My criminal law professor has some old exams on file in the library but does not have any model answers. I have copied one of his exam questions below along with my answer. Is there anything big that I'm missing?
[The following problem takes place in a jurisdiction which has codified the common law crimes and defenses]
Adams and Bates were professors at a law school connected to a university renowned for its football team but not its faculty salaries. Finding themselves in need of extra money to support their families, Adams and Bates agreed to assist one another in a scheme of “moonlighting” which consisted of burglarizing the home of the football coach “Bear” Hayes. (Adams and Bates taught courses in the tax area).
On the night designated for the burglary, Adams and Bates met at Ralph’s Bar and Grill because Bates wanted to have a few drinks in order to “get up his nerve.” (Apart from teaching tax law, this was the first criminal venture for either Adams or Bates). Bates became inebriated, his nerve increasing with each drink. When Bates became sufficiently encouraged by his liquid intake, he and Adams set out for the home of “Bear” Hayes.
Upon reaching their destination, Bates fumbled, somewhat noisily with a window in the back of Bear Hayes’s home. Bates finally opened the window and was boosted inside the house by Adams who remained outside. Upon entering the house Bates, who was virtually unconscious from the effects of the alcohol, was surprised by “Bear” Hayes who, having heard the noise at the window, was waiting inside with his deer rifle for Bates. Hayes said, “stop of I’ll shoot.” Bates staggered towards Hayes and Hays fired at Bates but missed his target. The bullet instead struck Mrs. Hayes in the chest, seriously wounding her. (Mrs. Hayes had stepped into the room to investigate the noise at the very moment she was struck by the bullet). Hayes immediately fired another shot, this time hitting Bates in the chest also seriously wounding him. Before collapsing on the floor, Bates manages to swing his fist at Hayes causing him to jump backward, trip over a chair and “pull a hamstring.”
Hayes then called the police and an ambulance was sent to take Bates and Mrs. Hayes, both bleeding heavily from their wounds, to the hospital.
As fate would have it, the ambulance driver happened to be a former law student, who was driving ambulance instead of practicing law because of failure to maintain sufficiently high grades in law school. The ambulance driver had received his two lowest grades in courses taught by Bates. Remembering this experience with Bates with bitterness, the driver informed “Bear” Hayes that the ambulance was only large enough to take one person. The “Bear” pondered for some time before advising the driver to take Mrs. Hayes and come back later for Bates. In fact, the ambulance could have accommodated both Bates and Mrs. Hayes and the driver had often taken two such patients at once in the past.
Five minutes after the ambulance sped off, Bates died.
When the ambulance carrying Mrs. Hayes reached the hospital (a four minute trip from the scene of the shootings) she was rushed to surgery. On the way to the emergency room, Dr. Jay, the intern on duty at the time, noticed a tag around Mrs. Hayes neck which indicated that she possessed blood type “XY negative” a very rare type of blood. As Dr. Jay was about to begin surgery on Mrs. Hayes, the Dr. remembered that two patients in the hospital, Max Miller and his son, Junior, required four pints of type “XY negative” blood for transfusions, or both Max and Junior would die within hours. But if four pints of “XY negative” blood could be provided, the lives of Max and Junior could very well be saved. Dr. Jay know that the hospital’s supply of “XY negative” blood had been completely exhausted and there was no reasonable chance of obtaining a new supply in time to benefit Max and Junior.
With all this in mind, Dr. Jay ordered the surgery stopped on Mrs. Hayes and the blood gushing from he wound collected for use in transfusions for Max and Junior. Dr. Jay knew this action would almost certainly be fatal to Mrs. Hayes while if the surgery were continued she would have an excellent chance for recovery.
During the process of collecting four pints of blood from Mrs. Hayes, she died. Max and Junior were immediately given transfusions but they also expired a few hours later (Tests of Mrs. Hayes’s blood later revealed that her blood was type “O positive.”)
Adams is charged with:
(1) Burglary,
(2) Assault on Hayes, and
(3) Murder of Mrs. Hayes and Bates.
Discuss the theory or theories of liability under each of the crimes charged as well as any defenses to the crimes which Adams may have. How will the various actions against Adams be resolved? Are these results sound as a matter of policy?
My answer:
Since Adams was not the principle actor in any of the crimes with which he is charged, it would only be possible to find him culpable under the doctrine of conspiracy. At common law, conspiracy is the acting of two or more people in consort to achieve some objectionable, although not necessarily illegal purpose. The Model Penal Code revises this definition somewhat in that it requires that the goal of the conspiracy be a crime and recognizes that it is possible for a unilateral conspiracy to exist, where one believes that others are conspiring with him but are, in fact, not doing so. In order to prove a conspiracy, most jurisdictions require some sort of overt act, an act that demonstrates a conspiracy is afoot. This overt act need not be criminal itself, nor need it rise to the level of a substantial step as is required in proving attempt. Finally, under the Pinkerton Doctrine, all conspirators can be held culpable for all substantive crimes committed by any of the co-conspirators in the furtherance of the conspiracy.
There is little doubt that Bates and Adams entered into a conspiracy to burglarize the home of Mr. Hayes. There is evidence to suggest that the two conspirators had a meeting of the minds about their intended crime, meeting both the common law and Model Penal Code definitions of conspiracy. There was certainly an overt act, in this case, the two conspirators meeting at a pre-arranged time and place to prepare for the furtherance of their crime is probably sufficient. Under the Pinkerton Doctrine, as a co-conspirator, Adams may be held accountable for all of the crimes committed by himself or Bates in the furtherance of the conspiracy to burglarize Hayes’ house.
Adams has been charged with burglary. This charge is unlikely to stand. Burglary at common law is the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. Adams did not enter Hayes’ house and therefore cannot be guilty of burglary under his own actions. To be culpable, it would have to be as a co-conspirator and thus Bates must have met the elements of burglary. This is not possible. Burglary is an inchoate crime, that is, breaking and entering with the specific intent to commit a felony. Since burglary is a specific intent crime, Bates is entitled to an intoxication defense at common law. Voluntary intoxication is never a defense to crimes of general intent but may be raised a defense to crimes of specific intent, as is the case here. If Bates’ intoxication prevented him from being able to form the specific intent required for burglary, then ha cannot be guilty of the crime. If Bates is not guilty of burglary, then, as a conspirator, Adams cannot be guilty of the crime either.
Adams is charged with assault against Hayes. Again, Adams’ culpability would lie in his culpability as a conspirator with Bates. Assault at common law is an intentional act causing the apprehension of harmful conduct to another. When Bates swung his fist at Hayes, he probably committed assault at common law, even though Bates failed to make contact with Hayes. Assault is a crime of general intent and therefore Bates is not entitled to an intoxication defense because, at common law, voluntary intoxication does not negate general intent. Adams may be guilty of assault against Hayes unless the merger doctrine applies which prevents one charged with felony murder from also being charged with felony assault because it is impossible to have a murder without an assault.
Bates is charged with the murder of Mrs. Hayes. This charge will also probably not stand. Murder is defined, at common law, as the unlawful taking of a human life, often with malice aforethought. Since Bates did not fire the fatal shot, his culpability is again predicated on his culpability as a conspirator with Adams. Adams’ possible guilt is based on the felony murder doctrine. Under the proximate cause theory, any death caused during the commission of a felony is chargeable as felony murder. Thus, even though Mr. Hays actually fired the shot the eventually killed his wife, Adams could be culpable for her murder as would Bates under conspiracy liability. There are a number of problems with this theory, however. A more restrictive model of felony murder, the agency model, would defeat such a charge since the shot that eventually killed Mrs. Hayes was not fired by a felon or co-felon. In addition, it is possible that Bates (and by extension Adams) is not guilty of felony murder because the killings did not occur while a felony was being committed. If Bates is not guilty of burglary by means of an intoxication defense negating his specific intent, there was no felony and therefore felony murder is not possible. The final consideration for Bates’ (and Adams’) culpability is whether his actions were the but-for cause of Mrs. Hayes’ death. Mr. Hayes, the ambulance driver, and the doctor at the hospital may have had a legal duty to act in preventing Mrs. Hayes’ death and the failure of any one of them to execute their legal duty would have become the but-for cause of her death. In this case, Mr. Hayes clearly had a duty to act as Mrs. Hayes’ husband. By summoning help for Mrs. Hayes, he probably fulfilled his legal obligation. Both the ambulance driver and the doctor may have had duties imposed by statute, contract or voluntary imposition. The doctor’s choice to withhold the life-saving surgery is almost certainly a violation of a legally imposed duty and became the but-for cause in Mrs. Hayes’ death.
The analysis of Adams’ culpability for Bates’ death is similar to the analysis of Mrs. Hayes’ death. There is the possibility that felony murder might apply, but it is unlikely. There is also a question if Mr. Hayes’ shot was the but-for cause of Bates’ death and if Mr. Hayes or anyone else had a legal obligation act on behalf of Bates. Mr. Hayes’ may not have been obligated to act but the ambulance driver may have been obligated by statute, contract, or assumption. The ambulance driver’s refusal to provide care to Bates may have become the cut-for cause of his death and may absolve Adams of any culpability.
I am not certain that results are sound as a matter of policy. It seems that Adams is not likely to be found guilty of anything more than assault solely on the basis of Bates’ intoxication. Adams was involved in all steps of the planning and execution of this conspiracy and by the mere fortitude that he did not enter Hayes’ house, he is likely to receive substantially less punishment than is deserved for the crimes that resulted, at least in part, from his actions.
