Armed and Dangerous
On August 1, 2002, Dan, Art, and Bert entered Vince’s Convenience Store. Dan and Art pointed guns at Vince as Bert removed $750 from the cash register. As Dan, Art, and Bert were running toward Bert’s car, Vince came out of the store with a gun, called to them to stop, and when they did not do so, fired one shot at them. The shot hit and killed Art. Dan and Bert got into Bert’s car and fled.
Dan and Bert drove to Chuck’s house where they decided to divide the $750. When Chuck said he would tell the police about the robbery if they did not give him part of the money, Bert gave him $150. Dan asked Bert for $300 of the remaining $600, but Bert claimed he, Bert, should get $500 because his car had been used in the robbery. Dan became enraged and shot and killed Bert. He then decided to take all of the remaining $600 for himself and removed the money from Bert’s pocket.
On August 2, 2002, Dan was arrested, formally charged with murder and robbery, arraigned, and denied bail. Subsequently, the court denied Dan’s request that trial be set for October 15, 2002, and scheduled the trial to begin on January 5, 2003. On January 3, 2003, the court granted, over Dan’s objection, the prosecutor’s request to continue the trial to September 1, 2003, because the prosecutor had scheduled a vacation cruise, a statewide meeting of prosecuting attorneys, and several legal education courses. On September 2, 2003, Dan moved to dismiss the charges for violation of his right to a speedy trial under the United States Constitution.
1. May Dan properly be convicted of either first degree or second degree murder, and, if so, on what theory or theories, for:
a. The death of Art? Discuss.
b. The death of Bert? Discuss.
2. May Chuck properly be convicted of any crimes, and, if so, of what crime or crimes? Discuss.
3. How should the court rule on Dan’s motion to dismiss? Discuss.
Answer 1
This answer provided by Scott F. Pearce, www.passthebar.com.
I. Dan’s liability for murder:
Art and Bert died of gunshot wounds on August 1, 2002. Dan faces homicide charges for both deaths.
A. Art’s Death
Art died from a shot fired by Vince as Art, Bert and Dan fled Vince’s Convenience Store, which they had just robbed. Dan may properly be convicted of first-degree murder for Art’s death via the felony murder rule.
1. Felony Murder Rule
The felony murder rule holds that any death caused in the commission of, or in an attempt to commit, a felony is murder. Only felonies that are inherently dangerous can be used to justify a murder conviction based on the felony murder rule. In this case, Dan and Art pointed guns at Vince as Bert removed $750 from the cash register. Armed robbery is an inherently dangerous crime. Here, Art, Bert and Dan were accomplices and co-conspirators to the robbery. They agreed to commit the crime and they took substantial steps toward carrying out their conspiracy. Art’s death was a foreseeable consequence of the trio’s criminal acts.
2. Defense: Dan did not shoot Art
Dan did not shoot Art, Vince did. It is foreseeable that the victim of an armed robbery would arm himself and pursue the robbers. Armed robbery is an inherently dangerous crime, and all the participants in the crime are liable for deaths that result from the crime, including those deaths caused by the acts of a victim or a police officer.
3. Conclusion
Dan will be convicted of murder based on the felony murder rule. In most jurisdictions, this would be a first-degree murder conviction, and in others it would be a second-degree murder conviction.
A. Bert’s Death
Bert died when Dan shot him. Murder is the intentional killing of a human being with malice. Here, Dan used a deadly weapon to kill Bert, so malice is presumed. Dan’s homicidal intent also is apparent from his conduct. It is likely that Dan will be convicted of murder based on these facts alone, subject to his provocation and heat of passion defenses, discussed below. First, we will consider Dan’s possible felony murder liability for the death of Bert.
1. Felony Murder Rule
As discussed above, the felony murder rule will allow for accomplices and co-conspirators to be convicted of murder for deaths that arise out of inherently dangerous felonies.
a. Robbery of Store
Bert’s death occurred at Chuck’s house, where Dan and Bert had fled after robbing Vince’s Convenience Store and after Vince had killed Art. Chuck’s house probably could be considered a “safe haven” for Dan and Bert, which would mean that the crime of robbery had been completed at the time they arrived at Chuck’s. Since Dan shot Bert well after their arrival at Chuck’s, it is unlikely that Dan can be convicted of the murder of Bert based on the felony murder rule and their robbery of Vince’s Convenience Store.
b. Robbery of Bert
Dan shot Bert during an argument about how to split up the money they stole from Vince’s. After paying Chuck $150, Bert demanded $500 of the remaining $600, since Bert’s car was used in the robbery. Dan decided to take all of the remaining $600 for himself after he shot Bert. This means that Dan did not shoot Bert to rob him, since he did not intend to take the money at the time he fired the shot.
c. Conclusion
Dan will not be convicted of the murder of Bert based on the felony murder rule.
2. Defense: Provocation/Heat of Passion
Dan will argue that he was provoked by Bert’s insistence on an unfairly large share of their robbery proceeds, and that he shot Bert while enraged. Although this is unlikely to be good enough to save Dan from being convicted of murder, it is possible that his conviction will be in the second degree.
3. Conclusion
Dan will be convicted of murder for the death of Bert.
B. Conclusion
Dan will be convicted of first-degree felony murder for the death of Art and of common law second-degree murder for the death of Bert.
II. Chuck’s Criminal Liability
A. Accessory after the fact
An accessory after the fact is one who, with knowledge that a crime has been committed, assists a criminal to escape arrest or punishment.
1. Robbery
Chuck knew that Dan and Bert had just robbed Vince’s Convenience Store, because Dan and Bert decided to divide the $750 at Chuck’s house. Chuck harbored these robbers and protected them from arrest. Accordingly, Chuck is an accessory after the fact to robbery.
2. Murder
Vince killed Art as Art fled the scene of the robbery. Dan will be liable for this killing under the felony murder rule, as discussed above. It is unclear whether or not Chuck was aware of the fact that Art had been involved with the robbery and had lost his life in the process. If Chuck did know about Art’s death, he would be an accessory after the fact to felony murder.
A. Extortion
Extortion, commonly called blackmail, is where one obtains money by means of threats to do harm or to reveal information. Chuck threatened to tell the police about the robbery if they did not give him part of the money they had stolen. Thus, his conduct satisfies the elements of this crime.
B. Receiving Stolen Property
Bert gave Chuck $150 of the money they robbed from Vince’s Convenience Store. This money was stolen, and Chuck will face misdemeanor criminal liability for receiving this property, knowing it was stolen.
C. Conclusion
Chuck will be convicted as an accessory after the fact to robbery and perhaps to felony murder. He also will be convicted of extortion and of receiving stolen property.
III. Dan’s motion to dismiss should be granted.
Dan has moved to dismiss the charges he faces for violation of his right to a speedy trial. Resolving speedy trial issues is based on an examination of the totality of the circumstances. These circumstances include whether or not the defendant asserted this right, the length of the delay and the reason for the delay, and the prejudice to the defendant.
A. Dan requested his trial be set for October 15, 2002
Dan has asserted his right to a speedy trial every time he has had the chance. He asked that his trial be set on October 15, 2002, slightly less than two and a half months after his arrest on August 2, 2002. The court denied Dan’s request for an October 15 trial date and instead set the trial to begin on January 5, 2003. We are not told what reason the court had for this decision, but the length of the delay — less than three months — does not seem unreasonable. No facts are suggest that the defendant will be unduly prejudiced by this delay. At this point, the defendant’s right to a speedy trial has not been violated.
B. The court continued the January 5, 2003, trial to September 1, 2003
On January 3, 2003, the court granted the prosecutor’s request to continue the trial for another nine months, to September 1, 2003. Again Dan expressed his objection and asserted his speedy trial rights. This time we have the court’s reasons. The prosecutor had scheduled a vacation cruise, a statewide meeting of prosecuting attorneys, and several legal education courses. These are not good enough reasons to justify postponing defendant’s trial to more than a year after his arrest. Although the case against the defendant seems like a sure conviction –implying that the defendant will not be prejudiced by another lengthy delay in his trial — this does not justify unreasonably postponing his trial for relatively frivolous reasons.
C. Conclusion
The court should grant Dan’s motion to dismiss the charges against him on speedy trial grounds.
