CRIMINAL LAW : Cases, Materials, and Problems Third Edition

Weaver, Abramson, Burkoff, and Hancock

Chapter 1. The Purposes of the Criminal Law A. A Case Study in Punishment B. Purposes of the Criminal Law Chapter 2. The Requirement of a "Voluntary Act" A. The Act Requirement B. Omissions Chapter 3. Mens Rea A. Legislative Patterns of Criminal Intention Purposely, Knowingly, Recklessly, Negligently B. Strict Liability C. Intoxication & Drugged Condition D. Mistake of Fact E. Mistake of Law Chapter 4. Causation Chapter 5. Complicity A. Accomplice Liability 1. Principals & Accessories a. Merger of Principals & Accessories b. Significance of Merger of Principals & Accessories 2. The Act of Aiding or Encouraging 3. The Intent to Promote or Facilitate a Crime B. Vicarious Liability Chapter 6. Attempt A. B. C. D. A. B. C. D. E. F. G. A. B. Mens Rea Actus Reus Abandonment Impossibility Chapter 7. Conspiracy Unilateral-Bilateral Conspiracies Mens Rea The Act of Agreement Overt Act Renunciation or Withdrawal Merger Culpability of Co-Conspirators Chapter 8. Homicide Intentional Killings Unintentional Killings

Chapter 9. Assault & Battery A. Battery 1.Offensive Touching Adams v. Commonwealth 534 S.E.2d 347 (2000) Defendant was convicted after bench trial in the Circuit Court of assault and battery on a police officer. Defendant appealed. The Court of Appeals held that defendant's shining a laser light on police officer's eye was sufficient to constitute a touching for the purposes of assault and battery. Affirmed. Dissention. 2. Bodily Injury State v. Gordon 560 NW.2d 4 (Iowa, 1997)

Defendant was convicted in the District Court of assault causing bodily injury. He appealed. The Supreme Court held that red mark or bruise on victim's chest did not constitute bodily injury per se. State v. Whitfield 134 P. 3d 1203 (2006) Background: Defendant was convicted following a bench trial in the Superior Court of 17 counts of first degree assault with sexual motivation, two counts of witness tampering, and three counts of no-contact order violations, for which he was sentenced to 2,137 months (178.08 years) in prison. Defendant appealed. Holdings: The Court of Appeals held that: (1) prosecutor was not required to exhaust available civil remedies under statute addressing control and treatment of sexually transmitted diseases before filing criminal assault charges against defendant; (2) statute providing that person who administers, exposes, or transmits to or causes to be taken by another the human immunodeficiency virus (HIV) with intent to inflict great bodily harm is guilty of first degree assault did not violate Equal Protection Clause; (3) statute providing that person who administers, exposes, or transmits to or causes to be taken by another the human immunodeficiency virus (HIV) with intent to inflict great bodily harm is guilty of first degree assault did not violate Privileges and Immunities Clause of State Constitution; (4) sufficient evidence supported conclusion that defendant, who had tested positive for human immunodeficiency virus (HIV) intentionally exposed 12 HIV-negative victims to HIV; (5) defendant was not entitled to assert defense of consent; and (6) sentence did not constitute cruel and unusual punishment. Affirmed. B. Assault Anthony v. U.S. 361 A.2d 202 Defendants were convicted in the Superior Court of assault with intent to commit robbery, and they appealed. The Court of Appeals held that trial court did not err in defining an assault as an attempt or effort with force or violence to do injury to person of another, coupled with the apparent present ability to carry out such attempt or effort. Affirmed. C. Modern Variants of Assault & Battery 1. Stalking State v. Simone 887 A.2d 135 (2005) Background: Defendant was convicted in the Superior Court of stalking. Defendant appealed. Holding: The Supreme Court held that evidence was sufficient to support conviction. Affirmed. 2. Domestic Assault Chapter 10. Rape and Sexual Assault A. Forcible Rape 1.Actus Reus: Force and Lack of Consent a.Force, Threat, or Fear People v. Iniguez 7 Cal.4th 847 Defendant was convicted in the Superior Court of rape, and he appealed. The Court of Appeal reversed. Review was granted, superseding the opinion of the Court of Appeal. The Supreme Court held that: (1) evidence supported finding of subjective component of fear of immediate and unlawful bodily injury element of rape, and (2) evidence supported finding of objective component of fear element. Court of Appeal reversed; remanded. State v. Borthwick 255 Kan. 899 Following jury trial, defendant was convicted of rape in the District Court. The Court of Appeals affirmed, and appeal was taken. The Supreme Court held that: (1) evidence sustained conviction based on defendant's overcoming victim by force or fear; (2) defendant was not entitled to instruction on attempted rape as lesser included offense; (3) state's presentation of testimony of rebuttal witness was not improper; and (4) prosecutor's comments during closing argument did not warrant reversal. Affirmed. Dissention. b.Lack of Consent i. Defining Consent State v. Lederer 99 Wis.2d 430

Defendant was convicted in the Circuit Court of third-degree sexual assault, and he appealed. The Court of Appeals held that: (1) statute proscribing nonconsensual intercourse was not unconstitutional as facially overbroad; (2) trial court did not err in failing to dismiss second count for insufficient evidence; (3) admission of testimony regarding a medical report prepared at hospital was not error; (4) trial court did not err in refusing to order prosecutrix to submit to a mental examination; (5) refusal to order discovery of past addresses of prosecutrix was not error; (6) trial court did not err in refusing to specially instruct jury on prosecutrix' prior inconsistent statements; (7) excluding testimony regarding statement of prosecutrix that she did not want defendant to go to jail was not error; and (8) a new trial was not warranted in interests of justice. Affirmed. ii. Withdrawal of Consent State v. Baby 946 A.2d 463 Background: Defendant was convicted in a jury trial in the Circuit Court first-degree sexual offense and third-degree sexual offense. Defendant appealed, and the Court of Special Appeals, on reconsideration, reversed and remanded. State petitioned for writ of certiorari. Holdings: Upon grant of certiorari, the Court of Appeals, held that: (1) a woman may withdraw consent for vaginal intercourse after penetration has occurred and, after consent has been withdrawn, the continuation of vaginal intercourse by force or the threat of force may constitute rape; (2) trial court was required to respond to jury's question regarding post-penetration withdrawal of consent; (3) error in failing to reinstruct jury on post-penetration withdrawal of consent was not harmless; (4) error required reversal of defendant's convictions for first and third degree sexual offense as well as rape; and (5) evidence regarding rape trauma syndrome was required to be subjected to Frye-Reed analysis. Vacated. iii. Consent as an Affirmative Defense State v. Koperski 254 Neb. 624 Defendant was convicted in the District Court of first-degree sexual assault, and he appealed. The Court of Appeals affirmed, and defendant appealed. The Supreme Court held that: (1) trial court's instruction jury on substantive elements of first-degree sexual assault and refusing to give defendant's proposed instruction on consent was prejudicial error, and (2) trial court's instructing the jury that defendant was required to have intentionally sexually penetrated victim was error, but such error was not prejudicial to defendant. Reversed and remanded with directions. 2. Mens Rea and the Mistake Defense Reynolds v. State 664 P.2d 621 Defendant, charged with first-degree sexual assault and kidnapping, was convicted after jury trial in the Superior Court of sexual assault in the first degree, and defendant appealed. The Court of Appeals held that: (1) statute governing first-degree sexual assault does not punish harmless conduct and is neither vague nor overbroad; (2) whether defendant physically prevented victim from fleeing, used force, and caused her some physical injury were questions for jury; (3) trial court did not commit plain error in failing to specifically instruct jury that defendant had to recklessly disregard substantial risk that victim did not consent to intercourse before he could be convicted of first-degree sexual assault; (4) penalty provisions of sexual assault statutes did not subject defendant to cruel and unusual punishment or deny him substantive due process or equal protection of law; and (5) five-year sentence was not clearly mistaken. Affirmed. People v. Williams 4 Cal.4th 354 Defendant was convicted by jury in the Superior Court of two counts of forcible rape and one count of false imprisonment. Defendant appealed. The Court of Appeal reversed. Review was granted, superseding opinion of the Court of Appeal. The Supreme Court held that there was no substantial evidence warranting instruction on reasonable and good faith mistaken belief of consent to sexual intercourse, under the circumstances. Judgment of Court of Appeal reversed. Dissention. Opinion, 283 Cal.Rptr. 518, superseded. 3. Marital Rape Exception during the rape reform era state courts and legislatures limited or abandoned 4. Rape and the Death Penalty B. Alternative Rape Formulas: Deception and Drugs 1. Rape by Deception Suliveres v. Commonwealth 865 N.E.2d 1086

Background: Following mistrial, defendant filed motion to dismiss rape indictment, arguing that Commonwealth had failed to present sufficient evidence to support a guilty verdict at trial, and that any subsequent retrial would thus violate common-law principles of double jeopardy. The motion was denied. The case was reported by a Single Justice of the Supreme Court. Holding: The Supreme Judicial Court held that defendant's act in obtaining intercourse by impersonating victim's boyfriend did not involve force necessary for rape. Reversed and remanded. 2. Rape by Drugs C. Statutory Rape In Re G.T. 758 A2d 301 (2000) Minor child was adjudicated a delinquent child because he was guilty of statutory rape, that is, engaging in a sexual act with a person under the age of sixteen years. The Windham Family Court adjudicated child a delinquent child. Child appealed. The Supreme Court held that: (1) statutory rape statute is inapplicable in cases where the alleged perpetrator is also a victim under the age of consent, and (2) statutory rape statute was not consistent with child abuse reporting statute and legislatively-approved family planning services for minors, and held possibility of discriminatory enforcement and interference with privacy rights of minor child and asserted victim, and, thus, principle that statute must be narrowed to make it consistent with other statutes or to avoid serious questions of constitutionality was applicable. Reversed. Dissention. D.Proof Limitations 1. Evidence Barred by Rape Shield Statutes eliminate common law presumption that prior sexual behavior relevant to consent State v. Alberts 722 N.W.2d 402 Background: Defendant was convicted in the District Court of third-degree sexual abuse. The Court of Appeals affirmed. Holdings: On grant of defendant's petition for further review, the Supreme Court held that: (1) prior incident in which victim engaged in a skinny-dipping episode with another man constituted past sexual behavior, and thus was subject to exclusion pursuant to rape shield law; (2) prior skinny-dipping incident was sufficiently relevant to be admissible; (3) probative value of prior skinny-dipping incident sufficiently outweighed danger of unfair prejudice; (4) trial court's failure to conduct a hearing on whether victim made a prior false allegation of sexual misconduct relating to prior skinny-dipping incident, as required to determine whether such evidence was under false-claim exception to rape shield law, resulted in prejudice to defendant. Decision of the Court of Appeals partially vacated; case remanded. 2. Rape Trauma Syndrome State v. Kinney 762 A.2d 833 (2000) Defendant was convicted in a jury trial in the District Court of kidnapping, aggravated sexual assault, and lewd and lascivious behavior. Defendant appealed. The Supreme Court held that: (1) trial court's error in failing to give intoxication instruction was harmless; (2) expert testimony as to rape trauma syndrome and characteristics of rape victims was admissible, except for testimony on rate of false reporting; and (3) improper admission of expert testimony as to very low incidence of false reporting of rape accusations was not plain error. Affirmed. 3. Fresh Complaint Testimony during the rape reform period the prompt report requirement eroded. 4. Mental Health Examination of Victim Hamill v. Powers 164 P.3d 1083 Background: Defendant was charged with rape. The District Court denied defendant's request for psychological evaluation of complainant by his own expert. Defendant then petitioned for writ of mandamus directing District Court to order evaluation. Holdings: The Court of Criminal Appeals held that: (1) mandamus was appropriate remedy for defendant's claim that he was entitled to have mentally retarded complainant examined by his own psychological expert, and (2) trial court had inherent authority to order evaluation. Writ granted; remanded. 5. Admissibility of Defendants Prior Sex Crimes prior crimes not ordinarily admissible, but in 1995Congress adopted Rules 413 and414 of FCE to nullify 404(b) in sexual offense cases. 413 > prior sexual assault; 414 > child molestation offenses.

Chapter 11. Justification Defenses Self-Defense 1.General Principles People v. Wesley 76 N.Y.2nd 555, 561 (1990) Defendant was convicted in the Supreme Court of second-degree manslaughter and second-degree assault, and he appealed. The Supreme Court, Appellate Division, affirmed, and defendant appealed by permission. The Court of Appeals held that justification instruction, which did not inform jury that they must assess reasonableness of defendant's belief that he was in deadly peril by judging situation from point of view of defendant as though they were actually in his place, was insufficient. Reversed and new trial ordered. State v. Daniels 210 Mont.1 (1984) Defendant was convicted in the Fifth Judicial District Court of mitigated deliberate homicide, and he appealed. The Supreme Court, held that: (1) deputy sheriff's rebuttal testimony was improper where it did not counteract new matter offered by defense; (2) deputy sheriff's testimony as to what witness to shooting told him that defendant said prior to the shooting was inadmissible where the witness had been excused by the court as a witness prior to State's offer of the deputy sheriff's testimony; (3) admission of such testimony of the deputy sheriff was not harmless; (4) defendant was not denied speedy trial; (5) where defendant raised affirmative defense of justification, defendant had burden of producing sufficient evidence on the issue to raise reasonable doubt of his guilt; (6) instruction on justifiable use of force improperly limited purpose and intent of word imminent in governing statute; (7) defendant's substantial rights were not affected by refusal of proffered evidence of sheriff's report and county attorney's letter regarding earlier incident in which victim allegedly threatened to shoot defendant, in that testimony concerning the incident was admitted; and (8) defendant was not entitled to instruction to effect that jury could consider State's failure to call witnesses or to produce other evidence shown in the case to be in existence and available. Reversed and remanded. 2. Self-Defense by an Aggressor Connell v. Commonwealth 34 V.App. 429 (2001) Defendant was convicted in the Circuit Court of second degree murder and use of a firearm in commission of a murder. He appealed. The Court of Appeals held that: (1) failure to give defendant proffered jury instruction on excusable homicide was reversible error; (2) defendant's was not entitled to jury instruction on imperfect self-defense; and (3) defendant was not entitled to instruction on voluntary manslaughter by mutual combat. Reversed and remanded. Dissention. 3. Duty to Retreat Weiand v. State 732 So.2nd 1044 (1999) Defendant's conviction of second-degree murder with a firearm for shooting husband was affirmed by the District Court of Appeal and on rehearing the question of right to non-retreat jury instruction was certified. The Supreme Court held that: (1) as a matter of first impression, there is no duty to retreat from the residence before a defendant may justifiably resort to deadly force in self-defense against a co-occupant, if that force is necessary to prevent death or great bodily harm, receding from State v. Bobbitt, 415 So.2d 724; (2) omission of jury instruction on privilege of non-retreat was not cured by general self-defense instruction that retreat is not required if it would increase danger of death or great bodily harm; (3) privilege of non-retreat instruction is equally available to all those lawfully residing in the premises, receding from Hedges v. State, 172 So.2d 824; and (4) improper exclusion of eyewitness testimony to corroborate defendant's assertion of prior abuse by husband was not harmless error. District Court of Appeal decision quashed. Dissention. 4. Self-Defense Against Law Enforcement Officials U.S. v. Branch 91 F.3d 699 (1996) Defendants were convicted in the United States District Court for the Western District of Texas of offenses arising out of a gun battle that occurred when federal Bureau of Alcohol, Tobacco, and Firearms (ATF) agents attempted to execute search and arrest warrants at a compound occupied by members of a religious sect. Defendants appealed their convictions and sentences. The Court of Appeals held that: (1) the evidence did not support the defendants' requested self-defense instruction; (2) the district judge's comments at a bench conference expressing his misapprehension regarding the validity of inconsistent jury verdicts did not reflect any doubt regarding sufficiency of the evidence and, thus, the double jeopardy clause did not bar reinstatement of the verdict; (3) the district court did not abuse its discretion in withholding the names and addresses of the jurors; (4) the district court did not abuse its discretion in excluding exculpatory statements in an investigator's written report about his post-arrest interview with one defendant; (5) the evidence supported the convictions; (6) under the statute providing that a person who uses or carries firearm A.

during or in connection with a crime of violence shall be sentenced to imprisonment for 30 years if the firearm was a machine gun, the government need not charge in the indictment nor must the jury find as part of its verdict the particular type of firearm used by the defendant; (7) remand was necessary for further findings on whether the defendants actively employed firearms; and (8) the district court did not err in applying the Sentencing Guidelines. Affirmed in part, vacated in part, and remanded. Dissention. 5. Self-Defense Duran v. State 990 P.2d 1005 (1999) Petitioner filed petition for writ of certiorari following her conviction in the District Court of aggravated vehicular homicide. The Supreme Court held in a matter of first impression that: (1) self-defense was not a defense to criminally reckless conduct; (2) defendant was not entitled to present evidence of battered woman syndrome; (3) defendant was not denied effective assistance of counsel; and (4) character evidence was properly offered in state's case in chief rather than as rebuttal testimony. Affirmed. Dissention. B. Defense of Others State v. Beeley 653 A.2d 722 (1995) Defendant was convicted in the Superior Court of breaking and entering and simple assault, and he appealed. The Supreme Court, Murray, J., held that: (1) defendant could not be convicted of breaking and entering where all evidence showed that he entered apartment through open door; (2) intervenor in altercation between private individuals had to be judged by his own reasonable perception of whether third party whom defendant was aiding would have been entitled to defend himself; and (3) defendant was entitled to instruction that he was justified in using reasonable force to defend third party if he had reasonable belief that other was being unlawfully attacked. Convictions vacated; case remanded for new trial. C. Defense of Property State v. Anderson 972 P.2d 32 (1998) Defendant was charged with murder in the first degree and shooting with intent to kill. The District Court denied the state's motion to quash the Information and held that defendant, although only a visitor in the residence, qualified as an occupant under the Make My Day Law. The state reserved as a question of law whether the term occupant, as used in the Make My Day Law, included people other than the homeowner or continuous resident of the premises. Following defendant's acquittal, the Court of Criminal Appeals held that: (1) on a case of first impression, defendant, as an invited visitor, was an occupant of residence for purposes of the Make My Day Law, and (2) defendant was not required to use reasonable force under the Make My Day Law. Reserved Question of Law Answered. Dissention. D. Law Enforcement Defense Under the common law a law enforcement official could use any force reasonably appearing to necessary to arrest a felon, and any non-deadly force to arrest a person charged with a misdemeanor. A private citizen assisting could use the same force. People v. Pena 169 Misc.2d 75 (1996) The grand jury indicted defendant on charges of depraved indifference murder, reckless manslaughter, reckless endangerment and several counts of criminal possession of weapon. The Supreme Court held that: (1) civilian who uses deadly force to effect arrest of person who has in fact just robbed that civilian and is in immediate flight from that robbery is not liable for reckless homicide when result of use of that deadly force kills innocent bystander who was not robber, and (2) grand jury instruction charging that defense of justification was inapplicable to charges of reckless homicide and reckless endangerment if result of use of force was to kill person other than perpetrator of robbery was prejudicial error that impaired integrity of jury. Counts dismissed. E. Choice-of-Evils or Necessity Defense State v. Culp 900 S.W.2d 707 1994) Defendant who had fled immediately after his conviction on drug offenses while being escorted by deputy sheriff was prosecuted for escape, and after defendant's offer of evidence to establish defense of necessity was rejected, defendant was convicted in the Criminal Court of escape. Defendant appealed, and the Court of Criminal Appeals held that: (1) defense of necessity is available in prosecution for escape, and (2) trial court committed reversible error in excluding evidence that defendant had escaped due to necessity because he feared for his life because of threats that had been made to defendant and his girlfriend by sheriff and deputies.

Reversed and remanded. Proving Justification Defenses Burden Questions 1. Burden of Pleading D must plead the defense 2. Burden of Production P has burden of production to establish elements of the crime; D has burden to produce the evidence to support the defense 3. of Persuasion is on the P to establish the elements of the crime beyond a reasonable doubt U.S. v. Branch 91 F3d 699 G.. Constitutional Defenses in the last few years numerous constitutional challenges to a variety of sexual offenses F. Chapter 12. Excuses A. Duress Anguish v. State 991 S.W.2nd 883 (1999) Defendant was convicted in District Court of robbery and theft of an automobile, and he appealed. The Court of Appeals held that: (1) alleged threat coercing defendant to commit robbery could not support defense of duress with regard to theft charge, and (2) threat made four days before robbery did not qualify as imminent threat required for duress defense. Affirmed. B. Insanity 1.The Test for Insanity a. MNaghten and the Irresistible Impulse Test Daniel MNaghtens Case 8 Eng. Rep. 718 (1843) Shot into Sir Robert Peels carriage and killed Peels private secretary; claimed insanity defense; said killed under the influence if insane delusions. D must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. MNaghten Test: D relieved of criminal responsibility if proof that at time was laboring under a defect of reason from a disease of the mind that he did ot know the nature and the quality of the act (cognitive incapacity) or did not now it was wrong moral incapacity). Clark v Arizona 548 U.S. 735 (2006) Background: Defendant was convicted, in bench trial, of first-degree murder for killing police officer in line of duty. He appealed. The Court of Appeals of Arizona affirmed. Certiorari was granted. Holdings: The Supreme Court held that: (1) Arizona's narrowing of its insanity test did not violate due process, and (2) exclusion of evidence of mental illness and incapacity due to mental illness on issue of mens rea did not violate due process. Court cited to Mott Rule: psychiatric evidence admissible only to prove insanity, not on the element of mens rea. Affirmed. Dissention Irresistible Impulse Test: D not guilty where he has a mental disease which keeps him from controlling his conduct. b. Other Tests Durham Test (The Product Rule): not guilty if act the product of mental disease or defect is product if it would not have been committed but for. Overly broad not widely used. Diminished Capacity Test (rare): mental defect negating mens rea. M.P.C. Test: lacking in substantial capacity below. U. S. v. Freeman 357 F.2nd 606 (1966) Proceeding on appeal from a judgment of conviction for selling narcotics, after trial without jury in the United States District Court for the Southern District of New York. The Court of Appeals held that person is not responsible for criminal conduct if at time of such conduct as result of mental disease or defect he lacks substantial capacity either to appreciate wrongfulness of his conduct or to conform his conduct to requirements of law. Reversed and remanded. 2. Effect of an Insanity Acquittal Jones v. U.S. 463 U.S. 354 (1983) D charged with shoplifting a jacket. Mental hospital patient, who was committed following acquittal by reason of insanity, sought his release from the hospital. The Superior Court of the District of Columbia denied his request for immediate release. The District of Columbia Court of Appeals affirmed, but on rehearing, his immediate release was

ordered. On rehearing en banc, the Court of Appeals again affirmed the Superior Court. Certiorari was granted. The Supreme Court held that when a criminal defendant established by a preponderance of the evidence that he was not guilty of a crime by reason of insanity, the due process clause permitted the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he had regained his sanity or was no longer a danger to himself or society, and he could be confined to a mental hospital for a period longer than he could have been incarcerated had he been convicted. Affirmed. Dissention. C. Infancy and Incapacity In Re Devon T. 85 Md.App.674 (1991) Juvenile was adjudicated delinquent in the Circuit Court, Baltimore City, for possession of heroin with intent to distribute. Juvenile appealed. The Court of Special Appeals held that: (1) to rebut presumptive incapacity of juvenile based on infancy, state was required to produce evidence permitting reasonable inference that juvenile at time of alleged delinquency knew difference between right and wrong and knew wrongfulness of acts; (2) evidence rebutted juvenile's presumptive incapacity based on infancy; and (3) school's security guard had articulable suspicion to require juvenile to empty pockets. Affirmed. A. B. C. D. E. F. G. Chapter 13. Theft Crimes The Evolution of Theft Law Property That is Subject to Theft Larceny & Embezzlement (Theft by Unlawful Taking) Larceny by Trick & False Pretenses (Theft by Deception) Receiving Stolen Property Robbery and Carjacking Burglary Chapter 14. Sentencing A. Non-Capital Sentences B. Death as a Punishment C. Proportionality in Non-Capital Cases D. Sentencing and the Sixth Amendment