Handout #6

Question 1

Solicitation

Answer 1

(1) Person asks another to commit a crime
(2) SI that the crime occurs
(voluntary intoxication a defense to solicitation(yes))

The crime is complete when request is made by one party and received by the solicited party (even if the party does not act) (MPC)

Question 2

State v. Guffey

Answer 2

Illegal: YES(taking an animal out of season)
Fact or legal? FACT(He took a stuffed deer or for a live wolf)
Fantasy or Mistake? MISTAKE
Courts holding: Not an attempt b/c its not illegal to shoot at a stuffed deer (LEGAL IM)

Question 3

People v. Jaffe

Answer 3

Illegal? YES. Receving stolen property is illegal
Fact/legal? FACT
Fantasy/Mistake? MISTAKE
Holding: An attempt

Question 4

State v. Mitchell

Answer 4

Fact/legal? FACT( Thought the pillow were a person)
Mistake or Fantasy? MISTAKE(reasonable person would think there was a person)
Holding: Attempt

Question 5

Solicitation nullification

Answer 5

ALL JX allow nullification by at least one of these approaches

(1) Prevent solicited party form completing target offense
(2) Renounce request to the solicited party prior to the target offense
(3) Alert police prior to commencement of the target offense

If no nullify, then the solicitor committed for three offenses (1) Solicitation (2) conspiracy (3) Target offense
BUT CANNOT be punished for all three

Question 6

People v. Dlugash (NY)

Answer 6

Facts:
Dlugash and Bush hanging with Geller, Drinking, Geller ask for rent money, Bush shot Geler 2X in heart, then Dlugash shot Geller 5X in face, then Bush got rid of guns, and both went upstate for 5 days.

Procedure:
Trail court level:
- Indicted 1 count of murder by Grand jury and went to trial
-BUT trail court refused the aiding and abetting theory
but instead, submitted two theories of (1) murder (2) Attempted murder (jury find him guilty of murder)

Medical expert testimony:
-Unsure if the body was dead or alive

Appellate court:

• Reverses Dlugash conviction of murder and dismisses indictment
• Prosecutor failed to prove Geller was alive beyond a reasonable dought
• Cannot modify to attempted murder b/c he thought he was dead

High Court Level:

• Orders appellate court to modify verdict for murder to attempted murder b/c the trail jury found that he thought intended to kill/SI a living human.
• Evidence: (1) why shoot a dead guy in the head 5 times (2) Dlugash didnt report crime to police (3) Helped Bush conceal evidence (4) He got up and shot Geller voluntarily

HOLDING:
(Justice JASEN) : Reinstate conviction for attempted murder in the appellate court, high court affirm.
-Trail court had 3 scenarios from prosecutor; (1) Accomplice(not instructed thus thrown out) (2) Murder (3) Attempt murder
-Not murer b/c prosecutor didnt prove beyond a reasonable doubt that Geller was a live
-Can be an attempt if Dlugash thought geller was alive. Trail court convicted him for murder, jury thought geller was alive.

Question 7

Solicitor vs. Solicited Party

Answer 7

The solicited party never commits crime=solicitor commits solicitation

The solicited party has no intention to complete the crime = solicitor commits solicitation, no SI for the party

Solicitor cannot nullify request after the completed crime

Question 8

People v. Dlugash (NY)

Answer 8

Facts:
Dlugash and Bush hanging with Geller, Drinking, Geller ask for rent money, Bush shot Geler 2X in heart, then Dlugash shot Geller 5X in face, then Bush got rid of guns, and both went upstate for 5 days.

Procedure:
Trail court level:
- Indicted 1 count of murder by Grand jury and went to trial
-BUT trail court refused the aiding and abetting theory
but instead, submitted two theories of (1) murder (2) Attempted murder (jury find him guilty of murder)

Medical expert testimony:
-Unsure if the body was dead or alive

Appellate court:

• Reverses Dlugash conviction of murder and dismisses indictment
• Prosecutor failed to prove Geller was alive beyond a reasonable dought
• Cannot modify to attempted murder b/c he thought he was dead

High Court Level:

• Orders appellate court to modify verdict for murder to attempted murder b/c the trail jury found that he thought intended to kill/SI a living human.
• Evidence: (1) why shoot a dead guy in the head 5 times (2) Dlugash didnt report crime to police (3) Helped Bush conceal evidence (4) He got up and shot Geller voluntarily

HOLDING:
(Justice JASEN) : Reinstate conviction for attempted murder in the appellate court, high court affirm.
-Trail court had 3 scenarios from prosecutor; (1) Accomplice(not instructed thus thrown out) (2) Murder (3) Attempt murder
-Not murer b/c prosecutor didnt prove beyond a reasonable doubt that Geller was a live
-Can be an attempt if Dlugash thought geller was alive. Trail court convicted him for murder, jury thought geller was alive.

Question 9

Affirmative defense

Answer 9

“I admit that i did something wrong but i have this reason why i should be punished less or not punished at all”
-DEFENDANT Budren= PRODUCTION + PERSUASION
(Same applied to duress)

Question 10

Denial

Answer 10

“I didn’t do anything wrong”
-DEFENDANT BURDEN=Production PROSECUTOR: Persuasion (beyond a reasonable doubt)
(same applies to duress)

Question 11

People v. Decker

Answer 11

Fac

Question 12

People v. Decker (CA)

Answer 12

Facts:
Decker wanted to kill sister, clear intent, called hitman, the first hitman set him up with another hitman(cop), Decker gave 2nd hitman all the info and & downpayment, decker arrested.

Procedure:
Preliminary hearing: Charge of solicitation and attempted murder
Decker; Motion to dismiss the attempt
Magistrate and trial court judges agreed to dismiss attempt charge
Prosector did interlocutory appeal (suing suprior court to do its job)
Appellate court did writ of mandate to reinstate the charge
Decker appeals to high court (doesnt want trial court to follow writ)

Question 13

People v. Decker (CA)

Answer 13

Facts:
Decker wanted to kill sister, clear intent, called hitman, the first hitman set him up with another hitman(cop), Decker gave 2nd hitman all the info and & downpayment, decker arrested.

Procedure:

(1) Preliminary hearing: Charge of solicitation and attempted murder
(2) Decker; Motion to dismiss the attempt
(3) Magistrate and trial court judges agreed to dismiss attempt charge b/c of lack of probable cause
(4) Prosector makes interlocutory appeal (suing superior court to do its job) b/c double J, if we wait then the only remedy is double J
(5) The appellate court did writ of mandate to reinstate the tow counts of attempted murder
(6) Decker appeals to the high court (doesnt want trial court to follow writ)

Question 14

Notes on probablity

Answer 14

Probable cause (criminal law legal standard justifoies all charges) = 50%
Reasonable suspicion=25%
Beyond reasonable doubt=Shy of 100%

Must a prosecutor present evidence sufficient to support a conviction at the preliminary examination. =NO

Question 15

Standard of review

Answer 15

Defer to trail court on disputed facts b/c trail court is the master of facts BUT when facts are undisputed, there is nothing to defer to, so the appellate court reviews DE NOVA

Note: The Decker cites Watson and applies the correct standard of review
BUT, Justice Bird cites Watson and disagrees with the standard of review

Question 16

Preparation v. Attempt

Answer 16

Preparation= devising or arranging the means or measures necessary for the commission of the offense

Attempt=Direct movement toward the commission after preparations are made

Question 17

People v. Decker the issue

Answer 17

Issue: Evidence showing Decker’s SI to kill is un-contradicted, the question is whether there was also a “direct, but ineffectual act toward accomplishing the intended killings”

• Does a direct but ineffectual act have to satisfy an element of the target offense(NO)
• Does the overt act have to be the final step toward the commission of the crime? (NO)

Majority: (Decker did everything he could do)
(Justice Baxter) : CA Sumpreme court finds sufficent evidence under “slight-act rule” to support attempted murder charges
-Decker handed the hitman money, shows SI and actually putting his plan to action
-Even though decker never pointed a gun, but did aim a armed hitman who agreed to commit the murder

The Defendant Cites to Adami case but Adami does not mention the CA “slight act rules”

Decker overt b/c his intent was specific and he did all things he needed to do to commit the crime

BUT: is an agreement ot kill followed by a down payment always sufficient to support a charge of attempted murder? -NO, ONLy the evidence at the preliminary examination was sufficent to HOKLD decker to answer for attempt

Dissent (Justice Werdegar) (Decker did eveything he could do)
-Liability is supposed to flow backwards b/c the sister was never in a real risk(NO direct and ineffectual:” actor , thus Deckers actions are mere preparation