Comments on Exam, Fall, 2002
Criminal Law § 1
(Haugen)
The
exam was quite straightforward and called upon you to use the Model Penal Code
to sort out the crimes that a prosecutor would charge against the three main
characters, and to anticipate problems of proof and defenses that might be
raised. Most of you did fairly well, and
there were no disastrous grades. The
most common problem was a failure to identify and carefully discuss the crimes
and to discuss other relevant provisions of the Code. Some of you failed to use the statutes sufficiently
in your discussion.
The
best approach was to deal with each defendant separately, as most of you
did. Here is what you should have
discussed:
Angie. Most everyone saw that there were two theft
charges that could be brought against Angie.
First, she should be charged with Theft
by Deception, § 223.3, for her acquisition of the silver bracelet that
Elena had in her shop and was planning to sell for $1,500. The statute provides that one who (1) “purposely
obtains property of another by…creating a false impression as to value… ,” and (2) “prevents another from acquiring information…”
would both be quite easy to show here.
Angie deliberately misled Elena as to the value of the “gold and ruby”
bracelet Angie traded, and she persuaded Elena to rely on the appraisal of it that
Angie had surreptitiously altered to read $3,000, instead of $300. The mens rea, “purposely” should have been
defined, with reference to § 2.02(a).
The crime is a third degree felony, by virtue of §223.1(2)(a), since the value of the
loss is more than $500.
Theft by Extortion, § 223.4, should be
charged for Angie’s behavior with Mimi – threatening to tell the landlord about
her gambling problem, which both women knew would likely result in Mimi’s
eviction. § 223.4(4) says
a person is guilty of theft by extortion if he purposely obtains property of
another by threatening to “(3) expose any secret tending to impair [another’s]
credit or business repute.” Again, it appears the mens rea is easy to
show, and the loss is the $250 more that the watch was worth. § 223.1(2)(b) makes
this a misdemeanor. Each of these
crimes involves “property” under § 223.0 (6) that was “obtained,” under §
223.0(5)(a).
Some of you also suggested that § 220.3, Criminal Mischief might also apply here to one who “(c)
purposely…causes another to suffer pecuniary loss by deception or threat. While this might fit, it is not the most
appropriate charge for either of Angie’s acts here, given that theft is more
specific.
Some
of you suggested that a defense of consent might be raised, but pretty clearly
it would be unavailing in either case, due to § 2.11(3),
(c ) and (d).
Elena. The bulk of your discussion should have been
about Elena’s crimes here. A few of you
spent wasted time talking about conspiracy and solicitation, despite the
instructions given in class and on the test itself to disregard those concepts
for the exam. (Complicity under
§2.06
was of course important in your discussion of Mimi’s
culpability, discussed infra.) Elena’s conversation with Mimi should have
been discussed for its relevance to the culpability of each of the women for
the substantive crimes in the problem, for Mimi’s complicity under §2.06.
Burglary. There were a couple of
acts preceding Elena and Mimi’s entry of the basement room. First they entered Duka’s office while he was
a lunch and then removed the key from his desk.
A number of you suggested that the taking of key was a theft, and the
entry of his office a burglary. While
there is no suggestion that they had to break into his office in any way, going
into his desk for the key may well have been unlawful, but it was pretty
clearly incidental to their other acts, and insignificant as a “theft.” In order for this taking of the key to be a
crime in itself, the definitions of “deprive,” and “property” under 223.0 would
have to be parsed and distorted to an extent not worth the effort here.
Entering
the locked basement, however, was arguably a burglary, under § 221.1, given that they entered a “separately
secured…portion [of the building], with purpose to commit a crime
therein…” The nature of the crime
committed inside determines whether the burglary is a second or third degree
felony under § 221.1(2), and the additional crime must be at least a first or
second degree felony, or the burglary preceding it will merge with it and
cannot be charged separately. § 221.1(3). A number of you suggested that § 221.2,
criminal trespass, was the more appropriate charge, since it did not require a
purpose to commit another crime while in the prohibited area. Under (1), this would be only a petty
misdemeanor, which seems inappropriately light, given the mischief Angie
created while in the basement. Some of
you thought that entering the basement was probably conduct that Duka would
have been permitted or “licensed” (§ 221.1(1), but there are no facts to
justify this inference, and in any case, the two women had a criminal purpose
in mind, which surely would have cost them any license to enter the basement.
Causing or Risking
Catastrophe. This rather interesting crime, set out in §
220.2(1), occurs
when one “causes a catastrophe by…release of poison gas…causing potentially
widespread injury or damage…,”and it constitutes a second degree felony if it
is done “purposely or knowingly.” While “catastrophe” is not defined separately, it is effectively
described by the words “widespread injury or damage.” It seems quite clear from her conversation
with Mimi that Elena had a “purpose” to cause some 200 of the city’s finest to
become “violently ill” with nausea and vomiting, as a way of avenging her mistreatment by Angie.
She
certainly “knew” that it was “practically certain” that releasing the gas into
the ductwork would cause such illness.
§
2.02(2)(b)(ii).
Causation is established quite
easily as well: The resulting illness of
the masses would not have occurred but for Elena’s act, § 2.03(1),
and the actual result was clearly within her purpose or contemplation. §
2.03(2). Since this is a second degree
felony, the burglary will
not merge with it. §
221.1(3). The more general offense of Criminal Mischief, under § 220.3(1)(a), is inappropriate here, since its arguably relevant
section deals only with damage to property,
not an issue here.
Assault. Here some 200 people suffered “bodily injury”,
under
§
210.0(2), as a result of their exposure to the gas Elena released into the
duct. § 211.1 (1) says that simple assault is committed if an actor
“purposely, knowingly or recklessly causes bodily injury…” Certainly that can
be proved here, but what about something more serious? An actor commits an aggravated assault if she “causes serious bodily injury, purposely, knowingly or recklessly,
…manifesting extreme indifference to the value of human life” §
211.1(2)(a); or, (b) “...purposely or knowingly causes bodily injury to another with a deadly
weapon.” § 210.0(3) defines “serious bodily injury” as “creat[ing] substantial risk of
death, or caus[ing]
protracted loss or impairment of the function of any bodily member or organ…” which seems not to
be the case here with respect to Angie and her 200 guests. But
aggravated assault may be proved with only “bodily
injury” as the result, if the actor used a “deadly weapon,” defined in §
210.0(4) as “any…material or substance…animate or inanimate, which…is known to
be capable of producing death or serious bodily injury.” Certainly this nauseamus oxide was “known to be capable of producing death or serious
bodily injury,” as the police chemist has indicated.
Must
Elena herself have known of this
capability? The statute doesn’t seem to
require that, and Elena may have a viable defense of ignorance, or mistake,
under § 2.04, if her claim to have known only that the substance would cause
vomiting is believable to a jury. Of
course, the fact that she has a chemistry background ups the ante a bit on what
she may be held to have known.
Nevertheless, she may claim that her ignorance of the capability of the
gas to cause death or great bodily harm (making it a deadly weapon) would
“negative the purpose…required to establish a material element of the
offense.”
§
2.04(1)(a).
Since minimum requirements of culpability are that the applicable mens
rea for any given offense must be found for
each material element of that offense, § 2.02(1), Elena may argue that she should not be convicted
of “purposely” committing an offense requiring a “deadly weapon” unless she in
fact knew the substance she used had that
characteristic. According to her, it was
“totally safe.” It would make people
vomit, but it had no lasting effects.
It
would seem that this third degree felony aggravated assault should be
charged, rather than the misdemeanor simple assault,
given the whole
situation here, but however you came out on this, you
should have discussed the options relating to the victims at the “fantasia,”
with careful reference to the statutory definitions and requirements for each
possible charge.
A
number of you suggested § 211.2, misdemeanor Reckless Endangering, as an appropriate charge here. This offense requires that the actor act
“recklessly,” that is, “consciously disregarding a substantial, unjustifiable
risk…” in engaging in conduct that
places or may place another person in danger of death or serious bodily
harm. This may be fairly easy to prove,
but it may be too lenient for the circumstances.
Criminal Homicide. The most serious
result here, of course, was the death of Mrs. McNerney from her exposure to the
gas that leaked into her dentist’s office, adjacent to Angie’s shop. Certainly, Elena did not have a purpose to
cause the death of Mrs. M, ruling out murder
under § 210.2, unless, under (b) Elena acted “recklessly…[with] extreme
indifference to the value of human life….”
This kind of very extreme recklessness seems unlikely here
.
Perhaps
§ 210.3 Manslaughter ? Was this death caused by Elena’s “recklessness”
(ie without “extreme indifference to human life”). First, did she “consciously disregard a
substantial and unjustifiable risk” that this substance would not stay confined
to the duct leading to Angie’s shop? Probably. Did she
“consciously disregard a substantial and unjustifiable risk” that it could
cause death? She claims she had no
knowledge of such risk to “consciously disregard” and thus did not act recklessly with respect to the result
here. She might assert her ignorance as
a partial defense, under § 2.04(2), or even assert a failure of causation,
under § 2.03, arguing
that “recklessness” is not established
if the actual result (death of Mrs. M) was “not within the risk of which she
was aware.” § 2.03(3). Some of you reasonably
argued, however, that knowing and intending to make 200 people “violently ill,”
she had to know that there was a
substantial risk that someone would become so
ill, that he or she might die.
It
may be the case, however, that this death is best charged as a
§
210.4 negligent homicide, caused by
one who “should have been aware of the substantial and unjustifiable risk” of
releasing this substance into the building’s ductwork,
and of the possibility that it could cause death, but was not, where the
failure to perceive that risk was a “gross deviation....” The defense of ignorance under § 2.04(2)
would not protect Elena from the results of her negligence, even if she was not acting with recklessness under the
statute. Nor could she succeed with a
lack causation argument, as the actual result (death of Mrs. M.) was “within
the risk of which she should have been aware.”
Whichever
degree of homicide you ultimately decided should be charged here,
you should have discussed all the various possibilities,
again with careful attention to the specific statutory requirements and the
facts of the case, in order to adequately explain your conclusions.
Mimi. Finally, you should have discussed Mimi’s
responsibility here for her role in these various crimes. Many of you gave this discussion very short
shrift, failing to distinguish between the various crimes and Mimi’s level of
culpability for each. In general, of
course, she is “accountable” for Elena’s criminal acts, under § 2.06(1), if she is (c) an
accomplice, and she is an accomplice if (3)(a) with the “purpose of
facilitating commission of the offense,” she “(ii)…aids …in committing”
it. Certainly her conversation with
Elena and her subsequent role as lookout in the basement reveal that she is an
accomplice as to the burglary, the assault, and the catastrophe caused to the
200 guests at the “fantasia.” It is for
the death of Mrs. M. that Mimi’s responsibility might be different from
Elena’s.
Under
§ 2.06(4), Mimi is an accomplice to a result
if she acts with the kind of culpability, relative to that result, that is
enough for the commission of the offense.
In other words, if she acted with recklessness or negligence regarding
the death, she will be as responsible for that result as Elena is. You
should have considered that Mimi did not have the chemistry background Elena
had. When Elena (who probably should have known better) told her the
gas was not truly dangerous to life, there may be a question whether Mimi’s
failure to appreciate the risks was a “gross deviation” (as it certainly was
for Elena) sufficient
to make her guilty of negligent homicide along with Elena. (She probably has a very good defense to
manslaughter liability, as she presumably had no reason to disbelieve Elena’s
assertion or otherwise to know about the lethal quality of the gas, and thus could
not be said to have “disregarded a conscious risk.”)
And
finally, with respect to the catastrophe, Mimi may well be guilty not just as
an accomplice to Elena in causing it, but also of her own failure to prevent it, under § 220.2(3), since she “did or assented to the act [that
caused] the catastrophe.”
[The Facts of the
Problem follow]:
Criminal
Law § 1 Exam – Fall,
2002:
Facts:
On Grand Avenue, a
long, attractive retail street in the city of St. Andrew, situated among the many
shops, offices, and restaurants, there is a small, relatively new, indoor
shopping mall, consisting of only six small rental spaces, three on the east
and three on the west, a narrow hall running the length of the building between
the two areas, and a tiny office at the back for the landlord. Each of the rental spaces is fully enclosed,
but all are contained within the larger building, named, rather hopefully,
“GrandPlex,” by Veshengo Duka, the owner.
At the time of these events, “GrandPlex” comprised three boutique
jewelry stores, a small dental office, and two empty spaces, still available
for lease.
The
jewelry store on the east side of the building had been the first space to be
leased, and its tenant was a highly experienced jeweler named Angie, known in
St. Andrew as a shrewd and skillful gold and diamond dealer. Next came Elena,
more artisan than jeweler, who specialized in hammered silver creations of her
own design. She took the space on the
west side of the building, directly across the hall from Angie. Within mere weeks, there was fierce rivalry
between the two, who kept their relations cordial, but very cool. A number of months later, the space next to
Elena was leased to Mimi, yet another jeweler, young
and inexperienced, but eager to establish herself as a reliable source of good
quality costume jewelry and mid-priced watches.
For many months there were no other tenants, and finally, in some
desperation, Duka leased the east side space next to Angie to a solo-practicing
dentist named Bud. (Needless to say, Bud
was somewhat out of place in Duka’s vision of what GrandPlex would be, but at
least he paid the rent on time. Bud, of
course, loved the new situation.)
One
crisp fall day, Angie stepped across the hall and made a rare appearance at
Elena’s shop, where she cast her eye on an elaborate silver bracelet that Elena
had designed and made. “You’re doing
well, Elena,” said Angie, unctuously, “and this is a particularly nice
piece. What are you asking for it?” Somewhat wary, Elena replied that she was
expecting to get $1,500 for the bracelet.
“Several people have expressed interest…” she added. “I tell you what,” said Angie, “I have a gold
and ruby bracelet in my shop that’s worth $3,000, and you can easily ask $4,000
for it. I’ll trade it to you for this
one. Come have a look.” Though skeptical, Elena put a “Be right
Back!” sign on her door and followed Angie into her store. There, Angie handed Elena the bracelet, which
Elena had to admit was quite beautiful and unusual. Knowing very little about gemstones, however,
she hesitated. “I really don’t know …I
spent weeks on that silver bracelet. I’d
really want to have someone appraise this one before I’d give up mine.” “Look,” said Angie, “I have the receipt and
appraisal from the dealer I bought it from.
I’ll go get it for you. You’ll
see that this is a very good trade I’m offering.” Angie slipped into a little alcove at the
back of her store and, out of Elena’s sight, she
withdrew the receipt for the gold bracelet from her desk. In fact, the bracelet had been valued at only
$300; though it was of unique design, it was not solid, but only gold-filled,
and the stones were not rubies at all, but common crystals. With a black pen, Angie carefully added a
zero to the amount on the receipt, and added the appropriate comma, so the appraisal
read “$3,000.” She stepped back out into
the room and handed the slip to Elena, who, though still wary, decided it was
too good a deal to pass up. She made the
trade.
Next, Angie made an even rarer
appearance in Mimi’s store, a “funky, new age pit” (Angie had been heard to
say). Though Mimi and Elena had become friends, Mimi found Angie completely intimidating. The two barely spoke (except when Angie said
something gratuitously unkind about Mimi’s taste in jewelry). Now, Mimi was nervous about the unexpected
visit. Angie had noticed that Mimi did
have one attractive item in her window in the hall, a watch that Mimi was
selling for $300. Angie wanted to give
it to her niece. “I want that watch,
Mimi,” Angie announced without even a greeting. “I’ll give you 50 bucks for it.” “Well, you can’t have it, Angie,” Mimi
said. “It’s worth five times that, and
it’s not your kind of thing anyway.”
“Listen to me, Mimi,” said Angie, menacingly, “If you don’t sell that
watch to me for $50
right
now,
I’ll tell Duka why you are always late with your rent. I’ll tell him about your little gambling
problem. You know how he’s always
talking about ‘degenerate gamblers.’
He’ll evict you faster than you can say ‘pull tab.’ ” Mimi, who in fact did have a gambling problem,
knew what Angie said was true.
Mimi angrily handed over the watch and took the $50.00.
A
few weeks later, Elena discovered the true value of the bracelet Angie had
traded to her, and she decided to get even.
Elena had worked as an apprentice chemist in college, and she knew how
to mix a simple liquid compound that, if left uncovered, would evaporate in 3 or 4 hours,
releasing a noxious gas, called nauseamous oxide. The gas would make anyone in its immediate
vicinity violently ill, but the effects were usually temporary. Elena decided to put the compound into the
ventilation duct leading to Angie’s shop.
She would do it on Friday. The
liquid would evaporate and release the gas just in time for Angie’s annual
holiday diamond show, the “Ice Fantasia” on Friday afternoon, an
invitation-only event, at which Angie had said some 200 of St. Andrew’s “most
important people” would be present. It
would be perfect.
At
lunch that day, Elena and Mimi talked about their mutual loathing of Angie, and
seethed over her various treacheries to them.
Then Elena revealed her plan to Mimi:
“You’ve got to help me, Mimi. I
need to get into the basement and find the right vent duct; it might take me a
few minutes. You have to keep a lookout
for Duka.” “I don’t know, Elena,” said
Mimi. “I hate Angie as much as you do,
but I’m nervous about this. Are you sure
the gas is safe? And can you keep it in
Angie’s store?” “Don’t worry, Mimi,”
said Elena. “It’s totally safe; it makes you puke,
but that’s all. And the ductwork in this
building is completely separate for each of the spaces. I just need to find the one for
Angie’s.” Somewhat reluctantly, Mimi
agreed, and the following Friday, an hour or so before Angie’s gathering, Elena
surreptitiously removed the key to the locked basement from Duka’s desk while he was at lunch. The two women crept into the basement and
closed the door, leaving it open just a crack, so Mimi could watch the stairs
for Duka’s return. Elena searched for
the right ventilation duct, finding it within minutes. She uncapped the liquid she’d prepared and
set it inside the duct leading to Angie’s shop.
She and Mimi then left the basement, locked the door behind them,
carefully returned the key to Duka’s desk and went to Starbuck’s across the
street for a couple of “skinny, harmless” lattés, to await, with glee, the mass
exodus from Angie’s shop.
As
expected, there were 200 or more people (fortunately, mostly “x-ray” thin),
crammed into Angie’s store, drinking non-fat eggnog and drooling over the
diamonds. After an hour or so, they
began to get sick. One by one, the guests turned slightly green and ran from
the store. Angie herself became violently
ill, and the Fantasia was a complete disaster.
In fact, it was an even greater disaster than Elena and Mimi
realized. The gas did not stay confined
to Angie’s store, but leaked over into Bud’s dental office, where Bud was
laboring over elderly Mrs. McNerney’s bridgework. Although Bud became a little ill and had to
excuse himself for a few minutes (“something I ate, no doubt”), poor Mrs. McNerney was not so
fortunate. While Bud was out of the
room, she went into anaphylactic shock and died.
Mimi
is horrified about what happened, and she has told the whole story to the police. The police chemist has said that the compound
Elena prepared does, in fact, create a noxious gas when it evaporates. It is not, however, harmless, as “any chemist
knows”, but is well-known to produce anaphylactic reactions in otherwise
healthy people, causing their lungs to flood and
killing
them quickly unless they receive immediate emergency care. The substance is especially likely to cause
such a reaction in an elderly person.
The chemist has told the police that, while Mrs. McNerney was the only
such victim here, the situation could have been vastly worse. It was pure luck that the gas did not leak
out and do further damage, as even in the open air, susceptible individuals
have suffered reactions to it and died suddenly.
You are an