Criminal Law Exam-Part I

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Criminal Law ExamPart I

                             Instructor || James R. Elkins || 2006
                          College of Law || West Virginia University

Instructions: The essay examination consists of a single question. The time allocated for the
examination is 3 hours. Your response to this examination question will account for 50% of your
final grade. The examination must be taken in the assigned examination room. You are permitted
to type the examination by use of ExamSoft.

Open Book Exam: This is an open-book exam. You are allowed, during the exam, to use any
materials or notes you may have brought with you to the examination room. You are not
permitted to confer with fellow students, or any other person, while taking the examination.
Consequently, you should refrain from conversations with fellow students, whether inside the
examination room or outside it, during the examination.

Writing on the Exam: You may underline or take notes on the Examination question and are
permitted to retain the examination after the exam is completed.

For Those Who Are Using Bluebooks: Please place your examination number on each
examination booklet you use. Do not place your name on the examination blue books!

You are allowed to use as many Blue Books for your examination as you find necessary. Your
/answer must be confined to the examination Blue Books. Please write legibly. Use only the
front side of each Blue Book page (this means that you should not write front and back of
the same page). Please number your exam blue books:, ,, , etc. Double check to see that
your examination number is placed on each Blue Book.

Questions About the Exam: There should be no reason to consult with the instructor during the
course of the examination. If you encounter a problem or find a discrepancy (factual or legal)
with any aspect of the exam question, you should resolve it by setting out the discrepancy, noting
any facts or assumptions necessary to deal with the problem/discrepancy, and proceed to answer
the question drawing on the assumptions/explanations you have provided.

Jurisdiction: In answering the examination question, focus on basic principles and doctrines of
criminal law. You may assume that these basic principles and doctrines are drawn from the cases
you were assigned (in the Dressler casebook and Dressler study guide, and the West Virginia
cases you were asked to read), as well as our class discussions and in the "instructor's notes"
provided on the course website. You should, of course, note and explain, as necessary, and as
time permits, those legal doctrines which vary by jurisdiction, either in the adoption of the legal
doctrine, or in their differing approaches to a particular legal doctrine or legal defense.

Advice: Read the question carefully; organize your answer. A premium will be placed on
answers which are well-argued. If the examination question raises more issues than you can fully
discuss in the allocated time, then you should focus on the most relevant issues.
                                  2006 Examination Question

Billy Warren was charged with and convicted of 1st degree murder in the death of Ralph Wilson.
The defense challenges his conviction on the grounds that there was insufficient evidence to
support a murder conviction, and that the trial court committed error in its jury instructions. The
jury instructions given by the trial court are contained in the Appendix which follows this

Larry Folson, a gunshop owner, was convicted of involuntary manslaughter, for his involvement
in the death of Ralph Wilson. He also challenges his conviction.

You are an appellate judge, sitting on the state's Supreme Court. Write a draft opinion for
consideration by your fellow justices on the Court considering all the issues raised by the
defendants. In the draft opinion, resolve any and all legal issues raised by the defendants, and the
challenges they have set forth to their convictions. (You may, if you find it warranted, and if time
permits, note and argue challenges to the convictions which have not been raised by the

You are to assume that all the evidence presented to the jury in this case is reflected in the
following recital of facts. (You are not being asked to assume any facts not in evidence and not
reflected in the facts given below.)

The evidence presented in the trial and conviction of Billy Warren was as follows: Ralph Wilson
and Billy Warren had been friends since high school. They drank together, shared and fought
over girl friends, and ended up in the Army at the same time, although they did not serve
together. Billy Warren served with the 372nd Military Police Company in the early days of the
occupation of Iraq (just following the invasion). Ralph Wilson, for reasons neither men could
understand, had the luxury of remaining stateside, serving as a clerk in a headquarters company
at Fort Bragg, North Carolina. The friendship between Warren and Wilson, with all its twists and
turns, came to a tragic end on the afternoon on September 22, 2004 with Ralph Wilson slumped
on the ground at Billy Warren's feet, a lethal bullet wound to his head. He was buried five days
later in Lutheran Memorial Gardens.

Billy Warren, so far as Ralph Wilson and his friends knew, had served with distinction, in the
post-invasion occupation of Iraq. What no one knew was the exact nature of Billy Warren's
duties with the 372nd Military Police Company while assigned to prisoner interrogation duties at
the Abu Ghraib prison complex in Baghdad. Warren had, testimony at his trial would show, been
present, observed, or personally engaged in the following: urinating on detainees, physical
assaults on prisoners, sodomizing detainees with metal batons, stripping detainees and requiring

them to pose in sexually suggestion and/or demeaning postures, and staged "games" of Russian

There was testimony that when Billy Warren returned from Iraq he was a changed man. He was
quieter, moody, and at times, downright strange. He had trouble holding down a job. He began to
drink heavily. He tried to take up with old friends like Ralph Wilson, but even old friends found
that he had changed.

Besides the fact that they had both served in the Army, Billy Warren and Ralph Wilson shared
another interest--Ayala Raines. Warren, Wilson, and Raines had been friends before Warren and
Wilson left for their stints in the military, and when they returned, they both attempted to secure
her affections. When Raines ended up with Ralph Wilson, Billy Warren seem to take it
particularly hard. He was depressed about the situation with Raines, and began to consider the
possibility that he might take his own life. It was the recurring thoughts of suicide that prompted
Billy Warren to see a psychiatrist at the veteran's hospital in February, 2004. He began
medication for depression, and participated in twice a week psychotherapy sessions at the VA

Ralph Wilson, with his relatively easy stateside military duty, left the military in better
psychological shape than did Billy Warren, although there were days when he fell prey to what
he called, "life's persistent confusions." Ayala Raines testimony at the trial, made it evident that
Ralph Wilson's relationship with her was at best, a mixed blessing. There was trial testimony to
the effect that Ralph Wilson loved Raines, but he told several friends, "I know that Billy Warren
loves Raines, and I know she'd be with him instead of me, if he could ever get his life together."

There was also trial testimony that Ralph Wilson knew that Billy Warren was seeing a
psychiatrist at the veteran's hospital, and he knew that Warren was depressed. Billy Warren was
brooding about Ayala Raines, and whether he was going to be able to keep the only friends he

On September 18, Warren, Wilson, and Raines spent the evening together drinking. Raines
testified that Wilson was particularly attentive to Warren, almost to the point of ignoring her.
"There were times," Raines testified, "when it was all too clear that Ralph loved Billy Warren
every bit if not more than he loved me. I suppose I was a little jealous. They had some kind of
bond I knew I was never going to be a part of." When Raines raised this with Wilson, he told her,
"Billy's in worse shape than anyone knows. That business in Iraq was like sending him off to sea
in a leaky boat. He's in bad shape. He's seen things he can't forget. We don't have to make
matters worse than they already are. I feel bad for Billy."

Warren and Wilson meet on September 19th, without Ayala Raines, to drink and to talk. Warren
testified that Wilson told him, "I feel as bad as a man can feel about the situation that has
developed with Raines, but I don't know how we can do anything but what we're doing. You got
to learn to live with this just the way I do." Warren says that he told Wilson, "I don't think I can

go on like this." Warren testified that he could feel himself sinking into a bottomless pit
whenever he tried to talk to Wilson. "It was," he testified, "becoming obvious to both of us, that
we weren't going to get anything resolved. So, we just sat, drank, and wallowed in despair.
Neither of us was very good at despair." Sometime during that evening, Warren testified that he
and Ralph Wilson started talking about the Army, about guns, and about movies. "We talked
about `Taxi Driver' and how John Hinckley tried to kill Ronald Reagan. We talked about `The
Deer Hunter' and about `Platoon' and the old Vietnam war films. It was somehow in talking
about these movies that I got to talking about the war and came up with the idea of Russian
roulette. We were pretty drunk at this point. Even drunk, it was clear to me I didn't have much to
live for and I couldn't figure out how to straighten things out so long as I was seeing Ayala
everyday with my best friend. And beyond Ralph and Ayala, I can't say I had a lot of friends. I
guess I was just getting to the point where I didn't care whether I lived or died. It may have been
a warped way of thinking, but then I was depressed, getting crazier by the day. Once I got it in
my head to do the Russian roulette thing, I thought it might help clear the cobwebs out of my
head, might stop the great sucking sound of my life as it was being pulled back into that rathole
in Iraq."

Billy Warren further testified that Ralph Wilson agreed that they had come to an impasse and that
if it took Russian roulette to get them back on course, he'd do it. "It was agreed that I'd get a
couple of pistols and we'd meet the next day." When asked if he was drinking on the evening of
September 19th, Billy Warren testified, "I was drinking and depressed. All that stuff I'd been
involved in while I was in the Army was driving me real crazy. I couldn't get it out of my head
and I couldn't get on with my life."

On September 20th Billy Warren went to the Folson Gun Shop where the owner, Larry Folson,
who knew both Warren and Ralph Wilson, was minding the shop. Folson sold Billy Warren two
single action 5-shot mini-revolvers with 2" heavy barrels and rubber grips. The handguns,
manufactured by North American Arms, often referred to as the "Black Widow," have stainless
steel barrels with chambers that hold the .22 WMR (Magnum) cartridge. The "Black Widow" is a
small gun; it weighs 9 ounces. Folson testified that the .22 Mag. Black Widow was the best mini-
revolver on the market, and had always been his favorite. Billy Warren purchased two NAA
Black Widows and paid Tolson $516 (plus tax) for the two guns.

Billy Warren testified that when Larry Folson asked him why he wanted two handguns of the
same kind, that he told Folson that he and Ralph Wilson were going to try "Russian roulette" and
that they needed a pair of new guns to do it. They had also talked, briefly, about Warren's
difficulties and that he was seeing a VA psychiatrist and hoped he could, with help, "get his life
back on track."

Folson, in his testimony at Billy Warren's trial, stated that he knew that Warren was having
psychological problems but he'd never considered Billy Warren mentally ill. As for being told by
Billy Warren that he was buying the guns to use for Russian roulette, "To be honest, I thought the
guy was joking." He further testified that he knew that Warren was friends with Ralph Wilson,

but had never heard of any animosity between the two men, and that Billy Warren had not
mentioned Ralph Wilson when he purchased the two NAA Black Widows. When asked on cross-
examination whether he didn't think it odd that a man like Billy Warren would buy two identical
pistols, and that in doing so, it might have something to do with his statement about Russian
roulette, Folson replied, "I don't polk around in a customer's life. He wants to tell me something,
I listen. I try to mind my own business, and let others do the same. People want to buy a gun, they
don't need therapy."

Folson testified that he told Warren, "Russian roulette's a sick man's game" and that Warren
replied, "it may be sick but it might be a way to dissolve the thick clot of confusion that has
settled in on me." Folson further testified, "I simply didn't give any further thought to Billy
Warren doing anything stupid." Asked, what he thought Billy Warren meant by "the thick clot of
confusion that has settled in on me," Folson stated, "I guess I thought he'd been reading too
many novels."

On the afternoon of September 20th, Ralph Wilson called Billy Warren and told him, that he and
Ayala Raines were stopping by. The three friends drank a six-pack of Dos Equis. Raines heard
the men talking about Russian roulette, but she did not, she testified, at the time realize the
significance of the conversation. She thought they were talking about something they had seen in
the movies. Raines, seeing that the men were more into drinking, than being with her, asked to be
taken home. After dropping off Raines, Warren testified that he and Wilson drink another six-
pack of beer. Then, according to Warren, they eventually drove to White Park Resevoir where
Warren produced the new guns and the men decided to try their hand at Russian roulette.

Warren testified, "Ralph and I placed a single .22 Mag. cartridge in the five-chamber gun, and we
turned the chamber cylinder so we would not know the location of the cartridge in relation to its
firing position. We turned so we were not facing each other. All I remember at this point is that I
heard the gun I'd given Ralph discharge, and I turned and Ralph was crumbled on the ground
with a gunshot wound to his head, and he was dead when I got to him."

Ayala Raines testified that she received a cell phone call from Billy Warren on the late afternoon
of September 20th (the call was later established to have been made at or near the time of Ralph
Wilson's death), and that he was sobbing, and barely understandable. When she finally managed
to get him to tell her what had happened, he said, "There has been an accident. Ralph has shot

The state medical examiner, Dr. Ronald Perlman, in his autopsy report and trial testimony found
that the death of Ralph Wilson was by a gunshot wound. Dr. Perlman, in his testimony, indicated
that "the bullet entry located at the skull posterior is suspiciously close to being at a location that
raises doubt as to whether the wound was self-inflicted." The prosecutor asked, "Dr. Perlman,
doesn't your report state that the angle of the bullet entry was straight on, rather than angled
slightly upward, as would have been the case in a self-inflicted gun shot wound?" Dr. Perlman
replied, "yes," without elaborating. On cross examination, the defense asked, "Dr. Perlman, are

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