PACE UNIVERSITY
SCHOOL OF LAW
CRIM-LAW I
PROFESSOR HUMBACH December
23, 2005
FINAL EXAMINATION TIME
LIMIT: 2 hours.
IN
TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW
RULES AND PROCEDURES FOR FINAL EXAMINATIONS.
YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION
BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION
BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.
DO
NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS
OTHER THAN BY YOUR EXAMINATION NUMBER.
ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF
ACADEMIC DISHONESTY.
This
is a closed book examination.
GENERAL INSTRUCTIONS:
This
examination consists of 5 questions based on three fact situations. The
questions are to be answered in the Examination Booklets provided by the
Registrar's Office. Please clearly number your answers to each of the
questions (1 to 5). Follow the instructions carefully and answer only what is
asked.
Unless
the context otherwise requires (such as where the facts are specifically
stated to arise in a particular state), base your answers on general principles
of criminal law as generally applied in American common law jurisdictions. If you are aware of more than one rule among
the jurisdictions, discuss the alternatives. Do not assume the existence of any
facts or agreements not set forth in the questions.
Legal
arguments are called for, and your grade will be based substantially on the
quality of your legal argumentation. Remember, your answer should first make
clear where you are going—what you are going to talk about. It should also:
(1) state
the rules, considerations or principles that are relevant to deciding the issues
raised by the facts,
(2) point
out the specific features of the factual situations that make the rules,
considerations or principles relevant, and
(3) pull the two together with appropriate
conclusions.
Remember, too, to keep your answers on point,
and answer only the questions asked. In so doing, do not circle around your
point. Aim for the bull's eye. Otherwise, you will risk running out of time. You
have about 20-25 minutes per question, plus about a 1/2 hour of reading time.
I.
From the Albuquerque
Journal, August 2, 2005
Lawman Shot Man Who Killed Partner
Rene Romo, Journal Southern Bureau
ALAMOGORDO – Deputy Billy Anders and his close friend and
partner, Deputy Robert Hedman, arrived at Earl Flippen's remote rented house
about 6 p.m. on Dec. 18 in response to a call of shots fired. Flippen had
already shot and killed his pregnant girlfriend, Deborah Rhoudes, and placed
her body in a closet. Rhoudes' 3-year-old daughter, Victoria, was still in the
house with Flippen. Flippen backed his car up to the front door and tried to
load Rhoudes' body into it when the two deputies showed up. Flippen slammed his
front door and armed himself.
As Anders called for backup from a sheriff's
department truck, Hedman went to the back door. There, Flippen shot Hedman, 49,
in the head, killing the officer.
The sometimes fuzzy videotape from the camera in
the patrol car released to reporters on Monday showed Anders hearing the shot
and calling to his partner: "You OK, Bob?" Anders walked to the front
of the house, where the 3-year-old girl was crying. Suddenly Flippen, obscured
in darkness, fired a shot; Anders fired back four times, hitting Flippen three
times.
Anders then picked up Flippen's handgun, moving
it first 5 feet, then about 20 feet away, and handcuffed Flippen. "You lay
there, buddy," Anders told Flippen. The time was 6:06 p.m. Flashlight in
hand, Anders then headed around the side of the house to search for Hedman.
Over the next 20 seconds, Anders shouted: "Bob? ... Bob? ... Bob? ... Oh,
God. Bob. ... "
Anders then walked quickly around the side of the
house to the front. He told the little girl to "back up" and go
inside the house. Anders then fired a final shot at Flippen at close range
hitting him in the chest and killing him.
Less than 30 seconds had gone by between Anders
finding his fallen friend and the last shot fired at Flippen.
District Attorney Scot Key said that there was
"no question" that Flippen was alive when Anders fired the last shot
and that the chest wound, which perforated Flippen's heart, was fatal.
When Anders was indicted last March, residents
around Cloudcroft, where the veteran law enforcement officer lives, rallied to
his support, holding fund-raisers to raise thousands of dollars for his
defense.
Friends and neighbors have described Anders as a
caring, considerate individual.
Flippen, by contrast,
was a convicted felon, a member of a white supremacist prison gang called the
Aryan Brotherhood and was suspected in several area home burglaries, Prosecutor
Key said. "This is not a guy who you would recruit as your victim, but
having said that, we don't get to pick victims. A victim is a victim."
1. Assuming that the
first three shots that hit Flippen were lawful (i.e., justifiable
self-defense), and that they would have proved fatal within minutes or hours,
was the fourth shot (which “perforated Flippen's heart”) either murder or
manslaughter? Which, and why?
2. Assuming Anders is convicted of either murder or
manslaughter, which of the traditional rationales for punishment would justify
the kind of severe sentence that is now normally imposed for those crimes?
II.
When Belun
and his family came to the United States
to escape ethnic persecution in their homeland, they were resettled under a
federal program in a rural country in West
Virginia.
Their presence in the community was generally welcomed, but not by all,
due to the somewhat non-conventional living arrangements in the Belun
household. It seems that Mr. Belun has 3 wives. He and each wife have had
children together.
Facing a
difficult re-election, and wanting to cater to certain strong
traditional-values elements in the county, the local prosecutor has brought
charges against Mr. Belun and his “wives” under the following West Virginia statute:
W. Va. Code Ann. § 61-8-4. Lewd and lascivious
cohabitation and conduct; penalty; when persons presumed to be unmarried
If any persons, not
married to each other, lewdly and lasciviously associate and cohabit together,
… they shall be guilty of a misdemeanor, and, upon conviction, shall be fined
not less than fifty dollars, and may, in the discretion of the court, be
imprisoned not exceeding six months.… In prosecutions for adultery and
fornication, and for lewdly and lasciviously cohabiting together, the persons
named in the indictment shall be presumed to be unmarried persons in the
absence of proof to the contrary.
At trial Mr. Belun’s lawyer maintains that Mr.
Belun is, indeed, “married” to each of his co-defendants and seeks to introduce
evidence of ceremonies that were performed in the their homeland, as proof. The
prosecutor objects to the introduction of such evidence, including with respect
to the first Mrs. Belun, on the grounds that it is irrelevant since the word
“married” in the statute refers solely to the legal status of that name which
is provided under West Virginia
law.
3. Belun’s
lawyer has telephoned you and asked for some help in arguing for a proper (i.e.,
acquittal-producing) interpretation of the West Virginia statute based on the usual
rules, principles, canons, etc. of statutory construction. What do you suggest?
III.
Six months ago, a high school
student named Harry took a neighbor’s car without permission and went joyriding
with some friends. He was stopped by the police and, when he could not produce
a driver’s license or registration, he was arrested. Harry later pleaded guilty
to misdemeanor unauthorized use of a vehicle and was given a suspended
sentence. Last week, still without a
license, he did it again, though this time with his mom’s car. In her anger
(and fear) she called the police who soon found Harry and the car and put him
under arrest. This time it was for felony “unauthorized us of a vehicle,” as it
was his second offense. Unfortunately, the reason they had so little trouble finding
Harry was that he had just been involved in a serious accident caused when
another driver ran a red light and Harry crashed into the side of her car. Even
more unfortunately, the passenger in the other car, sitting at the point of
impact, was fatally injured.
The prosecutor has decided to
charge Harry with murder and, if convicted, it looks as though he’ll be in his
50’s before he gets out, if then.
4. In a state that recognizes the
traditional felony-murder doctrine, will the murder charge stick?
5. In the alternative to felony
murder, how about “depraved indifference” homicide?
<end of
examination>