EXAM NO. _______

GEORGIA STATE UNIVERSITY COLLEGE OF LAW
FINAL EXAMINATION

CRIMINAL LAW SPRING SEMESTER 1998
PROFESSOR ELLEN S. PODGOR TIME LIMIT: 3 HOURS

1. This examination is a three (3) hour closed book examination. There are twelve (12) pages to this examination. Please make certain that you have all of the pages.

2. Each section states the approximate weight assigned in deriving the grade for the whole examination. Assume throughout this examination that all parties are human beings.

3. There are three (3) parts to this examination. Part I contains twelve (12) multiple choice questions. Wrong answers are not deducted from your score. Thus, even if not certain of the answer, it pays to take a guess. Fill in on the opscan answer sheet provided, the space that corresponds with the letter that most correctly answers the question asked or is most correct in light of the statement or fact scenario described. Provide only one letter for each question. Make certain you use a number two pencil and fill in the appropriate space as designated on the answer sheet.

4. ANSWER PARTS II & III IN SEPARATE BLUE BOOKS. Failure to follow this instruction may result in a loss of points to you on the examination. You may use as many bluebooks as you need. You may use both sides of the pages in the blue books as well as every line.

5. Although sufficient time has been provided to properly complete this examination, should you find that you have insufficient time to finish any of Parts II & III, it is recommended that you list or outline all issues that you would have expounded upon if time had permitted.

6. Please make certain that your anonymous number (Exam Number) appears on the opscan form, on every blue book, and on this examination. Turn in the opscan form, blue books and the examination. Failure to follow this instruction may result in a loss of points to you on the examination. Please do not identify yourself on this examination, other than by using your anonymous number (Exam Number).

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE COLLEGE OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. PART I: APPROXIMATELY 18% OF GRADE
(ESTIMATED TIME: TWENTY (20) MINUTES)

On the opscan sheet provided fill in the space that corresponds with the letter that most correctly answers the question asked or is most correct in light of the statement or fact scenario described. Provide only one letter for each question. There are twelve (12) questions to this part of the examination. Make certain you use a number two pencil and fill in the appropriate space as designated on the answer sheet.

1. Summer Mattingly robs the Stillstanding National Bank. He takes the money acquired
during this robbery to his good friend John Marshall. Summer Mattingly asks John Marshall to hold the money from the robbery and John Marshall agrees to this. Summer Mattingly is prosecuted for robbery and John Marshall, if in a common law jurisdiction, would most likely be considered which of the following:

A. A principle in the first degree

B. A principle in the second degree

C. An accessory before the fact

D. An accessory after the fact

E. A coconspirator in the robbery

2. Caldwell Curcio is convicted, after a trial by jury, of a state statute that makes it a criminal offense for a person to "be addicted to the use of narcotics." Caldwell Curcio was arrested on a corner adjoining a local law school and a police station. At the time of her arrest, Caldwell Curcio had needle marks on her arm. She readily admitted to the arresting police officer, after being given proper Miranda warnings, that she was addicted to narcotics. Which of the following is most correct?

A. Caldwell Curcio's conviction should be reversed in that the state statute is
unconsitutional.

B. Caldwell Curcio's conviction should be reversed in that there is insufficient
evidence to support the conviction.

C. Caldwell Curcio's conviction should be affirmed in that there was sufficient
evidence to support the conviction.

D. Caldwell Curcio's conviction should be affirmed in that she was arrested in a
public place.

E. Both C & D.

3. Maggie Emanuel and Spike Stephens are both married, but not to each other. Adultery is a crime in the state in which they reside. They commit adulterous acts in this state and are charged with conspiracy to commit adultery. Which of the following is most correct?

A. The state will have problems prosecuting them for conspiracy to commit adultery because of the independent felony rule.

B. The state will have problems prosecuting them for conspiracy to commit adultery because of Wharton's Rule.

C. The state will have problems prosecuting them for conspiracy to commit adultery because of Pinkerton's Rule.

D. The state will have problems prosecuting them for conspiracy to commit adultery because of the Act at your Peril Rule.

E. The state will have no problems in prosecuting them for conspiracy to commit adultery.

4. Rusty Kaminshine is charged in a common law jurisdiction with the crime of breaking and entering with intent to commit a felony. Rusty Kaminshine wishes to introduce evidence at trial that he lacked the necessary intent to commit a felony because he was too intoxicated to know what he was doing. Which of the following is most correct?

A. The court should permit Rusty Kaminshine to present this evidence since
intoxication can be relevant if the degree of inebriation has reached that
point where Rusty Kaminshine could not have formed the required intent to
commit the crime.

B. The court should only permit Rusty Kaminshine to present this evidence if
his evidence is that this was involuntary intoxication.

C. The court should not permit Rusty Kaminshine to present this evidence in that
intoxication is never a legitimate defense to a crime.

5. Maddy Madison's employment with Bone, Inc. is terminated because she continually makes
personal telephone calls during work hours, in violation of company policy. Maddy Madison is very distressed at losing this job. Two weeks after being dismissed from her employment, while shopping in a local grocery store, she runs into the boss who terminated her from Bone, Inc. She pulls out a gun and shoots at him. Not being a very good shot, she does no harm to her boss, but one of the bullets does hit and kill another customer in the grocery store? Which of the following is most correct?

A. The most serious offense that Maddy Madison can be prosecuted for is Murder.

B. The most serious offense that Maddy Madison can be prosecuted for is Voluntary Manslaughter.

C. The most serious offense that Maddy Madison can be prosecuted for is Involuntary Manslaughter.

D. The most serious offense that Maddy Madison can be prosecuted for is Battery.

6. Cassie Scott is an attorney representing Maggie Emanuel, who has been charged with the the crime of murder. Attorney Cassie Scott questions whether Maggie Emanuel is competent to stand trial. In determining whether Maggie Emanuel is competent to stand trial, the fact-finder must decide:

I. Whether Maggie Emanuel presently lacks the capacity to consult with her attorney with a reasonable degree of rational understanding.

II. Whether Maggie Emanuel at the time of the crime lacked the capacity to consult with her attorney with a reasonable degree of rational understanding and lacked a rational as well as factual understanding of the proceedings against her.

III. Whether Maggie Emanuel presently lacks a rational as well as factual understanding of the proceedings against her.

IV. Whether Maggie Emanuel was insane at the time of the crime.

V. Whether Maggie Emanuel is presently insane.

Which of the following is most correct?

A. Only I

B. Only II

C. Only IV

D. I and III

E. I, III, and IV 7. Sophie Yarn, with the intent to kill Gemma Yarn, her child, furnished poison to Ivory Wright, a home nurse, falsely informing Ivory Wright that the substance was medicine prescribed by a doctor that was to be administered to Gemma Yarn. Believing that Sophie Yarn iintended to kill her child, Ivory Wright does not give Gemma Yarn the medicine. She leaves the substance on the dresser where Sophie Yarn's husband finds it and gives to Gemma Yarn. Sophie Yarn's husband thinks it is medicine and has no knowledge that his wife Sophie Yarn wanted to kill their child, Gemma Yarn. Gemma Yarn dies from the medicine given to her by Sophie Yarn's husband. Sophie Yarn is prosecuted for the murder of Gemma Yarn. In determining whether there is adequate causation for prosecuting this crime, which of the following is most correct?

A. Sophie Yarn is not guilty because of the Intended Consequences Doctrine.

B. Sophie Yarn is guilty because of the Intended Consequences Doctrine.

C. Sophie Yarn is not guilty because of the Voluntary Human Intervention Doctrine.

D. Sophie Yarn is guilty because of the Voluntary Human Intervention Doctrine.

E. Sophie Yarn is not guilty because of the Dangerous Forces That Come to Rest Doctrine.

8. According to the Supreme Court, a police officer may not use deadly force to arrest an unarmed individual who is escaping if the individual poses no immediate threat to the police officer or to other individuals. Is this statement true or false?

A. True

B. False 9. "A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind, that she: (1) did not know the nature and quality of the act that she was doing; or (2) if she did know it, she did not know that what she was doing was wrong." Which of the following is most correct?

A. This is the insanity test known as the Durham Test.

B. This is the insanity test known as the M'Naghten Test.

C. This is the insanity test known as the Irresistible Impulse Test.

D. This is the insanity test known as the American law Institute (Model Penal Code) Test.

E. None of the above are correct.

10. According to the Model Penal Code, when a person "consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his [or her] conduct," they are considered to be acting with which of the following mens rea?

A. Purposely

B Knowingly

C. Recklessly

D. Negligently

E. Intentionally

11. Kip Emanuel watches as Rusty Kaminshine attacks her son with a knife. In a Model Penal
Code jurisdiction Kip Emanuel is justified in using force against Rusty Kaminshine to protect her son when:

I. Kip Emanuel uses an amount of force no greater than she would be entitled to use against Rusty Kaminshine in self-defense.

II. Under circumstances as Kip Emanuel believes them to be, her son would be justified in using such protective force against Rusty Kaminshine.

III. Kip Emanuel believes that her intervention is necessary for the protection of her son.

Which of the following is most correct?

A. It is only necessary that I exists.

B. It is only necessary that II exists.

C. It is only necessary that III exists.

D. I, II, & III must exist

12. Buckley Carey is charged with the crime of theft of a truck. Buckley Carey was driving along a highway when a nearby vehicle swerved in his direction. To avoid being hit by this vehicle, Buckley Carey drove his automobile off the highway into a marsh. Buckley Carey's vehicle became stuck in the marsh. Buckley Carey observed a tow truck two hundred feet away. He took the tow truck in order to get his vehicle out of the marsh. Buckley Carey had a telephone in his car, but chose not to use it for getting help. Which of the following is most correct?

A. Buckley Carey has a legitimate defense of necessity.

B. Buckley Carey has a legitimate defense of duress.

C. Buckley Carey has a legitimate defense of both necessity and duress.

D. Buckley Carey does not have a legitimate defense of necessity in that there were
effective legal alternatives for averting the harm.

E. Buckley Carey does not have a legitimate defense of duress because he has not committed a homicide.

PART II: APPROXIMATELY THIRTY-SEVEN (37 %) OF GRADE
(ESTIMATED TIME: SEVENTY-FIVE (75) MINUTES)

Tamar Poodell has been charged with the following: Count I- First Degree Felony Murder (18 S.D.C. § 101(b)) (The prosecution is using the Recklessly Endangering Another Person from Count II as the felony for the felony murder charge.); Count II - Recklessly Endangering Another Person (18 S.D.C. § 200); and Count III- Improper Use of a Medical Insignia (18 S.D.C.§ 310).

You have been appointed by the court to represent Tamar in her upcoming trial. Based upon an in depth investigation of this matter, you have received the following information:

Tamar Poodell works at Bone, Inc., a dog biscuit factory where she stands on an assembly line with others, and places dog biscuits in boxes to be shipped to customers throughout the United States. Tamar Poodell has an extremely low IQ, a fifty (50), and has no formal education. She has been diagnosed by Dr. Sandy Wright as being "mentally deficient." On April 1, 1998 it was extremely cold inside the dog biscuit factory where Tamar worked. Tamar Poodell went to her cousin and boss, Solomon Poodell, shivering and complained that she was cold. Solomon Poodell gave Tamar Poodell a coat that was left at the factory by his son, who happened to be a medical doctor. The coat had a medical insignia on it. Tamar Poodell who had no medical training or education accepted the coat, thanking Solomon Poodell for his assistance. Tamar Poodell returned to the assembly line warm and comfortable.

Later that afternoon, Maddy Madison, a state inspector, came to Bone, Inc. to inspect for health violations. Maddy Madison observes the coat that Tamar Poodell is wearing and loudly proclaims, in front of Tamar's coworkers, that Tamar Poodell is in violation of the "Improper Use of a Medical Insignia" statute for wearing a coat with a medical insignia when she has no license, education, or training associated with the insignia.

Tamar is extremely embarrassed by what Maddy Madison was saying. She screams out, "how am I to know that this is against the law, I'm going to kill you." She instantly picks up the axe located by the fire extinguisher and swings it at Maddy Madison. She hit Maddy Madison five times with the axe. Maddy Madison is pronounced dead at the scene.

EXPLAIN IN DETAIL WHAT, IF ANY, LEGAL ARGUMENTS AND DEFENSES YOU CAN RAISE IN DEFENDING TAMAR POODELL AND WHETHER YOU THINK THESE ARGUMENTS WILL BE SUCCESSFUL. INCLUDE IN YOUR DISCUSSION, WHAT, IF ANY, LESSER OFFENSES TO MURDER WOULD BE APPROPRIATE TO CONVICT TAMAR POODELL FOR, AS A RESULT OF HER CONDUCT WITH RESPECT TO THE DEATH OF MADDY MADISON. ALSO INCLUDE IN YOUR DISCUSSION ARGUMENTS ON WHETHER THE COURT SHOULD GIVE A MENS REA INSTRUCTION FOR COURT III- IMPROPER USE OF A MEDICAL INSIGNIA, AND IF SO, WHAT THAT INSTRUCTION SHOULD INCLUDE.

Some of the statutes from this jurisdiction are listed below. Your memo need not, however, be limited to these statutes.

Note -- Assume that all parties in this question are human beings.

(If your answer is contingent upon information not provided, explain what that information is and how it would affect your answer.)

Some of the statutes in this jurisdiction are:

18 S.D.C. § 101. First Degree Murder

a. First degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation; or

b. All murder which is committed in the perpetration of a felony.

18 S.D.C. § 102. Second Degree Murder

All other kinds of murder shall be murder of the second degree.

18 S.D.C. § 103. Voluntary Manslaughter

Voluntary Manslaughter is an intentional homicide, if the act is done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool.

18 S.D.C. § 200 Recklessly Endangering Another Person

A person commits the crime of recklessly endangering another person if he or she recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

18 S.D.C. § 310. Improper Use of a Medical Insignia

Whoever wilfully wears or displays a medical insignia without having an appropriate license, education or degree associated with that insignia is guilty of a misdemeanor and shall be fined not more than one thousand ($ 1,000) dollars or imprisoned not more than six months, or both.

PART III: APPROXIMATELY 45% OF GRADE
(ESTIMATED TIME: EIGHTY-FIVE (85) MINUTES)

Solomon Poodell has been found guilty after a trial by jury of the following: Count One - Attempted Robbery of the Stillstanding National Bank; Count Two - Conspiracy to Commit Robbery of the Sunday National Bank; Count Three - Robbery of the Sunday National Bank; and Count Four -Theft Under $100.00 (two apples).

The following is a summary of the evidence presented at Solomon Poodell's trial:

Pippin Bross, under a grant of immunity in exchange for his testimony, testified that on Friday, January 16, 1998, he and Solomon Poodell decided that they would make a forced withdrawal from the Stillstanding National Bank on Saturday, January 17, 1998. He said that neither he nor Solomon had accounts at this bank. Pippin stated that he and Solomon agreed that Solomon would enter the bank at 9:00 A.M., and using a nickel-plated model 439, Smith & Wesson 9mm semi-automatic handgun, would demand that the bank teller turn over to him the bank's money that was in the teller's drawer. Pippin stated that it was decided that he would remain outside the Stillstanding National Bank in Solomon's 1967 Chevrolet automobile and that Pippin Bross would hit the gas pedal the minute Solomon Poodel returned to the automobile.

Pippin testified that on Saturday, January 17, 1998, he and Solomon Poodell drove to the Stillstanding National Bank but found that the bank was not open on Saturdays. He stated that he and Solomon then went to their respective homes.

The next day, Sunday, January 18, 1998 Solomon Poodell came by and picked up Pippin Bross in order that Pippin Bross could go to the grocery store. Pippin Bross did not own an automobile. Solomon Poodell drove Pippin Bross to the grocery store and remained in the automobile while Pippin Bross went into the store. Upon entering the grocery store Pippin Bross immediately noticed that a branch of the Sunday National Bank was open for business. He approached a teller and using a nickel-plated model 439, Smith & Wesson 9mm semi-automatic handgun demanded that the bank teller turn over the money in his drawer to Pippin Bross. The teller gave Pippin Bross Five Hundred ($500.00) Dollars. Pippin Bross then grabbed two apples from the basket of a customer who was on line waiting to pay for the apples. Without paying for the apples, Pippin Bross ran out of the grocery store.

When Pippin Bross entered the 1967 Chevrolet, he stated to Solomon Poodell, "Hit the gas, and lets get out of here." Solomon drove away from the grocery store quickly. Pippin Bross gave Solomon Poodell one of the apples that he took from the customer's shopping cart. Pippin Bross did not give Solomon Poodell any of the money recovered from the bank teller of the Sunday National Bank.

Solomon Poodell testified in his own defense that he never spoke with Pippin Bross on January 16, 1998. He further stated that he did not know that when Pippin Bross entered the grocery store that he intended to take money or apples.

At the conclusion of the State's case, defendant Solomon Poodell made a Motion to Dismiss his case arguing that as a matter of law, this case lacked sufficient evidence to be submitted to the jury. The court denied this motion.

WRITE THE APPELLATE COURT'S OPINION THAT INCLUDES REFERENCE AND DISCUSSION TO ALL CRIMINAL LAW ISSUES THAT YOU FEEL SOLOMON POODELL MIGHT HAVE RAISED ON APPEAL. (Obviously, it is not necessary to discuss issues of criminal procedure that were not covered this semester.) MAKE CERTAIN THAT YOUR OPINION EXPLAINS IN DETAIL THE RATIONALE FOR YOUR RULING AS TO EACH ISSUE. ASSUME THAT DEFENDANT SOLOMON POODELL MADE ALL NECESSARY MOTIONS TO PROPERLY PRESERVE ISSUES PRESENTED FOR APPEAL. ASSUME THAT YOU ARE IN A NEW STATE WITHIN THE UNITED STATES THAT HAS NO PRECEDENT WITH RESPECT TO ALL ISSUES EXCEPT WHEN DISCUSSING THE LAW OF ATTEMPT. THE COURT IN A PRIOR CASE USED A DANGEROUS PROXIMITY TEST WHEN DISCUSSING THE LW OF ATTEMPT. YOU ARE WELCOME TO ACCEPT THIS PRECEDENT OR PRESENT ARGUMENTS AS TO WHY THIS COURT SHOULD ADOPT A DIFFERENT TEST WHEN ANALYZING QUESTIONS RELATED TO ATTEMPT. BE CERTAIN AS JUDGE THAT YOU PROVIDE THE POLICY RATIONALES FOR ACCEPTING AND REJECTING ANY RULES AND PRECEDENT DISCUSSED.

Note -- Assume that all parties in this question are human beings.

(If your decision is contingent upon information not provided, explain what that information is and how it would affect your decision.)