-degree murder despite a lack of intent tokill?

7.5.4 Holding

Cavitt may not be convicted of murder.

7.5.5 Reasoning

The relevant statute states specifically that a murder, as opposed to a homi-cide, committed during the course of another crime shall be considered afirst-degree murder. The text of the statute indicates that the killing itselfmust evidence the intent necessary for murder. Here, the jury instructionsuggests that some crime other than murder has been committed, but nocrime exists.

Henry, J., concurring. The trial court’s construction of the statute wouldcreate convictions for first-degree murder in situations that would not other-wise support such a conviction. If upheld, the trial court’s ruling would allowalmost any crime resulting in death to be converted to first-degree murder.

Norton, J., dissenting. A defendant should be held liable for any deathresulting from injury he intentionally inflicts.

Note The court is saying that where a set of facts will “directly” supporta conviction for murder as well as a lesser crime, then the conviction shouldonly be for the lesser crime. In other words, the felony murder doctrinedoes not apply unless the facts of the predicate felony are so different fromthose necessary to directly support murder that they, acting alone, would not

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support a murder conviction in the absence of an incidental death. Otherwise,all sorts of lesser crimes would be converted to murder.

8 The Death Penalty

8.1 Olsen v. State

8.1.1 Overview

Olsen appealed the imposition of the death penalty following a convictionfor capital murder.

8.1.2 Facts

Olsen robbed a bar. During the course of the robbery, he told the owner andtwo patrons to lie face-down on the floor and then shot all three. Followingthe robbery, he called his mother and told her of the murders. Olsen wasarrested several hours thereafter. The jury convicted him of first-degreemurder, and the conviction was not disputed. Olsen contended that theevidence did not support a finding of aggravating circumstances and thatthe jury instructions given during trial were flawed.

8.1.3 Issue

(1) Was there sufficient evidence to support the jury’s finding of the aggravat-ing circumstance that the murders were especially atrocious or cruel, beingunnecessarily torturous to the victims? (2) Was there sufficient evidence tosupport the jury’s finding of the aggravating circumstance that Olsen know-ingly created a great risk of death to two or more persons? (3) Did the courtgive proper jury instructions concerning mitigating circumstances?

8.1.4 Holding

(1) There was insufficient evidence to characterize the murder as especiallyatrocious or cruel. (2) There was insufficient evidence to find that Olsenknowingly created a great risk of death to two or more persons. (3) The juryinstructions did not adequately state the law of mitigating circumstances.

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8.1.5 Reasoning

(1) Although all killings are cruel to some extent, there is no evidence tosupport the argument that Olsen deliberately inflicted physical or mentalanguish on his victims. While a degree of mental anguish almost certainlyexisted in the victims, this evidence alone does not establish that Olsen wasespecially atrocious or cruel. (2) Precedent suggests that the concept of“great risk of death to two or more persons” is intended to apply only toinnocent bystanders. Here, the killing amounted to a straightforward multi-ple homicide, and states that recognize multiple homicide as an aggravatingfactor have set forth the rule as a separate statutory provision. The lack ofsuch a provision here shows that the death of multiple victims alone is notan aggravating circumstance. (3) The trial court erred in telling the jurythat Olsen might have the possibility of parole if granted a reprieve from thegovernor. It should have stated unambiguously that Olsen would not havebeen eligible for parole if imprisoned for life.

8.2 McCleskey v. Kemp

8.2.1 Overview

McCleskey appealed the imposition of the death penalty following a convic-tion for murder.

8.2.2 Facts

McCleskey, who was black, had killed a white police officer. He was subse-quently sentenced to death. He argued that the death penalty was imposed inviolation of the Fifth and Eighth Amendments because it was disproportion-ately used on black defendants. To support his argument, McCleskey pro-duced scholarly research analyzing over 2,000 instances of the death penaltyin Georgia. The study suggested, among other things, (1) that the deathpenalty is imposed more often when the victim is white and (2) that blackdefendants tend to receive the death penalty more often than white defen-dants.

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8.2.3 Issue

Is the evidence sufficient to support a finding that the death penalty is im-posed with an unconstitutional racial bias?

8.2.4 Holding

The evidence is insufficient.

8.2.5 Reasoning

McCleskey first contends that the system imposing the death penalty isflawed because it allows for discretion in sentencing. This argument lacksmerit because discretion was introduced to allow leniency to defendants.Under the current regime of punishment, a defendant may be removed fromconsideration for the death penalty for any number of reasons whereas thedeath penalty cannot be imposed unless certain statutory requirements aremet. McCleskey has failed to show that the imposition of the death penaltyis so irregular as to be arbitrary or capricious.

McCleskey also contends that the death penalty is unconstitutional inapplication even if it is constitutional in theory. Although any punishmentcarries with it the risk that it will be applied with bias, McCleskey has notshown that such risk has become sufficiently great to invalidate the deathpenalty on constitutional grounds. The authors of the statistical evidencepresented by McCleskey themselves conceded that it does not conclusivelyshow racial bias. This, combined with the fact that the criminal law placesthe presumption in favor of the defendant in many instances, suggests thatMcCleskey has not made his case.

Finally, allowing McCleskey to prevail would start the courts down a slip-pery slope. Punishments for other crimes would probably be challenged forapparent racial bias. Indeed, such bias need not even concern race. Perhapsa defendant might allege that the jury was biased because of his or her genderor even facial features. McCleskey has made no suggestion as to how thisline-drawing problem should be solved.

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9 Rape

9.1 Brown v. State

9.1.1 Overview

Brown appealed a conviction for rape.

9.1.2 Facts

Edna Nethery, Brown’s sixteen-year-old neighbor, was walking across hisfarmland as she had done many times before. She encountered Brown, whowas tending to some hogs. After the two exchanged some words, Brownallegedly seized her and forced her to the ground. He then removed herclothing and had sexual intercourse with her. Nethery said at trial that she“tried as hard as [she] could to get away” and “screamed as hard as [she]could.” It was later found, however, that Brown had no marks upon his bodythat would have indicated a struggle.

9.1.3 Issue

Was there sufficient evidence to convict Brown of rape?

9.1.4 Holding

There was not sufficient evidence.

9.1.5 Reasoning

Rape will not be found unless the woman showed utmost resistance. Thisrule is intended to protect defendants from false allegations of rape. Theremust have been “the most vehement exercise of every physical power to resistthe penetration of her person, and this must be shown until the offense isconsummated.” Here, Nethery has fallen short of that standard. She has notso much resisted as retreated from the threat of force.

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9.2 People v. Dorsey

9.2.1 Overview

Dorsey appealed a conviction for rape.

9.2.2 Facts

The complainant, a forty-one-year-old woman, had entered an elevator inher apartment building. Dorsey followed her into the elevator. In an ap-parent malfunction, the elevator stopped between floors while Dorsey andthe complainant were still inside. According to the complainant’s testimony,Dorsey was manipulating the buttons on the elevator when the malfunctionoccurred. Dorsey then demanded that the complainant remove her clothes.She complied, and Dorsey engaged in sexual intercourse and sodomy withher during the next ten to fifteen minutes. Afterward, Dorsey restarted theelevator, leaving before the complainant did.

9.2.3 Issue

Did the behavior of the complainant support a finding of rape?

9.2.4 Holding

The behavior of the complainant supports a finding of rape.

9.2.5 Reasoning

The old standard of “utmost resistance” is outdated. It tended to place thevictim on trial alongside the defendant. The New York legislature has sinceenacted the new standard of “earnest resistance,” which requires a womanonly to offer resistance that is reasonable under the circumstances. Thischange was brought about in part by the recognition that the law should notexpect a woman to resist a rapist when doing so could put her at risk of seriousinjury or death. Here, the complainant could not have been expected to doanything other than to comply with Dorsey’s demands. She was trapped inan elevator, where no help could reach her. Dorsey was significantly tallerand heavier than she was. It was plain that Dorsey could have forced her tocomply had she resisted.

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9.3 People v. Barnes

9.3.1 Overview

Barnes appealed a conviction for rape.

9.3.2 Facts

Barnes had convinced Marsha M. to come to his home. When Marsha ar-rived, she stated that she wanted to buy some marijuana from him and leave.Barnes eventually convinced her to join him inside, where he made physicaladvances on her. Marsha, growing uncomfortable, then left the building.She reached the front gate, but it had been latched using a mechanism shedid not know how to operate. Marsha asked Barnes to open the door, butBarnes made no response. The two then argued for some minutes beforeMarsha rejoined Barnes inside his home. Once inside again, Barnes attackedMarsha by grabbing her collar and threatening other violence. Marsha triedto leave, suggesting that they head to her apartment instead, but Barnesheld shut the front door. Barnes then demanded that they had sex. Marshaacquiesced, offering no resistance.

9.3.3 Issue

Should the conviction be upheld despite the lack of overt resistance fromMarsha?

9.3.4 Holding

The conviction should be upheld.

9.3.5 Reasoning

The California legislature has amended the statutory definition of rape sothat it no longer includes resistance as an element of the crime. The courtbelow plainly erred in applying the outdated standard, which did advert toresistance, as opposed to the current one. This change was made in light ofresearch showing that some women tend to “freeze” when confronted with thepossibility of rape and that resistance may actually aggravate the violenceof the crime. The absence of resistance therefore cannot be taken as anindication of consent. Here, Marsha maintained from the beginning that she

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wanted to purchase marijuana from Barnes and leave immediately thereafter.She joined him inside only after he had talked her into doing so, and sheresisted his initial advances. Barnes then prevented her from leaving thepremises by refusing to open the front gate. Given that Barnes had becomeagitated, Marsha was justified in believing that he would use violence if shedid not comply with his demand for sex. Barnes’s conduct therefore amountsto rape.

9.4 State v. Smith

9.4.1 Overview

Smith appealed a conviction for rape.

9.4.2 Facts

The victim, T, had accompanied a friend to a bar. She met Smith at the bar,and her friend met another male acquaintance. The four then ate dinner ata restaurant. Until this point, there had been no incident. Following dinner,the four agreed to meet at Smith’s apartment. T’s friend and her companionthen rode off on a motorcycle while T and Smith walked to the apartmenton foot. After they entered the apartment, Smith began to make physicaladvances on T. T refused and spat in his face when he tried to kiss her.Smith then threatened T by saying that “he could make it hard on [her]” ifshe refused to have sex with him. T then relented, and the two engaged insexual intercourse.

9.4.3 Issue

Does the lack of consent in this case support a conviction for rape?

9.4.4 Holding

The lack of consent supports a conviction.

9.4.5 Reasoning

Consent is to be determined by the objective manifestations that would berecognized as such by an ordinary person. Here, T’s actions plainly show

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that she never consented to having sex with Smith. She spat in his face andrelented only when he made implied threats of physical violence. There is noreasonable argument to be made that there was indeed consent despite theseactions on T’s part.

9.5 In the Interest of M.T.S.

9.5.1 Overview

M.T.S. appeals a conviction for rape.

9.5.2 Facts

M.T.S. had been living at the home of C.G., the victim, for five days prior tothe incident. During the night of the incident, C.G. had already gone to sleepwhen M.T.S. went up to her room. The parties offered differing accounts ofthe events that then ensued, but their testimony showed that M.T.S. hadsex with C.G. even though she had not consented to the act. C.G. evidentlyslapped M.T.S. during the encounter but otherwise mustered no appreciableresistance.

9.5.3 Issue

Does the lack of affirmative consent support a conviction for rape?

9.5.4 Holding

Lack of affirmative consent supports a conviction for rape.

9.5.5 Reasoning

Legislative reform has been directed at changing the traditional requirementof “utmost resistance” as an essential prerequisite to showing force. Thisrequirement often framed the perpetrator’s force in terms of the victim’sbehavior and tended to “put the victim on trial” alongside the defendant.The legislature has framed rape as a type of criminal battery, in which anyuse of force may be used to support a conviction. Here, it is necessarily onlyto show that C.G. did not freely give her consent to the sexual act. Sincethe prosecution has carried that burden, the conviction should stand.

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9.6 State v. Moorman

9.6.1 Overview

Moorman appealed a conviction for rape.

9.6.2 Facts

The victim, a female college student, had gone to bed and fallen asleep.Sometime thereafter, she awoke to find herself being penetrated by Moorman.She tried to sit up, but Moorman pushed her back down. Fearing physicalinjury, she offered no additional resistance. Moorman claimed a mistake offact, stating that he believed the victim to be another girl, who lived in thesame room.

9.6.3 Issue

May sexual intercourse with a sleeping person amount to rape?

9.6.4 Holding

Sexual intercourse with a sleeping person may amount to rape.

9.6.5 Reasoning

The common law has long held that inability to resist the sexual advancesof another, whether as a result of intoxication or some other disability, isequivalent to the elements of force and lack of consent. The conviction shouldtherefore be upheld.

9.7 Commonwealth v. Fischer

9.7.1 Overview

Fischer appealed a conviction for rape.

9.7.2 Facts

Fischer and the victim had already engaged in sexual contact prior to theincident in question. During the previous encounter, he and the victim hadengaged in at least kissing and fondling, though there was a factual dispute

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as to whether additional sexual contact occurred. Several hours later, thevictim and Fischer went to his room. The victim stated that Fischer thenheld her down and tried to force his penis into her mouth. He then blockedher from leaving the room until she used her knee to strike him in the groin.Fischer characterized the beginning of the encounter as essentially consen-sual. According to his account, the victim expressed objections only later,whereupon he ceased sexual activity. Fischer appealed on the ground thathis trial counsel had been ineffective because of its failure to request a juryinstruction concerning mistake of fact.

9.7.3 Issue

Do the circumstances support a conviction for rape?

9.7.4 Holding

The circumstances support a conviction for rape.

9.7.5 Reasoning

Fischer raises several compelling arguments as to the necessity of a jury in-struction as to mistake of fact. Mistake of fact has long been recognized asan affirmative defense for most other crimes. Given the legislative broad-ening of the definition of force to include “intellectual, moral, emotional, orpsychological force,” there is a good argument for giving the jury instructionin most cases. Fischer, however, is not entitled to the instruction because hisactions fall under the common-law definition of force. Although there mayhave been a genuine mistake as to consent, he nonetheless used physical forceon the victim. Furthermore, he cannot prevail on the theory of ineffectivecounsel. The counsel cannot be found ineffective for failing to request aninstruction for which there was no precedent.

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10 Conspiracy

10.1 Griffin v. State

10.1.1 Overview

Griffin was involved in a brawl in which multiple assailants injured two policeofficers.

10.1.2 Facts

Griffin had evidently crashed his car into a ditch. Officers Vines and Ed-erington were called to the scene, where a crowd had gathered. After theofficers asked Griffin about the circumstances surrounding the crash, Grif-fin became belligerent and attacked Vines. Vines tried to subdue Griffinwith chemical mace and then with physical force, but Griffin kept attacking.Members of the crowd joined the attack on Vines, assaulting him from alldirections. Forced to the ground and feeling that his life was in jeopardy,Vines shot Griffin to halt the attack and to disperse the crowd. Meanwhile,other members of the crowd had attacked Ederington, who was fighting offthose attackers when he heard Vines’s gunshots. Griffin was later convictedof engaging in a conspiracy to attack the officers.

10.1.3 Issue

May the conviction for conspiracy stand despite the lack of direct evidencethat members of the crowd cooperated in the attack?

10.1.4 Holding

The conviction may stand.

10.1.5 Reasoning

It is not necessary to support a conviction for conspiracy with direct evidenceof cooperation among multiple perpetrators. In this case, it would be nearlyimpossible to prove that any two members of the crowd expressly agreed toattack the officers. All that is necessary is to show circumstances that allowan inference that two or more people each committed part of a crime.

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10.2 United States v. Recio

10.2.1 Overview

Recio appealed a conviction for conspiracy on the theory that the object ofthe conspiracy had become impossible to attain.

10.2.2 Facts

The police had stopped a truck carrying drugs. With the help of the truck’sdrivers, the police set up a sting operation in which the truck acted as bait.When Recio took possession of the truck and started driving it away, thepolice arrested him. He was later convicted of conspiring to distribute thedrugs.

10.2.3 Issue

May the conviction for conspiracy stand even though the object of the con-spiracy had been rendered impossible to attain because of seizure of thedrugs?

10.2.4 Holding

The conviction may stand.

10.2.5 Reasoning

The court below has erred in holding that a conspiracy is automatically ter-minated because law enforcement has rendered the object of that conspiracyimpossible to attain. This view conflicts with the Supreme Court’s interpre-tation of the crime. The crux of conspiracy is the agreement to commit anunlawful act. The conspirators are not released from liability simply becausetheir plans, unbeknownst to them, have already been foiled by the police.Recio’s contention that the reasoning behind his conviction would lead touncontainable liability lacks merit. Improper convictions based on conspir-acy are already barred by the prohibition of entrapment. To overturn theconviction here would interfere with many legitimate police operations.

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10.3 People v. Lauria

10.3.1 Overview

The People appealed the decision of the trial court to set aside the indictmentof Lauria for conspiracy to commit prostitution.

10.3.2 Facts

Lauria operating a “call-answering service.” The service received phone callsand took messages for its clients, many of whom were prostitutes. Lauriaknew of these prostitutes and tolerated their presence. Following a stingoperation that led to his arrest, Lauria admitted that he had gone so faras to use the services of one of the prostitutes. On appeal, Lauria arguedthat mere knowledge that his clients included prostitutes was insufficient tosupport a conviction for conspiracy.

10.3.3 Issue

May knowledge of a crime be used to infer intent to conspire in committingthat crime?

10.3.4 Holding

Knowledge of a crime generally should not be used to infer intent to conspirein committing that crime.

10.3.5 Reasoning

The case law suggests an important boundary between knowledge and in-tent. In Falcone, a seller of sugar, yeast, and cans was found not liable forparticipating in the production of moonshine. In Direct Sales, a wholesalerwho had supplied abnormally large amounts of morphine to a physician wasfound liable for conspiring to deal in drugs. These cases suggest that knowl-edge can support an inference of intent to further the crime, but only whenthe facts are such as to permit few other inferences. Thus, manufacturingloaded dice, operating illegal wire services for bookmaking operations, andpublishing directories listing prostitutes give rise to an inference of intentbecause these acts can serve no legitimate purpose. Likewise, renting rooms

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to prostitutes at a grossly inflated rate can also amount to implicit intent be-cause the owner of the premises has thereby acquired a stake in the criminalventure. Furthermore, doing business primarily with criminals would alsogive rise to an inference of intent.

Here, there is no question that Lauria knew that his service was being usedby prostitutes. His knowledge, however, is not of the type that would supportan inference of intent. There are many legitimate uses for call-answeringservices, and there is no evidence to suggest that Lauria attempted to profitfrom its criminal dimension by charging increased rates to prostitutes. Thereis also no evidence to suggest that prostitutes comprised a significant portionof his total clientele. Although the crime of misprision of felony has existedfor a long time, liability for tolerating criminal behavior should be limitedonly to felonies. It should not be extended to misdemeanors, as the one thathas been committed here.

10.4 United States v. Diaz

10.4.1 Overview

Diaz appealed a conviction for use of a firearm in connection with conspiracyto commit another crime.

10.4.2 Facts

An undercover DEA agent had managed to negotiate a deal in which Diazwould sell to the agent a kilogram of cocaine. Diaz and several accomplices,including one Pereillo, were present when the deal was executed. As soonas the drugs had been exchanged for money, the agent gave the signal toarrest the dealers. A shootout then ensued. Although Diaz himself carriedno firearm during the deal, Pereillo’s use of a gun was imputed to him.

10.4.3 Issue

May the use of a firearm by one criminal be imputed to a conspirator?

10.4.4 Holding

The use of a firearm may be so imputed.

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10.4.5 Reasoning

The Pinkerton doctrine allows the acts of respective conspirators to be im-puted to one another. Here, it was foreseeable that a firearm would be usedduring the drug deal.

11 Defensive Force, Necessity, and Duress

11.1 People v. La Voie

11.1.1 Overview

The People appealed a directed verdict in favor of La Voie. The verdict hadbeen granted on the ground that La Voie had acted in self-defense.

11.1.2 Facts

La Voie was driving home from work after midnight. As he was driving, acar approached from his rear and rammed his vehicle. The ramming vehiclewas occupied by four drunk men. Although La Voie applied the brakes in aneffort to stop his car, the force of the ramming car was still sufficient to pushhis car forward, causing all four wheels to leave skid marks on the road. Theramming vehicle pushed La Voie’s car through a red light. After coming toa stop, La Voie got out of his car, carrying a revolver with him. The fourdrunken men got out of their car and began to threaten La Voie. When oneof them advanced toward La Voie, La Voie shot him.

11.1.3 Issue

Should La Voie be acquitted because he was acting in self-defense?

11.1.4 Holding

La Void should be acquitted.

11.1.5 Reasoning

It is a settled principle that one should be acquitted when he has reasonablegrounds for believing that he is in imminent danger of being killed or suffering

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great bodily harm. Here, La Voie was driving home after midnight. The fourmen in the other car were strangers to him. Under these circumstances, LaVoie had a right to defend himself by shooting a potential assailant.

11.2 People v. Gleghorn

11.2.1 Overview

Gleghorn appealed a conviction for assault on the ground that he had beenacting in self-defense.

11.2.2 Facts

Gleghorn and another tenant, Fairall, lived in rooms they had rented fromMs. Downes. When Fairall arranged his lease with Downes, he gave toDownes his stereo. There was a misunderstanding as to the nature of theexchange. Downes apparently thought that Fairall had intended the stereo toact as payment whereas Fairall thought he was merely loaning it to Downes.When Fairall learned that Downes had sold the stereo, he took out his angerby vandalizing her car and her room. Gleghorn, having learned of the inci-dent, evidently decided to take matters into his own hands. One night at3 o’clock, Fairall entered Gleghorn’s room. Fiarall then attempted to beatFairall and succeeded in setting fire to his bed. Fairall then produced a bowand arrow he kept in the room and shot Fairall with an arrow. Enraged bythe injury, Fairall beat Gleghorn and inflicted upon him serious injuries. Attrial Fairall claimed that his initial provocation of Gleghorn did not warranta self-defensive attack and, therefore, that Gleghorn should be consideredthe aggressor. He argues that he should have been granted a jury instructionto that effect.

11.2.3 Issue

Do the circumstances permit the conclusion that Gleghorn was actually act-ing in self-defense?

11.2.4 Holding

The circumstances do not permit that conclusion.

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11.2.5 Reasoning

One who uses force in self-defense is justified in that use of force if theassailant has manifested an intent to cause him serious bodily injury. Theassailant cannot escape liability for his conduct by claiming later that hesecretly had no intention of hurting the other party. The original assailantmay claim self-defense only if he first desists from the fight and finds thatthe other party continues to attack. Here, the jury could have found thatFairall had reasonably concluded that his life was in danger. Even if Fairallwas not justified in this conclusion, Gleghorn would still not be excused sincehe continued to beat Fairall long after Fairall had been subdued.

11.3 State v. Leidholm

11.3.1 Overview

Leidholm appealed a conviction for manslaughter on the ground that she wasacting in self-defense.

11.3.2 Facts

Leidholm’s marriage had been deteriorating. By the time of the incident inquestion, the relationship had already spiraled into violence and alcohol abuseon the part of both partners. During the night of the incident, Leidholm andher husband had attended a gun-club party, at which they both consumedcopious amounts of alcohol. Upon arriving home, they began to argue witheach other. The argument eventually escalated into physical violence, withthe husband knocking Leidholm to the ground multiple times. After herhusband had gone to sleep that night, she got a knife from the kitchen andstabbed him to death. At trial, expert testimony was presented on the issueof ‘battered-wife syndrome” and its possible effects on a woman in Leidholm’sposition. Leidholm appealed on the ground that she was not granted a properjury instruction as to self-defense.

11.3.3 Issue

Should Leidholm have been granted a jury instruction on the subjectivestandard of self-defense?

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11.3.4 Holding

Leidholm should have been granted such an instruction.

11.3.5 Reasoning

One who seeks to show that her conduct is justified or excused on the groundof self-defense must convince the trier of fact that she held a (1) sincere and(2) reasonable belief that her actions were necessary to prevent imminentbodily harm. The question here is whether reasonableness should be deter-mined according to an “objective” or “subjective” standard. The objectivestandard would compare the actor’s conduct to the conduct of a hypothet-ical reasonable person in a similar situation. By contrast, the subjectivestandard asks the trier of fact to determine whether a person with qualitiesrelevantly similar to those of the actor could reasonably have been inducedto believe that the conduct in question was necessary as self-defense. Be-cause the North Dakota statute does not disclose any preference, express orimplied, as to which standard should be applied, one should follow precedentand apply the subjective standard.

The trial court therefore erred in failing to instruct the jury specifically toconsider the relevant characteristics of Leidholm in determining whether shewas justified in stabbing her husband. Furthermore, the trial court shouldalso have given the jury an instruction as to how the possibility of battered-wife syndrome would affect the subjective reasonableness of Leidholm’s ac-tions. Although battered-wife syndrome does not create a presumption ofinnocence, the jury should be notified of this factor so that it may considerit alongside any other circumstances in determining guilt.

11.4 People v. Goetz

11.4.1 Overview

The People appealed the decision of a lower court to quash indictments ofGoetz for attempted murder and assault. The lower court had ruled thatGoetz had acted in self-defense.

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11.4.2 Facts

Goetz had boarded a subway train. He was carrying an unlicensed pistol, ashe had been doing for three years. Four youths—Canty, Cabey, Ramseur,and Allen—were riding in the same car. Sometime thereafter, Canty, andpossibly Allen, approached Goetz and demanded that Goetz give them fivedollars. Neither youth displayed a weapon. Goetz responded by pulling outhis gun and firing one shot at each of the four youths. Having missed Cabeythe first time, he fired a second shot, which severed Cabey’s spinal cord. Attrial Goetz testified that he had been mugged before and that he had startedcarrying the gun in order to ward off muggers. He also testified that hebelieved the youths to be “playing with [him]” when they approached himand that the youths posed a threat of physical injury. Goetz testified thathe had contemplated the order in which he would shoot the youths and thathe would have shot Cabey in the head if he had been calm enough to do so.Finally, Goetz testified that he would have fired more shots if he had notrun out of ammunition. The lower court then quashed the indictments forattempted murder and assault on the ground that the grand jury had beenincorrectly instructed on the objective standard of self-defense.

11.4.3 Issue

Should the objective standard of reasonableness be applied in evaluating inGoetz’s claim of self-defense?

11.4.4 Holding

The objective standard should be applied.

11.4.5 Reasoning

The court below misconstrued the statute concerning self-defense. The statuteprovides that one may use force in self-defense when “he reasonably believes”that he is in immediate danger of suffering serious bodily harm. The courtbelow has apparently placed the emphasis on “he” as opposed to “reason-ably.” In doing so, it effectively applied a subjective, rather than an objec-tive, standard of self-defense. The history of the statute does not supportthis interpretation. Although it is based on substantially similar languagefrom the Model Penal Code, the legislature was careful to specify that the

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actor should have a “reasonable” belief, as opposed to an unqualified belief,that he was about to suffer harm. To refuse to apply the objective standardhere would allow the acquittal of any actor who claimed self-defense even ifthe actor had no rational basis for believing that defensive force was neces-sary. Goetz’s contention that the objective standard would fail to take intoaccount his previous experience with muggings lacks merit. The objectivestandard already implicitly includes such factors.

11.5 The Queen v. Dudley & Stephens

11.5.1 Overview

Dudley and Stephens argued that a killing was justified because of necessity.

11.5.2 Facts

Dudley, Stephens, Brooks, and the seventeen- or eighteen-year-old decedentwere serving as crew members on a yacht when they were swept overboardin a storm. The four managed to climb into a small boat belonging to theyacht. At that point, they were likely more than a thousand miles from land.They had no food save for a few small cans of turnips and small they hadcaught. They had no fresh water except for the rainwater they occasionalmanaged to catch. By the time of the incident, the four had spent more thaneighteen days adrift. Their supply of food and water had been exhaustedfor at least five days. On more than one occasion, Dudley and Stephenshad discussed killing the decedent so that they could cannibalize him forsurvival. Brooks steadily refused to go through with the plan. Ultimately,Dudley cut the decedent’s throat with a knife. At the point the decedenthad been so weakened by thirst and hunger that he could offer no resistance.The remaining survivors fed on the decedent’s flesh. Four days thereafter,they were rescued.

11.5.3 Issue

Was the killing justified by necessity?

11.5.4 Holding

The killing was not justified by necessity.

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11.5.5 Reasoning

The law is clear that it recognizes only self-defense as a justification for killing.While some authorities to the contrary exist, they should not be consideredthe law of England. Here, there was no evidence that the decedent had doneanything that would have given Dudley and Stephens an adequate excuse forcarrying out the killing. The decedent committed no act of violence towardthe remaining survivors. Indeed, the decedent was so weak that he wasincapable of resisting the killing. Although the evidence produced at trialsuggests that Dudley and Stephens would not have survived until rescue hadthey not cannibalized the decedent and that the decedent would not havesurvived until rescue in any case, these circumstances still do not justify thekilling. They might have been rescued sooner, in which case the killing wouldhave been unnecessary. Alternatively, they might never have been rescued atall. Although the temptation to kill may have been strong, this temptationcannot be treated as justification; otherwise, all sorts of killings might beexcused on the basis of necessity.

11.6 People v. Unger

11.6.1 Overview

Unger appealed a conviction for escaping from prison.

11.6.2 Facts

Unger had been sentenced to a one- to three-year term for auto theft. Abouttwo months after he began serving the sentence, he was transferred to the“honor farm,” the prison’s minimum-security section. According to Unger’stestimony, he had been threatened by an inmate. After the transfer, a knife-wielding inmate attempted to force him to perform sexual acts. Sometimethereafter, he was molested by three inmates. Afterward, he received a phonecall threatening him with death because someone apparently believed that hehad reported the attack to authorities. Fearing for his safety, Unger walkedoff the honor farm.

11.6.3 Issue

May the escape be excused on the basis of compulsion or necessity?

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11.6.4 Holding

The escape may be excused on the basis of necessity.

11.6.5 Reasoning

The law recognizes a distinction between compulsion and necessity. Compul-sion is generally considered to arise from an imminent threat of harm from ahuman being. Necessity, by contrast, arises from the forces of nature. Here,Unger should be considered to have been driven by necessity. There was noevidence that his escape was motivated by an immediate attack. No otherprisoner directly compelled him to escape. Rather, Unger chose the lesserof two evils. Unger’s testimony that he feared reprisal from other inmateswas sufficient to warrant an instruction on the excuse of necessity. The trialcourt erred in refusing the instruction.

Although other courts have held that the excuse of necessity is applica-ble only when certain factors are present, such factors should be consideredfactual issues to be weighed by a jury. The courts should not treat them asforeclosing the possibility of a defense based on necessity.

12 Insanity

12.1 People v. Serravo

12.1.1 Overview

The People appealed the acquittal of Serravo on the ground that the defenseof insanity protected him from conviction for first-degree murder and first-degree assault.

12.1.2 Facts

Serravo returned from a meeting of his labor union after midnight. He wentupstairs to the bedroom where his wife slept and stabbed her in the shoulderwith a knife. After his wife awoke, Serravo told her that she had been stabbedby an intruder. Police officers were summoned to the scene, and Serravo alsotold them that an intruder had entered the house. Only later did his wifediscover, after reading some letters that Serravo had hidden, that Serravohimself had been responsible for the stabbing.

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At trial, the prosecution’s expert testified that he had the delusional beliefthat God had commanded him to build a sports complex for the purpose ofshowing people the path to perfection. Serravo apparently believed that hiswife was standing in the way of this divine purpose, and he felt that theonly way to overcome the problem was to stab her. The expert testifiedthat Serravo probably suffered from damage to the left temporal lobe orparanoid schizophrenia, either of which would explain his belief that he hada privileged relationship with God. Finally, the expert testified that Serravowas probably aware that stabbing his wife was against the law.

Serravo produced testimony from four experts, which also suggested hewas suffering from paranoid schizophrenia or a similar disorder. Although theexperts differed as to the details of the diagnosis, they agreed that Serravowas probably incapable of distinguishing right from wrong. One expert thensuggested that Serravo had lied to police because he feared that they wouldfail to understand the moral reasoning he had used to justify the stabbing.

12.1.3 Issue

(1) Should the definition of insanity turn on the ability to perceive moralright and wrong or legal right and wrong? (2) Did the trial court err infailing to explain this standard in the jury instruction?

12.1.4 Holding

(1) The definition should turn on moral right and wrong. (2) The trial courterred in failing to explain this standard.

12.1.5 Reasoning

The M’Naghten rule makes it clear that the insanity defense should turnupon the ability to differentiate between right and wrong in moral terms,not right and wrong in legal terms. It would be legal formalism to holdthe accused responsible for an act simply because he knew it to be legallyprohibited but not that it was morally wrong. A person who commits anact that is morally wrong ought to be held responsible regardless of whetherhe realized it was legally prohibited as well. Contrariwise, a person whocommits an act without realizing its moral wrongness should not be heldresponsible even though he may have known it was prohibited by law. Thisrule is well-supported by precedent.

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The M’Naghten rule addresses two cases: (i) where the defendant is “in-sane” in the limited sense that he recognizes that a particular violation ismorally wrong but nonetheless believes it will redress some grievance; and(ii) where the defendant is so delusional as to be incapable of recognizingany distinction between moral right and wrong. These cases are reconcilablewith each other in that the former assumes an essentially working perceptionof morality whereas the latter does not.

It is also important to apply an “objective” standard of morality in deter-minations of sanity. A person’s understanding of morality essentially growsfrom the system of behavior that is approved by society. Under this stan-dard, a person may still be found insane if he personally believed the actionin question to be morally right, even if knew that it was legally prohibitedand frowned upon by society. Furthermore, it is unnecessary to recognize a“deific decree” exception to the societal standard of morality. Delusional de-ific decrees, such as those under which Serravo was acting, are not so muchan exception as an essential element in the understanding of morality. Ifone’s judgment is clouded by the belief that God has given him a mandateto do certain acts, then he would almost certainly be incapable of perceivingthe true morality or immorality of those acts.

The trial court therefore erred by giving an instruction on the insanitydefense that was too vague and which failed to specify the societal standardof morality. The instruction, as given, could easily have misled the juryinto believing that the standard of morality to be applied was to be thedefendant’s own subjective standard.

13 Attempt

13.1 State v. Lyerla

13.1.1 Overview

Lyerla appealed a conviction for attempted second-degree murder.

13.1.2 Facts

Lyerla was driving on an interstate highway when he encountered the pickuptruck driven by the victims. The two vehicles passed each other severaltimes. When Lyerla then attempted to pass the victims’ pickup, the victims

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accelerated to prevent him from doing so. Lyerla then pulled off the interstateand loaded his gun. The victims’ pickup evidently waited for him near theon-ramp while he did so. When Lyerla returned to the interstate, the victimsagain tried to pass him, whereupon he fired three shots at their truck. Two ofthe bullets missed the victims, but a third killed the driver. Lyerla testifiedthat he believed the victims to have been taunting him and that he fearedfor his life. He was convicted on one count of second-degree (i.e., reckless)murder and two counts of attempted second-degree murder.

13.1.3 Issue

Do the two missed shots constitute attempted second-degree murder?

13.1.4 Holding

The missed shots do not constitute attempted second-degree murder.

13.1.5 Reasoning

Lyerla has been charged with attempting to commit a reckless murder, whichis a logical impossibility. An actor may not be held responsible for attemptinga criminal act if he lacks the requisite specific intent associated with thatact. The very definition of reckless murder, however, is that the killing lacksany specific intent. It would be absurd to hold that Lyerla was capable ofattempting a reckless act.

Sabers, Justice, dissenting. The majority has construed the concept ofintent too broadly. Here, the only “intent” that should matter is that Lyerlavoluntarily fired at the victims’ truck.

13.2 People v. Murray

13.2.1 Overview

Murray appealed a conviction for attempt to enter an incestuous marriage.

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13.2.2 Facts

Murray had declared that he intended to marry his niece. He had gone sofar as to elope with the niece and to find a magistrate willing to perform theceremony.

13.2.3 Issue

Do Murray’s actions amount to an attempt to enter an incestuous marriage?

13.2.4 Holding

Murray’s actions do not amount to such an attempt.

13.2.5 Reasoning

Although Murray’s conduct shows his intention to go through with the mar-riage, the conduct must evidence something more than intention before it canqualify as an attempt. Murray’s conduct is comparable to that of a man whobuys and loads a gun with the intention of shooting his neighbor but whotakes no further steps to that end. Murray would be guilty of the attemptonly if his plans had progressed to such an extent that he and his niece wouldhave taken their vows but for timely intervention.

13.3 McQuirter v. State

13.3.1 Overview

McQuirter appealed a conviction for attempted assault with intent to rape.

13.3.2 Facts

Mrs. Allen, a white woman, was walking home with her two children and aneighbor’s daughter when she passed a pickup truck in which McQuirter, ablack man, was sitting. As they passed McQuirter, he muttered somethingindistinct and exited the vehicle. He apparently began following Allen andthe children. Upon noticing his presence, Allen told the children to run to aneighbor’s house and notify the neighbor of the situation. When the neighborcame outside, McQuirter stopped following Allen. He did, however, loiteroutside her house for another thirty minutes before leaving. After he was

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arrested, McQuirter admitted that he had gone to town with the intentionof “getting” a white woman.

13.3.3 Issue

Does McQuirter’s conduct amount to attempted assault with intent to rape?

13.3.4 Holding

The conduct amounts to such an attempt.

13.3.5 Reasoning

In determining whether McQuirter indeed intended to carry out a crime,the jury may consider social conditions and customs founded upon racialdifferences. Having done so, the jury has left no reversible error.

13.4 People v. Rizzo

13.4.1 Overview

Rizzo appealed a conviction for attempted robbery.

13.4.2 Facts

Rizzo and three accomplices had decided to rob a man carrying the payrollfor the United Lathing Company. They planned to ambush the man as hewas delivering the payroll. The four men, two of whom were armed, drovearound to look for their target. After arriving at a building, the posse noticedthat they were being followed by the police. They were arrested as they triedto flee. They never found their target.

13.4.3 Issue

Do the actions of Rizzo and his accomplices amount to an attempt to commitrobbery?

13.4.4 Holding

The actions do not amount to such an attempt.

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13.4.5 Reasoning

The conduct of Rizzo and his accomplices amount only to preparation tocommit a crime. In order for conduct to qualify as an attempt, it must besuch as to result naturally in the completion of the crime but for interventionby some external cause. To be guilty of attempted robbery, the posse wouldat least need to have located their target and made some motion towardforcibly taking the money. In actuality, Rizzo and his men never even foundtheir target. Their conduct is like that of a burglar merely looking for abuilding to burglarize or a murderer looking for his intended victim. In theselatter examples, the defendant would not be guilty of the attempted crime.

13.5 People v. Staples

13.5.1 Overview

Staples appealed a conviction for attempted burglary.

13.5.2 Facts

Staples decided to steal from a bank by drilling his way into its vault. Herented an office located above the bank vault. Prior to the rental period,he moved certain equipment for the crime into the office. This equipmentincluded drilling tools, two acetylene gas tanks, a blow torch, a blanket, anda linoleum rug. The landlord, who had ordered repair work to be done duringthe same period, noticed the equipment when he was supervising the repairwork. Staples then began drilling, though he abandoned his plans beforehe reached the vault. When the lease expired, the landlord reported thesuspicious tools to the police. Staples later told police that he had becomeambivalent about the plan, thinking on the one hand that it was absurd buton the other hand that he did not want his investment to go to waste.

13.5.3 Issue

Does Staple’s conduct amount to attempted burglary?

13.5.4 Holding

The conduct amounts to attempted burglary.

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13.5.5 Reasoning

The drilling constitutes the commencement of the crime. It indicates thatStaples went beyond mere preparation. Although Staples was not interruptedin the act of drilling, the landlord’s reporting of the suspicious tools to thepolice constitutes intervention. Because Staples has attempted the crime, heis guilty regardless of whether he abandoned his plan out of fear or a changeof heart.

13.6 People v. Lubow

13.6.1 Overview

Lubow appealed a conviction for solicitation of grand larceny.

13.6.2 Facts

Lubow owed to one Silverman more than $30,000 for diamonds purchasedon credit. Silverman eventually approached Lubow and demanded repay-ment of the debt, explaining that he was about to go bankrupt for lackof the money he was owed. In response, Lubow proposed that Silvermanjoin a scheme. Explaining the scheme, Lubow said that Silverman was firstto purchase diamonds on credit. The diamonds would then be sold, withLubow, Silverman, and another accomplice pocketing the proceeds. Whenthe creditors inevitably demanded payment for the diamonds, Silverman wasto declare bankruptcy and explain that he had lost all his money throughgambling. Silverman reported the scheme to the district attorney. He wasthen equipped with a tape recorder and captured a conversation betweenhimself and Lubow outlining the scheme. Lubow was then convicted.

13.6.3 Issue

Does Lubow’s conduct amount to solicitation to commit grand larceny?

13.6.4 Holding

Lubow’s conduct amounts to such solicitation.

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13.6.5 Reasoning

Lubow’s conduct evidences his intention to convince Silverman to join thecriminal scheme. He is therefore guilty of solicitation.

14 Complicity

14.1 State v. Ochoa

14.1.1 Overview

Ochoa, Avitia, and Velarde appealed a conviction for complicity in second-degree murder.

14.1.2 Facts

The eviction of one Navarro from his home had provoked the anger of thecommunity. When Navarro was later arrested after attempting to break intohis old dwelling, members of the community organized a meeting, at whichthey unsuccessfully demanded Navarro’s release. As the sheriff and severalofficers were transporting Navarro from jail to a hearing, they encountered acrowd of about 125 people. When the crowd was denied entry to the smallcourtroom, it became agitated. Various members of the crowd pounded onthe courthouse doors and pressed against its windows with enough force tocrack them.

At the conclusion of the hearing, the officers transporting Navarro had de-termined that it would be too dangerous to leave through the front entranceto the courthouse and confront the crowd. The officers therefore decidedto take Navarro through a rear exit and into an alley. When they reachedthe rear exit, however, the crowd had already gathered there. Althoughthe officers managed to push their way through the crowd for some dis-tance, violence broke out in the alley. Evidence at trial showed that Boggesswas knocked unconscious by an unidentified member of the crowd and thatOchoa and Avitia began beating and kicking him immediately thereafter.At almost the same time, two shots fired from elsewhere struck and killedSheriff Carmichael. Although there was some suggestive evidence as to thegun that killed Sheriff Carmichael, the murder weapon was never definitivelyidentified.

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14.1.3 Issue

Are any of the three defendants guilty of complicity in the murder of SheriffCarmichael?

14.1.4 Holding

Ochoa and Avitia were complicit. Velarde was not complicit.

14.1.5 Reasoning

A person may not be held liable as an accomplice to a crime unless he ev-idences the same intent or purpose as the principal. Even if a person con-templates aiding the commission of the crime, that contemplation does notsupport a conviction unless it is accompanied by overt action. Here, Velarde’sactions fail to establish complicity on his part. Although he was a memberof the crowd, he was not seen to take any suspicious actions following theoutbreak of violence. By contrast, Avitia and Ochoa indicated their intentto abet the murder by attacking Deputy Boggess after he had been knockeddown. Even if they did not know that anyone had intended to kill the sheriff,they gained that knowledge as soon as the first shot was fired. They alsocontinued to attack Boggess even after Sheriff Carmichael had been shot.This fact allows the jury to infer that Avitia and Ochoa attacked Boggesswith the purpose of preventing him from coming to Carmichael’s aid. Theconduct of Avitia and Ochoa can therefore be viewed as having providedpurposeful aid to the commission of the killing itself.

14.2 State v. Tally

14.2.1 Overview

Tally appealed a conviction for complicity in murder.

14.2.2 Facts

Judge John Tally was a brother-in-law to four brothers, the Skeltons, whocommitted the murder. The victim, R. C. Ross (“Ross”), had provoked thewrath of Tally and the Skeltons by carrying on an affair with a sister ofthe Skeltons. Ross had evidently learned that the Skeltons intended to killhim in retaliation. On the morning of the murder, Ross was already fleeing

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in a carriage traveling from Scottsboro to Stevenson. The Skeltons, havinglearned of Ross’s flight, decided to chase him down and to shoot him whenthey caught him. There was no evidence to show that Ross knew he wasbeing chased despite his early departure.

Soon after the chase was underway, it became the talk of the town. Theconsensus was that tragedy would unfold. Meanwhile, Tally was waitingat the telegraph office in Scottsboro “to see if anyone if anybody sent atelegram”—apparently referring to any telegram intended to warn Ross of theattempt on his life. By that point, the fear of violence was sufficiently greatthat one Dr. Rorex suggested to Tally that someone call for a doctor to be sentto Stevenson in anticipation of bloodshed or, alternatively, that officials inStevenson be notified so that they may arrest the attackers. Tally dismissedboth suggestions. As it turned out, E. H. Ross, a relative of the victim,did arrive at the office to send a telegram intended to provide such warning.Tally, who was standing close by as the message was given to the telegraphoperator, apparently gathered that such was its purpose. Tally brought upthe possibility of bullying the telegraph operator into not sending the messageto Judge Bridges, who was also present at the office. Bridges, however,dissuaded Tally from doing so. Tally then decided to send a telegram of hisown, which instructed the telegraph operator in Stevenson, one Huddleston,not to deliver the warning to Ross.

Tally’s telegram proved effective. When Huddleston had received the tele-gram of E. H. Ross but before Tally’s telegram had been sent, Huddlestonhad immediately gone with the message to a nearby hotel, apparently withthe hope of finding Ross there. Because Ross had not yet arrived, Huddlestonreturned to his office. By that time, Tally’s telegram had arrived. Shortlythereafter, Huddleston saw the carriage carrying Ross in the distance. Al-though he had ample time to meet the carriage on the road and deliver thewarning, Tally’s telegram had evidently changed his mind sufficiently thathe decided to delay by sending someone to find a marshal and to conversewith a relative of Tally in the meantime.

When the carriage arrived in Stevenson, Ross was immediately ambushedby three of the four Skelton brothers. Ross was shot in the leg and took coverbehind a building. Unbeknownst to him, however, the fourth Skelton brotherwas lying in wait for him and shot him in the head.

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14.2.3 Issue

(1) Did Tally perform any act intended to further the murder? (2) Is itessential that any such action contributed to the death of Ross? (3) Did thesaid action in fact contribute to the death of Ross?

14.2.4 Holding

(1) Tally’s sending the telegram to Huddleston amounted to an act intendedto further the murder. (2) It is essential that Tally’s actions contributed tothe death of Ross, though such an action need not be the but-for cause ofthe death. (3) Tally’s actions did in fact contribute to the death of Ross.

14.2.5 Reasoning

(1) There is no doubt that Tally knew of the attempt on Ross’s life and thathe intended to facilitate the murder by preventing any warning of danger fromreaching Ross. The revenge killing was already the talk of the town whenthe chase was underway. Tally knew that the Skeltons were heavily armedwhereas Ross was unaware of the danger. When Dr. Rorex suggested sendingfor physicians or law enforcement, Tally refused the suggestions, apparentlywith the desire that the plot should continue uninterrupted. Although Tally’stelegram to Huddleston was worded rather ambiguously, its only possiblemeaning under the circumstances was that Huddleston should avoid warningRoss of any danger.

(2) Tally must have contributed to the death of Ross, though any suchcontribution need not be a but-for cause of the death. Rather, all that anysuch contribution must do is to facilitate the commission of the crime. Inthe current case, Tally’s actions would suffice if they deprived Ross of someopportunity to escape death.

(3) Tally’s telegram to Huddleston did in fact contribute to the murderby depriving Ross of information that might have saved his life. The evi-dence shows that Huddleston had already attempted to deliver the warningto Ross immediately upon receiving it. Only after this first delivery at-tempt did Huddleston receive the Tally’s telegram, whereupon his attitudechanged markedly. Rather than approaching Ross’s carriage to warn him ofthe danger, Huddleston instead delayed by sending for the marshal, whosewhereabouts were unknown, and conversing with a relative of Tally. Theresult was that Ross was left completely unaware that he was being pursued

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by four men with guns. While it is true that Ross may have been killed evenif he had received the warning, it may be inferred that he would have reacteddifferently to the shooting if he had known the full extent of the plot againsthim. As it was, Ross knew at best that three men were attacking him whenthe gunfire began. He sought cover behind the nearest building, not knowingthat a fourth man was lying in wait there. Had Ross been warned that fourmen were trying to kill him, it is likely that he would have fled to a nearbyhotel or someplace where he would have been less susceptible to ambush.Ross’s failure to receive the warning therefore deprived him of informationthat would have increased his chance of surviving.

14.3 People v. Beeman

14.3.1 Overview

Beeman appealed a conviction for aiding and abetting a robbery.

14.3.2 Facts

James Gray and Michael Bork had robbed Beeman’s sister-in-law of morethan $100,000 in jewelry. Sometime thereafter, Beeman was arrested in con-nection with the crime. Beeman and the two robbers gave entirely differentaccounts of the crime, with the robbers testifying that Beeman had activelysupplied them with information on the victim’s home and advice on carryingout the robbery. Beeman’s testimony contradicted that of Gray and Borkin almost every material respect. The trial court refused to instruct thejury that purpose was the mental state required for liability for aiding andabetting.

14.3.3 Issue

Should the trial court have instructed the jury that Beeman could be con-victed only if he was shown to have helped the robbers with purpose?

14.3.4 Holding

The trial court should have so instructed the jury.

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14.3.5 Reasoning

It is a settled law that purpose is the requisite mens rea for aiding and abet-ting. Although an accomplice’s knowledge of the crime combined with hisactions may sometimes give rise to an inference of purpose, the jury instruc-tion given suggests that knowledge itself is sufficient to support a conviction.Although Beeman admits having given information to the robbers, he con-tends that he did so without any awareness of their criminal purpose. Whenplans for the robbery became apparent, Beeman tried to dissuade the duofrom carrying out the crime and thought it was doubtful that they would.Beeman also claims that he took the stolen jewelry in an attempt to returnit to the owner. Given that the jury expressed confusion as to the standardof liability for aiding and abetting, the trial court erred in refusing to givenan instruction on purpose.

14.4 Wilson v. People

14.4.1 Overview

Wilson appealed a conviction for complicity in a burglary.

14.4.2 Facts

Wilson was eating at a local cafe when Pierce, the principal perpetrator,approached him. The two began chatting. Pierce had been drinking, andhe asked Wilson where he could find more liquor. The two then purchasedsome liquor and returned to the cafe to drink it. By that point, Wilson hadnoticed that his watch had gone missing, and he accused Pierce of havingstolen it. Pierce adamantly denied any such theft, and the argument becameso heated that they were told to leave the cafe. They continued arguing atanother cafe; Wilson later testified that he thought they would be thrownout from the second cafe as well.

At some point during the discussion of the watch, Pierce evidently men-tioned that he had committed burglaries before and that he and Wilsonshould burglarize a local drugstore. The two proceeded to the drugstore,where Wilson helped Pierce gain entry by boosting him through a transom.As soon as Pierce was inside, Wilson notified the police, who arrested Pierce.Wilson also admitted to the police that he had helped Pierce break into thepremises.

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14.4.3 Issue

Should Wilson be held liable as an accomplice to the burglary?

14.4.4 Holding

Wilson should not be held liable as an accomplice.

14.4.5 Reasoning

The law is clear that one cannot be held liable as an accomplice unless heshares the criminal intent of the principal. Here, there is evidence to supportWilson’s contention that he aided Pierce only for the purpose of bringingabout Pierce’s arrest. The trial court erred by giving a jury instruction thatdeclare, as a matter of judicial fiat, that anyone who lends assistance to theprincipal, regardless of his mental state, is guilty as an accomplice. The trialcourt should have explained to the jury the requirement of intent.

14.5 State v. Etzweiler

14.5.1 Overview

Etzweiler appealed a conviction for complicity in negligent homicide.

14.5.2 Facts

Etzweiler had driven to work with Bailey, one of his colleagues. Upon reach-ing the destination, Etzweiler went to work, leaving his car for Bailey to use.Bailey, who was intoxicated, drove off. About ten minutes later, he collidedwith another car and killed two passengers in the other car.

14.5.3 Issue

Should Etzweiler be liable for complicity in negligent homicide?

14.5.4 Holding

Etzweiler should not be liable for complicity in negligent homicide.

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14.5.5 Reasoning

The relevant statute provides that one cannot be guilty of complicity in acrime unless he assists the principal with the purpose of furthering the crime.The requirement of intent is at odds with the definition of negligent homicide.By definition, a negligent homicide is one in which the principal does notknow the risk of death. It would absurd to say that Etzweiler intentionallyhelped to bring about a death whose occurrence he could not even foresee.In any case, Etzweiler’s conduct is too remote from the accident to make himliable. He was not in the car when Bailey collided with the other vehicle. Allthat Etzweiler did was to let Bailey use the car.

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