ESSAY QUESTION

OUTLINE OF ISSUES

I. Attempted robbery of Ed

A. Specific intent to commit all elements of robbery?

1. D’s words would seem to indicate no more than larceny.

2. But he immediately followed words by getting gun, which tends to show he intended to take money from Ed by threat.

Fact that M might not know D got gun could be relevant to charge of conspiracy to rob, but is not relevant to attempted robbery by D.

3. D thought store was open, so he probably believed V was there, so they would have to use force or fear to get money.

4. They tried to rob V “instead” - which tends to show that they intended to rob E.

B. Acts beyond preparation? Did they commit a substantial step? Following MPC factors might apply, if “strongly corroborative” of criminal purpose:

1. D reconnoitered place of crime.

2. Possession of materials “specially designed” for robbery or which can serve no lawful purpose under the circumstances.

3. Searching for victim.

4. Possession of materials to be employed in crime at or near place contemplated for commission.

5. Soliciting innocent agent.

C. “Impossibility” — because Ed’s was closed? No, as this is mere factual impossibility.

II. Attempted murder of Vic?

A. Did M commit attempted murder of V?

1. Specific intent to kill?

a. May this be inferred from shot in shoulder?

b. Note that intent to commit serious bodily injury or depraved heart will not suffice.

2. Act beyond preparation? Clearly.

3. Self defense?

a. M reasonably believed V was about to kill M.

b. M reasonably believed M could not safely retreat from gun.

c. But M loses right to self defense because M was defending against lawful force by V (who was trying to prevent a felony - robbery).

B. Is D vicariously guilty of M’s crime? Two possible ways:

1. D conspired (impliedly agreed) with M to rob V, and attempted murder was foreseeable consequence of that crime. Pinkerton.

2. D was accomplice to M’s attempted robbery of V, and attempted murder was foreseeable consequence of that crime. Hampton.