July 2013 Example Ten-point Answers to Virginia Essay Questions
July 2013 - QUESTION 3 – VIRGINIA BAR EXAMINATION
On Saturday night, June 1, Wilson walked into a police station and stated that he needed to speak to a detective about a double homicide. An officer escorted him to a detective's office, where he was immediately advised of his Miranda rights. After signing a written waiver of his Miranda rights, Wilson told the detective that he had just killed his wife and daughter and was turning himself in to the police. He told the detective that he and his wife had been having financial difficulties, and that they had a heated argument concerning the subject earlier that week. Wilson said that during the argument, his wife and daughter had insulted him to the point of verbal abuse. He said that they told him he was a "failure as a human being," that he could not provide for his family, and that he was "inadequate as a man in every way." Wilson said that he was extremely upset by their insults and could not "think clearly" for a few days following the argument.
Wilson told the detective that he decided to kill his wife and daughter following the argument. He said that their extravagant spending habits were the source of the family's financial difficulties. He told the detective that he decided to wait to kill them until that weekend, when he was sure that they would both be at home. Wilson said that earlier in the evening of June 1 he told his wife that he was going to give her a massage. When she laid down for the massage, Wilson said he strangled her by placing a heavy barbell over her neck and applying pressure. After killing his wife, Wilson said he went to his daughter's bedroom to kill her using the same method while she slept. Wilson said that she woke up before he could begin strangling her, so he proceeded to strike her repeatedly in the head with the barbell until she lost consciousness. At that point, the detective asked Wilson if his wife and daughter could possibly still be alive. Wilson replied that his wife was definitely dead, but his daughter was still breathing when he left the family's house.
The detective immediately told the station's dispatch officer to send the officer patrolling Wilson's neighborhood to his house to investigate a homicide and offer assistance to any surviving victims. The detective made a lawful arrest of Wilson for the murder of his wife. When he searched Wilson incident to the arrest, the detective found a loaded pistol in Wilson's pocket. A subsequent investigation of Wilson's criminal history showed that his only prior conviction was for sexual battery, a crime punishable by confinement in jail for not more than twelve months and/or a fine of not more than $2,500.
Two officers arrived at Wilson's house approximately five minutes later. They knocked on the door and announced their presence, but no one answered. They then entered the house through its unlocked front door. The officers immediately saw Wilson's wife on the floor of the living room. She was obviously dead. The officers continued to search the house for other victims until they found Wilson's daughter in her bed. She was also dead. During the course of this search, the officers seized a clear plastic baggie containing a green leafy plant material later identified as marijuana from Wilson's living room coffee table. The baggie was the only object on the table, and the table was next to Wilson's wife's body. The distinctive odor of marijuana also emanated from the baggie. Wilson's fingerprints and DNA were later recovered from the baggie.
Wilson was indicted for the first degree murder of his wife and daughter, possession of marijuana, and possession of a firearm under a statute that makes it unlawful for one to possess a firearm after having been convicted of a felony.
Wilson filed pretrial motions to suppress the marijuana seized during the warrantless search of his home and the firearm seized during the warrantless search at the police station. The court denied both motions.
At trial, Wilson moved to dismiss the charge of murder and requested that the judge instruct the jury that the highest degree of homicide that the evidence could support was voluntary manslaughter. Also at trial, Wilson moved to dismiss the firearm charge on the ground that there was no evidence to support it.
(a) Did the court rule correctly on each of Wilson's pretrial motions? Explain fully.
(b) How should the court rule on each of the motions Wilson made at trial? Explain fully.
July 2013 - QUESTION 3 – EXAMPLE ANSWER #1
(a) The Court ruled correctly on both the pretrial motions to supress the marijuana and the firearm seized from the police station.
(a)(i) Marijuana. The police seizure of the Marijuana was according to the law. The presumption under the fourth amendment is that police need an effective search warrant to search any location where a person has a reasonable expectation of privacy. Without question, a defendant has a reasonable expectation of privacy in his own home. However, there are several exceptions to this rule. In the present case, the relevant exception is that if the police have a lawful right to enter a person's household or place where they should enjoy privacy, they may seize any evidence where the criminality of the object is readily apparent on its face. This exception can be used when police are chasing a susupect and follow into a residence, if the police see unlawful items in plain sight while executing a search warrant relevant to other things, or hear, if the police have probable cause of an emergency situation where there is no time for them to get a search warrant.
In the present case, an emergency situation gave the police the right to enter a home in order to attempt to prevent a homicide. The police had reason to believe the daughter was still alive at the time, but was seriously injured, due to the statements made by Wilson. Under this timeline, the police and emergency personnel had the right to enter the home to attempt to save the dying girl. While in the house, the police saw the marijuana right next to one of the potential victims. There is no reason to believe the police were searching for the marijuana, and the facts state that it was the only object on the table (easy to be seen) and left behind a distinctive odor (allowing them to immediately recognize the criminality of the object). For these reasons, the seizure of the marijuana was valid and should not be suppressed.
(a)(ii) Firearm. Police may also not search or seize a person under the law without justifiable support. There are several exceptions to this general rule. Police are able to Terry stop and frisks based on reasonable suspicion, may search subjects incident to arrest, and may search subjects for inventory at the time of booking. Here, the facts indicate that the police had a right to search the man for either of the final two reasons. Officers may search a person and seize any weapons or contraband that is immediately apparant incidental to an arrest. This rule is designed to protect officer safety. Undoubtably, a gun is dangerous to officers and readily apparant during a search, so the police properly seized the gun. As the police were at a police station, they would also be booking the defendant and have the right to search and inventory the items he had in his possession.
As both searches were justifiable exceptions to searches and seizures without a warrant the judge properly denied the motions to suppress.
(b) The court should reject the motion to dismiss the murder charge and grant the motion to dismiss the firearm charge.
(b)(i) Murder. The prosecution and facts have ample evidence to try the defendant for first degree murder, and the charge should not be reduced to voluntary manslaughter. In Virginia, all homicides are presumed to be second degree murders. It is the prosecutors burden to increase the charge to first degree murder, and the defendant's burden to reduce it to voluntary manslaughter. To be charged with first degree murder, the prosecution most prove that the killing was premediated, willful and deliberate. The statute also specifically references circumstances such as lying in wait with respect to first degree murder. The defense would need to show that the crime was in the heat of passion in order to reduce the charge to voluntary manslaughter. The heat of passion element is satisfied if the defendant is adequately provoked and does not have time to cool down after adequate provocation. Voluntary manslaughter is still an intentional killing. In the present case, the facts demonstrate that Wilson acted deliberately and premeditated his murder. Wilson admitted that he decided to wait and kill his family on the weekend. He planned the attack in advance and used a story to trick his wife into getting into a vulnerable position before he killed her. He also planned to kill his daughter while she was asleep, presumably so that she would put up little resistance. These are the actions of a person who deliberating about his decision, premeditated the crime, and executed it nearly to perfection, at least with respect to his wife.
The defense would have to argue that he was adequately provoked and that he did not have time to cool off after the provocation. Here, the facts demonstrate that neither condition occured. Wilson was merely provoked by words and insults that would not cause a reasonable person to be provoked to the point of rage. Words alone here are not enough for the provocation to occur, this situation is dissimilar to cuckholding. Furthermore, Wilson had amble time to cool off, and did cool off. He waited until after the argument, and decided to hold off on the killings until the weekend. In no scenarion was this not enough time for him to relieve himself from the provoking circumstance.
(b)(ii) Firearm. The prosecution has presented no elements to part of the firearm charge. To be guilty under the statute Wilson must have 1) had possession of a firearm, 2) have been convicted of a prior felony. Here, Wilson clearly had possession of the firearm. But, Wilson has never been charged with a convicted of a felony. In Virginia, a felony is a crime punishable by more than a year in jail as the maximum sentence. Here, the his sexual battery conviction had a maximum penalty of 12 months in jail, not more than a year, and the fine does not rise to the level of making it a felony. For these reasons, the Court should dismiss this charge.
July 2013 - QUESTION 3 – EXAMPLE ANSWER #2
AI. The Court Properly Denied Wilson's Motion to Exclude the Marijuana.
The Fourth Amendment of the United States Constitution, as well as the Virginia Constitution, prohibit unlawful searches and seizures, and further, prohibit the introduction at trial of any evidence obtained as a result of such a search or seizure, considering such evidence to be "fruit of the poisonous tree." There are several exigent circumstances that permit searches and seizures without warrants. Contraband in plain view, easily determinable to be contraband, may be seized without warrant. Additionally, a home may be searched without a warrant in order to save lives, so long as such a search is not beyond the scope of the exigency. An individual, and the area within lunging distance, may be searched for weapons of contraband upon lawful arrest of that individual.
Two officers were sent to Wilson's home to offer assistance to any surviving victims, under the belief that Wilson's daughter may have been alive. Additionally, the officers were told to investigate the homicide. The officers entered the home, and searched room to room in order to find Wilson's daughter, whom they eventually found dead. In the course of searching for the daughter, the officers saw the bag of marijuana in plain view, emanating a distinct odor and clearly identifiable, sitting upon the coffee table, in the room where Wilson's dead wife was found. While the officers were not permitted to search for evidence without a warrant, the marijuana was found while searching for survivors, a permitted exigency. As such, because the initial search was lawfully conducted in order to find any victims, and the marijuana was found during that search and was in plain view, the marijuana was properly seized, and Wilson's motion to exclude was properly denied.
A2. The Court Properly Denied Wilson's Motion to Exclude the Gun.
The Fourth Amendment prohibits unlawful searches and seizures, with certain key exceptions (see discussion above). One of those exceptions is for searches of the defendant and his immediate surroundings conducted pursuant to lawful arrest. In Virginia, an officer may arrest an individual without a warrant for a felony comitted outside of the officer's presense, so long as he possesses probable cause to believe that the defendent committed that felony. First degree murder is a felony.
Wilson turned himself into the police in order to confess to the premeditated killing of his wife and daughter. The facts tell us that Wilson was lawfully arrested (as there is clearly probable cause that he committed a felony), and searched incident to that arrest. As such a search was permitted, the firearm that was discovered as a result of that search is admissible, and the court properly denied Wilson's motion to exclude.
B1. The Court Should Deny Wilson's Motion to Instruct the Jury that the Highest Charge He Can Be Convicted of is Manslaughter.
In the Commonwealth, murder is defined as the unlawful killing of another with malice aforethought, and is presumptively murder in the second degree. First degree murder is the same thing as second degree murder, but with an additional showing of premeditation. Manslaughter is murder that is committed while in the heat of passion; ordinarily, such provocation cannot be simple words. Unlike under the Model Penal Code, Virginia law provides that the defendant must have committed the crime while under the imemdiate influence of that passion, and cannot have had time to cool down.
Wilson's wife and daughter mocked him cruelly and mercilessly "to the point of verbal abuse." Wilson said he was extremely upset, and "couldn't think clearly." But he didn't actually commit the murders until several days later. Wilson coldly calculated his plan in advance, intending to lure both victims into a false sense of security, and planning to execute the crime only when he knew tat both his wife and his daughter would be home. Words are not ordinarily sufficient to legally provoke the fit of passion necessary for a manslaughter charge, and futher, Wilson had more than sufficient time to cool down. Additionally, the facts as provided could allow a jury to conclude beyond a reasonable doubt that the killing was premeditated. As such, the court should deny Wilson's motion to lower the charge to manslaughter.
B2. The Court Should Grant Wilson's Motion to Dismiss the Firearm Charge Because He Was Never Apparently Convicted of a Felony.
A felony, as opposed to a misdemeanor, is a crime for which a party can be confined for more than a year upon conviction. Sexual battery, while undefined here, is a crime punishable by confinement not more than twelve months. As such, sexual battery is likely a misdemeanor.
Wilson is charged with unlawful possession of a firearm by one convicted of a felony. But, as we are told, the only crime on Wilson's record is sexual battery. Because sexual battery is not apparently a felony, the court should grant Wilson's motion to dismiss this charge.
July 2013 - QUESTION 3 – EXAMPLE ANSWER #3
A. Court's rulings on Wilson's pretrial motions
i. The court ruled correctly on Wilson's motion to suppress the firearm during a warrentless search because warrantless searches incident to arrest are valid under the Fourth Amendment
The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures. Most searches by default require a warrant in order to be considered reasonable, but there are many exceptions to the warrant requirement. One of those exceptions allows a warrantless search of the suspect's person when an offier conducts a legal arrest of the suspect. The proper scope of a search incident to arrest includes any weapons or evidence related to the offense. An officer may constitutionally arrest the suspect when the officers has probable cause to believe that the suspect has committed a misdemeanor in the presence of the officer, or that the suspect has committed a felony, whether or not it was done in the officer's presence.
The "fruit of the poisonous tree" doctrine could also invalidate a search incident to arrest if the facts giving rise to probable cause were acquired by the illegal actions of the police. However, the officers properly Mirandized Wilson before speaking to him, so this will not apply.
In this case, the detective had probable cause to arrest Wilson for murder based on Wilson's statements to the detective. This gave the detective the right to search Wilson incident to arrest without a warrant. The gun, a weapon and evidence of the crime, was properly within the scope of a search incident to arrest.
THEREFORE, the court properly ruled against Wilson's motion to suppress the firearm seized during a warrantess search.
ii. The court ruled correctly on Wilson's motion to the suppress the marijuana found in his home because the officers found it in plain view while the were properly in the home subject to the exigency exception to the Fourth Amendment warrant requirement
The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures. Most searches by default require a warrant in order to be considered reasonable, but there are many exceptions to the warrant requirement. Under the exigency doctrine, when officers have reason to believe that someone is in danger of death or imminent serious physical harm, they may enter a space otherwise protected under the Fourth Amendment and provide aid.
Under the plain view doctrine, if police are legally in an area with a warrant or under an exception to the warrant requirment, they may seize any evidence of a crime or contraband which the find in plain view. The officers cannot condcut any additional search or go outside the scope of the search they are conducting in order to discover the item. In such a case, the plain view doctrine would not apply.
In this case, the officer properly entered the home without a warrant under the exigency doctrine. They had reasonable to believe that Wilson's daughter was still alive and in need of medical attention. This represented a sufficient exigency for them to dispense with the warrant requirement and enter Wilson's home.
While they were validly in Wilson's home, they stayed with the scope of their exigency search. They saw the wife's body immeadiately upon their entrance into the home, and the marijuana in question was next to the body. The marijuana was in plain view and the officers properly seized it as evidence of a crime.
THEREFORE, the court properly ruled against Wilson's motion to suppress the marijuana.
B. Court's ruling on Wilson's motions at trial
i. The court should rule against Wilson's motion to dismiss the murder charge and replace it with manslaughter
Under Virginia law, voluntery manslaughter occurs when an individual kills someone intentionally but without malice and in the heat of passion as the result of provacation which a reasonable person would be unable to restrain themselves from responding to. By law, mere words cannot constitute sufficient provocation. Even if an individual is provoked to such a degree, the rage and provocation are considered dissipated if the individual has sufficient time afterwards to "cool down."
In Virginia, murder is defined as the killing of a human being with malice. Every murder is considered a second degree murder by default until an additional factor is proven to elevate it to first degree or capital murder. Proof of remediation and deliberation before the killing is sufficient to elevate a murder to first degree murder.
In this case, Wilson was not provoked beyond what a reasonable individual could be expected to bear. The statements made to him by his wife and daughter, while hurtful, were merely words. Additionally, their extravagent spending habits were not a sufficient provocation to enrage a reasonable person beyond their control.
Even if Wilson was provoked to an unreasonable degree, he waited several days before acted on the provocation. These days gave him sufficient time to cool day and regain control over himself.
Wilson's killing therefore was not a voluntary manslaughter. However, he did fulfill the requirements for murder. He killed his wife and daughter intentionally while in his right mind. Furthermore, he deliberated over the murder and planned it for days. He purposefully waited for the right moment when both his wife and his daughter would be home. Wilson's actions demonstrated the malice necessary for a murder conviction, and the premeditation and deliberation even provide enough evidence ot elevate it to first degree murder.
THEREFORE, the court should rule against Wilson's to dismiss the murder charge and instruct the jury that voluntary manslaughter is the highest degree of homicide he may be convicted of.
ii. The court should grant Wilson's motion to dismiss the charge of possessing a firearm after having been conviction of a felony, becasue his only prior conviction was not a felony
In Virginia, felonies are only those crimes which are punishable by over a year of confinement in a state correctional facility. Any crime that is punishable by no more than 12 months in jail is considered a misdemeanor.
Wilson's only prior conviction was for sexual battery. Sexual battery is punishable by no more than 12 months. Sexual battery is therefore a misdemeanor offense. Wilson therefore has no felony convictions and the Commonwealth has insufficient evidence to prove the firearm charge against Wilson.
THEREFORE, the court should grant Wilson's motion to dismiss teh firearm charge.