ESSAY QUESTION

BEST STUDENT ANSWER

I. D’s attempted robbery of Ed

In order to sustain a conviction, there must be evidence that D, with the specific intent to commit robbery, took a substantial step beyond mere preparation.

INTENT

D’s intent must have been to commit the 1) trespassory, 2) taking and 3) carrying away of the 4) personal property of 5) another with 6) the intent to steal and where the taking was 7) accomplished by force or fear 8) from the person or presence of the victim.

It seems clear that D had the larcenous intent embodied in the first six elements of robbery. A reasonable finder of fact could conclude that his statement regarding Ed’s money evinced his intent in this regard. It is less clear that D intended to get Ed’s money by the use of force or fear of force or from his person. However, there appears to be sufficient circumstantial evidence to infer this intent. From D’s later statements, it is clear that he thought that Ed’s Liquors was open so he intended to take Ed’s money from the person or presence of whoever was working at the store. In addition, the fact that D took a pistol from his desk and put it in his pocket, is strong circumstantial evidence that D envisioned the need to use force or fear to take Ed’s money and was prepared to do so. There seems to be little difficulty with the intent element of D’s attempted robbery of Ed.

ACT

D must also have taken a substantial step beyond mere preparation. Under the MPC approach, D clearly did so. Any act that is highly corroborative of D’s criminal intent is enough to satisfy the act element under the MPC. In addition, the MPC lists several acts that are very strongly presumed to be substantial steps. D took at least two of these actions: He solicited help from M and he collected materials to be used in the commission of the crime (the gun). He also drove toward Ed’s. Under the MPC approach, D clearly took a substantial step.

The defense may argue that under other formulations of the substantial step test, D is not guilty. Namely, if one were to use the proximity test, one might have a harder time with this element because D was “about a mile away” from Ed’s store when the ‘attempt’ ceased. On the other hand, our jurisdiction appears to have adopted the MPC approach. In addition the POLICY behind punishing an attempt in the first place is better served by the MPC ‘highly corraborative’ test. Attempts are punished because, while the harm of the underlying crime has not materialized, the defendant has demonstrated that he is willing to carry through with criminal acts and is therefore fit for isolation. The test for a substantial step should then seek to separate the dreamers from the doers. The MPC test does this more effectively (for example, in our case, D is clearly a doer-someone who robs liquor stores – and the fact that he was a mile away from the store should have nothing to do with anything).

DEFENSES?

D will argue that he could not have attempted to rob Ed’s because it was actually closed and therefore robbery was impossible.

This defense should fail. Using the confused terminology of some courts, D would be raising a defense of ‘factual impossibility,’ most courts hold that factual impossibility is no defense. Regardless of the label, it seems clear that the purpose of having an attempt crime is better served by treating claims of ‘impossibility’ as mistakes. A mistake of fact would only be helpful to d if it negated the mens rea required for the crime. Here, D’s mistake of fact was the belief that Ed’s was open and therefore ripe for a robbery. This mistake clearly does not negate D’s intent (in fact it helps to prove his intent). As stated above, if attempts are punished to isolate the ‘doers’ clearly D’s mistaken belief that the liquor store was open should be no defense.

CONCLUSION

It seems that there is more than sufficient evidence to sustain a conviction of D for attempted robbery.

II. D’s attempted murder of V.

Since D personally took no actions which could be construed as an attempted murder of V, he can only be vicariously liable for M’s attempted murder of V.

M’s ATTEMPTED MURDER OF V

For M to be guilty, wit the intent to kill V, M must have taken a substantial step. It is important to note that only intent-to-kill-murder will suffice for attempted murder. (one cannot logically attempt depraved heart murder or FM because those crimes by definition are unintended).

INTENT

There is no direct evidence that intended to kill V when he shot him in the shoulder. On the other hand, a jury can infer that one intends the natural and probable consequences of his acts (smallwood). It seems that a jury could find that among the natural and probable consequences of shooting someone in the shoulder is death. As compared to smallwood, the probability of death from M’s shooting a person seems very much greater than the probability of someone dying from HIV infection transmitted during a rape. This is, of course, the deadly weapon doctrine. However, M may argue that the fact that he shot V in the shoulder instead of the face or heart, proved that he only intended to wound V. Absent evidence that M was an expert marksman and exceptionally cool under pressure, it seems unlikely that this argument would succeed.

However this is a close issue but on balance, it seems there is enough evidence for a rational finder of fact to conclude that M intended V’s death.

ACT

Clearly, M took a substantial step: he shot V!

DEFENSES

M will raise self-defense to justify his shooting of V. If M can show that he had 1) a reasonable apprehension of an imminent unlawful attack, 2) that M’s purpose in using force was to forestall the attack, 3) that M used only reasonably necessary force and 4) that M was under no duty to retreat, then M has a defense.

M probably had a reasonable fear of imminent deadly attack (Vic was about to fire again). However, the force used by V may have been lawful (and therefore M could not use force to stop it). V’s force was arguably used in self-defense or in prevention of a felony. If V reasonably feared for his life or was trying to stop M from committing an atrocious felony (which armed robbery clearly is), then V’s force was lawful.

M will try to argue that V’s shooting twice –actually V only fired once and missed but was preparing to fire again—was excessive (and therefore unlawful) force in response to M’s threat. This is a close issue, but since V probably reasonably feared for his life even after missing with his first shot, there is probably evidence to show that V’s force was lawful. Since V’s force was lawful, M had no privilege to use any force to defend against it so he is probably guilty of attempted murder.

D’s VICARIOUS LIABILITY FOR M’s ATTEMPTED MURDER

Whether we classify D and M as co-conspirators or as accomplices, under the Pinkerton or Hampton rules D would be liable for any crimes committed by M in furtherance of their criminal objectives, where those crimes were foreseeable.

WERE D & M IN A CONSPIRACY OR IN AN ACCOMPLICE RELATIONSHIP TO MURDER V?

There was no conspiracy to murder or attempt to murder V. For a conspiracy to commit murder, D &M must have 1) had the intent to commit murder, 2) agreed to commit murder and 3) done an overt act (at least one party must have done an overt act). D and M clearly did not agree to murder V. In fact, D never had any intent to kill V according to the evidence.

Likewise, D was not an accomplice in M’s attempted murder of V because D did neither know that M would shoot V or intend/desire that he do so.

CONSPIRACY BETWEEN D & M TO ROB V

There is sufficient evidence to show a conspiracy (or at least an accomplice relationship) to rob V.

When Mike suggested that ‘let’s get that guy’ and D pulled over and handed him a gun, all of the elements for a conspiracy were met. Both D and M evinced an intent to commit a trespassory taking and carrying away of the personal property of another with intent to steal from V’s person by the use of force/fear. The agreement is clear. The overt act is clear (pulling over, passing the gun, actually pointing it at V, etc...)

D may argue that the ‘agreement’ was not a ‘prior agreement’ and that it was a spontaneous coming together. On the other hand, there is no requirement (statutory or otherwise) that the agreement for a conspiracy exist for any particular length of time. On principal, there’s no reason an on-the-spot agreement can’t be a conspiracy. Given the POLICY reasons behind the crime (punishing criminal agreements separately because of the special dangers of criminal groups: division of labor, training/facilitation of future criminal acts, etc...) it seems that D & M’s on-the-spot agreement should count as a conspiracy.

Even if the agreement does not suffice for a conspiracy, D & M are clearly accomplices in the attempted robbery of V. They both shared an intent to rob V. And D’s act of giving a gun to M is certainly the type of aid that will suffice to make him an accomplice.

D’s LIABILITY FOR M’s CRIMES APART FROM ROBBERY

Under either the Pinkerton or Hampton rule, D is vicariously liable for any crimes committed by M that were 1) committed in furtherance of their venture and 2) foreseeable.

The defense may argue that M’s shooting of V was an independent act by MN that was not in furtherance of the attempted robbery. However, in the case where the defendant was the getaway driver at a gas station held up and the gunman seemingly shot the clerk out of anger after not retrieving any money, the defendant was found guilty (on remand) because the gunman’s act was considered to be in the furtherance of the gas station robbery. Similarly, M’s shooting of V would seem to be in the furtherance of the attempted robbery here. A robbery continues until the defendants have reached a place of temporary safety. Clearly D and M had not done so here.

Finally, it is highly probable that a court would find M’s shooting of V to be a foreseeable consequence of the attempted robbery. It is almost paradigmatic that one can foresee the use of a gun to aid escape when one’s accomplice or co-conspirator takes a gun to a robbery.

CONCLUSION

There appears to be sufficient evidence to sustain a conviction of both counts against D.

Happy holidays.