criminal outline 1

8/3/2019 Criminal Outline 1

1/69

Criminal Law- Elkins- Fall 2009

Elements of a Crime:

1. Actus reus : Physical element2. Mens Rea: Mental element/Mental state

Proving Mental State:

1. Examination by Professionals2. Circumstantial evidence (inferences)3. State may declare that certain things create presumption of mental

state (Use of deadly weapon presumes intent to kill)

Intent

Simply a desire to cause grievous bodily harm could qualify as intent in a

homicide case.

Intent to do enough bodily harm will be read as sufficient to show the intentrequired of murder.- Elkins

to kill can be inferred from the s use of a deadly weapon

Permissible Inference- There is a permissible inference of fact that a person

intends that which he or she does or which is the immediate and necessary

consequence of his or her act.

Intent needed for 1st & 2nd degree murder, and voluntary manslaughter.

Intent/Malice Aforethought: originally meant careful planning and extendedthought about a killingthis conception of malice aforethought is no longer

prevalent

Malice

Element in First and Second Degree Murder

Indicates a state of mind. Indicates that the acted with the cruel and deliberate

disregard of social duties. acted with a corrupt spirit to indicate revenge, ill-

will, hatred, or wickedness. A depraved heart.

Express or Implied

o Express- unlawful intent to take any life

o Implied- when circumstances show an abandoned and malignant

heart.

1


2/69

Can infer the existence of malice, when the has intentionally used a deadly

weapon to kill his victim.

Factors to consider when showing malice: 1) mitigating circumstances; 2)

justification; 3) evidence that the did not intend to kill; 4) Or any other evidence

that raises a doubt about the presence of malice.

4 Mental States of Malice:

1) intention to kill a human being

2) the intention to inflict grievous bodily injury on another

3) an extreme and reckless disregard for the value of human life

4) the intention to commit a felony during the commission or attempted

commission of which a death results.

The jury may be instructed that in its required finding of proof of malice that it

may drawpermissible inferences from the facts and circumstances of the case.

i. Permissible Inference- Jury may infer that the intends to do what he

does, and that he intends that which is the immediate and necessary

consequences of his acts.

The Determination of Death

Used to be the traditional vital signsbreathing and a heartbeat (Barber v.

Superior Court).

Now it is determined that death has occurred when the entire brains function

has irreversibly ceased.

s not relieved of criminal liability for homicide when the victim can still

breathe and heart still beats IF the brain has irreversibly ceased to function.

EX: People v. EULO

CRIME REQUIREMENT

2


3/69

1st Degree Murder Willful, Deliberate, Premeditated, Intentional, & malicious [word

sometimes used as a substitute for specific intent], killing of

another.

2nd Degree Murder Unlawful intentional killing of another person with malice bwithout premeditation & deliberation

Depraved Heart

Murder

Unintentional homicide takes place in circumstances in whthe defendant was so "extremely reckless" that his conducpresented what Dressler calls a "homicidal risk. - reckless &implied malice

Voluntary

Manslaughter

the felonious, unlawful & intentional taking of anotherperson's life but without premeditation, deliberation, or

malice

Involuntary

Manslaughter

Negligent Homicide

Accidental, unintended causing of death, which is theproximate result of negligence so gross, wanton & culpableas to show a reckless disregard for human life

First Degree Murder

Elements:

1. Willful

2. Deliberate,3. Premeditated,4. Intent5. Malice [word sometimes used as a substitute for specific intent].6. Killing of Another.

WV Proposed Jury Instructions 1stDegree Murder Murder of the First Degree is the willful, deliberate,

premeditated, intentional & malicious killing of another person.

Premeditation- intended to kill and made a conscious decision to do so. The law does

not fix an exact period of time that must pass between the formation of the intent to killand the acts that result in the killing. Must be long enough to allow reflection and

conscious choice by the .

Deliberation- If the person reflects on the act of killing, for whatever length of time, it is

sufficient to constitute deliberation.

WV- Penalty: Confinement in the penitentiary for life

3


4/69

State v. Schrader - stabbed victim 51 times with hunting knife. Jury instructionsequated premeditation and deliberation with intention.

State v. Guthrie overturns Schrader b/c premeditated and deliberation should not beequated with intention. Time to deliberate and premeditate varies with each person.

Must be enough time for the accused to be fully conscious of what he intended.

o Jury verdict should be set aside only when the record contains no evidence,

regardless of how it is weighed, from which the jury could find guilt beyond a

reasonable doubt (Guthrie).

WV Code- Refusal or failure to supply necessities, or by delivery, administration or

ingestion of a controlled substance result in death of a childguilty of first degreemurder.

WV Statute of enumerated first degree murders: 1) murder by poison, lying in wait,

imprisonment, starving; 2) by any willful, deliberate and premeditated killing; 3) in the

commission of or attempt to commit, arson, rape, robbery, or burglary.

Premeditation & Deliberation

Circumstances to be considered whether a killing was with premeditation and

deliberation:

1) Want of provocation on the part of the deceased

2) The conduct and statements of the defendant before and after the killing3) Threats and declarations of the defendant before and during the course of the occurrence

giving rise to the death of the deceased

4) Ill-will or previous difficulty between the parties

5) The dealing of lethal blows after the deceased has been felled and rendered helpless6) Evidence that the killing was done in brutal manner

*Court has also held that the nature and number of the victims wounds is a circumstance.

(State v. Forrest)*Premeditation generally only proved by circumstantial evidence.(Forrest) If

premeditation is found, it must ordinarily be inferred from the objective facts. (LaRock).

* Intent to do grievous bodily harm, that is persistent & over such a period oftime that the intent to do bodily harm would show malice (hurt so bad thatyou might kill them) might actually show intent & premeditation &deliberation to kill

Second Degree Murder

Elements: An intentional, malicious, and unlawful killing [no premeditation or

deliberationdistinguish between first and second degree murder]

4


5/69

WV- Penalty- Not less than ten nor more than forty years

The WV criminal code provides little help in trying to define 2nd degree murder,

leaving it as a kind of murder catchall, anything that gets left out of 1st degree murder

and is notmanslaughter becomes 2nd degree murder.

W.Va. Code: All other murder [that is, murder which is not of the 1st degree] is

murder of the second degree.

Intent to do grievous bodily harm, but not to kill is second degree.

WV Code- Death of a child resulting from physical abuse-guilty of second degree

murder.

Midgett v. State - Child abuse case, Jury convicted of 1st degree, sentence lessened to

2nd degree on appeal. Court found no premeditation and deliberative evidence. After

trial, AK legislature amended criminal code to permit a verdict of 1st degree murderfor resulting in child abuse. Dissenting opinion feels court did not look from a

reasonable juror and usurped the power of the jury.

Unintentional Killings as 2nd Degree Murder, Depraved Heart

An unlawful intentional killing of another person with malice but without

premeditation and deliberation

Any killing that is not 1st degree murder or manslaughter

WV- requirement for unintentional killings to be 2nd degree murder:

o Extreme indifference to value of human life and must be demonstrated by

the probability that the conduct involved will cause death

o Awareness of the risks of the conduct or that the conduct is contrary to law

Depraved Heart Murder/ Unintentional Killing charged as

murderelements of Depraved Heart Murder Recklessness: A person acts recklessly when he consciously disregards a

substantial & unjustifiable risk that the harm he is accused of causing will occur, &

the harm results. The risk shall be of such nature & degree that disregarding it

5


6/69

constitutes a gross deviation from the standard of conduct that a reasonable person

would observe in the situation.

Implied Malice: The defendant must:

A. Appreciate the risk,B. Be in extreme indifference to the possibility that someone might be killed (an

extreme indifference to the value of human life)- In summary: A + B result = "deliberate life-endangering acts"oNOTE : When a homicide follows as a consequence of reckless conduct, a criminal intent

is imputed to the offender & he may be punished for his crime. The precise grade of

such a homicide, whether murder or manslaughter, depends upon the facts of the

particular caseoNOTE : One who accidentally kills another is not guilty of a crime, unless his negligence

is so gross & culpable as to indicate a callous disregard of human life & of the probable

consequences of his act. The crime is imputed because of the recklessness, & where

there is no recklessness there is no crime."

Berry v. Superior Court

*Berry, murder of 2 year old Soto, killed by Berrys pitbull dog, which was purposely bred forfighting and there was no fence to keep people from wandering over to the pitbull (it was

tethered though). Pitbulls are considered a dangerous breed unless proved otherwise.

*Berry moved for dismissalinsufficient evidence of malice.

*I would find Berry guilty of 2nd degree murder. It was not a willfull murder with premeditation

and deliberation; however, there was implied malice because when a person does an act, thenatural consequences of which are dangerous to life, which act was deliberately performed by a

person who knows that his conduct endangers the life of another and who acts with conscious

disregard for life. Phrased in a different wayMalice may be implied when defendant does anact with a high probability that it will result in death and does it with a base antisocial motive and

with a wanton disregard for human life.

Voluntary Manslaughter- The intentional killing of another without malice

Elements: Intentional, unlawful, and felonious killing.

WV Proposed Jury Instructions: the felonious, unlawful & intentional taking of

another person's life but without premeditation, deliberation or malice.

6


7/69

Provocation: involves a set of circumstances in which the Ds actions were not

deliberate & premeditated.

- Provocation is essentially a recognition by the law that in some circumstances, a defendant

should be less culpable when the victim has played a significant part in arousing the

defendant's emotions & passions, arousing them in a way that would make it difficult for areasonable person to exercise ordinary deliberations & decision-making. Prof. Elkins

*Provocation would be such that it would cause a reasonable person to lose control of

himself and act out of the heat of passion

Rules of Provocation

1. Must have been adequate provocation

- Words alone are not adequate provocation Ex: Girouard v. State

2. The killing must have been in the heat of passionCause to act from passion rather

than reason

- Would a reasonably person act this way?

3. It must have been a sudden heat of passionthat is, the killing must have followed

the provocation before there had been a reasonable opportunity for the passion to cool.

[not sufficient time to cool down/no cooling off period]

4. There must have been a causal connection between the provocation, the passion,

and the fatal act.

Defense must prove provocation and heat of passion

o Provocation not a defense to murder, but is evidence of the absence of

malice.

o Words + conduct indicating a present intention and ability to cause the

bodily harm= can constitute adequate provocation

o Defense is unavailable to a who kills victim after he has a reasonable

opportunity for the passion to cool.

Legal Issue in GirouardBroadly Stated (as a jurisprudential issue): Should

provocation be limited to those instances previously recognized & defined by the

law (in judicial opinions) or should provocation be considered an open-ended

concept, with new factual patterns resulting in application of provocation to ever

changing facts?

7


8/69

The Legal Issue in GirouardNarrowly Stated: Was the defendant, so provoked by taunts

during an argument with his wife that he acted in a heat of passion, & did so in a manner

that a reasonable person in his situation would have responded?

Traditional Grounds for Provocation:

NOTE: Provocation, if found to be adequate can reduce culpability

(blameworthiness).

Assault or battery of the ; An Illegal arrest; Injury or abuse of a close relative;Sudden discovery of spouses adultery (even more so if the spouse is discovered inan act of adultery in front of the ).

Standard of Review:

The Burden of Proof: when a defendant raises the issue of provocation, theprosecution must prove beyond a reasonable doubt that the defendants actionswere not the result of provocation.

Jury Instruction on Provocation:

- A trial Court should generally instruct the jury on lesser included offenses, wherethere is some credible evidence, which would reasonably justify a conviction ofthe lesser included offense.

- the evidence of provocation need only be sufficient to establish the basis fromwhich reasonable inferences can be drawn that would allow a jury to properlyfind the defendant guilty of voluntary manslaughter.

- The duty of a trial judge to instruct arises only where there is evidencesupporting the crime. In order to make this determination;

- The trial court views the evidence in the light most favorable to the defendant.

Degrees of Evidence in Provocation

- Defense has sufficient evidence to give jury instruction

(Evidence viewed in light most favorable to defense in deciding on juryinstruction)

- Adequacy or reasonableness of the provocation is a matter to be decided by thetrier of the fact

Prosecution must be beyond reasonable doubt

Changes to the Rule of Provocation

NOTE:(contrast this with Girouradthe old categories of acceptableprovocation are abolished):

- Section 210.3 of the Model Penal Code continues a modified & substantiallyenlarged version of the rule of provocation. Subsection (1)(b) punishes asmanslaughter 'homicide which would otherwise be murder [if it] is committedunder the influence of extreme mental or emotional disturbance for which thereis reasonable explanation or excuse.'

8


9/69

- By eliminating any reference to provocation in the ordinary sense of improperconduct by the deceased, the Model Code avoids arbitrary exclusion of somecircumstances that may justify reducing murder to manslaughter

- Where there is evidence of extreme mental or emotional disturbance, it is for thetrier of fact to decide, in light of all the circumstances of the case, whether thereexists a reasonable explanation or excuse for the actor's mental condition.

- This development reflects the trend of many modern decisions to abandonpreconceived notions of what constitutes adequate provocation & to submit thatquestion to the jury's deliberation.

Criminal Defenses

Justification- Society indicates its approval of the actors conduct Ex: Self-defense.

Justification focuses on the act.

Excuse- admits to wrongdoing, but asserts that he should not be punished because he is

not morally blameworthy for the harm. Excuse focuses on the actor. Ex: the insane killeravoids punishment not b/c there was no harm in the killing, but b/c his mental disease

renders his conduct in some fashion morally blameless.

Heat of Passion- a partial justification? Adequate provocationStill invokes unlawful

conduct by the provoker. Lawful conduct, no matter how provocative, is never adequate

provocation.

o Defense is only applicable when it is an act by the dead man, not a third

person, which provokes the accused.

o Provocation- an excuse defense, albeit a partial one that may have a

justification-like component.

An intentional homicide is not mitigated to manslaughter unless certain conditions

are met.

1) Must be a provocative event that results in the actor feeling rage or a

similar overwrought emotion.

2) Provocation defense is based on the laws concession to ordinary

human frailty

3) Question to judge and jury: Whether the provoked partys anger was

within the range of expected human responses to the provocative

situation?

4) Provocation must be so serious that we are prepared to say that an

ordinary person in the actors circumstances, even an ordinarily law-

9


10/69

abiding person of reasonable temperament, might become sufficiently

upset by the provocation [and suffer such an emotional outburst] as to

experience substantial impairment of his capacity for self-control and, as a

consequence, to act violently.

Provocation must be so serious that we are prepared to say that an ordinary person Ithe actors circumstances, even an ordinarily law-abiding person of reasonable

temperament, might become sufficiently upset by the provocation [and suffer such

an emotional outburst] as to experience substantial impairment of his capacity for

self control, and as a consequence, to act violently.

Do not need to prove malicethe distinction between murder & manslaughter is

the lack of malice.

WV- Penalty- Not less than three years nor more than fifteen years

*WV Proposed Jury Instruction- Voluntary Manslaughter (follows C/L not MPC)

"Voluntary Manslaughter is the felonious, intentional and unlawful taking of another person's lifebut without premeditation, deliberation or malice."

"The Court instructs the jury that reasonable provocation means those certain acts committed

against the defendant which would cause a reasonable man to kill. Inherent in this concept is the

further requirement that the provocation be such that it would cause a reasonable person to losecontrol of himself and act out of the heat of passion, and that he did in fact do so."

EXTREME EMOTIONAL DISTURBANCE

- Alternative to adequate provocation.

- Extreme Emotional Distress is a Model Penal Code replacement for common law killings inthe sudden heat of passion after adequate provocation. West Virginia follows the common

law approach.

The defense of "extreme emotional disturbance" has two principal

components:

1. The particular defendant must have "acted under the influence of extremedisturbance," &

Wholly subjective

2. There must have been "a reasonable explanation or excuse" for such extremeemotional disturbance, "the reasonableness of which is to be determined fromthe viewpoint of a person in the defendant's situation under the circumstancesas the defendant believed them to be."

More difficult to describe

10


11/69

has to be an act that a reasonable person under the circumstanceswould do.

125.25 of the Model Penal Code: provides that it is an affirmativedefense to the crime of murder in the 2nd degree where "the defendant

acted under the influence of extreme emotional disturbance for which therewas a reasonable explanation or excuse."

The Elements of Extreme Emotional Disturbanceexists where the defendant

kills due to:

1. Experiencing circumstances that would provoke a reasonable person,

This is a question for the jury

2. where the defendant was in fact provoked,3. where there was little time between the provocation & the killing such that a

reasonable person would not be able to cool off4. & where defendant in fact did not cool off.

Standard of Review:

Extreme Emotional Disturbance is an Affirmative Defense.

The defendant has the burden of proving by a fair preponderance of theevidence that he/she was suffering from an extreme emotional disturbancewhen committing the crime.

The proof of the nature of the wounds inflicted may be evidence of an extremeemotional disturbance, however, the jury cannot infer that the defendant hadan extreme emotional disturbance from the brutality of the crime alone.

Trier of fact to decide if emotional distress was adequate Prosecution has burden beyond reasonable doubt

NOTE: EED will not always MITIGATE a convictionit DEPENDS ON THE

JURISDICTION.

Model Penal Code

- Reduces murder to manslaughter if deemed reasonable explanation or excuse

Reasonableness determined from viewpoint of a person in Dssituation under the circumstances as D believed them to be.

- May be appropriate where the actor believes that the deceased is responsible forsome injustice to another or even where he strikes out in a blinding rage & killsan innocent bystander

Verbal communication of adultery is insufficientprovocation

- Punishes as manslaughter, homicide which would otherwise be murder if it iscommitted under the influence mental or emotional disturbance for which thereis reasonable explanation or excuse.

11


12/69

People v. Casassa In a bench trial, the defendant argued the partial excuseof extreme emotional distress. The judge found him guilty of murder. Thedefendant appealed on the basis that he wasnt allowed the extremeemotional disturbance defense.

The Model Penal Code standard for extreme emotional distress is moresubjective than the common law standard. The Model Penal Code does nottalk about adequate provocation. Instead, it only talks about extrememental or emotional disturbance. The Model Penal Code has both anobjective & a subjective test for the reasonableness of the extremeemotional disturbance that is put forward as a partial excuse. The wordsituation in the Model Penal Code section on manslaughter is ambiguousby design. Its your role as an attorney to make the argument why a juryshould come out a certain way. The Model Penal Code claims that the bottomline is whether the jury can be sympathetic to a defendant in a particularcase.

The defendant must show that he has a reasonable reason for being in thecondition he was in. If the judge finds that there was extreme emotionaldisturbance, then the jury would decide whether or not that disturbance wasreasonable.

Involuntary Manslaughter

Elements: A person while engaged in an unlawful act, unintentionally, and with areckless disregard of the safety of others, causes death OR A person while engaged in a

lawful act, unlawfully, and with a reckless disregard of the safety of others, causes death.

WV Definition: Involuntary Manslaughter is the accidental causing of death of anotherperson, although unintended, which death is the proximate result of negligence so gross,wanton and culpable as to show a reckless disregard for human life.

WV-Penalty- A misdemeanor. Confined in jail not to exceed one year or fined not toexceed one thousand dollars.

Accidental, unintended causing of death, which is the proximate result of negligence so gross,

wanton & culpable as to show a reckless disregard for human life (Williams) punishable

because it is brought about by negligence (McGuire). No malice, no premeditation or

deliberation, no intent.

Elements of Involuntary Manslaughter:

the accidental/unintentional causing of death of another person, which

death is the proximate result of

negligence so gross, wanton & culpable

o "gross" means "aggravated or increased negligence"o "culpable" means "deserving of blame or censure."

12


13/69

o "Gross negligence" is:

culpable or criminal when accompanied by acts of commission or

omission of a wanton or willful nature, showing a reckless or indifferent

disregard of the rights of others, under circumstances reasonablycalculated to produce injury, or which make it not improbable that injury

will be occasioned, & the offender knows, or is charged with theknowledge of, the probable result of his acts."

Five Situations in which the failure to act may constitute breach of a legal duty

1.Where a statute imposes a duty

2. Where one stands in a certain status relationship to another

3. Where one has assumed a contractual duty to care for another

4. Where one has voluntarily assumed the care of another and so secluded the helplessperson as to prevent others from rendering aid

5. When a person creates a risk of harm to another (Ex: automobile driver by negligence

strikes and injures pedestrian, driver has a legal duty to make sure that the victimreceives medical care)

Must be a legal duty of care that was violated; must be more than a mere

moral obligation.

WV Rule- State v. Lawson- To convict a person on a charge of negligence, it

must appear that the act resulting in death is in itself unlawful, or a lawful actperformed in an unlawful manner. *State must show that the act, or the

manner of the performance of the act, for which conviction is sought is

unlawful and culpable.

Non-doings (omissions) are inherently more ambiguous than wrongdoings

(acts). It is harder to determine the motivesand, thus, the culpabilityof an

omitter. Individual freedoms would be affected by a law compelling us tobenefit others, rather than passing laws that simply require people not to harm.

Legal Duties of Care: where one has voluntarily assumed the care of another

and so secluded the helpless person as to prevent others from rendering aid;When a person creates a risk of harm to another; duty of care from husband to

wife and parents to children

The gross/criminal negligence required for involuntary manslaughter

conviction is gross, wanton, and culpable negligence. Gross wanton

negligence is equated to a reckless disregard for the safety of an individual.i. Not the mere violation of the law.

State v. Hose- Violated his duty of care to comply with truck drivingregulations, driving at an excessive rate of speed. Fell asleep at the

wheel. Guilty of four counts of involuntary manslaughter.

State v. McGuire - Convicted of voluntary manslaughter, however, her

jury instruction for involuntary manslaughter was worded in the

negative and not the affirmative, but it was still upheld even though

deemed not artful.13


14/69

Types of Negligence:

Ordinary Negligence The failure of an ordinary, prudent, reasonable person. Ex: where an ordinary

reasonable parent failed to seek medical care for a child (Williams). Most jurisdictions

require gross negligence for a conviction of voluntary manslaughter. Look at a personsduties to see if they fulfill them as a reasonable person would do. Ignorance is not an

excuse for ordinary negligence.

Gross (Criminal) Negligence Negligence that is wanton & culpable or blameworthy & is a reckless disregard for the

consequences that can result in injury (bodily injury/human life). Generally inferred to

determine how culpable D is.

Drunk Driving Cases (Negligent Homicide)

Most likely to be involuntary manslaughter under

misdemeanor/manslaughter.Vehicular Homicide

The killing of a human being by the operation of a motor vehicle in a recklessmanner likely to cause the death of, or great bodily harm to, another.

Reckless operation of vehicle must be proximate cause of death WV Jury Instructions: Negligent Homicide is committed when any

person, while driving a vehicle, unintentionally kills another person as aproximate result of his/her negligence, so gross, wanton, & culpable, asto show a reckless disregard of the safety of others & which death occurswithin one year of the accident.

Court said that proximate cause exists if death was a foreseeable consequence

Jury Instructions

Must be based upon the evidence and an instruction which is not supported by the

evidence should not be given

*State v. Bradshaw (as quoted in McGuire) Jury instructions are reviewed by

determining whether the charge, reviewed as a whole, sufficiently instructed

the jury so they understood the issues involved and were not misled by the

law. Jury instruction cannot be dissected on appeal. Instead entire

instruction is looked at as a whole when determining its accuracy.

Evidence

ON appealall evidence, circumstantial and directmust be taken in the

light most favorable to the prosecution. The has a heavy burden to

overcome that b/c the jury has spoken.

14


15/69

Standard of Review:

What reasoning did the Court use to reach its conclusion? Did the Courts reasoning explain how it reached its conclusions? Was the Courts reasoning grounded in legal doctrine?

Did the Court simply state a problem & reach a conclusion without making adetermination as to how it reached its conclusion? Does the Common-Law or Statute Address the Issue?

If not, then the Courts should establish a common-law ruling on the issue,

UNLESS there is a public policy concern that would be violated if the Court

addressed the issue.

Sufficiency of the Evidence- Verdict of guilt will not be set aside on the ground thatit is contrary to the evidence if that evidence, when viewed in a light most favorable

to the State, would be sufficient to convince impart minds of the guilt of a beyond a

reasonable doubt. To set aside verdict, evidence presented by the prosecution at trial

must be manifestly inadequate to support the conviction.

Reasonably Prudent Person

Ordinary person of either sex, not exceptionally excitable or pugnacious,but possessed of such powers of self-control as everyone is entitled to expect

that his fellow citizens will exercise in society as it is today.

Inconsistency in VerdictState v. Hall (W.Va 1985)- Do inconsistentverdicts support reversal of a criminal conviction? Consistency in the verdict

is not necessary. Each count in an indictment is regarded as if it was a

separate indictmentdoes not show that [the jury] were not convinced of the

defendants guilt.

Causation

*Prosecution must prove: that caused the death of the victim

Proximate Cause: An act or omission to act is the proximate cause of death when:1. It substantially and materially contributes

2. In a natural and continuous sequence

15


16/69

3. Unbroken by another cause

(Only way intervening act can relieve s liability is if act sole cause of death)

4. Resulting in death

5. And the death or injury was 1) foreseeable and 2) a natural result of s conduct

Harm results from the acts need not be intended; harm may only be indirectly

caused by the

Do not use but for test. Over-inclusive.

o Ex: Nebraska v. Amanda K.-Running over her boyfriend with a van natural and

foreseeable consequence of her act.

o Controversy in supplying drugs to a friend and dying from overdose of the drugs.

Proximate Cause contains 2 elements

Foreseeabilityo Often turns on this concept (Albertson)o reasonable probability actor is aware of risk

& result or should be aware (Lofthouse)

Substantial Factoro Example: Gang Shooting, leaving man drunk

& stranded on unlit road.- Velazquez v. State- 1) s conduct must be a substantial factor. Velazquez and

victim both mutually agreed to participate in illegal and dangerous activity of

drag racing. 2) Foreseeability ( a natural & Continuous sequence)- The victimsactions after the drag race to turn around and drive car 123 mph the other way

was not reasonably foreseeable. Therefore, victim is the sole proximate cause of

his own d3eath and not the .

WV Jury Instructions: The accidental causing of death of another person,

proximate result of negligence so gross, wanton, & culpable, as to show a reckless

disregard for human life.

No Rule of law relieving of liability. Later injury must accelerate death inorder to be causation.

o Contribution without acceleration is not sufficient.

o If 2 or more people could have caused death & cant tell which,

both responsible (gang stuff).

*The purpose of Proximate Cause analysis is to allow the fact finder to determine, based on

policy considerations or a matter of fairness, whether it is proper to hold the criminallyresponsible for a prohibited result.

16


17/69


18/69

Challenge to a trial courts failure to grant a motion for acquittal at the

end of the prosecutions case.

Challenges to the sufficiency of evidence to support a conviction.

Felony-Murder Rule

Felony + Killing= Murder

o Requirements: 1) must be a killing & 2) killing must be committed in thecommission, attempt to commit, or flight from an inherently dangerous felony.

o Must be a causal relationship/continuous transaction between the felony and the

death.

Continuous transaction determined by Time, Place & Causal Connection

o One is guilty of murder if a death results from conduct during the commission or

attempted commission of any felony.

o Must be charged and convicted of felony murder. Cannot be tried of the twoseparate crimes of the felony and the murder.

o Specific Intentto commit the felony.

o Does not matter if killing is accidental or unintentional; proof of specific intent to

kill, malice, and premeditation is not required.

o State does not have to elect between murder & felony-murder until the close of

the trial.

o cannot claim self-defense or provocation in response to felony-murder

o Negligence of deceased has no bearing on felony murder

o Elkinsfeels felony murder charge is controversial;unwarranted. *KY & Hawaii have abolished felony murder rule*England abolished it in 1957 *No mention of it in Model PenalCode

18


19/69

o State v. Walker- The state need not make an election before the close of all

evidence if such an election is to be made at all, so long as the accused is not

harmed by the lack of notice. Did not need to make an election between first

degree murder and felony-murder if it does not harm the defendants

arguments/defense. Walker had defended both charges with alibi defense, so no

error in giving both jury instructions and the prosecution not electing one.

o Stucky v. Warden- Rule: With regard to situations where the state makes an

election in a criminal trial between a premed killing theory & a felony-murder theory

holds that the State need not elect whether to proceed upon either theory until the close

of all evidence. However, a may make a motion to force an earlier election if he can

make a strong, particularized showing that he will be prejudiced by further delay in

electing.

2 Theories 1 crime= conviction. Court gives jury instructions on P/D

murder and felony- murder. State acting like this is one crime & Stuckeydoes not know which one to fight because the 2 charges are different.

suggested a special jury verdict form should have been utilized in his

trial in order to distinguish between the 2 theories

Elkins State needs to, at the close of evidence, elect

one theory: either pre-meditated or felony murder. Do

not go to the jury with an instruction for both theories.

Will limit confusion of the jury

o State ex rel. Painter v. Zakaib- Felony-murder cannot be applied when onlydeath is the suicide of the co-conspirator.

o State v. Sophophone-Not guilty of felony-murder when his co-felon dies in the

commission of the felon due to the acts of a law-enforcement officer. Making one

criminally liable for the lawful acts of a law enforcement officer is not the intent

of the felony-murder statute as it is currently written.

Res Gestae- The felony murder rule applies when a killing occurs

during the commission or attempted commission of a felony. Nearly

all courts agree that the felony-murder doctrine still applies, however,

even after a felony is technically completed, if the killing occurs

during the escape from the scene of the crime at least if it is part of one

continuous transaction.

WV Felony-Murder Jury Instruction

19


20/69

The Court instructs the jury that a death which occurs during the commission of [anenumerated felony: arson, kidnapping, sexual assault, robbery, burglary, breakingand entering, escape from lawful custody, or a felony offense of manufacturing ordelivering a controlled substance] even if the death is accidental is Felony Murder,and constitutes First Degree Murder.

The State must prove that the defendant:

-- participated in the commission of [the enumerated felony offense]

--and during the commission of that felony

--the death occurs as a result of injuries received in the commission of the [namedfelony].

The Court further instructs the jury that to find Felony Murder, the [enumeratedfelony] and the death must be part of one continuous transaction and the felonyand the death must be closely related in point of time, place, and causalconnection.

LIMITS:

1. Enumerated felonies:Courts & statutes have restricted the types of felonies that a defendant can be

charged with felony-murder to enumerated felonies, such as a killing that results

from the commission of, or attempt to commit, arson, kidnapping, sexual

assault, robbery, burglary, breaking & entering, escape from lawful custody, or a

felony offense of manufacturing or delivering a controlled substance.

W. Va. Code 61-2-1.

2. Inherently Dangerous:

In the abstract, where the felony is described to be inherently dangerous based

on the statute itself, not the facts of the case. The felony would not be

considered inherently dangerous if it can be committed in a non-dangerous way

For example: False imprisonment can be done through force, fraud, ordeceit)

- In determining whether the killing took place during the commission ofthe underlying inherently dangerous felony, the Courts consider:

"time" (of the killing in relationship to the commission of the felony) "distance" (of the killing from the place of the commission of the felony)

"causal relationship" (of the killing to the commission of the felony)

Under the felony-murder doctrine, 1st Degree Murder doesnt require proof

of willfulness, deliberation, premeditation, malice or specific intent to kill.

It is deemed sufficient if the homicide occurs during the commission of or the

attempt to commit one of the enumerated felonies. State v. Bragg, (WV 1955).

20


21/69

- a killing during the commission of a felony, must be part of a"continuous transaction" & must be "closely related in point of time,place, & causal connection.

- The Agency Approach: (MAJORITY) The acts of the primary party (the personwho directly commits the offense) are imputed to an accomplice on the basis of

the agency doctrineby this approach if a non-felon does the killing, the killingcannot be imputed to the accomplice in a felony. State v. Sophophone.

- The Proximate Causation Approach: (MINORITY) A felon may be heldresponsible under the felony-murder for a killing committed by a non-felon if thefelon set in motion the acts which resulted in the victims death. Id.

Standard of Review:

- In the past, the State had to decide whether it was going to proceedunder a traditional theory of murder or a theory of felony murder,however, in State v. Walker, the State's reliance upon both theories at a

trial for 1st degree murder did not, the court found, necessarily violatedefendant's Due Process rights, provided that the two theories aredistinguished for the jury through adequate court instructions.

A defendant has the right to ask for an election & to ask for an earlier

election than at the close of all the evidence, but the court need orderthe election only if the defendant can make a strong, particularizedshowing of how he will be prejudiced if the prosecutor either does notelect at all or waits until the end of the trial to decide what the exactcharges will be. It is within the discretion of the circuit court whether toforce the prosecutor to elect, & such a decision will not be reviewedunless the court abuses his discretion.

- NOTE: In a prosecution for First degree murder, the State must submitjuryinstructions which distinguish between the first-degree murder (a killingthat is willful, deliberate, & premeditated) & felony-murder.

The jury may, under the facts of the particular case, find the defendantguilty of murder on either basis. When the State proceeds against thedefendant on the basis of murder & felony-murder, the verdict formsprovided to the jury must reflect the distinction so that if a guilty verdictis returned, the theory of the case upon which the jury relied will beapparent.

As a matter of law, second-degree murder, voluntary manslaughter, &

involuntary manslaughter ARE NOT lesser included offenses of felony-murder. State v. Wade (W.Va. 1997).

if the defendant is charged with felony-murder HE CANNOT availhimself of a defense premised on the fact that if a homicideoccurred it was voluntary manslaughter & not murder.

21


22/69

The defendant CANNOT be punished for both the felony-murder & the

underlying offense as the SC of WV has concluded that it is a violation of the

Constitutional prohibition against double jeopardy to punish the defendant for both

felony-murder & the underlying felony. State v. Williams, (WV 1989).

Proceeding on Multiple Theories of Murder (i.e. felony murder & felonymurder):

It is possible for a defendant to be convicted of murder, even where the

prosecution proceeds on multiple theories of murder & where the jurorsdiffer on what the defendant is guilty of (i.e. some find the defendantguilty of classic intentional murder & others find him guilty of felonymurder).

oHOWEVER, the prosecution should not proceed on multiple theories, if thereis not sufficient evidence to support one of the theories.

EX: if there is sufficient evidence to convict the defendantof felony murder but not felony murder, then the

prosecution should not proceed depraved heart murderbecause it would mislead the jurors & potentially allow the

jurors to convict the defendant on the basis of a theory forwhich there was not sufficient evidenceIF there is sufficientevidence to support both theories, then there is no problem;otherwise only one theory should be followed.

The PURPOSE of the felony-murder rule is to deter negligent or accidental

killings it does not apply where proof of actual malice is required.

A conviction of felony murder can be reversed, if the defendant is convicted

on a theory of felony murder in which the underlying crime would be a

misdemeanor, if not for the resultant unintentional killing.

- NOTE: In cases where a jury instruction would allow the jury to convict adefendant on a finding that a specific intent to commit a misdemeanor couldresult in a felony murder conviction is prejudicial & can be reversed.

WV elements:

Underlying predicate felony

Requires that the death of the victim must be part of one continuoustransaction

Death must be closely related in time, place, causal connections

Rule: Where the record of a criminal trial shows that the cumulativeeffect of numerous errors committed during the trial prevented the fromreceiving a fair trial, his conviction should be set aside, even though anyone of such errors standing alone would be harmless error.

Inchoate Crimes (Imperfect or incomplete conduct)- attempt, conspiracy, and solicitation Acts

prohibited that are substantial steps toward the complete offense.

22


23/69

*Six Stage Process: 1) actor conceives idea, 2) evaluates idea 3) fully formsintention to go forward, 4) prepares to commit crime, 5) commences commission ofoffense, 6) completes her actions

*Law does not punish simply for mens rea until there is an actus reus.

*Inchoate crimes are after the mens rea but short of attainment of the criminal goal.

Attempts

Definition: A criminal attempt occurs when a person, with the intent to commit an

offense, performs some act done towards carrying out the intent whether or not his

intention is accomplished.

Specific intent to kill + a substantial step (in WV, a direct overt act)= attempt

Specific Intent

o Need the specific intent to kill. Intent to do bodily harm, or knowledge that

the consequences of s act ma result in death or great bodily harm, is not

enough for attempted murder.o consciously intended the completion of acts which would have resulting in a

killing that could have been charged as murder.

o Two ways to show intent 1) announces his intent (needs to be closer to

completion), 2) Announcement of intent + some acts (need not be as close to

completion) 3) Intent is inferred from the acts + circumstances of the case

Substantial Step

The action must constitute a substantial step, beyond mere preparation, toward

commission of the offense.

Must be a direct act toward completion without equivocation

Possession, collection, or fabrication of materials designed for such

unlawful use or which can serve no lawful purpose of the actor under thecircumstances is considered a substantial step. (Tennessee, girls have ratpoison at teachers desk).

Substantial step- any conduct that has reached the fifth stage of criminalitypassed

the preparatory stage and moved to the point of perpetration of the target offense.

[Factors: proximity]

Two varieties: 1) Complete-but-imperfect attemptActor performs all of the

acts that she set out to do, but fails to attain her criminal goal (Ex: trying to

shoot someone and miss). 2) Incomplete Attempt Actor does some of the

acts necessary to achieve the criminal goal, but she quits or is prevented from

continuing (Ex: police officer arrives before completion of the attempt).

Primary function of the crime of attempt is to provide a basis for law-

enforcement officers to intervene before an individual can commit a

completed offense.

No attempted felony-murder in WV

23


24/69

Intent principle- individual should be held criminally liable for what they

intended to do, and not according to what actually did or did not occur.

i. Two intents required in a criminal attempt

1. Must intentionally commit the acts that constitute the actus reus of an attempt;must intentionally perform acts that bring her in proximity to commission of a

substantive offense

2. She must perform these acts with the specific intention of committing the target

crime. An attempt is a specific-intent offense, even if the target offense is a

general-intent crime.

Belief Principle- Individuals should be judged on the basis of what they

believed they were doing, not on the basis of actual facts and circumstances

which were not known to them at the time.

Mens rea- Intent to cause the completed offensemust be proven for the

attempt

No equivocationa. Equivocation if:

i. (1)Abandons his effortor prevents it from beingcommitted;

ii. (2) Complete & voluntary renunciation of his criminalpurpose.

b. No equivocation if:i. Intent to postpone to better timeii. to transfer the criminal effort to another but similar

objective or victim.iii. Forced to stop for fear of being caught.

People v. Gentry *Trial courts jury instructions were flawed when

they state he intends to kill or do great bodily harm to that

individual. Must have specific intent to kill, more than a specific

intent to harm.

- Attempt= Intent to kill + substantial step

- Two ways to show intent: 1) announces her intent and 2)

Infer intent through s act and circumstances

People v. Miller: Whenever the design of a person to commit crime is clearly

shown, slight acts done in furtherance of this design will constitute an attempt.

*Difference between preparation and the start of execution of a crime

24


25/69

(which would be ATTEMPT)must be able to prove that the

commenced the commission of the crime. Mere preparation is not a

criminal attempt, must take a substantial step

* Question for Jury: When the substantial step takes place

Actors specific criminal purpose is evident from her conduct

WV General Rule of attempted Murder-State v. Burd- where formation of

criminal intent is accompanied by preparation to commit the crime of

murder and a direct overt and substantial act toward its preparation, it

constitutes the offense of attempted murder.

Cannot be convicted of both the attempt and the criminal offense. If charged with

both and convicted of the offense, the attempt is merged into the substantive crime.

A person may not be convicted of attempted involuntary manslaughter.

when the latter offense is based on a mens rea of criminal negligence or

recklessness. It is illogical to say that a person can intentionally commit

an unintentional crime.

Not an attempted assaultmakes no sense b/c assault is an attempted

battery

ND Jury Instruction- Attempt-

A person is guilty of Criminal Attempt if, acting with the kind of culpabilityotherwise required for commission of a crime, that person intentionally engages in

conduct which constitutes a substantial step toward commission of the crime. A

"substantial step" is any conduct that tends toward but falls short of actual

commission and is strongly corroborative of the firmness of the actor's intent to

complete the commission of the crime.[A person who engages in conduct

intending to aid another in committing a crime is guilty of Criminal Attempt if the

conduct would establish that person as an accomplice were the crime committed

by the other person, even if the other is not guilty of committing or attempting the

crime.]

WV Jury Instruction- Accomplice

An accomplice is a person who knowingly and with criminal intent participates directly orindirectly with another (other) person(s) in the commission of a crime.

25


26/69

The Court instructs the jury that a person who is the absolute perpetrator of a crime is a principal

in the first degree. The Court further instructs the jury that a person who is actually or

constructively present at the scene of a crime at the same time as the criminal act of the absoluteperpetrator, who acts with shared criminal intent, contributing to the criminal act of the absolute

perpetrator, is an aider and abettor, and a principal in the second degree, and as such may be

criminally liable for the criminal act as if he were the absolute perpetrator of the crime. Actualphysical presence at the scene of the criminal act is not necessary where the aider and abettor

was constructively present at a convenient distance at the time and place of the criminal act,

acting in concert with the absolute perpetrator. However, you are cautioned that merelywitnessing a crime without intervention therein does not make a person a party to its commission

unless his interference was a duty, and his non-interference was designed by him and operated as

an encouragement to or protection of the absolute perpetrator of the criminal act.]

The Model Penal Code Definition of Attempt:

An attempt occurs when a person, with the intent to commit an offense,

performs any act that constitutes a SUBSTANTIAL STEP, BEYOND MERE

PREPARATION, toward the commission of that offense. J. Dressler,

Understanding Criminal Law.

- Substantial Step: conduct that has passed the preparatory stage & movedto the point of preparation of the target offense. Id.

Modern attempts cases often ask whether the acts taken in conjunction with the

intent are "substantial acts" taken toward the commission of the offense.

- the acts must be accompanied by a "present intent to set the fire . . . ."

- The defendant "must be shown to have had a present intent to accomplish thecrime without much delay, & to have had this intent at a time & place wherehe was able to carry it out.

Standard of Review

Burden of Proof & Culpability: The prosecutor in an attempt prosecution is

sometimes required to prove that the actor possessed a higher degree of culpability

than is required to commit the target offense."

- Ex. If a defendant blinded herself & shot a gun into a crowded room, yet didnot kill strike or kill anyone, the defendant could not be found guilty of

attempted murder because although the defendant intentional did things thatbrought her close to taking a human life, she lacked the specific intent to takea human life. See Dressler, Understanding Crim. Law.

- NOTE: A specific intent to kill is proven, normally, by inferences to be inferredfrom the surrounding circumstances, the character of the attack, the use of adeadly weapon, & the nature & extent of the victim's injuries.

26


27/69

Flawed Jury Instruction: A jury instruction should not permit a conviction of

attempted murder based on an intent to "do great bodily harm" or engages in acts

known to create such harm.

- A "specific intent to kill" is a necessary element of attempted murder,& is the "pivotal element" of an attempted murder charge. See Dresslerpg. 741 (People v. Gentry, Ill. App. 1987).

- If charging someone with an attempt to commit a crime, the evidence mustdemonstrate that the person possessed the requisite mens rea & actus reus.

Sufficiency of the Evidence: Whether the evidence presented at trial was

sufficient to make out a case of attempt:

- View the evidence in its entirety in the light most favorable to thestate & consider whether the fact finder could conclude that aSUBSTANTIAL STEP toward a specific crime has been taken.

Conspiracy

C/L Conspiracy- A partnership in criminal purposes, a mutual agreement or

understanding, express or implied between two or more persons to commit a criminal actor to accomplish a legal act by unlawful means. People v. Carter

MPC- A person is guilty of conspiracy with another person or persons to commit a crime

if with the purpose of promoting or facilitating its commission he:

o

Agrees with such other person or persons that they or one or more of them willengage in conduct that constitutes such crime or an attempt or solicitation tocommit such crime; or

o Agrees to aid such other person or persons in the planning or commission of such

crime or of an attempt or solicitation to commit such crime.

o Policy: 1) allow police to intervene at an earlier point 2) combat the special

dangers of group criminalityo Punishment: Usually the sanction for conspiracy is graded in relationship to the

contemplated crime. Many states punish conspiracies to commit felonies as

felonies, and conspiracies to commit misdemeanors as misdemeanors.

The offense of Conspiracy does not merge into the attempted orcompleted offense that was the object of the conspiracy.

*Conspiracy= agreement; NOT the partnership or combination of people

Elements: 1) There must be an agreement

-Can be Express or Implied (a tacit mutual understanding)

27


28/69

-Express Direct or outright

-Implied Inferred or implied by acts & circumstances that an

agreement has taken place.

-Does not need exact terms, parties must know essential nature

-Each conspirator does not need to agree to every part of offense

-Can establish directly or entirely through circumstantial evidence

of a mutual, implied understanding

-If crime seems choreographed, can imply a conspiracy

-Mere presence is not enough

Fork in the Law: When can the agreement be made? In advance of the consummation

of the crime or spontaneously, an instant before the consummation of the crime?

2) Object of Agreement

-An unlawful act or a lawful act by criminal or unlawful means

Two-fold Specific Intent: Intent to combine with others and intent to

accomplish the illegal objective.

Intent may be inferred from

1) when the purveyor of legal goods for illegal use has acquired a stake in theventure

2) when no legitimate use for the goods or services exist and

3) when the volume of business with the buyer is grossly disproportionate to any

legitimate demand, or when sales for illegal use amount to a high proportion of

the sellers total business. Mere knowledge not enough need INTENT for

conspiracy charge.

An overt act.

- Act that shows intent to commit crime- Act that helps to bring about desired result- Moving towards the completion of the crime- Must meet all elements of intended crime

Intent- Intent to commit an offense & intent to commit the act that is criminal in

nature- Can be shown through the agreement & acts infer intent (Agreement alone is

not intent)

28


29/69

Conspiracy in West Virginia: To convict someone of the crime of conspiracy,

the State must demonstrate:

1. that the defendant agreed with at least one other person to commit anoffense against the State &

2. that one of the conspirators committed an overt act to effectuate the offense.- NOTE: some jurisdictions require that to be convicted of conspiracy, that in

addition to the unlawful agreement, the defendant must commit an overt actin an effort to bring about the crime, which the parties made an unlawfulagreement to commit.

Conspiracy to Commit Murder: a conviction of conspiracy to commit a

murder requires a finding of intent to kill & cannot be based on a theory of

implied malice.

- Prof. Elkins argued that the intent element can be satisfied if it can be shown

that the defendant intentionally engaged in reckless consequences, thenatural consequences of which would result in death or grievous bodily injuryto another.

Standard of Review

- On appeal by the D, the evidence is to be viewed in the light most favorable tothe prosecution.

Proof of Conspiracy: The agreement may be inferred from the words & actions of

the conspirators, or other circumstantial evidence, & the State is not required to

show the formalities of an agreement.

- It is not necessary to show that the parties met & actually agreed toundertake the performance of an unlawful act.

- it is not necessary that they had previously arranged a detailed plan for theexecution of the act;

- nor is it necessary that the parties entered into a formal or expressedagreement.

- Rather, an agreement can be shown by tacit understanding between the co-conspirators to accomplish an unlawful act which may be inferred from thecircumstances.

"circumstances relevant to proving a conspiracy" include: association with alleged conspirators, knowledge of the commission of the crime,

presence at the scene of the crime, participation in the object of the conspiracy.

o NOTE : "[N]either association with [a criminal] nor knowledge of illegalactivity constitute proof of participation in a conspiracy."

o In some jurisdictions, proof of a conspiracy requires more thancommission of a substantive offensive in league with others & thataiders & abettors are not always conspirators. See Commonwealth v.Cook (Mass.).

29


30/69

o In other jurisdictions,conspiracy cases do not seem to require anythingmore than individuals acting in concert. See Commonwealth v. Azim (Pa.).

Evidentiary Issues Involving Conspiracy (TESTIMONY)

Statements of a co-conspirator which would otherwise be disallowed as hearsayevidence are specifically found to be admissible in some circumstances:

- Admission or confession of an accomplice standing alone, may not beintroduced into evidence against another accomplice as an admission againstinterest; however, one accomplice may testify against anotheraccomplice about the events surrounding the crime with which thedefendant accomplice is charged, about the defendant accomplice'spart in that crime, about events leading up to the formation of theconspiracy, & about the part the testifying accomplice played in theconspiracy, including any incidental admissions)

- as the defendant accomplice has an opportunity to cross-examine the

testifying accomplice & the testifying accomplice is called by the State for thepurpose of giving detailed testimony & not for the purpose alone ofdemonstrating that the testifying accomplice has either confessed or pledguilty to participating in the crime with which the defendant accomplice ischarged."

When sole use of legal business is for criminal purpose, knowledge that your

business helps those illegal activities makes you guilty of conspiracy.

Knowledge is also sufficient if income from illegal activity is grosslydisproportionate to legal income.

If business has legitimate uses as well, knowledge is not enough.

(Prostitute/Messaging Service Case.)

Why is knowledge not enough to convict of conspiracy in this case. We need overt act along with knowledge. Since this is only a misdemeanor we need more to proveconspiracy. If it were a felony we would need less

Question: Does a provider of goods or services who knows his product is

being used to assist an illegal business enter into an agreement with thewrongdoers & thus conspire with them to violate the law?" See People v.

Lauria, (CA 1976).

Answer: more than suspicion, more than knowledge, acquiescence, carelessness,

indifference, lack of concern. There is informed & interested cooperation,

stimulation, instigation. & there is also a stake in the venture', which, even if it may

not be essential, is not irrelevant to the question of conspiracy

30


31/69

T]he intent of a supplier who knows of the criminal use to which his

supplies are put to participate in the criminal activity connected with the

use of his supplies may be established by:

(1) Direct evidence that he intends to participate, or

(2) Through an inference that he intends to participate

Based on:

(a) His special interest in the activity, or

(b) The aggravated nature of the crime itself.

Look for inconsistency in the jurys findings (e.g. a not guilty on grand

larceny but guilty of conspiracy to commit grand larcency.)if the reasoning is

not well supported, challenge it.

According to State v. Less To prove a conspiracy under W. Va. Code, 61-

10-31(1), the State must show that the defendant agreed with others to commit an

offense against the State & that some overt act was taken by a member of the

conspiracy to effect the object of that conspiracy.

- There must be sufficient evidence (from which the jury can make inferences)to conclude beyond a reasonable doubt that there was an unlawful agreementto commit a crime.

Non-Merger Crime convicted of actual crime & conspiracy at the same time, not

double jeopardy

Often no extra time to prove with both. Can admit hearsay evidence in conspiracy May be strategic reason to charge with conspiracy

*SolicitationConspiracyAttempt: Solicitation occurs at beginning and onerequests seriously another person to commit an offense.

Pinkerton Doctrine- co-conspirators not always aiders and abettors. An overt act of one

partner may be the act of all without any new agreement specifically directed to the act.

The act was done in furtherance of the conspiracy. Continuous conspiracy and the brother

gave no evidence that he had withdrew from the agreement.

o EXCEPTION TO HEARSAY RULE: Out-of-court statement made by a

conspirator, while participating in the conspiracy, may be introduce in

evidence against all of her co-conspirators.

31


32/69

Aiding and Abetting is

1. a person who knowingly

2. and with criminal intent

3. participates directly or indirectly

4. with another person in the commission of a crime

Mere Presence Does not = being a party to the crime

*Exception: unless his non-interference was one of the conditions of the commission of the

crime. OR, non-interference was designed and operated by him as encouragement or protection

of perpetrator.

* Only have to associate yourself with the activity generally, dont have to have

specific intent.

*The prosecution only has to show that the D only intends helping, assistance, or

encouraging the person in committing of the murder

The accused is not required to have intended the particularcrime committed by the perpetrator, but only to have knowinglyintended to assist, encourage, or facilitate the design of the criminalactor. (State v. Harper).

Parties to a crime

1. principals in the first degree who actually perpetrated the offense;

2. principals in the second degree who were actually or constructively present at the scene of the

crime and aided or abetted its commission

32


33/69

3. accessories before the fact who aided or abetted the crime, but were not present at its

commission

4. Accessories after the fact who rendered assistance after the crime was complete

Peonitest for aiding and abetting- Developed by Judge Learned Hand- Rule to Use!!

1. Must associate himself with the [criminal] venture

o Witnessing is not participation

o Partaking of spoils of a crime could be seen as participation

2. [knowingly] Participates in the venture as something that he wishes to bring about

o Standing behind someone may give support that does help success (sidewalk

fight)

3. seeks by his action to make it succeed

*Peoni test covers the [acts] portion of aiding, but need to determine [intent] as well

-Can infer intent from the acts

-NOTE: The test allows the jury to make the reasonable inference as to whether intent was

present.

Totality of the Circumstances Test

o Must consider proximity and relationship of the aider to the criminal, conduct

before and after the event, and any other relevant facts.

Aiding & AbettingHow too Participating in crime

o Facilitating Crime

o Offering Moral Encouragement to Commission of Crime (giving orders,

instruction to principal in the 1st degreeEx: Standing threateningly nearby

principal in the 1st degree with a weapon

o Intent & Intent to Aid

33


34/69

Shared Intent Argument

1. If one intent to assault, one intent to killperson with the assault intent can be

held to have the shared intent to kill

2. Shared intent is requirement relaxed if substantially physically participates.

3. Not required to have intended the particular crime committed by the perpetrator,

but only to have knowingly intended to assist, encourage, or facilitate the

design of the criminal actor. (State v. Deem) s intent to share in criminal

venture is equated to the perpetrators intent

4. Intent is it the specific intent of the offense OR the general intent to aid? WV

goes with the general intent to aid

WVRule: Where a is convicted of a particular substantive offense, a person maybe convicted of a crime so long as the evidence demonstrates thathe acted as an accessory before the fact, as a principal in the 2nd degree, oras a principal in the 1st degree in the commission of such offense. (State v.Deem)

*If a person does not associate himself with the venture of murder [or the criminalventure], and no indication that person wanted the criminal venture to

succeedNot aiding and abetting (State v. Mayo)

*If a is a Principal in the 2nd degree, will be charged with the principal in the 1st

degrees crime. Shared an intent, present, participated and did substantivephysical acts. Participate in the violence. (State v. Mullins)

Court uses Peoni test and Shared Intent. Indicates aider & abetter should haveshared intent of the perpetrator. Court reducing standard to where it is almostnonexistent. Court holds that is not required to possess identical intent as the

principal in the 1stdegree.

Rule: In the case of every felony, every principal in the second degree, and everyaccessory before the fact, shall be punishable as if he were the principal in the firstdegree. Principal does not have to be convicted for the crime.

State v. Miller

o Starcher dissenting opinion. Court did not take into account PTSD & battered

woman syndrome. No jury instruction on PTSD or battered woman syndrome.Extensive pattern of abuse could reduce or negate her culpability.

o Being abused for 20 years has permeated s ability to know the difference

between right and wrong, constantly in a self-protective mode.

34


35/69

o Peoni test not used in this case. Did she associate herself with the murder of

Stinson? Seems to associate herself with it. 2) Participation? Probablywanted the end, but she set down the rifle, walked away from the truck. seek by action to make it succeed? Her actions did not make it succeed bythe means with which it took place

o Failed the [acts] portion of aiding; intentmost possess shared, not identicalintent, but she had abandoned any such intent in a timely fashion.

Abandoned intent eliminating Aiding & Abetting

Must show that he or she disavowed criminal act sufficiently in advance ofcommission of act to alert primary actor & give him or her adequate time towithdraw as well. Basic Criminal elements

Intent mens rea

Must intend to aid primary party & must intend to commit crimecharged with.

Substantial physical participation by a person charged as anaider & abettor in a criminal undertaking constitutes evidencefrom which a jury may properly infer intent to assist the principalcriminal actor. (if beating someone up & other person kills themyou are aider & abetter even though you didnt intend murder.

Act Actus reus

Solicitation of offense

Assistance in commission

Encouragement of crime

Failure to prevent if legal duty existsStandard of Review

The Jury must make inferences about the defendants association; participation &effort to make the crime committed by the principal in the first degree succeed.

Inferences about whether the defendant intended to aid & abet the

principal in the first degree should be ARGUED & not ASSUMED.

- Ex. the specific nature of a defendants conduct could be used to argue thatthe inference occurred, however, an ASSUMPTION that the inference existsshould not be made, based on such evidence. See erroneous & emptyreasoning in State WV v. Mullins (bar brawl + buttocks stabbing).

- The Court used the "substantial physical participation" rule to avoid thekind of argument Professor Elkins finds most needed).

- The Court also WRONGLYuses the substantial physical participationrule as a substitute for intent(the substantial physical participation ofthe defendant was equivalent to the defendants intent to aid & abet theprincipal in the first degree).

Concerted Action Principle (Elkins does not like)

Elements

35


36/69

1. must be present at the scene of the crime 2. Act with another 3. Contribute tocriminal act- criminally liable for such offense as if here were the sole perpetrator

-Seems more like a non-test; mere presence is simply a factor and alone should notconstitute aiding

-Overly broad, no weight-bearing capacity; similar to the but-for test

Self-Defense

Rule: 1) person has the right to 2) repel force by force 3) in the defense of hisperson, his family or his habitation 4) and if in so doing, he uses only so much forceas the necessity or apparent necessity, of the case requires = he is not guilty of anyoffense, though he kill his adversary in so doing.

- must show used reasonable forceProportionality of force to thethreat

-Can use deadly force if one believes that the assailant is about to

inflict death or serious bodily harm.

* An affirmative defense, but can be required to prove the affirmativedefenses that he asserts.

*Burden of Proof: merely must produce sufficient evidence to create a

reasonable doubt on the issue. State Once there is sufficient evidence tocreate a reasonable doubt that the killing resulted from the acting in self-defense, the prosecution must prove beyond a reasonable doubt that the did not act in self-defense.

ELEMENTS

1. Threat or danger to someone that is real & serious

a. Level & Nature of Threat. Assault or life threatening?

b. Reasonable Belief: Is s belief that he is about to be

harmed REASONABLE

-Reasonable- objective (belief must be reasonable)

- Belief- Subjective (person must belief it)

c. Were s actions reasonable

d. Words alone do not constitute provocation/threat that

suggests imminent danger of your life

e. Threat must be actual or apparent of deadly force or

serious bodily harm

36


37/69

f. Unlawful- Threat must be unlawful

2. Proportional force to the threat/danger- No excessive force

3. Who was the initial aggressor?

a. If you start it, you do not get self-defense [aggressor- no self

defense]

b. One re-establishes self-defense if you retreated [duty to

retreat/withdraw]

i. Announce Retreat/withdrawal

ii. Can be implicit, but must definitively establish

retreat

c. No retreat jurisdictionDoes not change duty of aggressor

Elements of Self Defense: Necessity, Proportionality, Reasonable Belief, &

sometimes a Duty to Retreat.

Common-Law Self Defense: A person can use self defense if he reasonably believes

that the use of force is necessary to protect himself from imminent use of unlawful

force by another person. The use of deadly force is permitted only to prevent the

aggressors imminent & unlawful use of deadly force.

An AGGRESSOR is not entitled to use self-defense as a justification for

killing or harming another.

NOTE:mere words are not adequate provocation at common law & thus one who

provokes an attack from another with mere words will not be considered the

aggressor.

o Questions to Ask: Who set the events in motion that invoked one or bothparties to use force in an altercation (Provoker/Aggressor)?

o When one is the first person to use force (a provoker/aggressor).o Aggressors do not lose all rights to self-defense, but they must communicate

an effort to withdraw from the initial aggression.

o Necessity: Force should be used against another person only to the extent itis necessary.

At common-law, self defense was limited to imminent threats.

Ex. if Jim faces a deadly attack from Edgar (an elderly man), Jimcant respond to Edgars deadly attack, if it were possible to putdown the attack by disarming Edgar.

37


38/69

o Proportionalityjustified only in using force thats not excessive in relation tothe harm threatened.

A person may use non-deadly force to repel non-deadly force or deadly

force.

A person may use deadly force to repel deadly force.

A person may NEVER use deadly force to repel non-deadly force.

o Reasonable Belief Rule

The reasonableness of a self-defense claim often must pass a two-

pronged subjective & objective component test: Subjective

Examining what the defendant believed. why the defendant used the force he/she did. A defendant focused view.

Objective Examining defendants conduct against what a reasonable

person would do. A community view. Can consider the total facts & circumstances of the situation.

The Reasonable Person???

DEBATE: whether conduct of self-defense should be considered by objective or

subjective standard.

o

subjective standard: considering the defendants conduct in terms of what areasonable person with the same the peculiarities, uniqueness & previousexperiences of the defendant would do in a similar situation (i.e. did thedefendant conduct herself in the way that a reasonable woman that hadpreviously been mugged & raped would conduct herself?).

o objective standard: considering the defendants conduct in terms of what a[generic] reasonably prudent person in the same situation would do (physicalpeculiarities may be taken into consideration, however, mental peculiarities &life experiences are not).

o DUTY TO RETREAT (not in all jurisdictions) aka Castle Doctrine:

WV: No duty to retreat self-defense only available to 1 who attempts to retreat from the fray

& cant

EXCEPTION TO THE DUTY TO RETREAT:

At common-law, a man did not have a duty to retreat when attackedin his own home.

38


39/69

The Majority Rule: In most jurisdictions, a man has a right to standhis ground & defend himself whenever it is reasonably necessary todo so.

The Model Penal Code embraces the duty to retreat.

Reasons to retreat when not law requiring it.

Avoid becoming aggressor. When threat is assault only. When mutual combatants feel there is duty to retreat.

Castle Doctrine: exceptions when one is in ones home & an intruder breaks into

ones house.

- One might be justified in using deadly force even when deadly force is not usedor threatened by an intruder when one is inside ones home.

- This exception does not always apply (example: when a home owner finds anintruder asleep on the home-owners couch, the home-owner is not entitled toexecute the intruder).

- NO DUTY before use of deadly force in your own home. (Preece, WV).o NOTE : Self-Defense can be used by one to prevent or incapacitate an

aggressor from harming or killing one.

When the Self-Defense incapacitates or prevents an aggressor from

furthering an assault, the Self-Defense must stopEx. Continuing toshoot someone multiple times in the head might be deemedunreasonable use of force.

Mutual Combatants:

- Where two people are engaged in mutual combat & both are at fault, & one mankills the other, self defense may be raised only where the man who fired the fatalshot attempted to retreat/withdraw from combat & only fired the shot to preservehis own life as a matter of necessity.

If deadly force is used during mutual combat

- When there is a quarrel & both parties have used deadly force, self defense maybe available to one who has declined further combat, & retreated as far as hecould with safety. (Foley, WV)o In other words: When confusion is so rampant that aggressor, & victim cannot

be determined, one must retreat before killing in this situation.

Standard of Review:

When is a defendant entitled to jury instructions in self-defense cases?

The defendant must produce sufficient evidence that the homicide resulted form

the defendants acting in self defense.

o In WV

39


40/69

[W]here there is competent evidence tending to support a pertinent

theory in the case it is the duty of the trial court to give an instructionpresenting such theory when request so to do. (Alie)

[I]t is not error to give such instructions to the jury, though the

evidence be slight, or even insufficient to support a verdict basedentirely on such theory. (Snedeker).

Even where the evidence is scant, the trial court has a duty to allow a

defendant to get her theory before the jury. It is peculiarly within theprovince of the jury to weight the evidence upon the question of selfdefense. (Baker McMillion).

Sufficiency of the Evidence:

- The evidence must establish that the defendant had a reasonable belief that hewas under imminent threat of death or serious bodily harm.

- NOTE : If the trial court cites a rule, but gives insufficient or no reasoning as towhy it reached its decision, then there is a problem

Burden shifts to the Prosecution:

- Shifts to prove that the defendant didnt act in self-defense, the prosecution mustprove this beyond a reasonable doubt to overcome the defendants affirmativedefense. (Saunders, WV).

- Once there is evidence sufficient to require jury instructions on self-defense (or defense of another):

- The state must rebut that evidence, with proof beyond a reasonabledoubt that defendant did not act in self-defense.

-

Province of the Jury:

Its within the province of the jury to weigh the evidence upon the question of self-

defense & a jury verdict adverse to that defense wont be set aside unless its

manifestly against the weight of the evidence. (Schaefer, WV).

Self-Defense & manslaughter are necessarily inconsistent defenses:

On the trial of one indicted for murder, the evidence may be such as to justify an

instruction on the theory of manslaughter, & also self defense, these defenses are

not necessarily inconsistent.

Evidence Allowed to Show the Character of the Victim:

- where self-defense is used to excuse homicide, & there is evidence showing, or

tending to show, that the deceased was at the time of the killing, making a

murderous attack upon the defendant, it is competent for the defense to prove the

character or reputation of the deceased as a dangerous & quarrelsome man, & also

to prove prior attacks made by the deceased upon him, as well as threats made to

other parties against him; if the defendant has knowledge of specific acts of

40


41/69

violence by the deceased against other parties, he should be allowed to give

evidence thereof. (Louk, WV)

*Note: Where the evidence doesnt tend to show that the D was acting in self-

defense . . . the D wont be permitted to prove that the deceased was of dangerous,

violent, or quarrelsome character. (Collins, WV)

When can a self-defense case go to the jury?

- When a doubt is raised, the prosecution must prove beyond a reasonable doubtthat the defendant was not justified in killing in self-defense.

- Evidentiary threshold for the to get to the jury is MINIMAL. To geta self-defense claim to the jury, it can be MODEST. Evidence neededis SCANT.

- Elkins: any evidence that a can bring forward that they acted inself-defense gets you to the jury. It should particularly in theprovince of the jurya jury function. Trial court judges should beVERY Careful in restricting things from the jury.

Jury Instructions:

The evidentiary threshold is minimal.

- Where there is evidence tending to supporta pertinent theory in the case, its theduty of the trial court to give an instruction presenting such theory whenrequestedthe evidence can be introduced, even if it is slight & even if a verdictcould not be supported on the evidence entirely on such a theory

The jury must weigh the evidence.

Where Defendant HAS BURDEN OF PROOF:

- In some jurisdictions, the defendant has the burden of proving an affirmativedefense.o Prior to 1987, a defendant needed to prove by a preponderance of the

evidence that he was insane. After 1987, the stricter standard ofclear &convincing evidence became the threshold of evidence a defendantneeded to meet to prove that he was insane.

o In recent years, the Supreme Court has narrowly held (5-4) that State Statutesthat require defendants to prove affirmative defenses do not violate the dueprocess rights of defendants.

Burden of Proof in WV: The State is required to prove beyond a reasonable doubt

every material element of the crime with which the defendant is charged.

o A defendant in a criminal case cant be required to present evidence either interms of going forward with the evidence or in terms of bearing the burden ofpersuasion in connection with any material element of the crime charged.

41


42/69

Self-Defense is an Affirmative Defense:

o A claim ofself-defense raised to a charge of murder is an affirmativedefense, consisting of proof

criminal outline 1

Documents