Final Exam University
of Mississippi
School
of Law
Spring
2009
General instructions
This is
a closed book exam. Do not speak with
any person other than the faculty member who is administering this exam until
you have turned in your exam. Do not
remove any exam materials, questions, or blue books from the room during the
exam. After you complete the exam and
turn in your blue books, you may take the questions with you when you exit the
room.
The
exam consists of two parts. You will
have three hours to complete the exam.
Recommended times are indicated for each part. Answer all questions.
Identify
yourself on your blue books only by your exam number. By placing the exam number on your blue book
and by submitting your blue book for credit, you are agreeing to the following
pledge (as required by law school policy):
"On
my honor I have neither given nor received improper assistance. And I will report any improper assistance
that I am made aware of."
Do not
assume any additional fact or law, except those laws studied in the course,
without stating explicitly your assumption and explaining why such additional
information is necessary for your answer.
PART I. SHORT
ANSWERS (120 minutes for this part--or an average of ten minutes for each
question)
Instructions. Write a coherent, literate response to each
of the following problems. Each problem
in this part can be answered adequately with a response that is no longer than
one paragraph.
1.
Explain the difference between individual (specific) and general deterrence and
give an example of each.
2. Lil Lolady, age 92, puts a handgun in her
handbag and forgets about it. Two months
later she accompanies her great-grandson to the airport. She has a ticket and plans to board the
airplane.
She is
stopped at airport security where the handgun is found. She is charged with two crimes under state
law: 1) possession of a concealed weapon without a license; and 2) attempt to
possess a firearm on an aircraft. She
explains that her lawyer told her that she did not need a license to carry a
concealed weapon. She also insists that
she forgot that it was in her purse.
The
state follows the Model Penal Code.
Evaluate her criminal liability for the crimes charged.
3. A mother took her infant Vic to Big Mart, a
large store. The mother had not slept
for two days. While the mother was
standing in line to check out, Vic began to cry. The mother slapped Vic, and he cried
more. In response, the mother shouted at
Vic, shook him and struck him repeatedly with her first.
Everyone
stared at the mother but no one intervened.
The abuse lasted over two minutes.
Then Vic lost consciousness. He
died later that day as a result of the injuries.
The prosecutor
has charged the mother with various crimes.
In addition, the prosecutor is considering bringing charges against two
other people, Barb Buyer, the shopper who was standing in line behind the
mother and infant, and Martha Manager, the store manager who was in the back
room at the time watching the entire event on the security video system.
You are
clerking for the prosecutor who asks your opinion about which case is
stronger. Apply the common law.
4. Bama, a resident of Alabama, went driving on
the beach with his four-wheel recreational vehicle. He headed west and drove back and forth
through sand and tall beach grass. He
did not realize that he was driving back and forth across the
Alabama-Mississippi state line. He was
arrested by Mississippi law enforcement officers on the Mississippi side of the
state line.
The officers
had videotaped Bama’s behavior. The tape
shows how strands of “sea oats” (a form of beach grass) became attached to the
undercarriage of Bama’s four-wheel vehicle in Mississippi and were carried into
Alabama. Bama is charged with a
violation of section 97-17-84 of the Mississippi Criminal Code: “Any person who
removes a plant commonly know as “sea oats” or “uniola paniculata” from the
shores of this state shall be guilty of a misdemeanor and shall, upon
conviction, be fined not more than Five Hundred Dollars ($500.00).”
At a
trial before a judge in Mississippi, Bama agrees that his vehicle carried some
beach grass as it left the state of Mississippi, but he testifies that he did
not know he was in the state of Mississippi or that it was a crime to remove
sea oats from the state. He also
maintains that he did not know the beach grass was sea oats. The trial judge rejects all the arguments and
finds him guilty.
Bama
comes to you for legal advice. He asks
whether he has any good grounds for appeal. Please advise.
5. Dwight lives in a city where many dogs have
been stolen. Accordingly, he is careful
to keep his big black dog, Luckydog, in a securely fenced area in his back
yard. One day Luckydog is missing.
Dwight
is very angry and starts to drink. He
consumes a large amount of alcohol, becoming still angrier. Finally, Dwight decides he will go out and
look for Luckydog. He drives to the other side of town where he sees a large
black dog chained to a tree in someone’s yard.
He gets out of the car and calls to the dog. The dog responds.
Dwight’s
vision is blurred from intoxication, but he is certain now that the dog is
Luckydog, Dwight enters the property, removes the chain, and takes the
dog. He returns home and takes the dog
to his own backyard. There he sees the
real Luckydog. A neighbor had found Luckydog
and returned him to Dwight’s yard.
Dwight
has been charged with larceny of the dog.
Please evaluate his criminal liability at common law.
6. Same facts. Evaluate Dwight’s liability
under the Model Penal Code for a violation of Model Penal Code section 223.2:
“A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with purpose to deprive him thereof.”
7. Dimbulb went out hunting one fall day. After sitting in a tree for three hours, a
large deer appeared in the distance and began to move slowly towards Dimbulb. When the deer almost reached a position where
Dimbulb planned to shoot, a single engine airplane appeared overhead. The airplane was flying very low, and its
noise frightened the deer. The deer fled
into the forest.
Enraged,
Dimbulb aimed his rifle at the airplane and fired. He missed the airplane, but the descending
bullet struck Vickie, a seven-year-old child who was swinging on a swing set in
her back yard half a mile away from Dimbulb.
The
bullet caused serious damage to Vickie’s left ear. She suffered excruciating pain and lost much
blood but was rushed to the hospital where emergency medial aid prevented
further damage.
As a
result of the injury, Vickie lost most of her left ear. Two months after the gunshot wound, Vickie
underwent reconstructive surgery. The
surgery was designed to restore her ear to its original appearance. During the surgery, Vickie experienced an
adverse reaction to a routine drug and died.
Dimbulb
has been charged with manslaughter. He
insists he did not cause Vickie’s death.
Please evaluate his potential liability in a jurisdiction that follows
the Model Penal Code.
8. Fred and Wilma were married for 60
years. During Fred’s last year of life
he suffered a painful debilitating disease.
One day he begged Wilma to kill him to end his suffering. Wilma loved Fred dearly but did not want him
to suffer.
Wilma had a prescription for
sleeping pills. The doctor had warned
her that an overdose could be fatal. She
put a container full of the pills on the table next to Fred. She loosened the safety cap and watched silently
while Fred swallowed about half the pills.
He then asked her for water.
Wilma went to the kitchen and returned with a glass of water. She watched as he drank the water and
swallowed the remaining pills.
Wilma held Fred’s hand until he was
complete still. She waited one hour and
then called the police and explained what she had done. Fred was dead when police arrived.
Wilma
is charged with first degree murder under a state penal code that provides: “A
person who commits any of the following is guilty of first degree murder:
(a) Murder perpetrated by means of poison, lying in
wait, or any other willful, deliberate, and premeditated killing.”
You
have been assigned to defend Wilma. She
insists that she could not have murdered her husband because she loved him and bore
him no malice. Please explain to her
whether she has a valid defense on that ground.
9. Dryver agreed to drive Kyler to a bank. The plan was for Kyler to enter the bank,
display a weapon and demand money. Kyler
promised Dryver that no one would get hurt.
Dyver
drove Kyler to the bank and waited for Kyler in the parking lot with the engine
running. He heard gunshots in the bank
and drove away.
During
the holdup, Kyler shot and killed a police officer. Kyler was arrested running away from the
scene and pled guilty to simple murder.
Dryver is convicted of capital
murder in Mississippi and sentenced to death.
He asks you if he has good grounds for challenging his conviction or
sentence. Please advise.
10. According to Justice James Graves’s class
presentation on March 23, what is the greatest challenge for trial judges in
criminal cases, and why?
11. Victim went to a party and drank until she
lost consciousness. Abe found her
unconscious and moved her into a bedroom.
Abe then went and told Sleeze where he had moved Victim. Abe said, “Go see her. Her defenses will never be lower.”
Sleeze went to the bedroom. He removed Victim’s clothes and was in the
process of removing his own clothes when Victim recovered consciousness.
Victim observed Sleeze and said, “If
you don’t leave immediately I will scream” Sleaze left.
Evaluate the criminal liability of
Sleeze under Mississippi law.
12.
Flem and Eula were sitting around getting drunk. Flem ran out of cigarettes and asked Eula for
one. Eula found that she, too, was out
of cigarettes. Flem asked Eula for money
to buy cigarettes, but she did not have enough money.
Flem said, “Can I borrow your
car. I know where I can get some
cigarettes without having to pay.”
Eula gave Flem the keys and said,
“Get me some of my favorites, Honey. And
don’t do anything stupid.”
Right after Flem left, Eula found a
pack of cigarettes. She called Flem on
his cellphone. Unable to reach him, she
left a message, “I found some cigarettes.
Come back right away.”
Flem did not receive the
message. He drove to the Big Mart retail
store in an adjacent town. He entered
the store and walked around looking for cigarettes. When he found that the cigarettes were kept
in a locked case, he walked towards the exit.
While he was leaving, a security
guard who had been observing Flem approached him and asked him to stop. Flem punched the security guard and ran out
of the store.
Evaluate Eula’s liability as an
accessory under the common law for the crimes of attempted theft and assault.
PART II.
ANALYTIC ESSAYS (60 minutes)
Instructions. Write a
coherent, literate essay in the Blue Book that responds to the following
problem.
The Case of the Break-in Broken Dreams (60 minutes)
Deborah
and Val lived in Jackson, Mississippi.
Over the years they committed many crimes together. They specialized in sneaking into people’s
houses while the homeowners were out of town and stealing jewelry and other
valuables. They did not carry weapons
and did not like violence. They agreed
that if they were ever caught they would give up without resisting rather than
hurt anyone.
Deborah and Val had lived together
for three years. Val promised Deborah he
would marry her someday, but they had not married yet because Val had been
previously married and had never gotten divorced.
One
night Deborah and Val learned that the Riches had gone to Hawaii for a
vacation. The Riches were very rich and
lived in a mansion on Ritzy Drive in a suburb of Jackson.
Deborah
and Val drove their van marked “Acme Heating and Cooling” to Ritzy drive and
pulled into the driveway. They walked to
the front door. Deborah used lock
picking devices to open the lock. She
pushed open the door and she and Val walked into the house.
After
searching the freezer, Deborah headed to the bedrooms where she expected to
find valuables hidden in the usual places.
Val stopped her and suggested they have a drink. Val grabbed two bottles of whisky from the
Riches’ bar.
Val and Deborah sat on the edge of
the Riches’ indoor swimming pool. They
removed their socks and dangled their feet in the water. After finishing the first bottle of liquor,
Val and Deborah became very intoxicated.
Deborah asked Val when he planned to marry her. Val responded by informing her that he had
been having an affair with Deborah’s sister Sissy.
When Deborah refused to believe Val,
he told her about certain tattoos that Sissy had. These tattoos were in places that were not
usually visible. Deborah became angrier
and angrier. When Val added, “Sissy is
way better at sex than you will ever be,” Deborah flew into a rage. She swung her handbag at Val, striking him in
the head. The handbag contained a hammer
and other tools. The impact caused Val
to fall into the swimming pool.
When Deborah was sober, she knew
that Val could not swim. But she was so
drunk that she did not fully appreciate the dangerous situation. She watched Val struggling in the water and
laughed, “Serves you right you two-timing [expletive deleted].” After Val stopped struggling and his body
became limp, Deborah’s fury subsided.
She jumped in the pool and pulled out his body.
Deborah called an ambulance on her
cellphone and waited until the ambulance arrived. Val was declared dead on arrival at the
hospital.
You are clerking for the District
Attorney. She asks you to write a
memorandum evaluating Deborah’s criminal liability for homicide in
Mississippi. Please write the
memorandum.
PART I. SHORT
ANSWERS
1. Both
individual (or specific) and general deterrence are theories of
punishment. Specific deterrence seeks to
prevent a crime by a particular person.
For example, three strikes laws are justified on the theory that the
increasingly severe punishment will deter repeat offenders. General deterrence aims to prevent crimes by
others. For example, capital punishment
puts not only incapacitates the murderer but may deter others from committing
similar crimes.
2. Though the Model Penal Code provides that
possession remains a voluntary act after the thing is knowingly acquired this
addresses only the act requirement. The
Code also requires a culpable mental state for all crimes, and when it is
silent, the mental state must be at least recklessness. Defendant may defend on the ground that her
ignorance prevented her from being reckless if she was unaware of the risk that
she was in possession.
She is
not guilty of attempt because the Model Penal Code requires purpose, which she
lacks.
3. Buyer and manager can only be guilty if they
both had culpable mental states and also either performed a voluntary act or
failed to act where there was a duty to act imposed by law. The law imposes duties to act in several
situations: where there is a special status relationship (like mother to child
or innkeeper to guest), where there is a contract, where the defendant secluded
the victim from the help of others, or where the defendant’s act placed the
victim at risk. While Buyer does not
seem to have a duty under any of these, Manager may have a duty to protect
people in the store that is either imposed by contract or by special status
relationship (as agent of the owner of real property).
4. Bama has weak grounds for appeal. First, presence in the jurisdiction or other
requirements for venue are not elements of the crime, and there is no required
mens rea for them. Accordingly, the fact
he thought he was still in Alabama is irrelevant. Second, his ignorance about the requirements
of the law is not a defense. Ignorance
of the law is not an excuse. Third, his
ignorance about the fact that the grass was sea oats will provide a defense
only if knowledge (or some mens rea) is required as to that element.
However,
the statute probably imposes strict liability.
It appears to be meet the criteria for a public welfare offense: it
protects the environment (an area of extensive government regulation), it
imposes a minor penalty, and it prohibits conduct to achieve a social policy
goal rather than prohibiting conduct that is immoral or mala in se.
5. At common law, larceny is a specific intent
crime because it requires the intent to steal property of another. At common law, voluntary intoxication is a an
excuse when it prevents a defendant from forming the required criminal intent.
6. There is uncertainty what culpable mental
state is required under the Model Penal Code language that prohibits a person
who “unlawfully takes, or exercises unlawful control over, movable property of
another.” This could either require
recklessness (under the general default rule) or purpose, since the section
goes on to add the element of “with purpose to deprive him thereof.”
The
Code allows voluntary intoxication as a defense when it negatives an
element. Since defendant was too drunk
to realize he did not own the dog, the intoxication prevents him from having
either purpose or knowledge to take property of another. But because defendant would have been aware
of the risk that the property belonged to another when sober, his lack of
awareness will not prevent him from being reckless under the Code. The Code specifically provides that voluntary
intoxication is not available as a defense for recklessness when the actor
would have been aware of the risk when sober.
7. The Model Penal Code does not have the
doctrine of transferred intent.
Manslaughter under the Code requires that the defendant cause the death
recklessly. The Code provides that a
defendant is the cause when 1) he or she is but for cause, and 2) where
recklessly causing the result is the element, the actual result is within the
risk of when the actor is aware. An
actor is still the cause of an improbable result when it differs only in that a
different person is affected.
Dimbulb’s
recklessness would be based on awareness of risk of killing when he fired at
the plane. The less probable death of
Vickie differs only in that a different person was injured.
8. The statute prohibits “murder” with
premeditation. It does not define
murder, but Wilma is right that the common law definition of murder requires
“malice.” She is wrong that malice
requires ill will or evil motive. At
common law, malice is established by intentionally (including knowingly)
causing death.
This
malice might be eliminated by provocation at common law, mitigating the killing
to manslaughter. But Wilma does not meet
any of the traditional categories of legally adequate provocation, and it is
questionable whether she acted in a heat of passion.
9. Dryver as accessory to robbery is
automatically guilty of capital murder when the victim is killed during the
commission of the robbery.
Foreseeability or knowledge are not required.
Dryver’s
death sentence must be vacated because even if his participation was major, he
neither intended to kill nor evicenced reckless indifference as explained in
Tison v. Arizona.
10. Justice
James Graves ’s identified the broad sentencing discretion and lack of
guidelines as the greatest challenge for trial judges in criminal cases. This makes it difficult to know how much
punishment to impose in individual cases and makes it difficult to treat
similar cases similarly.
11. Sleaze committed attempted sexual battery
when he designed and endeavored to engage in sexual penetration with an
unconscious person, performed an overt act towards completion by removing
victim’s clothes, but failed or was prevented from completing the crime. However, Sleaze may have a defense of
abandonment under the Ross case in Mississippi if he was dissuaded by the
victim’s verbal urging rather than any physical resistance.
12.
Eula may be guilty of attempted theft.
This will require a finding that she knew Flem was going to steal, which
may be supported by his statement that he knew where to get cigarettes without
paying. The majority rule requires an
accomplice to have not just knowledge but true purpose. This is easily shown by Eula’s request for
her own brand.
The act of aiding is obviously
satisfied by lending the car.
Some common law jurisdictions do not
recognize abandonment, but her change of mind was too late and ineffectual
anyway.
Eula is probably not guilty of
assault. She clearly lacks true purpose
for that crime. Even under the doctrine
that makes an accessory liable for crimes that are “natural and probable”
consequences of their crime, it is pushing it to see an unprovoked assault as a
natural and probable consequence of Flem’s
failed shoplifting.
PART II. The
Case of the Break-in Broken Dreams (60 minutes)
A good essay would identify and discuss the following:
Capital murder
Killing
in the commission of burglary
Elements
of burglary
Identification
of intended felony (theft)
Possible
limitations: killing did not further or advance burglary
Victim
was cofelon
Murder
Deliberate
design and acts eminently dangerous
Intent
when hits with handbag
Intent
when watches in water
Duty to save because placed at risk and due to
marriage-like relationship
Intoxication not a defense in Mississippi if capable
of telling right from wrong when sober
Involuntary manslaughter
Culpable
negligence
Reckless
or wanton, utter disregard safety of other
Voluntary manslaughter
Heat of
passion, cruel or unusual manner or dangerous weapon
words
and marital status—will not prevent submission to jury in Mississippi
Felony murder (felony manslaughter)—but only based on
larceny (felony not listed for capital murder)