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Criminal Law
James R. Elkins
College of Law || West Virginia University
Fall, 2011
Archives
 PLEASE BE ADVISED: If you are using the computer software to use a laptop to take the Criminal Law exmination, the software will lock your access to your computer files and to the Internet during the examination. This means that to take advantage of the open book nature of the examination you must bring with you a hard-copy of anything you expect to use during the examination.
This information about the use of the computer software was previously made available at our class meeting on Tuesday, November 29.
A Note on Getting Started
N1 After we finish an assignment, it will be moved from the assignment webpage to an assignments archive: Assignments Archive.
N2 If you want to see what is forthcoming in the way of assignments, a proposed schedule for the entire semester is available.
N3 If we do not cover or cover only briefly an assigned case, we will either 1) take up the next assignment without class discussion of the assigned case/materials, or 2), I will revise the following class assignment to indicate that we are going to cover the case(s) we did not have time to discuss in class, or discussed too briefly.
N4 I will provide additional supplemental resources, beyond the assigned course materials, for your study and use. In order to present a less cluttered class assignments page, I have moved these supplementa materials (for reading, study, perusal) to the following location on the course website: Beyond Class Discussion.
N5 If you want to talk with me about anything that we discuss in class, or about the course, I am generally available before and after class. Or, you can contact me by email or schedule a time to talk with me in my office, Rm. 110.
Tuesday, August 23, 2011: Reading Criminal Law Cases & an Introduction to Murder
[Note: All reading assignments in Joshua Dressler, Cases and Materials on Criminal Law (5th ed., 2009), as well as other assigned readings, will be designed with the use of the black/right/arrow  The Dressler assignments will direct you to the case and case notes page numbers.]
Barber v. Superior Court (Dressler: 142-146)
People v. Eulo (Dressler: 247-253)
Reading Criminal Law Cases
COURSE RESOURCES: Introduction
Thursday, August 25, 2011: Premeditation/Deliberation Element(s) of 1st Degree Murder
State of West Virginia v. Schrader (Sup.Ct. App., W.V., 1982) The Schrader case is not in the Dressler casebook. It can be found here: [on-line edited text] 172 W. Va. 1; 302 S.E.2d 70; 1982 W. Va. LEXIS 692 (1982)
[When I assign cases that are not in the Dressler casebook I will provide edited versions of the case on the course website and the case citation so you can print an unedited version of the case using either WestLaw or LexisNexis databases. It's my understanding that the cases can be printed without cost.]
State of West Virginia v. Guthrie (Dressler: 253-258) [Justice Workman's concurring opinion in Guthrie]
WV Jury Instructions
[Note: As part of this reading assignment you should read the jury instruction for 1st degree murder in the "standard" WV Jury Instructions and the West Virginia Public Defender Jury Instuctions. You can print out the two sets of jury instructions following the links to the right of the printer symbol.
Be advised that what I am calling the "standard" West Virginia jury instructions were at one time posted on the West Virginia Supreme Court's website. They have now been removed from the website without explanation. The WV Supreme Court has announced no plans for revised jury instructions. I assume that the old ("standard") jury instructions remain in use and consequently we will use them in the course (with the caveat that they are obviously inadequate and should be redrafted and completely revised). For a first effort at revision, a group of students under my supervision undertook the task. See: WV Homicide Jury Instructions Project] [Whenever I use the term "West Virginia jury instruction," I refer to the jury instructions that the West Virginia Supreme Court formerly posted on its website.]
WV Statutory Provisions on 1st & 2nd Degree Murder
§61-2-1. First and second degree murder defined; allegations in indictment for homicide.
Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four, chapter sixty-a of this code, is murder of the first degree. All other murder is murder of the second degree.
In an indictment for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, willfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased.
§61-2-2. Penalty for murder of first degree.
Murder of the first degree shall be punished by confinement in the penitentiary for life.
§61-2-3. Penalty for murder of second degree.
Murder of the second degree shall be punished by a definite term of imprisonment in the penitentiary which is not less than ten nor more than forty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of ten years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two, whichever is greater.
Dictionary Meaning of Premeditation and Deliberation: For a dictionary, my favorite has long been Webster's Seventh New Collegiate Dictionary.
Premeditation, according to Webster's Seventh New Collegiate Dictionary, is the "consideration or planning of an act beforehand that shows intent to commit that act." Premeditate means "to think about and revolve in the mind beforehand"; "to think, consider, or deliberate beforehand."
Deliberation, according to Webster's Seventh New Collegiate Dictionary is the act of deliberating. Deliberate is "characterized by or resulting from careful and thorough consideration"; "characterized by awareness of the consequences" -- "wilful"; "slow, unhurried, and steady" -- "voluntary" [from the Latin root deliberatus, pp. of deliberare: to weigh in mind, ponder]
Jury Instructions on Premeditation and Deliberation (in other jurisdictions): Compilation
Tuesday, August 30, 2011: 1st Degree & 2nd Degree Murder
Midgett v. State (Dressler: 258-260)
State v. LaRock (Sup.Ct.App., W.Va. 1996) [on-line edited version of LaRock for class discussion]
Review W.V. Code §61-8D-2a. Death of a child by a parent, guardian or custodian or other person by child abuse; §61-8D-2. Murder of a child by a parent, guardian or custodian or other person by refusal or failure to supply necessities, or by delivery, administration or ingestion of a controlled substance]
State v. Forrest (Dressler 261-264)
[The Dressler edited version of Forrest does not address the malice issue in the case. For the Forrest court's commentary on the malice issue, see: Forrest-Notes.
West Virginia Jury Instruction: Malice
Malice as Defined in West Virginia Cases
Malice Jury Instructions in West Virginia
Additional Malice Jury Instructions
STUDY RESOURCES: Study Guide (Homicide & Murder): Joshua Dressler, Understanding Criminal Law (5th ed., 2009): pp. 505-518
COURSE RESOURCES: 1st & 2nd Degree Murder
Thursday, September 1, 2011: Voluntary Manslaughter|Provocation|Mitigation of Murder to Manslaughter|Extreme Emotional Disturbance
West Virginia Standard Jury Instruction: Voluntary Manslaughter|Provocation
Voluntary Manslaughter is the felonious, intentional and unlawful taking of another person's life but without premeditation, deliberation or malice.
The Court instructs the jury that reasonable provocation means those certain acts committed against the defendant which would cause a reasonable man to kill. Inherent in this concept is the further requirement that the provocation be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion, and that he did in fact do so.
Commonwealth v. Canipe (Virginia, 1997) [on-line edited text of the opinion]
Girouard v. State (Dressler: 264-271)
People v. Superior Court (Du) (Dressler: 51-53)
Tuesday, September 6, 2011: Voluntary Manslaughter|Provocation|Heat of Passion|Extreme Emotional Distress
State of Oregon v. Ott, 297 Ore. 375; 686 P.2d 1001 (Sup.Ct. Oregon, 1984) [add to assignment in 2012]
People v. Casassa (Dressler: 285-292)
In each of the cases presented in the attached Provocation|Heat of Passion & Extreme Emotional Distress cases file: Cases File
--Would you charge the defendant with murder?
--If you are in a provocation|heat of passion jurisdiction would the trial court judge be in error to refuse a jury instruction on voluntary manslaughter?
--Would the defendant be entitled to an extreme emotional distress (manslaughter) jury instruction in a Model Penal Code jurisdiction?
--If the trial court judge gives both murder and voluntary manslaughter jury instructions (or an extreme emotional distress jury instruction in a MPC jurisdiction) is the evidence sufficient to support a murder conviction?
People v. Superior Court (Du)(Dressler: 51-53)
STUDY RESOURCES: Study Guide (Extreme Emotional Distress): Dressler, Understanding Criminal Law, pp. 550-552)
COURSE RESOURCES: Extreme Emotional Distress
Thursday, September 8, 2011: Involuntary Manslaughter (Unintentional Killings)
State v. Green (Sup.Ct.App. W.Va., 2007) [on-line edited text]
Standard West Jury Instruction on Involuntary Manslaughter
Involuntary Manslaughter involves the accidental causing of death of another person, although unintended, which death is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard for human life.
West Virginia Negligent Homicide Provisions [on-line text]
State v. Williams (Dressler: 308-315)
What result in Williams using the West Virginia definition of involuntary manslaughter?
STUDY RESOURCES: Study Guide (Involuntary Manslaughter): Dressler, Understanding Criminal Law, p. 546
COURSE RESOURCES: Involuntary Manslaughter
Tuesday, Sept. 13, 2011: Depraved Heart Murder: Knoller Documentary Film
[50 min.]
Thursday, Sept. 15, 2011: Depraved Heart Murder (Unintentional Killings)
[By one account, 36 states include the concept of depraved heart murder, in one form or another, in their criminal homicide codes.]
Dressler casebook: 295 ("Unintentional Killings: Unjustified Risk-Taking")
People v. Knoller (Dressler: 296-304)
Problems:
P1: Michael Patrick Berry (California)
P2: David Earl Fleming (4th Circuit-- Federal Court)
P3: John P. Doub, III (Kansas)
P4: Michael Blane Dowda (Mississippi)
P5: Jimmy Ray O'Kelly (New Mexico)
P5: A CourtTV Report: A California man decides to commit suicide. He parks his car on a train tracks and waits for the train to smash into his car. He assumes he will die in the crash. The man changes his mind. After some deliberation he decides that he wants to live. When he sees the train bearing on him he jumps out of the car and is able to avoid being injuried. In the ensuing train derailment following the impact of the train with the car, eleven people are killed. Should the man be charged with depraved heart murder?
[I have not assigned the case opinions in the problem cases. If you want to read them, see: Fleming  Doub Dowda O'Kelly]
STUDY RESOURCES: Study Guide (Depraved Heart Murder): Dressler, Understanding Criminal Law 519-521; State v. McGuire (W.V. Sup.Ct.App. 2000) 200 W. Va. 823; 490 S.E.2d 912 [on-line edited text]; Delania Fields v. Commonwealth of Kentucky (Sup.Ct., Ky., 2001) [on-line text][there are issues addressed at pp. 8-11 of the decision that are not relevant to our discussion] [Further Resources: McGuire & a Review of Murder/Manslaughter]
COURSE RESOURCES: Depraved Heart Murder
Tuesday, Sept. 20, 2011: Felony Murder
Background Reading: Dressler: 315-316, 318-327
West Virginia:
Homicide Statute (Review): §61-2-1
State of Kansas v. Rogers (Sup.Ct. Kansas, 2003) [on-line text]
Commonwealth of Virginia v. Montague (Sup.Ct. Virginia, 2000) [on-line text]
State v. Sophophone (Dressler: 338-342)
State of West Virginia ex real. James F. Painter v. Paul Zakaib, Judge (Sup.Ct. App. W.Va., 1991)(Writ of Prohibition) [on-line text]
State v. Walker (Sup.Ct. W. Va., 1992) [on-line text]
188 W. Va. 661; 425 S.E.2d 616; 1992 W. Va. LEXIS 269
Stucky v. Warden, West Virginia Division of Corrections [on-line edited text]
202 W. Va. 498; 505 S.E.2d 417; 1998 W. Va. LEXIS 80 (1998)
Felony-Murder Jury Instructions: [Tennessee]
STUDY RESOURCES: [Study Guide (Felony-Murder): Dressler, Understanding Criminal Law, pp. 521-535] [Notes on Felony Murder in West Virginia]
PROBLEMS: Felony Murder Problems
COURSE RESOURCES: Felony Murder
Thursday, September 22, 2011: Causation
Dressler: "Proximate Cause ("Legal" Cause), pp. 219-220
State of Nebraska v. Amanda K. (Neb. Ct. of Appeals, 2000) 2000 Neb. App. LEXIS 7 [on-line edited text]
State of Iowa v. Albertson (Court of Appeals of Iowa, 2004) 2004 Iowa App. LEXIS 222 [on-line text]
People v. Rideout (Dressler: 220-229)
Note: The Michigan Supreme Court partially reversed the Court of Appeals decision in Rideout finding insufficient evidence to support a finding of proximate cause based on the defendant's acts.
Lofthouse v. Commonwealth of Kentucky (Sup. Ct. Ky., 2000) [facts & questions for class discussion]
The citation for the full opinion: 13 S.W.3d 236 [full text of the opinion will not be discussed]
Jury Instructions: Keep it simple: [New Hampshire]. Tell the jury too much and you clutter up the jury instruction: [Connecticut]
STUDY RESOURCES: [Study Guide (Causation): Dressler, Understanding Criminal Law, pp. 181-196]
COURSE RESOURCES: Causation
Tuesday, Sept. 27, 2011: Causation
Thursday, Sept. 29, 2011: Attempts
Background Reading: Dressler: 736-738
If there is "separate evidence of criminal intent independent from that provided by the substantial steps (e.g., a confessed admission of a design to commit a crime), then substantial steps . . . must merely corroborate that intent." United States v. Dworken, 855 F.2d 12, 17 n.3 (1st Cir. 1988).
Justice Holmes, in Commonwealth v. Peaslee (a case found in Dressler's casebook) notes that in attempts cases "there is still a chance that the would-be criminal may change his mind." The significance of the "he-might-change-his-mind" consideration is that it raises a question about the defendant's present intent.
Contra to the holding in Miller, the general rule in attempts case is as follows: The test for what constitutes a substantial step focuses on the acts the defendant completed, not the steps remaining to complete the act.
State v. Reeves (Dressler: 758-765)
Collier v. State of Indiana, [on-line edited text] 846 N.E. 2d 340 (Ct. App. 2006)
STUDY RESOURCES: [ Study Guide (Attempts): Dressler, Understanding Criminal Law, pp. 379-382, 391-393, 396-402, 411-412] [ Attempts--West Virginia]
COURSE RESOURCES: Attempts
Tuesday, Oct. 4, 2011: Conspiracy
Wednesday, October 5, 2011--12 Noon: "Studying Criminal Law"
Thursday, October 6, 2011: Aiding & Abetting (Accomplice Liability)
State v. Hoselton (Dressler: 851-853)
179 W. Va. 645, 371 S.E.2d 366 (1988)
Tuesday, Oct. 11, 2011: Aiding & Abetting (cont'd)
State of West Virginia v. Mullins [on-line text] [Justice Cleckley's dissenting opinion]
193 W. Va. 315, 456 S.E.2d 42 (1995)
State of West Virginia v. Wade [edited opinion]
490 S.E.2d 724 (1997)]
Thursday, Oct. 13, 2011: Aiding & Abetting Case (Penny Gail Miller)
State of West Virginia v. Miller [on-line text] [Justice Starcher concurring] 513 S.E.2d 147 (1998)
[Trial Court Jury Instruction given in the Miller case]
A Question Posed: Can a person be convicted of aiding and abetting a crime when the principal has not been charged, or has been charged and has not been convicted? Yes, with the usual qualifications. Aiding and abetting a crime is an independent substantive crime and a charge and conviction does not depend upon the charge and/or conviction of the principal. This does not mean that the prosecution is relieved of the necessity to prove the guilt of a principle as part of its case against the aider and abettor.
I should add a qualification or two to my "yes." At common law, a conviction of an accessory depended upon a finding of guilt of a principal. On this feature of common law, see Dressler, Understanding Criminal Law, at pp. 471-473. The residual effect of the old distinction between acessories and aiders and abettors and modern day confusion on this issue may still be found in some jurisdictions. See e.g., Jessica Smith's North Carolina Criminal Law blog entry on Aiding and Abetting.
Tuesday, October 18, 2011: Self-Defense
State of West Virginia v. Smith [on-line edited text]
295 S.E.2d 820
State of West Virginia v. Wykle [on-line text]
208 W. Va. 369; 540 S.E.2d 586
[The defendant, in Wykle, was charged with "malicious assault." West Virginia Jury instruction: "Malicious assault is committed when any person maliciously shoots, stabs, cuts or wounds or by some other means causes bodily injury to another with the intent to kill or permanently maim, disfigure or disable the other person."] [Wykle was convicted of "unlawful assault." In West Virginia: "Unlawful assault is committed when any person unlawfully, but not maliciously, shoots, stabs, cuts, wounds or by some other means causes bodily injury to another with intent to kill or permanently maim, disfigure or disable the other person."] [Simple assault is defined as: "Assault is committed when any person unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act which places another in reasonable apprehension of immediately receiving a violent injury."]
People v. Goetz (Dressler: 510-524)
United States v. Peterson (Dressler: 500-510)
Problem: State of West Virginia v. Baker [facts of the case]
Jury Instructions: West Virginia: Self Defense Jury Instructions
Oklahoma: Self Defense: Justifiable Use of Non-deadly Force | Self Defense: Justifiable Use of Deadly Force | When Self-Defense is Not Available | Burden of Proof | Justifiable Force in the Defense of Another | Justifiable Use of Non-Deadly Force in Defense of Another | Defense of Another | Defense of Property | Defense of Property-Burden of Proof
Connecticut: Self-Defense and the Defense of Others
Tennessee: Defense: Self-Defense
STUDY RESOURCES: [Study Guide (Self-Defense): Dressler, Understanding Criminal Law, pp. 223-234, 238-242][West Virginia Self Defense Cases]
COURSE RESOURCES: Self-Defense
COURSE RESOURCES (Goetz): Goetz
Thursday, October 20, 2011: Self-Defense
State of West Virginia v. Cook [on-line text]
515 S.E.2d 127
State of West Virginia v. W.J.B. [on-line edited text]
276 S.E.2d 550
State of West Virginia v. Jason H. [on-line edited text][edited dissenting opinion--Justice Davis]
599 S.E.2d 862
State v. Dinger [on-line text]
624 S.E.2d 572
Tuesday Oct. 25, 2011: Self-Defense and Domestic Violence
State of West Virginia v. Smith [on-line text]
481 S.E.2d 747 (1996)
State of West Virginia v. Headley [on-line text]
558 S.E.2d 324 (2001)
State of West Virginia v. Whittaker [on-line text] [Justice Maynard concurring opinion] [Justice Starcher dissenting] [Justice Albright dissenting] 650 S.E.2d 216 (2007)
State of West Virginia v. Harden [on-line text] [Justice Benjamin's dissent]
679 S.E.2d 628 (2009)
West Virginia: A Jury Instruction for Use in West Virginia
[drafted by students in an Advanced Criminal Law seminar]
STUDY RESOURCES: [Study Guide (Battered Spouse & Self-Defense): Dressler, Understanding Criminal Law, pp. 242-249]
COURSE RESOURCES: Self-Defense by Battered Women
Thursday, Oct. 27, 2011: Self-Defense & Battered Woman Syndrome
Smith v. State of Georgia, 486 S.E. 2d 819 (Sup.Ct. Georgia, 1997) [on-line edited text]
Compare the BWS jury instruction drafted by the Court in Smith with the proposed jury instruction drafted for use in West Virgina by WV College of Law students [BWS Jury Instruction]
Bechtel v. State of Oklahoma, 840 P.2d 1 (Okla. Ct.Crim.App., 1992) [on-line edited text] [Standard Jury Instruction Based on Bechtel]
Paine v. State of Oklahoma, 339 F.3d 1194 (U.S. Ct.App. 10th Cir., 2003) [on-line edited text]
State v. Norman (two opinions; 1988 & 1989)(Dressler: 532-546)
Tuesday, Nov. 1, 2011: Competence to Stand Trial
Background Reading: (Dressler: 611-613) Competence to Stand Trial--Case Analysis Form
State v. Chapman (Sup.Ct.App.W.Va., 2001) [on-line text]
557 S.E.2d 346
[Wechsler Adult Intelligence Scale-Revised] [IQ Classifications]
State v. Hatfield (Sup.Ct.App. W.Va., 1991) [on-line text]
The dissenting opinion that I previously listed for Hatfield is from a subsequent decision in the case and I have removed it from the assignment.
State v. Slaton (Sup.Ct.App. W.Va., 2002) [on-line text] [Justice Starcher concurring]
State v. Kent (Sup.Ct. App. W.Va., 2003) [on-line text] [Justice Maynard dissenting]
On the psychological diagnosis in Kent : [ anhedonia -Wikipedia] [ bi-polar disorder -NIMH] [ bi-polar disorder -Mayo Clinic] [ bipolar disorder -Wikipedia] [paranoid beliefs and delusions, see delusional disorder -Wikipedia] [ delusional disorder -BehaveNet]
[In conjunction with your reading of the assigned West Virginia cases on competence to stand trial (and to enter a plea), review West Virginia Code: §27-6A-1. Determination of competency of defendant to stand trial; §27-6A-2. Hearing on competency to stand trial [on-line text]; §27-6A-4 -- Release from jurisdiction of the court; §27-6A-5. Periodic review of person found incompetent to stand trial; §27-6A-6. Judicial hearing of defendant's defense other than not guilty by reason of mental illness [WV Code provisions]]
STUDY RESOURCES: [Study Guide (Competence to Stand Trial): Dressler, Understanding Criminal Law, pp. 340-342]
COURSE RESOURCES: Competence to Stand Trial
Thursday, Nov. 3, 2011: Diminished Capacity
Background Reading: (Dressler: 656-662)
Diminished Capacity Jury Instruction
On the Use of Psychiatric/Psychological Testimony in Diminished Capacity Cases: Washington Edmon Guidelines
State v. DeGraw (Sup.Ct.App.W.Va., 1996) [on-line edited text]
470 S.E.2d 215
[In conjunction with DeGraw, see the WV Jury Instruction used for Voluntary Intoxication]
State v. Joseph (Sup.Ct.App.W.Va. , 2003) [on-line text]
590 S.E.2d 718
[West Virginia Rules of Evidence: Rule 704]
State v. Ferguson (Sup.Ct.App. A.Va., 2008) [on-line text]
662 S.E.2d 515
[Postscript: "Ferguson Charged in Previous Murders, Father's Body Discovered in Back Yard," Hur Herald, June 1, 2009][Prior to the killing of Mr. Freas, Dreu Ferguson, with his wife, had been charged with the child abuse/murder of their 18 month old boy. The trial for the killing of his son took place while Ferguson was in jail awaiting trial on the Freas killing. He was, apparently, found not guilty in the killing of his son. His first trial on Freas' killing ended in a mistrial because a jury brought a law dictionary into the jury room. After the WV Supreme Court's decision in the assigned case overturned the conviction for the killing of Freas and ordered a new trial, Ferguson pleaded guilty to voluntary manslaughter. He was given credit for time served and was released from prison on the day of his plea hearing, having served only five years in the killing of Freas. In May, 2009, Ferguson threatened to kill his father and shortly thereafter he was found buried under a porch at Ferguson's home (where he had moved to Millville, New Jersey. Source: Hur Herald]
[State's Brief filed in the WV Supreme Court of Appeals in the assigned case]
State of Kansas v. White [on-line edited text]
109 P.3d 1199
[Eliciting Psychiatric Testimony with an Emphasis on Nexus Testimony and Avoiding Ultimate Issue Testimony]
[Ultimate Legal Issue Testimony in Federal Courts]
[In White, the defendant appeals the trial court's failure to instruct the jury on his voluntary manslaughter/heat of passion claim. Would White have a better case for voluntary manslaughter in an extreme emotional distress jurisdiction?] [For issues raised in White's 2nd trial, see State of Kansas v. White (Sup.Ct. Kansas, 2007)(After the Kansas court reversed White's first-degree premeditated murder conviction and remanded for a new trial (in the 2005 opinion you have been assigned), White was retried and again convicted of premeditated murder. His grounds for appeal included prosecutorial misconduct, erroneous jury instruction, and failure of the trial court to instruct on voluntary manslaughter (on the theory of imperfect defense of others).] [on-line text of the 2007 opinion is not being assigned]
STUDY RESOURCES: [Study Guide (Diminished Capacity): Dressler, Understanding Criminal Law, pp. 367-378] [State v. Griffin (Wash. 1983)
670 P.2d 265]
COURSE RESOURCES: Diminished Capacity
November 8, 2011: Continue Discussion of Diminished Capacity (Ferguson & White)(assigned for Nov. 3)
State v. Ferguson (Sup.Ct.App. A.Va., 2008) [on-line text]
662 S.E.2d 515
[Postscript: "Ferguson Charged in Previous Murders, Father's Body Discovered in Back Yard," Hur Herald, June 1, 2009][Prior to the killing of Mr. Freas, Dreu Ferguson, with his wife, had been charged with the child abuse/murder of their 18 month old boy. The trial for the killing of his son took place while Ferguson was in jail awaiting trial on the Freas killing. He was, apparently, found not guilty in the killing of his son. His first trial on Freas' killing ended in a mistrial because a juror brought a law dictionary into the jury room. After the WV Supreme Court's decision in the assigned case overturned the conviction for the killing of Freas and ordered a new trial, Ferguson pleaded guilty to voluntary manslaughter. He was given credit for time served and was released from prison on the day of his plea hearing, having served only five years in the killing of Freas. In May, 2009, Ferguson threatened to kill his father and shortly thereafter his father was found buried under a porch of Ferguson's home (in Millville, New Jersey). Source: Hur Herald]
[State's Brief filed in the WV Supreme Court of Appeals in the assigned case]
State of Kansas v. White [on-line edited text]
109 P.3d 1199
[Eliciting Psychiatric Testimony with an Emphasis on Nexus Testimony and Avoiding Ultimate Issue Testimony]
[Ultimate Legal Issue Testimony in Federal Courts]
[In White, the defendant appeals the trial court's failure to instruct the jury on his voluntary manslaughter/heat of passion claim. Would White have a better case for voluntary manslaughter in an extreme emotional distress jurisdiction?] [For issues raised in White's 2nd trial, see State of Kansas v. White (Sup.Ct. Kansas, 2007)(After the Kansas court reversed White's first-degree premeditated murder conviction and remanded for a new trial (in the 2005 opinion you have been assigned), White was retried and again convicted of premeditated murder. His grounds for appeal included prosecutorial misconduct, erroneous jury instruction, and failure of the trial court to instruct on voluntary manslaughter (on the theory of imperfect defense of others).] [on-line text of the 2007 opinion is not being assigned]
Intoxication cases:
State of Washington v. Brooks, 651 P.2d. 217 (1982) [on-line text]
State of North Carolina v. Golden, 143 NC App 426 (2001) [on-line text]
Coddington v. State of Oklahoma, 142 P3d 437 (2006) [on-line edited text]
State of West Virginia v. Hobbs, 358 S.E.2d 212 (1987) [on-line edited text]
WV Voluntary Intoxication Jury Instruction
STUDY RESOURCES: [Study Guide (Competence to Stand Trial): Dressler, Understanding Criminal Law, pp. 323-334]
COURSE RESOURCES (Voluntary Intoxication): Voluntary Intoxication || Intoxication Defenses || Voluntary Intoxication and Criminal Responsibility || The Voluntary Intoxication Defense
November 10, 2011: Documentary: "A Crime of Insanity" (Ralph Tortorici Case)
Ralph Tortorici Case
[The PBS Frontline file for Tortorici--printed out--is 150+ pages.] [To access the various files: first, follow the "The Story of Ralph Tortorici" link; at the next screen you will find links to--"An Overview," "A Son and a Brother," "A Well-Documented History of Mental Illness," "Letter to Prosecution from Dr. Lawrence Siegel," "The Defense's Summation," "The Prosecution's Summation," "Interviews." Following each of these links you will find, in some instances, still further links.]
Tuesday, Nov. 15 , 2011: Insanity Defense
Background Reading: Dressler: 613-616); State v. Johnson) [on-line edited opinion] [In Johnson, the Rhode Island Supreme Court discusses the flaws in the M'Naghten test for insanity and adopts the ALI, Model Penal Code test that is used in West Virginia]
West Virginia/Model Penal Code: Test for Insanity
[For comparison: M'Naghten Rule used in West Virginia prior to the adoption of the MPC test for insanity and still used in a substantial number of states]
State v. Koon (W.Va. Sup.Ct.App., 1993) [on-line edited opinion]
440 S.E.2d 442
People v. Dwight (App.Ct. Ill. 1st Dist. 2nd Div., 2006) [on-line text]
[Illinois Criminal Code provision on insanity] [The trial cout judge in Dwight gave a "guilty but mentally ill" jury instruction and refused to give an insanity jury instruction. What is "guilty but mentally ill (GBMI)"? See Ralph Tortorici FAQ's] [Illinois Guilty But Mentally Ill provision]
Commonwealth v. Goulet, 402 Mass. 299 (1988) [on-line text]
Wiseman v. Commonwealth of Kentucky, 587 S.W. 2d 235 (Sup.Ct. Ky., 1979) [on-line edited opinion]
State v. Green, 643 S.W.2d 902 (Ct.Crim.App., Tenn, 1982) [on-line edited opinion ]
Dial v. State of Texas, 1999 Tex. App. LEXIS 3366 (Ct.App.Tx., 3rd Dist. Austin, 1999) [on-line edited opinion][Texas uses the M'Naghten Rule in insanity cases and places the burden of proof on the defendant.]
[Jury Instructions on Consequences of a Not Guilty by Reason of Insanity Verdict: The West Virginia Supreme Court has held that defense counsel is entitled to argue the consequences of a finding of not guilty by reason of insanity to the jury and is entitled to a jury instruction on the issue which correctly states the law. State of West Virginia v. Nuckolls, 273 S.E. 2d 87 (Sup.Ct.App. W.Va., 1980). See also, State of West Virginia v. Lutz, 395 S.E. 2d 478 (Sup.Ct.App. W.Va., 1988). The Court has noted that "There is potential for a grave miscarriage of justice if the jury is confused about the consequences of such a verdict [not guilty by reason of insanity]. In a close case, the jury may find a defendant guilty as charged without careful evaluation of his insanity defense if it is not instructed as to the procedural consequences of a finding of not guilty by reasoning of insanity. Eliminating this source of jury confusion and its potential for compromising the integrity of its fact-finding role is the undelrying rationale of our holding in Nuckolls. . . . Nuckolls embodies our concern for both the jury's needs and the defendant's rights." State of West Virginia v. Daggett, 280 S.E. 2d 545, 549 (Sup.Ct.App. W.Va., 1981)
[In Federal courts, a consequences jury instruction is required only to counteract inaccurate or misleading information presented to the jury during trial. In Shannon v. United States, 512 U.S. 573 (1994), the United States Supreme Court held that under the Insanity Defense Reform Act of 1984 (IDRA), federal courts are not required to instruct juries on the consequences to defendants of a verdict of not guilty by reason of insanity.] [Shannon v. United States]
[A simple and straightforward "consequences" of NGBI jury instruction] [For a more complex jury instruction on the consequences of a jury finding of NGBI, see: Massachusetts :: the consequences jury instruction is on p.4 of the PDF]
STUDY RESOURCES: [Study Guide (Insanity Defense): Dressler, Understanding Criminal Law, pp. 339-365]
COURSE RESOURCES: Insanity Defense
Thursday, Nov. 17, 2011: Insanity Defense
Tuesday & Thursday, November 22 & November 24, 2011: Thanksgiving Break (No Classes)
Professor Elkins
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