CHAPTER FIVE

Offenses Against the Person.

OBJECTIVE #1 -

Identify the elements of:

First Degree Murder - MCCH Ch. 5.3

A. First Degree Murder (Old capital murder)

1. Knowingly - know or was practically certain

2. Causes the death of another

3. After the deliberation upon the matter - Cool reflection no matter how brief (but not the result of a passion)

a. This element can be inferred from the evidence.

b. Worksheet Question 1 - Evidence that D had to slip hands out of handcuffs gives rise to inference that D reflected for a time about killing trooper (that was enough). Pathologist is able to show that D slipped hands out of cuffs - hit trooper in face, scrapped his eye blinding him - Trooper struggled but D got to weapon. First shot grazed shirt - second shot hit bulletproof vest and knocked breath out of trooper. D fires two more slugs into neck of trooper. (Temporarily incapacitated gives inference of further reflection) (Interesting to note that Court thought first reflection was enough)

Objective #2 -

Identify the terms "aggravating" and "mitigating" as circumstances, and why they are considered in assessing the penalty for first degree murder. MCCH Ch. 5.3

Question 1a. Aggravating circumstance #5.

4. Actually two trials are required in 1st Degree case unless State waives death penalty. (Two trials, same jury - one for guilt, one for sentencing)

a. Must have at least one aggravating circumstance for death penalty.

b. Question B (1)Yes aggravating circumstance #7

Question B (2) Yes, aggravating circumstance #1, #13

Question B (3)Yes aggravating circumstance #7

Question B (4) Yes mitigating circumstance #4, #1

Question B (5) Not mitigating under #5, not under dominion of another (killing may have occurred while the hiree was miles away)

Murder in the Second Degree - MCCH Ch. 5.4

B. Second Degree Murder

1. What is the main difference between 1st & 2nd Degree Murder elements - First degree requires deliberation. For second degree, no need to show that D intended to kill anyone under 1.a(ii) or 2.a. or b.

2. Note - may be punished for 2nd Degree Murder and for commission of underlying felony. This is the felony murder provision which falls into second degree murder.

3. Note - D must not have acted in anger, fear or adequate provocation - this would lower to voluntary manslaughter. Rationale - not guilty enough state of mind.

Voluntary Manslaughter - MCCH Ch. 5.5

(Class B Felony)

1. Elements

a. Death caused by what would have been 2nd Degree Murder except death was caused under the influence of sudden passion or

b. Assisting in suicides.

Involuntary Manslaughter – MCCH Ch. 5.6

(Class C Felony) all non-intentional killings

1. Elements

a. Recklessly (knew of risk and disregarded it) caused the death of another

b. Operates vehicle in an intoxicated condition and caused the death of another.

E. Examples

1. Comparing voluntary manslaughter, Murder II and Involuntary Manslaughter

a. Case law revolves around meaning of "sudden passion." Theory is that sudden passion negates "knowing" requirement of Murder II.

b. Key definitions: Sudden Passion - (a) directly caused by and arising from provocation by the victim (b) at the time of the offense and not solely from the result of former provocation.

Adequate Cause - "cause that would reasonably produce a degree of passion in a person or ordinary temperament, sufficient to substantially impair an ordinary person's capacity for self control, i.e., would it anger the ordinary person?

Note - (1) sudden, unexpected encounter tending to ignite passion beyond control (2) Reaction so extreme that for that minute action is directed by passion. (3) Sudden passion and not after there has been time for passion to cool (4) words not sufficient.

2. Specific cases.

(a)Question 2A worksheet. Voluntary Manslaughter.

(b)Question 2B worksheet. There was time for passion to cool - Murder I not Murder II which would be used if he only intended to cause serious physical injury.

(c)Question 2C worksheet. What do you think? Court says it is not necessary for actor to brood over his action for a long period of time - jury question.

(d)Question 2D worksheet. Murder II by definition. Is a felony murder.

(e)Question 2E worksheet. While fleeing. Yes. (see elements of 2nd degree murder 2.b.ii.)

Question 2E1 worksheet. Yes.

3. More examples.

(a)3a. Murder - mere words not adequate provocation.

(b)3b. In reality, might be charged with Murder II, but jury will be allowed to consider voluntary manslaughter - most likely conviction.

(c)Was purpose to cause serious physical injury - Murder II.

(d)Murder 1st or 2nd - should have gotten over it.

4. More examples.

Question 4. Recklessly caused death (knew or should have known risk), definitely Involuntary Manslaughter. Might get Voluntary Manslaughter - A.1 & 2 of elements. Might even try Murder II caused death with purpose to cause serious physical injury.

Question 4A. Is this reckless? A fact question.

Involuntary Manslaughter

Question 4B. Criminal Negligence. Intoxication alone does not support a manslaughter conviction. The vehicle must be operated in a grossly negligent manner which results in the death of a person to sustain a conviction. It serves as a factor in determining whether criminal negligence exists. In this case would want impartial evidence that other people had maneuvered to avoid disabled car. Should have been aware of substantial risk. Didn't slow down, didn't keep careful lookout. Reasonable driver would appreciate risk and take evasive action.

F. Assaults.

1. General Rule: Attempts are treated the same as the completed act in determining whether an assault has occurred. Note word attempt in elements.

2. Degrees of assault and classification of seriousness varies depending on harm suffered and/or mental state of defendant.

OBJECTIVE #5 -

Identify the elements of:

a. First Degree Assault - MCCH Ch. 5.8

b. Second Degree Assault - MCCH Ch. 5.9

c. Third Degree Assault - MCCH Ch. 5.10

Memorize the different classes (see chart on page 60) and know the definitions that cause the difference.

OBJECTIVE #4

Identify the definition differences between “physical injury” and “serious physical injury.” “physical injury" MCCH Ch. 5 . 10 - Definitions.

“serious physical injury" MCCH - Chs. 5.4 and 5.10 Definitions

Harm: serious physical injury - physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body; physical injury - physical pain, illness or any impairment of physical condition

Mens Rea or mental states - knowingly & purposely; recklessly; with criminal negligence.

a. Purposefully - purpose was to achieve objective or cause result

b. Knowingly - knew result was practically certain

c. Recklessly - aware of risk - took it anyway

d. Criminally Negligent - should have known of risk and took it anyway.

OBJECTIVE #3

Define the terms "deadly weapon" and "dangerous instrument.” MCCH - Definitions section located at the end of the manual.

Deadly weapon - means any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serous physical injury may be discharged, or a switchblade knife, dagger, billy, black jack, or metal knuckles v. dangerous instrument - means any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

Examples;

Question 5A - Court says constitutes serious disfigurement

Question 5B - Yes. Court says constitutes protracted loss or impairment, definition of serious physical injury

Question 6A - Yes. Maybe 1st Degree Assault

Question 6B - What if he didn't know gun was defective? 1st degree, an attempt to cause serious physical injury. What if he did know? 3rd Degree Assault - see element, 2a.

Question 7 - Yes - serious disfigurement - even if not permanent.

OBJECTIVE #8 -

Identify the major differences between the three assault statutes and the three assault of a police officer statutes. MCCH Ch. 5.13

Assault on Law Enforcement Officer - same definitions apply. Discuss the differences between the three assault statutes and the assault on a law enforcement officer statutes. Penalty for first degree on LEO is Class A felony, no Class B punishment available. Second degree assault on LEO is Class B felony, no sudden passion element, no requirement that the person act knowingly - even an attempt to assault a LEO officer is enough if a deadly weapon or dangerous instrument is used. Third degree on LEO always a Class A Misdemeanor. Also difference in the physical contact provision. For LEO only has to be contact without the officer’s consent. No requirement that the officer regard it as offensive.

OBJECTIVE #5 -

Harassment - MCCH Ch. 5.21 - Go over elements. Seldom does the law punish mere verbal threats (constitutional concerns) however, this statute does.

OBJECTIVE #6 -

Identify the differences between the regular assault statutes and those covering elder abuse. MCCH - Ch. 5.19 Comments

Difference between the regular assault statutes and those covering elder abuse. These statutes provide extra protection for those 60 and over and those between 18 and 59 who are unable to protect themselves. Contain enhanced penalties. Note the provision in section 5 for mandatory reporting to Dept. of Social Services by law enforcement officers who observe abuse or neglect.

Unlawful Restraint Crimes.

OBJECTIVE #7 -

Identify what is meant by the term "consent as a defense" when used in the crimes involving unlawful restraint. MCCH Chs. 5.22 to 5.26

1. All unlawful restraint crimes have as an element the victim’s lack of consent either by violator overcoming victim by forcible compulsion or by victim not having the capacity to consent (i.e. minor under 14 or victim is in a temporary or permanent physical or mental condition in which the victim can't consent - unconsciousness or unable to communicate, for example).

OBJECTIVE #9 -

Identify the major differences between the crimes of kidnaping, felonious restraint and false imprisonment. MCCH Ch. 5.23, 5.24, 5.25

Kidnapping is designed to cover situations where there is high risk of injury or death above that of the incidental crime;

a. Kidnapping almost always involves the commission of another offense.

b. Thus to determine whether kidnapping occurs, the key question is whether or not the movement or confinement incidental to the crime created a further risk to the victim.

1.Question 8 worksheet - Did D's actions create a further risk to victim than the incidental crime - the rape. Who believes the kidnapping charge is valid? What if I argue that D only moved her a short distance and that only to get a more secure place - does that argument convince you that this in only incidental to the rape. What are the increased risks that the abduction caused. (a) potential of accidental discharge of weapon was increased by movement of victim; (b) possibility of injury or death increased because of an attempt to escape or rescue effort of third party; (c) moving to more private area increased the potential for a more serious attack.

Bottom line - not the time involved or the distance moved that determines if kidnapping is charged but creating further risk by movement or confinement.

c. But note - Defendant's purpose may make this an easier call, i.e., ransom, shield, flight from felony. Thus, if it is a hostage or shield situation, any movement or confinement will suffice.

d. Note - Question 8A worksheet - What if D's defense is that Defendant never used force to confine them, i.e., he only struck them in the head to help with robbery. They never tried to leave or ask to leave on their own accord. Seems silly but actually used as a defense - Court says victims that consent by being confined through fear of force are confined & kidnapped. Consent because of fear enough.

e. Summary - A robber that moves someone from room to room in a house to facilitate the robbery probably hasn't kidnapped (not increased risk by movement or confinement). But if it's a hostage or shield purpose, he has committed kidnapping.

3. Felonious Restraint.

a. No movement or confinement necessary.

b. Only requires knowingly as mens rea.

c. Example - High speed driving without letting person out.

4. False Imprisonment.

a. This is like felonious restraint, only no risk of injury. Thus, lock someone in closet with no threat of suffocation - false imprisonment. In bank vault where there is such risk - felonious restraint.

b. Note - must be significant restriction in liberty not just momentary or minor (worksheet Question 9B)

c. Note the defenses in text. Designed to keep custody dispute out of false imprisonment cases (Worksheet Question 9A).

5. Consent as a defense to unlawful restraint crimes - No crime is committed when someone who has authority to consent to the restraint gives consent.

Re-cap the differences between kidnappng, felonious restraint and false imprisonment.

(The information below is not required by POST)

J. Child Custody Cases - use of criminal courts in domestic cases.

1.Interference with Custody - Class D Felony (A misdemeanor unless removed from state)

A. Question 9 worksheet - Has F taken or entered, knowing he has no right to do so. Note that I said M had custody. I inferred that there was valid court order. Yes. This is Class A Interference with Custody.

What interest are we trying to protect - Does it matter that the kids consented? No, we are protecting the court ordered custody

2.Warning - Requires valid court order - any question should consult with legal advisor or prosecutor. Just recently had call about two conflicting orders - California and Missouri, lawyer tries to get us to enforce

2. Parental Kidnapping (1988 statute)

a. In absence of court order for custody, a parent has a right of custody and if he or she skips with kids to try and get an advantage over the other parent, they violate this section (i.e., showing up a day care, etc.) Even if that parent wins at subsequent custody hearing - still violated this statute.

3.Child Abduction and Assisting have very specific elements - Read them.

a. Designed to prevent pre-order abuses.

4.Note - Section 565.167 has specific provisions about when a law officer may take a child into protective custody and to give child back to other parent during investigation. Warning - Do not, without legal assistance. General rule is parties still have to enforce their own decrees. Follow Department procedure. See Legal Bulletin 97-11.

5. Go over child custody orders contained in Orders of Protection - State statute says an officer shall arrest the respondent for not complying with a custody order and shall transfer custody of children. This is a very narrow exception to our general rule that we do not get involved in child custody cases.

Revised 4/01