Mixed Questions - Set 22 Flashcards
In a drug raid, police in a city searched 25 apartments selected at random in a 300-unit housing project. In a class action approved by the federal court, the 25 tenants sued the city for violation of their constitutional rights. The tenant named as class representative gave notice to all unnamed class members, including another tenant who decided not to opt out. The class action was then certified as a "common question" type. After negotiating with the class representative, the city police agreed to pay each tenant $500 and to conduct no further raids without proper warrants. The representative and the city signed a settlement agreement and a stipulation of dismissal of the class action. The other tenant objects to the amount of damages he is to receive and would rather opt out now and proceed on his own. May the tenant opt out now?
A Yes, because a class member of a “common question” class action always has the right to opt out.
B Yes, if the court allows the tenant a second opportunity to opt out.
C No, because the tenant did not opt out after receiving notice of the class action.
D No, if class certification was proper.
B
The tenant may opt out if the court allows class members a second opportunity to opt out. In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out. [Fed. R. Civ. P. 23(e)] (A) is incorrect because there are only two opt-out periods, with the initial notice and with the settlement agreement, and the latter only applies if the judge requires it. (C) is incorrect and reflects a prior version of Rule 23. (D) is incorrect for the reasons stated above.
A three-car accident occurred in a city in the Northern District of State A. The cars were driven by a citizen of State B who resides in the Southern District of State B, a citizen of State A who resides in the Southern District of State A, and a citizen of State C who resides in the Northern District of State C. The State B citizen filed a negligence action against the other two drivers in the United States District Court for the Southern District of State A. Although the two defendants believed that venue was improper, neither filed a pre-answer motion objecting to venue. They instead proceeded to file their answers, responding to the merits of the claim. The State C defendant, however, included in her answer a motion to dismiss the action for improper venue.
How should the court rule on the State C defendant’s motion to dismiss for improper venue?
A Deny the motion, because the defendants waived the defense of venue by not asserting it in a separate, pre-answer motion prior to filing their answers addressing the merits of the action.
B Deny the motion, because all defendants must object to venue before the court may dismiss on venue grounds.
C Deny the motion, because venue is proper.
D Grant the motion, because the motion is timely and venue is improper.
D
The court should grant the motion. Objections to venue may be raised in a defendant’s answer if the defendant did not assert a Rule 12(b) pre-answer motion, as is the case here. Venue here is improper because (i) none of the events giving rise to the claim occurred in the Southern District of State A, and (ii) all defendants do not reside in State A. (A) is incorrect because a defendant can object to venue in a pre-answer motion or in the answer. (B) is incorrect because all defendants do not have to object to venue before the court may dismiss the case on venue grounds. (C) is incorrect because venue is improper, as explained above.
A property owner conveyed commercial property in joint tenancy to his two daughters as a birthday present. The deed from the property owner to his daughters was never recorded. After a few years, the property owner no longer wished the daughters to control valuable commercial property, and so he demanded that they return the deed with which he conveyed the property to them. The daughters returned the deed, and the property owner destroyed it. The property owner then sold and conveyed the property to a third party. The jurisdiction’s recording act states the following: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”
If the third party brings a quiet title action and is successful, which of the following best explains this result?
A As owner of the property, the property owner was entitled to convey it to the third party.
B The daughters failed to record the deed they took from their father.
C The daughters failed to record their deed, and the third party was unaware of their interest when she paid the property owner market value for the property.
D The daughters failed to record their deed, the third party was unaware of their interest when she purchased the property, and the third party recorded her deed.
D
The third party’s success will be because the daughters failed to record their deed, the third party was unaware of their interest when she purchased the property, and the third party recorded her deed. When a deed is delivered, title passes to the grantee upon effective delivery. Therefore, returning the deed to the grantor has no effect; it constitutes neither a cancellation nor a reconveyance. A reconveyance requires the execution of a new deed. Thus, the property owner had no interest in the property that he purportedly conveyed to the third party, so (A) is wrong. However, if a grantee does not record her instrument, she may lose out against a subsequent bona fide purchaser. By recording, the grantee gives constructive (or “record”) notice to everyone. Hence, proper recording prevents anyone from becoming a subsequent BFP. There are three major types of recording acts, classified as “notice,” “race-notice,” and “race” statutes. Here, the statute is a race-notice statute because a subsequent BFP is protected only if she records before the prior grantee. The third party only wins if the daughters failed to record their deed, the third party was unaware of their interest when she bought the property, and the third party recorded her deed. (B) and (C) are incorrect because they do not contain every element necessary for the third party to prevail.
A brother and a sister each hold an undivided one-half interest in a tract of land. By the terms of their agreement, each has the right to possess all portions of the property and neither has the right to exclusive possession of any part. The brother wrongfully ousts the sister from the property.
What can the sister recover in an action against the brother?
A The fair rental value of the property for the time excluded.
B One-half of the fair rental value of the property for the time excluded.
C One-fourth of the fair rental value of the property for the time excluded.
D Nothing, because each co-tenant has the right to possess all portions of the property and neither has the right to exclusive possession of any part.
B
If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to receive her share of the fair rental value of the property for the time she was wrongfully deprived of possession. The sister was wrongfully ousted and therefore, as one of two co-tenants with the right to possess all portions of the property, she would be entitled to one-half of the fair rental value of the property during the period when she was ousted. (A) is incorrect because the sister is entitled only to her share (i.e., one-half) of the fair rental value. (C) is incorrect because it also misstates the share of rental value to which the sister is entitled. She is entitled to one-half, not one-fourth, of the fair rental value of the property. While (D) makes a correct statement, it addresses only the right of possession of the property. It is the share of ownership of the property, however, that determines the share of rents and profits. Because the sister owned an undivided one-half interest in the property, she is entitled to one-half of the fair rental value for the time she was excluded.
A truck driver is suing a car driver for injuries he suffered when their vehicles collided at an intersection controlled by stoplights. The truck driver called a witness to the accident to testify that he saw the driver of the car drive through a red light. On cross-examination, the car driver’s attorney asks the witness, “Isn’t it true that the car driver’s ex-wife is paying $500 for your testimony today?” The truck driver’s attorney objects.
Should the objection be overruled?
A Yes, because the question gives the witness an opportunity to explain or deny the allegation.
B Yes, because the question is a proper form of impeachment.
C No, because the question addresses a collateral issue.
D No, because it is a leading question.
B
The objection should be overruled. It is proper to impeach a witness by showing that the witness has a possible bias. Evidence that the witness is being paid to testify would be proper impeachment through bias. (A) states the requirement for introduction of a prior inconsistent statement; this is obviously inapplicable here. The credibility of a witness is not collateral, and so (C) is incorrect. Leading questions are proper on cross-examination; thus (D) is incorrect.
A plaintiff sued a defendant over a claimed debt. At the trial, the plaintiff established the existence of the debt and testified that he never received payment. In response, the defendant presents evidence sufficient to establish that she took her check to the post office and sent it to the plaintiff’s proper address by certified mail. The defendant offers a certified mail receipt with an illegible signature, which she claims is the plaintiff’s signature. The defendant also presents evidence that her basement flooded on March 28, and she claims that she cannot produce a canceled check because her box of canceled checks was destroyed from the water damage. Evidence is also presented that, due to a computer glitch, the defendant’s bank cannot reproduce her checking account records for the months of February and March.
After the defendant’s testimony, which of the following is correct?
A The burden of persuasion and the burden of going forward with the evidence are on the plaintiff.
B The burden of persuasion is on the plaintiff, but he has no burden of going forward with the evidence.
C The plaintiff has satisfied his burden of persuasion, but he has a burden of going forward with the evidence.
D The plaintiff has satisfied both his burden of persuasion and his burden of going forward with the evidence.
A
The burden of persuasion and the burden of going forward with the evidence are on the plaintiff because the defendant’s testimony raises a rebuttable presumption that the check had been delivered in the mail. The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives. The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Here, when the plaintiff made out a prima facie case of the defendant’s debt, the burden of going forward with the evidence shifted to the defendant. The defendant met this burden through the use of a presumption. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption. The defendant’s evidence regarding the proper posting of the check raises a rebuttable presumption that the check was delivered to the plaintiff because a letter shown to have been properly addressed, stamped, and mailed is presumed to have been delivered in the due course of mail. Therefore, the burden of going forward with the evidence has shifted back again to the plaintiff, who must now produce evidence to rebut the presumption (i.e., evidence that he did not receive the check). (B) is incorrect because, as discussed above, the defendant’s testimony raised a rebuttable presumption that the check was delivered in the mail, which shifted the burden of going forward with the evidence to the plaintiff. The fact that the plaintiff met his burden of going forward with the evidence of the debt once, when he made out his prima facie case, does not mean the burden cannot shift back to him. (C) is incorrect because the plaintiff has not satisfied his burden of persuasion. As discussed above, the burden of persuasion does not shift from party to party and is only a crucial factor when all the evidence is in. This burden is satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party. Because the defendant’s testimony raises a rebuttable presumption that the check was delivered to the plaintiff, the plaintiff’s burden of persuasion cannot be met until he offers evidence to prove that the check was not received (a necessary element of his case). (D) is incorrect because, as discussed above, the defendant’s testimony raised a rebuttable presumption of delivery of the check in the mail to the plaintiff, which shifted the burden of going forward with evidence of nondelivery back to the plaintiff. The plaintiff’s burden of persuasion cannot be satisfied until he comes forward with this evidence because a necessary element of his case is that the defendant never paid him.
A newly enacted federal law requires states to adopt a law banning texting while driving on interstate highways. Under the law, any state that does not enact such a law within three years will be denied 10% of the state’s allotment of federal highway construction funding.
What is the best argument that can be made in support of the constitutionality of this federal statute?
A A ban on texting while driving is a necessary and proper means of promoting the general welfare.
B The federal government can regulate the use of interstate highways under the Commerce Clause.
C The requirement is not unduly coercive and is related to making travel on highways safer.
D Accidents arising from texting while driving on highways have a substantial effect on interstate commerce.
C
The best argument is that the requirement is not unduly coercive and is related to making travel on highways safer. Congress may “regulate” states through the spending power by imposing conditions on the grant of money to state or local governments. Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions (i) are clearly stated; (ii) relate to the purpose of the program; and (iii) are not unduly coercive. Here, the condition is clearly stated and appears to be related to a goal of the highway program—safer highway travel. While there is not a brightline test for when a condition is unduly coercive, withholding just one-tenth of a state’s federal highway funds would likely be considered reasonable. Hence, (C) states the best argument in support of the statute. (A) is incorrect because Congress does not have a general power to legislate for the general welfare. The General Welfare Clause is part of Congress’s spending power - Congress has the power to spend money for the general welfare. The spending power does not give Congress power to pass laws for the general welfare, even when combined with the Necessary and Proper Clause (which gives Congress the power to adopt laws necessary and proper to enable any branch of the federal government to execute its powers). (B) is not the best argument because while Congress has the power to regulate highways under the Commerce Clause, that Clause does not give Congress the power to violate other provisions of the Constitution. Under Tenth Amendment principles, Congress does not have power to order states to adopt laws. Similarly, (D) is not the best argument because it is something that might be considered under the Commerce Clause. and as explained above, that is not a good basis for the law here. Moreover, if the commerce power were involved, Congress’s action would fall within its power to regulate the channels of interstate commerce and validity of the law would not rely on whether accidents have a substantial effect on interstate commerce.
Congress enacted legislation intended to protect children from unsafe car seats. The act established a commission to supervise the manufacturing and sale of car seats, and empowered the commission to promulgate car seat safety regulations. The commission members were also required to investigate safe and sound methods of installing child car seats. The commission’s chairperson was designated as an Undersecretary of Health and Safety; the President appointed two commissioners from child safety groups; and the three major car seat manufacturers chose one commissioner each, who were then appointed by Congress to the commission.
For its violation of the commission’s rules with regard to car seat manufacturing, a car seat manufacturer was fined $5,000, to be paid immediately without a trial on the merits. The manufacturer files suit in the federal court to enjoin the commission’s enforcement of this rule.
Which of these is the manufacturer’s best argument in support of its contention that the rule was illegal?
A Regulations concerning criminal conduct cannot be made by agency rules, but must be made by federal statute.
B The appointment of the commissioners was illegal; therefore, the rules promulgated by the commission are invalid.
C Because the fine was potentially $5,000 for violation of the rule, the manufacturer had a right to a trial by jury.
D The presumptive fine violated the manufacturer’s rights of equal protection as guaranteed by the Fourteenth Amendment.
B
The appointment of the commissioners was illegal. The Appointment Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement is an executive act; therefore, Congress cannot appoint its own members to the commission to exercise enforcement powers. A duly appointed commission does have the power to make rules and regulations governing the subject matter for which it is appointed. Those rules are not “criminal” statutes in this case. Thus, (A) is wrong. (C) is wrong because Congress may establish new public rights and actions that may be adjudicated by agencies, without juries. (D) is wrong because there is no actionable discrimination.
A driver was driving his car negligently along a mountain road. He lost control of his car and careened over the side of a cliff. A jogger saw the driver’s car go off the cliff and stopped to see if he could help. The jogger started to climb down the cliff to render aid to the driver. In doing so, the jogger slipped and broke his leg. The jogger sued the driver to recover damages for his broken leg.
Regarding any defenses the driver might raise, which of the following statements is correct?
A A rescuer acts at his own peril.
B The excitement of the accident and the speedy response of the rescuer would be considered in a case such as this.
C Assumption of the risk cannot be invoked against rescuers.
D The driver would not have a valid defense.
B
All of the circumstances will be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct. (D) is incorrect; the driver would have a defense if he could demonstrate that the rescuer’s actions were reckless. (A) is incorrect because, while the court can conclude that the rescuer recklessly put himself in danger, this is not an absolute defense. (C) is an incorrect statement of law; assumption of risk may be applicable, depending on the circumstances, such as if the rescue were reckless.
A buyer for a chain of shoe stores ordered 1,000 pairs of shoes from a shoe manufacturer. The shoes cost $50 per pair, so the total contract price was $50,000. It happened that the manufacturer owed $50,000 to a trucking company. The manufacturer assigned, in writing, “all proceeds from the contract with the buyer” to the trucking company. The manufacturer notified the buyer that he had assigned the proceeds of the contract to the trucking company and then shipped the 1,000 pairs of shoes to the buyer. Upon receipt of the shoes, the buyer discovered that 10% of the shoes were defective. He sent a check for 90% of the contract price ($45,000) to the manufacturer, who deposited the check. Shortly thereafter, the manufacturer closed down its business and disappeared without a trace. The trucking company, meanwhile, demanded payment from the buyer, to no avail.
If the trucking company sues the buyer for the $45,000 that the buyer paid on the contract, will the trucking company prevail?
A Yes, because the buyer had notice from the manufacturer that the contract had been assigned to the trucking company.
B No, because the manufacturer wrongfully took the money that was assigned to the trucking company and is solely liable to the trucking company.
C No, because the buyer fulfilled his obligations under the contract by paying the manufacturer.
D No, because the trucking company could not have performed the other side of the contract by furnishing the shoes.
A
The trucking company will be able to recover the $45,000 from the buyer because the buyer had notice of the assignment. Most contract rights may be assigned, and the right assigned here (to receive money) falls within the general rule. Once the assignment is effective, the assignee (the trucking company) becomes the real party in interest, and he alone is entitled to performance under the contract. (The assignor has been replaced by the assignee.) Once the obligor (the buyer) has knowledge of the assignment, he is bound to render performance to the assignee. Here, the assignment was effective as soon as the assignor (the manufacturer) manifested his intent that the right should be assigned (i.e., in his written assignment to the trucking company). The buyer was given notice of the assignment and, thus, was bound to pay the trucking company. The buyer breached his duty by paying the manufacturer instead of the trucking company. Thus, the trucking company may recover from the buyer for his failure to perform. (B) is wrong because the assignee, as the real party in interest, may enforce its rights against the obligor directly. (C) is wrong because, as stated above, once the buyer had notice of the assignment, he owed the duty to pay to the trucking company (the assignee), and payment to any third party, even the manufacturer (the assignor), does not discharge this duty. (D) is wrong because it is irrelevant whether the assignee could perform under the contract; the relevant question is whether the assignor could and did properly perform.
A shoe manufacturer entered into a contract to purchase all cowhide refined by a tannery for the next five years at a price set at 95% of the domestic market price at the time of delivery. The shoe manufacturer agreed to purchase no less than 500 pounds of cowhide a week. At the time this contract was signed, the shoe manufacturer gave written notice to the tannery that it intended to buy all cowhide produced by the tannery until further notice. For the first year, the shoe manufacturer continued to purchase all cowhide produced by the tannery. However, by the end of that year, the tannery doubled its production of cowhide. At a meeting between the tannery and the shoe manufacturer, the tannery’s president noted that the shoe manufacturer was getting as much cowhide as it needed, and that the tannery intended to sell the extra cowhide it was producing on foreign markets at a higher price than the shoe manufacturer was paying. The shoe manufacturer agreed to maintain its purchases at the first year’s level and signed an addendum to the original agreement reflecting this change.
Is the modification of this contract made by the addendum enforceable?
A Yes, as long as the shoe manufacturer’s needs continue to be met by the first year’s amount.
B Yes, the modification is enforceable as agreed.
C No, because there was no consideration for the shoe manufacturer’s agreement to take only one-half of the cowhide produced.
D No, because the contract did not state the amount of cowhide that the tannery would produce.
B
Yes, the modification is enforceable in its entirety. Although there was no consideration for the shoe manufacturer to take only one-half of the bargained-for production, none is required because this is a contract for the sale of goods. All that is required is good faith. Here, the shoe manufacturer did not need twice as much cowhide, and the tannery could make more money selling the excess to other parties. Thus, the modification was made in good faith. (A) is wrong because the enforceability of the modification is not limited by the manufacturer’s needs. (C) is wrong because, as discussed above, under the UCC, a good-faith modification is enforceable even without consideration. (D) is wrong because the agreement indicates the amount of cowhide that the shoe manufacturer will purchase—all cowhide refined by the the tannery. Although no specific quantity is mentioned, these contracts are sufficiently definite because the quantity is capable of being made certain by reference to objective, extrinsic facts (i.e., the seller’s actual output).
A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery’s property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman’s irritations became so bad that he had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages.
The court is likely to rule in favor of:
A The salesman, because the nursery owner had equally effective fertilizers available at comparable prices to the fertilizer used.
B The salesman, because the nursery owner is strictly liable for injuries caused by emissions from her property.
C The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.
D The nursery owner, because the salesman is merely an employee of the florist and does not own the property on which the shop is located.
C
The court is likely to rule in favor of the nursery owner. The only basis of liability that the salesman could use in his suit is negligence—i.e., that the nursery owner negligently selected and stored the fertilizer. Because the nursery owner acted reasonably in selecting and storing the fertilizer, she will prevail. (A) is wrong because the nursery owner would not be liable simply because other fertilizers were available. (B) is wrong because property owners are not strictly liable for all emissions from their property. There is no suggestion that the storage of the fertilizer was an abnormally dangerous activity that would allow the salesman to bring a strict liability action. (D) is wrong. Despite the fact that the salesman’s lack of property rights in the land would preclude him from maintaining a nuisance action, he could still maintain a negligence action as a foreseeable victim of negligent conduct. (C) is the best answer because it precludes this result.
A lessee rented from the defendant a building containing a store on the ground floor and an apartment above. The lessee operated a jewelry store on the ground floor and lived in the apartment above. One night as the defendant happened by the store, he saw a light on in the shop and, finding the door unlocked, decided to investigate. While looking around the store, the defendant spotted an expensive watch. Recalling that the lessee was much behind in her rent, the defendant decided to take the watch and keep it until the lessee paid the rent. Just as the defendant was leaving the store, the lessee entered the store. Afraid of a confrontation, the defendant tossed the lessee the watch and ran out.
What fact will prevent the defendant from being convicted of common law burglary?
A The door was unlocked.
B A different part of the building was used as a dwelling.
C The defendant owns the building.
D The defendant had no intent to commit any crime until he entered the shop.
D
The defendant cannot be convicted because he did not have the requisite intent. To be convicted of burglary, the defendant must have intended to commit a felony at the time of entry. The elements of common law burglary are: (i) a breaking; (ii) and entry; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein. The intent to commit a felony must exist at the time of entry. If such intent is formed after the entry is completed, common law burglary has not been committed. At the time the defendant entered the lessee’s store, the defendant did not intend to commit any crime. Indeed, he probably intended to investigate to determine if a crime was being committed in the shop, because his suspicions had been aroused by seeing a light on in the store at night. Because the defendant did not enter the shop with intent to commit a felony therein, he cannot be convicted of burglary. (A) is incorrect because opening a closed door, although it is unlocked, constitutes a breaking for purposes of common law burglary. A breaking requires some use of force to gain entry, but minimal force is sufficient. Even pushing open a door that is already partially open is considered a breaking under the better view, because some force was used to gain entry. Thus, the fact that the door was unlocked will not provide the defendant with a defense to burglary. (B) is incorrect because the entire building was rented to the lessee, and the building includes a dwelling. As noted above, at common law the breaking and entry had to be of a dwelling. A structure is considered a dwelling if it is used regularly for sleeping. Such a structure remains a dwelling even if it is also used for other purposes, such as conducting a business. The building that the lessee is renting from the defendant includes both an apartment and, directly underneath the apartment, space used as a jewelry store. This is a dwelling. The fact that the lessee uses another part of the rented premises to conduct a business does not mean that the entirety of the area rented should not be considered a dwelling. Thus, (B) will not afford the defendant a defense to burglary. (C) is incorrect because burglary requires only that the structure be used as a dwelling by someone other than the defendant. Occupancy, rather than ownership, is material. Thus, an owner can commit burglary of his own structure if it is rented and used as a dwelling by others. Here, the lessee has the right of occupancy. Consequently, the defendant’s ownership of the building does not mean that he cannot be convicted of burglary with respect to premises rented and used as a dwelling by another.
An acquaintance asked the defendant to give him a lift downtown because he did not have bus fare. While riding on the defendant’s motorcycle, the acquaintance asked to stop at a convenience store to get a bottle of wine, showing the defendant a tire iron in his backpack that he was going to use. The defendant nodded in acknowledgment of what the acquaintance was planning to do. The defendant stopped at the store and waited in the parking lot while the acquaintance went in. He demanded money from the clerk, brandishing the tire iron. The clerk tried to grab a gun under the counter while he was filling a bag with money, and a struggle ensued. The gun discharged, killing the clerk. The defendant heard the gunshot and raced off, but was eventually apprehended.
The jurisdiction’s criminal code provides that a death caused during the commission of certain felonies, including robbery, is first degree felony murder, for which the death penalty is permitted. The code also permits cumulative penalties for first degree felony murder and for the underlying felony. The defendant was charged and convicted of both robbery and felony murder. After appropriate consideration of all relevant circumstances, the jury imposed the death penalty. On appeal, the defendant challenged both the convictions and the sentence.
Assuming that the above facts were properly admitted into evidence, how should the appellate court rule?
A The defendant’s conviction for both offenses should be upheld, but imposition of the death penalty was not proper.
B The defendant’s conviction for both offenses should be upheld, and imposition of the death penalty was proper.
C The defendant’s conviction should be overturned under double jeopardy principles because robbery is a lesser included offense of felony murder.
D The defendant’s conviction for felony murder should be overturned because the circumstances do not establish the necessary degree of culpability.
A
The defendant can be found guilty of robbery and felony murder, but the death penalty cannot be imposed. The defendant can be found guilty of robbery as an accomplice. The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed. [Enmund v. Florida (1982)] Here, because the defendant’s involvement in the crime was only to provide transportation, it cannot be said that he participated in such a major way that he acted with reckless indifference to human life; hence, the death penalty cannot constitutionally be imposed against him. (B) is therefore incorrect. (C) is incorrect because the defendant’s conviction of both robbery and felony murder does not raise double jeopardy problems under these facts. Under the rule that lesser included offenses “merge” into greater offenses, a person may not be convicted of both the greater offense and a lesser included offense. While the Supreme Court has held that a subsequent prosecution for robbery is not permitted against a defendant who has been tried for felony murder where the robbery is the underlying felony, this situation is different. Imposition of cumulative punishments for two statutorily defined offenses arising from the same transaction and constituting the same crime does not violate double jeopardy when the punishments are imposed at a single trial, as long as the two offenses were specifically intended by the legislature to carry separate punishments. [Missouri v. Hunter (1983)] Here, the legislature did specifically provide for cumulative penalties for first degree felony murder and for the underlying felony. Thus, the defendant can be convicted of both robbery and felony murder. (D) is incorrect because the jury could properly find the defendant guilty of felony murder. When the felony murder rule is combined with accomplice liability rules, the scope of liability becomes very broad. The felony murder rule provides that a killing—even an accidental one—committed during the course of a felony is murder. All parties to the felony are liable for the murder as long as (i) it was committed during the commission of the felony or in fleeing from the scene, and (ii) it was a foreseeable result of commission of the felony. Courts have been willing to find most deaths committed during a felony to be foreseeable. Here, the jury could reasonably find the shooting death of a store clerk by the acquaintance during a struggle for a gun to be a foreseeable result of the commission of a robbery and impose felony murder liability on the defendant as an accomplice because he knew that the acquaintance was going to commit a robbery.
