UNIVERSITY OF KENTUCKY
' COLLEGE OF LAW
CRIMINAL LAW (810-1) PROFESSOR LAWSON
FINAL EXAMINATION DECEMBER 19, 1986

INSTRUCTIONS

THE EXAMINATION IS 3 HOURS LONG. THE WEIGHT OF EACH PART OF THE
EXAMINATION IS INDICATED ON THE EXAMINATION. YOU SHOULD ALLOT YOUR
TIME ACCORDINGLY.

I HAVE NOT INCLUDED ANY TRICK QUESTIONS IN THE EXAMINATION, AT
LEAST NOT INTENTIONALLY. IN GRADING THE EXAMINATION I WILL BE LOOKING
FOR CAREFUL ANALYSIS OF THE PROBLEMS PRESENTED FOR YOUR CONSIDERATION
AND PROPER APPLICATION OF LEGAL CONCEPTS TO THE FACTS PRESENTED. IN
READING THE QUESTIONS, IF YOU BELIEVE THAT ESSENTIAL FACTS HAVE BEEN
OMITTED AND FIND IT NECESSARY TO ASSUME THEIR EXISTENCE YOU SHOULD SO
INDICATE IN YOUR ANSWERS.

PRECISENESS AND CONCISENESS ARE ESSENTIAL TOOLS FOR THE GOOD
LAWYER. YOU SHOULD KEEP IN MIND THAT:

(1) PRESENTATION OF IRRELEVANT MATTER WILL OFTENTIMES DETRACT
FROM YOUR ANSWER EVEN THOUGH IT MIGHT SHOW A GENERAL KNOWLEDGE OF
SOME ASPECT OF CRIMINAL LAW.

(2) EXCESSIVELY VERBOSE OR REPETITIVE MATERIAL MIGHT ALSO DETRACT
FROM THE VALUE OF YOUR ANALYSIS.

(3) ON THE OTHER HAND, YOU SHOULD BE SURE TO PROVIDE A COMPLETE,
WELL-REASONED ANALYSIS OF THE PROBLEMS.

PART I.

THE STATE OF LAFFERTY HAS A CRIMINAL CODE CONTAINING THE
FOLLOWING HOMICIDE STATUTES:

Sec. 100 Third Degree Manslaughter.

A person is guilty of manslaughter in the third degree when
he causes the death of another person (i) through criminal
negligence or (ii) through the commission of an unlawful act not
amounting to a felony.

Sec. 110 Second Degree Manslaughter.

A person is guilty of manslaughter in the second degree when
he recklessly causes the death of another person.

Sec. 120 First Degree Manslaughter.

A person is guilty of manslaughter in the first degree when
he causes the death of another person under circumstances that
would constitute murder except for the fact that he acts under
the influence of an extreme emotional disturbance for which there

is a reasonable excuse or explanation.

Sec. 130 Murder.

A person is guilty of murder when (i) he intentionally
causes the death of another person, (ii) he recklessly causes the
death of another person under circumstances manifesting extreme
indifference to life, or (iii) he causes the death of another
person during the commission or attempted commission of a
dangerous felony offense.

Sec. 140 Penalties.

A person found guilty of manslaughter in the third degree
shall be imprisoned for no less than 1 year nor more than 5. One
found guilty of manslaughter in the second degree shall be
imprisoned for no less than 6 years nor more than 10. One found
guilty of manslaughter in the first degree shall be imprisoned
for no less than 11 years nor more than 20. One found quilty of
murder shall be imprisoned for no less than 21 years nor more
than life.

PROVIDE A BRIEF BUT CAREFUL ANALYSIS OF THE POTENTIAL LIABILITY OF THE
DEFENDANT (OR DEFENDANTS) IN EACH OF THE FOLLOWING CASES. TO THE
EXTENT YOU NEED TO RELY ON LEGAL DOCTRINE NOT CONTAINED IN THESE
STATUTES, YOU MAY RELY ON THE TRADITIONAL CRIMINAL LAW (THE SO-CALLED
COMMON LAW) OR ON THE MODEL PENAL CODE, SO LONG AS YOU IDENTIFY WHAT
YOU ARE DOING:

1. Smith, a Vietnam veteran, took great pride in his expertise as a
marksman with a rifle. He had learned to shoot while in the military
and practiced on a regular basis with a local police organization. He
usually practiced with an officer named Carter who was skilled in the
use of a handgun. In July, 1986, toward the end of a practice session,
Smith and Carter got into a friendly argument over whether a handgun or
a rifle was a better weapon. At the end of the argument they decided
to go to the city dump and test their respective skills by shooting
rats; they agreed that each would have 10 shots and that the one who
killed the most rats would win $500 from the other.
They met at the dump late one evening (before dark) to settle the
wager. Smith loaded his rifle and prepared for the initial shot. He
saw a rat near what appeared to be a recently dumped load of produce
boxes and other grocery store debris. He aimed his rifle and fired at
the rat just as it reached the top of the recently dumped load. When
the rat disappeared, Smith and Carter ran to where it had last been
seen. What they found instead of a rat was an old man bleeding to
death from Smith's gunshot. They rushed the old man to a hospital but
he was dead on arrival.
The police conducted an investigation of the homicide. Among
other things they learned that the victim was a homeless person who had
regularly visited the city dump to obtain food scraps from garbage
thrown away by grocery stores. They learned that Smith and Carter
undertook to settle their wager without looking around the dump to see
if anyone might be endangered by their shooting. They also learned
that Smith had been drinking during part of the afternoon and had had
at least two drinks within an hour of the accident.

YOU ARE AN ASSISTANT TO THE PROSECUTING ATTORNEY. HE HAS ASKED
YOU TO PREPARE A BRIEF MEMORANDUM ADDRESSING EACH OF THE FOLLOWING
MATTERS:

A. THE POTENTIAL LIABILITY OF SMITH FOR THE DEATH OF THE OLD
MAN. (5 points)

B. THE SIGNIFICANCE OF THE EVIDENCE THAT SMITH HAD BEEN DRINKING
PRIOR TO THE INCIDENT AT THE DUMP. (NOTE: THE PROSECUTOR FEARS
THAT SMITH'S LAWYER MIGHT TRY TO TAKE ADVANTAGE OF THIS FACTOR IF
POSSIBLE. NATURALLY, THE PROSECUTOR WANTS TO EXPLOIT THE FACTOR
FOR THE BENEFIT OF THE STATE IF FEASIBLE. HE WANTS YOU TO
CONSIDER BOTH SIDES OF THE QUESTION.) (5 points)

C. THE POTENTIAL LIABILITY OF CARTER FOR THE DEATH OF THE OLD
MAN. (5 points)

2. Al Melrose lives on a narrow country road just outside the City of
Lexington in the State of Lafferty. In March, 1986, Mark and Becky
Vice lived on the same road about 100 yards from the Melrose house. Al
and Mark had had lots of trouble by this date, mostly because of the
fact that Mark used a building at the back of his house as a dog
kennel. The number of dogs kept in the kennel varied from time to time
but never numbered less than ten. In 1985 Melrose had sued Vice for
maintaining a nuisance on his property, the basis for the suit being
unreasonable noise and odor from the kennel. But on the last day of
February, 1986, a court had dismissed Melrose's complaint as unfounded.
He became furious to say the least.
On March 3, 1986, Melrose went to bed about midnight. For some
reason the dogs in the kennel became aroused at about 1:00 a.m. and
began to bark like crazy. Melrose had fallen asleep only to be
awakened suddenly by the dogs. He put on his clothes hurriedly, went
into his garage to obtain a gasoline can, and rushed to the back of the
Vice house. He poured gasoline on the dog kennel and used a cigarette
lighter to ignite the gasoline. Flames spread quickly across one side
of the building. Melrose rushed back to his house, called a fire
station which was about 8 miles away, and reported that there was a
fire at the Vice house.
An open space of only fifteen feet separated the kennel building
and the Vice house. Once the fire in the kennel got underway it spread
to the roof of that building and burned furiously. With the help of
some wind which was blowing across the fire toward the Vice house, the
fire spread to the roof of the house within a short time after
ignition. Mark and Becky Vice were asleep and unaware that their house
was on fire. The alarm had sounded at the fire station and two trucks
were on their way to the fire.
The trucks arrived before the fire on the Vice roof was out of
control. The firemen hooked their hoses to some nearby hydrants but
discovered immediately that there was not enough water pressure on the
line to fight the fire on the house. They aroused Mark and Becky Vice,
got them to safety, but merely watched as the fire engulfed the house.

At some point, Becky turned to Mark and said excitedly, "my god, what
about the money?" Mark rushed past the firemen and entered the front
door of his house which was now a raging fire. Shortly thereafter, the
roof collapsed and blocked all access in and out of the house. Mark
died inside the building.
In a subsequent investigation of the fire it was learned that
Becky and Mark had about $25,000 in cash in the house at the time of
the fire. It was also learned that the water pressure in this part of
the county could not possibly have provided sufficient water to
extinguish the fire. Investigators also learned that Melrose had
ignited the blaze which ultimately spread to the house.

MELROSE EXPECTS TO BE INDICTED FOR HOMICIDE. HE HAS COME TO YOU
FOR AN ANALYSIS OF HIS POTENTIAL LIABILITY FOR THE DEATH OF MARK VICE.
HE WANTS ANSWERS TO TWO QUESTIONS IN PARTICULAR: (1) "WHAT AM I GUILTY
OF, IF ANYTHING?" (2) "DO I HAVE ANY REALISTIC HOPE OF MAKING A DEFENSE
TO THE CHARGES?" EXPLAIN YOUR CONCLUSIONS FULLY. (10 points)

3. James Nuchols is an avid supporter of the University of Kentucky
basketball team. In December, 1985, he was in a bar in downtown
Louisville watching a game on television between the Wildcats and the
University of Louisville. Paul Murphy, an avid supporter of the
University of Louisville's team, was in the bar watching the same game.
Both Nuchols and Murphy had a couple of drinks while watching the
contest. Toward the end of the game, which was hotly contested, a
heated argument broke out between Nuchols and Murphy. A bartender
intervened and told them to leave the premises and settle their dispute
outside. Still angry, they left the bar and continued their argument
on the street outside the premises. A few moments later Nuchols called
Murphy "a stupid S.O.B.". Murphy took a swing at Nuchols and missed.
Nuchols responded with a blow to the chin of Murphy and knocked him
into the street. At that very moment Bill Banks was driving his car
down the street outside the bar. He was listening to the basketball
game on his radio but otherwise attentive to his driving;
unfortunately, he was driving at 45 mph although the speed limit was
only 35 mph. He saw Murphy fall into the street and tried
unsuccessfully to stop his car. His front right wheel ran over
Murphy's chest. Murphy was rushed to the hospital but died that same
day from injuries caused by the vehicle.

A. THE PROSECUTING ATTORNEY FOR WHOM YOU WORK AS AN ASSISTANT
HAS ASKED FOR YOUR ANALYSIS OF THE POTENTIAL CRIMINAL LIABILITY
OF JAMES NUCHOLS. SPECIFICALLY, HE WANTS TO KNOW WHAT CRIME OR
CRIMES, IF ANY, TO CHARGE AGAINST NUCHOLS AND HE WANTS TO KNOW OF
ANY DIFFICULTIES WHICH HE MIGHT ENCOUNTER IN PROSECUTING A CASE
AGAINST THIS MAN. (10 points)
B. BILL BANKS HAS NOT YET BEEN CHARGED WITH ANY CRIME IN
CONNECTION WITH THE ACCIDENT. HE FEARS INDICTMENT FOR HOMICIDE
AND HAS EMPLOYED FRANK HARMON, A PROMINENT CRIMINAL DEFENSE
LAWYER, TO REPRESENT HIM. YOU ARE AN ASSOCIATE IN HARMON'S FIRM
AND HAVE BEEN ASKED TO PROVIDE AN ANALYSIS OF BANK'S PROBLEM.
PROVIDE AN ANALYSIS OF HIS POTENTIAL LIABILITY AND OF ANY
POSSIBLE DEFENSES WHICH HE MIGHT BE ABLE TO RAISE. (5 points)

4. Joyce Dugan started dating a young man named Brian Barton when she
was only 16 years old; Barton was 21 years old at the time. A few
months later Joyce became pregnant by Barton. A marriage followed
shortly thereafter. Joe Dugan, father of Joyce, suffered great
emotional distress over these developments and became permanently
disenchanted with his son-in-law. His feelings toward Barton grew even
more intense as problems developed in the marriage, problems associated
with Brian's excessive drinking and his tendency to give special
attention to women other than his wife.
For a period of several months Joe watched as his daughter's
relationship with her husband deteriorated. He could see that Barton
was drinking too much and he saw enough to suspect that Joyce might be
experiencing physical abuse at the hands of her husband. For some time
Joe had entertained concerns about the possibility that Barton might
have some capability for violence; he began to worry some about the
well-being of his daughter. He tried on two occasions to persuade his
daughter to leave her husband and come home to live but she refused.
Late one night, at about 1:00 a.m., Joe got a phone call from
Joyce asking him to come and get her and the baby. Joe drove the three
miles to the Barton home and pulled into the driveway. He could see
that the lights were on in the house and that Brian was home; he
assumed, correctly as it turned out, that Brian had been drinking
heavily. Before leaving his car Joe took a handgun from the glove
compartment and put it in his jacket pocket.
Once inside the house he could see that his daughter had been
crying. He told her to get her coat and the baby. At that point Brian
interceded: "You get the hell out of this house, that bitch is not
going anywhere." By this time Joe was beside himself with anger at his
son-in-law: "If you ever put your hands to her again I'll kill you."
Joyce gabbed her coat and started toward her father. Brian reached out
to grab her by the arm and said, "no, don't leave me." Joe pulled the
gun from his pocket and pointed it at Brian. Brain stopped in his
tracks. A couple of seconds of silence elapsed. Brian started to put
his hand in the jacket of a pocket he was wearing. Joe fired his
pistol. Brian was killed almost instantly. Joe later told authorities
he thought Brian was going for a gun when he reached into his pocket.
He also told them he had never known of Brian owning or possessing a
handgun. In fact Brian had no gun on his person on the night in
question.

JOE DUGAN HAS BEEN CHARGED WITH MURDER. YOU ARE AN ASSOCIATE OF
THE LAWYER WHO HAS BEEN EMPLOYED TO REPRESENT DUGAN. HE HAS ASKED YOU
FOR A MEMORANDUM GIVING HIM YOUR BEST ANALYSIS OF DUGAN'S SITUATION.
(10 points)

PART II.

IN THIS PART OF THE EXAMINATION I HAVE TRIED TO MINIMIZE THE NEED
FOR YOU TO KNOW A PARTICULAR BODY OF CRIMINAL LAW, SUCH AS THE MODEL
CODE, THE KENTUCKY LAW, OR THE PREVAILING COMMON LAW. TO THE EXTENT I
HAVE FAILED TO ACCOMPLISH THIS OBJECTIVE, YOU SHOULD ANSWER THE
QUESTIONS BY RELYING ON THE PREVAILING COMMON LAW POSITION. IF YOU
CANNOT DO THIS, RELY ON WHATEVER LAW YOU KNOW AND IDENTIFY YOUR
SOURCES.

1. The state of Lafferty, like all others, attempts to regulate the
distribution and use of intoxicating substances through licensing and
criminal penalties. Contained in its Penal Code are the following
statutes:

Sec. 1010. A person is guilty of unlawfully possessing
intoxicating substances if, with intent to sell, he possesses
such substances on premises located within the territorial
boundaries of Lafferty without having a license to possess and
sell such substances. The penalty for violation of this statute
is 1 year imprisonment, $5000 fine, or both.

Sec. 1020. A person is guilty of unlawfully selling intoxicating
substances if he sells such substances to a person who is under
the age of 18 years at the time of the sale. The penalty for
violation of this statute is 30 days in jail, $1000 fine, or
both.

David Sparks is an engineering student at Lafferty University.
On May 10, 1986, David had a party in the yard of the house where he
had lived during his four years at Lafferty U. All of his good friends
from school were invited; most brought dates. On the day before the
party David bought more than $400 worth of beer, whiskey, and food.
Since he could not afford to pay for all this himself, he decided to
employ a bartender for the party and charge a modest amount for beer
and mixed drinks--50 cents for beer and a buck for a mixed drink. He
hoped at least to recover his costs, and if he made a little profit
that would be just fine.

A big crowd came to the party and stayed a long time. One of the
people in attendance was Phil Austin and his date Pam Parker. Phil was
an engineering student and a friend of David Sparks; Pam was a freshman
at Lafferty U. Phil and Pam stayed at the party for about three hours
but left while it was still in full swing. While there they each had
three mixed drinks; Pam paid for two and Phil paid for the other four.
They left the party in Pam's car, with Phil driving. After traveling
about a mile, Phil ran through a stop sign and hit a police car. The
police officer discovered immediately that Phil and Pam were
intoxicated; he also discovered that Pam was only 17 years old.
Further investigation revealed that they had been at the Sparks party
and had bought alcoholic beverages on the premises. The officer took
Phil and Pam into custody and went immediately to the location of the
party. Once there he arrested David Sparks and charged him with
violation of the two statutes described above.
At David's trial the prosecution proved the facts described
above. David took the witness stand to testify on his own behalf. He
wanted to testify (i) that he was intoxicated during the party and did
not even know that Phil and Pam were in attendance; (ii) that he
believed that everyone in attendance was over the age of 18 years; and
(iii) that he did not know that the law required him to have a license
to sell alcoholic beverages at his own home. But when the prosecutor
objected to all this testimony the trial judge sustained the objections
and ruled the testimony inadmissible. In so ruling he declared that
the testimony was not relevant to any material issue in the case.
David was convicted of both crimes.

A. DAVID IS THINKING ABOUT APPEALING HIS CONVICTIONS AND SEEKS
YOUR ADVICE. HE IS CONVINCED THAT THE JUDGE DENIED HIM A FAIR
CHANCE TO DEFEND HIMSELF BY RULING ALL HIS EVIDENCE INADMISSIBLE.
PROVIDE HIM WITH AN EVALUATION OF HIS CHANCES FOR REVERSAL OF HIS
CONVICTIONS. EXPLAIN FULLY.

B. ASSUME THAT THE STATUTES UNDER WHICH DAVID WAS CHARGED READ
NOT AS PROVIDED ABOVE BUT RATHER AS FOLLOWS:

Sec. 1010. A person is guilty of unlawfully possessing
intoxicating substances if, with intent to sell, he
knowingly possesses such substances on premises located
within the territorial boundaries of Lafferty without having
a license to possess and sell such substances. The penalty
for violation of this statute is 1 year imprisonment, $5000
fine, or both.

Sec. 1020. A person is guilty of unlawfully selling
intoxicating substances if he knowingly sells such
substances to a person who is under the age of 18 years at
the time of the sale. The penalty for violation of this
statute is 30 days in jail, $1000 fine, or both.

IF YOUR EVALUATION OF DAVID'S CHANCES ON APPEAL WOULD BE
DIFFERENT UNDER THESE STATUTES PLEASE PROVIDE AN EXPLANATION OF
YOUR REASONING. (15 points total for both parts).

2. Albert is a deputy sheriff in a rural county in the state of
Lafferty. He encounters some serious financial problems as a result of
some farm land he bought when interest rates were high. He sees no
easy way out of his dilemma and at some point decides to take some
drastic steps to rectify his situation.
He seeks out Baker, a local high school dropout, and hires him to
burglarize the Small Jewelry Store, which is located in the only town
in the county. He then seeks out Carter, an uneducated man who works
around as a farm hand, and hires him to rob the Big Time Liquor Store,
which is located on the same street as the jewelry store. He then
seeks out Dawkins, an unemployed janitor, and persuades him to enter an
adjoining county to steal a car for use in the liquor store robbery.
Baker and Carter do not meet face-to-face at any point in time,
but each knows that Albert has made arrangements for the other to
commit a crime for the purposes of theft; in fact, each knows the
specific assignment undertaken by the other. Dawkins knows of the use
which Albert intends to make of the car; he is willing to commit car
theft but has no willingness at all to participate in robbery.
Baker enters the Small Jewelry Store late one night, takes a
substantial quantity of jewels, and delivers them to Albert the
following morning. Dawkins goes to an adjoining county, steals a car,
and delivers it to Albert. Albert delivers the car to Carter and at
the same time gives him a gun. He instructs Carter to shoot the gun
only if absolutely necessary and even then only to scare and not to
injure. Carter goes to the Big Time Liquor Store late one evening near
closing time, pulls the gun from his pocket, and instructs the clerk to
empty the register. The clerk gives Carter the money just as an

off-duty state police officer enters the store to make a purchase.
Carter panics, shoots the police officer in the leg, and flees. The
officer suffers serious injury but survives.
Carter subsequently turns himself into the state police and
confesses. An investigation uncovers all of the facts described above.

A. PROVIDE AN ANALYSIS OF THE LIABILITY OF EACH OF THE PARTIES
FOR THE CRIMES COMMITTED BY THE OTHERS, USING THE GENERAL
DOCTRINE OF COMPLICITY (OR ACCOMPLICE) LIABILITY).

B. PROVIDE AN ANALYIS OF THE LIABILITY OF EACH OF THE PARTIES
FOR THE CRIMES COMMITTED BY THE OTHERS, USING THE DOCTRINE OF
ACCESSORIAL LIABILITY THROUGH CONSPIRACY. (20 points total for
both parts)

3. Rob Roberts, Dave Duncan, and Curt Curlass were driving along a
country road in an isolated part of the state of Lafferty when their
car broke down. It was near midnight and there was no traffic on the
road. They walked along the road for about two miles before coming to
a farmhouse. The farmer and his family were asleep at the time. The
three men knocked on the farmhouse door, got the farmer out of bed,
told him of their problem, and asked if he could put them up for the
night. Doubting their story, the farmer told them his wife was very
ill and suggested that they walk to a service station which was only 4
miles down the road.
As the three men were walking away from the farmhouse, Roberts
stopped suddenly, pulled a gun out of his pocket, and inserted a
cartridge in the chamber. Thinking that Roberts intended to shoot into
the farmhouse, Curlass yelled out, "are you crazy", and grabbed his arm
knocking the gun to the ground. Duncan quickly picked up the gun,
aimed it at the farmhouse, and fired. The farmer's daughter, who was
asleep in a bedroom, was struck in the leg by the gunshot and seriously
injured.
The state of Lafferty has a statute which creates an offense
called shooting into an occupied residence; one commits the offense by
"shooting intentionally into a residence knowing it to be occupied".
Under the law of Lafferty a person is guilty of murder if he "causes
the death of another person intentionally or recklessly under
circumstances manifesting extreme indifference to life."
Rob Roberts has been indicted for attempted shooting into an
occupied residence. Dave Duncan has been indicted for attempted
murder. Both Roberts and Duncan have been indicted for conspiracy to
shoot into an occupied residence.

PROVIDE A BRIEF ANALYSIS OF THE LIKELIHOOD OF SUCCESS IN THE
PROSECUTION OF THESE INDICTMENTS. EXPLAIN YOUR CONCLUSIONS. (10
points)

PART III.
(10 points total)

IN A SINGLE PARAGRAPH OF MODERATE LENGTH ANSWER EACH OF THE
FOLLOWING QUESTIONS. EACH ONE IS WORTH ONLY TWO POINTS, SO YOU SHOULD
NOT ALLOT AN ABUNDANCE OF TIME TO THIS PART OF THE EXAMINATION.

PRECISION IS OF PARAMOUNT IMPORTANCE.

1. Describe the Model Penal Code's standard of legal insanity and
compare it to the M'Naghten test.

2. Relate the incompetency of an accused to stand trial to the defense
of insanity.

3. Describe the principle of legality?

4. What is an "aider and abettor", an "accessory before the fact" and
an "accessory after the fact"?

5. Compare "criminal solicitation" with "criminal facilitation".