QUESTION ONE (80%)
Frank Farmer recently sold his tractor (note: I know very little about farm equipment. Take the information I provide as correct even if, from your own experience, you believe it may not be). He had the tractor about five years, having purchased it when he was having serious financial difficulties as a result of bad investments. At that time, he needed to buy the tractor in order to take advantage of increased prices for the crops he was growing, but he had limited resources with which to purchase equipment. He had looked at new and used tractors but found he could not afford anything he had seen. Then, a friend told him about Don Deala, a dealer from whom he had purchased equipment in the past. Deala didn’t advertise; all referrals were by word of mouth. His friend told him that Deala’s prices were incredible. The friend also told Frank he would have to use the friend’s name when he called. This seemed odd to Frank, but since he really needed the tractor, he decided to try it.
Frank called Deala, said he’d been referred by his friend and told him what he needed. Deala arranged to meet Frank at Deala’s remote location several miles outside of town. At the location, he had a large shed that contained equipment. Frank found a tractor that appeared to be what he needed and was surprised at how low the quoted price was. He tried the tractor and found that it worked OK, although it ran a little warm. When he inquired, Deala told him it did occasionally run warm but otherwise it was fine and that all he needed to do was make sure he checked his oil and water levels frequently. This seemed like just a minor inconvenience given the extremely low price, so after looking it over once more, Frank bought the tractor. Deala provided Frank with a title (showing the tractor was a 1991 model) to use in registering the vehicle (which was required under a comprehensive statutory scheme adopted several years ago after a rash of thefts and fraudulent resales of farm and construction equipment). Although the tractor seemed to him to be more than five years old, Frank checked the manufacturer’s identification number (MIN) on the title against the identification number on the tractor and they matched. He then timely registered the tractor with the state.
As Frank began to use the tractor, he noticed that it appeared to have a lot of wear and tear for a five year old piece of equipment. It also lacked some of the newer "bells and whistles" that he had expected on a 1991 model, but he figured this must have been a "bottom of the line" model (although he wasn’t really sure they were still making models like this one by that date). Ultimately, the tractor worked and it was cheap so he decided not to worry or think about these apparent discrepancies any more. He did continue to experience some problems with the tractor running warm, but he learned to use a lot of water to prevent overheating and thus didn’t have too much of a problem in the early years of use. And in any event, he couldn’t afford anything else.
After Frank had been using the tractor for a couple of years, he began to have serious trouble with periodic overheating. He remembered that he had read a report about tractor recalls related to overheating and the very serious safety hazard it posed (fires, explosions and even several deaths). He went back to his old magazines and found an article that talked about overheating in tractors manufactured from 1980 through 1985 by the same company that sounded just like the problem he was experiencing. He wondered if the same problems might have been found in later models, so he called the company’s 800 number to check it out. The woman at the manufacturer indicated that the overheating problem was fixed in 1985 and that newer tractors did not have the problem. She commented that maybe he was mistaken as to when his tractor had been manufactured. She asked for the MIN so she could check and he gave her the number. After running it through the computer, she responded that his number was not even close to the numbers involved in the recall and that, for some reason, it wasn’t even in the system. This surprised him somewhat, so he asked why the number would not be in the system. At first, she said he probably copied it down wrong and should recheck it. When he said he would, but that he was quite sure he was correct, she indicated that numbers were removed from the system when it was reported to the manufacturer that a piece of equipment was permanently out of service (e.g., junked or cut up for parts). She again reiterated that it was probably just a mistake and he should check the number again. With that, the conversation ended. Frank was somewhat disturbed by this conversation and began to wonder about the circumstances of the purchase, but he really needed to get back to work. He thought to himself that he needed to replace the tractor since he would be farming a larger area next year, but he decided not to worry about it until then.
As the new growing season approached and Frank confirmed his decision to put more of his land into service, it became clear that he would have to replace the tractor. Unfortunately, he still had cash flow problems and his credit was just barely acceptable. He knew he would need to use the proceeds from the sale of the tractor as his down payment on a new one. He tried to contact the person he had purchased the tractor from last time, hoping to get a good deal on his current purchase. He discovered that he was out of business, and when he mentioned that to his friend, the friend jokingly said he must be in prison. Frank ignored the remark because he was too busy worrying about whether he’d be able to buy a larger, more reliable tractor. When he talked to the local tractor dealer (who came out to his farm with information and looked at the old tractor to assess its value), he discovered they would give him very little on a trade-in. He realized he would have to make a private sale.
Frank advertised the tractor in the local paper and on local bulletin boards. He had several people come look at it, but no one was willing to pay the price he asked, especially when he admitted the tractor had some problems with overheating. He was starting to get concerned about his ability to make a sale. At that point, a young couple arrived who had recently purchased a small farm in a town not too far away. They had no farming experience but wanted to "return to their roots." They also didn’t have a lot of money to spend on equipment. Frank showed them the tractor and told them it was a really good deal. When they asked how it worked, Frank indicated that it occasionally ran slightly warm, but that otherwise it was in great shape. He did not warn them about using lots of water and checking the oil levels frequently to avoid overheating, nor did he mention anything about the discrepancy in the MIN number. The couple tried the tractor briefly (not long enough for it to overheat) and decided to buy it. They paid Frank and, after arranging for delivery to their farm, they left.
Unfortunately, the tractor did not work any better for them than it had for Frank, and it began to overheat almost immediately. Since the couple was not familiar with farm equipment, they did not realize the problem until it was too late. Without the extra water to cool the engine, the overheating caused a fire which led to an explosion. The wife was riding it at the time and was seriously burned. She died the next day as a result of complications from the burns.
Police investigation after the accident revealed that the tractor was actually a 1982 model that had been junked because it had an overheating defect that could not be repaired. Deala (who actually dealt in stolen and defective equipment) had removed the old MIN and replaced it with the MIN from a newer model tractor that had been wrecked in an accident and junked. Deala is currently serving time in prison as a result of these activities.
The farm next to Frank was owned by Linda Landowna. The farm had been in her family for over 100 years and she inherited it when her father died. Linda enjoyed living on the land and raising animals, but she really didn’t want the responsibility of raising crops. She did not want to sell any part of the family homestead, however, so she began to rent out portions of the farm to others. Initially, she rented most of the land to two families who had lived in the area for many years. They farmed the land and paid rent and a percentage of the profit on the crops they raised. The arrangement worked out well for all involved, but even with the rental income, Linda was barely making it financially. She wished she could find someone to rent the northern section of her farmland, but the land was not as good and the area was very remote, had limited access and was not as suitable for family living (the farmhouse in that section was small and somewhat dilapidated). She had been unsuccessful for years in getting someone to take over that area of the land, but it remained listed as available for rent.
One afternoon, two young men appeared at Linda’s farm asking to speak to her about renting the northern farmland. They introduced themselves as brothers Bob and Barry Brose. Linda was surprised but happy about the inquiry. She explained, in her honest, straightforward way, about the limitations of the land but offered to show it to the brothers, who remained interested. On the way to the remote site, Linda chatted with the brothers and asked what they planned to grow. The brothers sensed (correctly) that Linda was a remarkably nice but not terribly smart young woman, so they told her they had an idea for growing a new kind of crop but didn’t want people to know about it and steal their idea. Linda was satisfied with that answer and didn’t inquire further. When they reached the land, the brothers looked around, talked between themselves and then asked Linda what the cost of renting the land would be. She told them the price she was asking and they negotiated with her until they reached a price that both sides were satisfied with. They agreed to the rental, but since they didn’t want to talk about their crop, they agreed on a fixed rental price rather than a percentage of profits. Linda called a friend of hers to draft the rental contract and it was signed by all parties. The brothers then moved into the northern section of the land.
Linda did not visit the area for quite some time. The brothers brought their rent payments to Linda on the first of each month and told her that their crop plan was working quite well. Both sides seemed satisfied with this arrangement. One day, however, there were severe storms in the area, including reports of tornadoes in the area north of Linda’s farm. Linda tried to reach the renters by phone but was unsuccessful in doing so. She decided to drive up to the northern area to check on whether there had been any damage. As she approached the area rented by the brothers, she noticed new fencing and large "No Trespassing" signs. As she got closer, she noticed a gate had been installed across the access road. She pulled over, opened the gate and drove through toward the farmhouse on the premises.
The brothers did not appear to be home, so Linda walked around the area checking for damage. She noticed that branches had fallen off several trees but that otherwise the area looked OK. She began to stroll down toward the creek on the property, an area she always liked as a child. As she walked toward the creek, she noticed some crops. They were not the normal crops that were grown in the area, and Linda thought they resembled marijuana plants she had seen on TV. After she sat by the creek for awhile, she walked back toward the farmhouse. As she approached it, she saw a car coming down the driveway with the brothers inside. She approached their car and told them she was checking on whether there had been any damage from the storm. She then told them about the crops she had seen and expressed some surprise that they were growing marijuana. They invited her inside and showed her some articles they had on the medicinal use of marijuana. They reminded her that mere possession of marijuana had been de-criminalized in the state and told her that, in light of these facts, it was not a crime to grow marijuana if it was intended for medicinal use. The brothers knew this was untrue but, in her gullible way (as they expected), Linda believed what they told her. The brothers cautioned her not to tell anyone about what they were doing since they didn’t want any competition. She agreed not to say anything to anyone. She then left the area and went home.
Several weeks later, Linda received notice from the appraiser’s office that her tax bill was going to increase substantially on the farm property. She had an escalator clause in the lease that allowed her to raise the rent if taxes increased by a certain percentage. Linda tried to contact the brothers to let them know that the rent would be going up quite a bit but was unable to reach them by phone. She was worried that there might be a problem with the phone service, so she decided to drive up to the northern section to talk to them in person. As she approached the gated area, she noticed two men in jackets with the word "POLICE" on the back approaching the farmhouse. She then saw Bob crouched down behind a car with a gun drawn. Thinking he was about to shoot one of the officers, she reached back to the gun rack in her pickup and took out her rifle. As Bob rose from behind the car and pointed his weapon at one of the "police," Linda raised her rifle and shot directly at him. Two of the three shots she fired hit Bob, and he died immediately from the wounds suffered as a result of the gunshots. The "police" immediately fled the scene. Barry, who had been in the house, came out when he heard the shots and became distraught when he discovered his brother had been killed.
As it turns out, the "police" were not police at all. Rather, they were former customers of the brothers who had previously purchased marijuana from them and who planned to rip them off. The brothers somehow learned of the plan and were ready to prevent the theft and scare off the men. Unfortunately, Linda arrived at just the wrong time and intervened. Also unfortunately for Linda, what the brothers told her about medicinal marijuana was (as they knew) incorrect. As Barry later admitted, they were not authorized to grow marijuana (which they knew was a controlled substance) and they knew it was illegal for them to be doing so.
Discuss the potential criminal liability of Frank under 455.600 (for the sale of the tractor), Linda under 610.775 and Barry under 610.200. Also discuss any of these individual’s potential liability for homicide. Analyze all offenses under Common Law only.
Mok. G.L. § 455.600
Whoever knowingly possesses, sells, transfers or offers for sale a piece of farm or construction machinery, farm implement or other similar implement or equipment, the use of which requires registration or licensure, on which the original manufacturer’s identification number or other distinguishing number has been destroyed, removed, covered, altered or defaced, shall be guilty of a Class A misdemeanor.
Mok. G.L. § 610.200
Whoever engages in the unauthorized manufacture, growing or processing of a controlled substance shall be guilty of a Class C felony.
Mok. G.L. § 610.775
No person, being the owner of premises, shall permit such premises to be used for the illegal sale, manufacturing, growing or processing of a controlled substance. Violation of this section is a Class D misdemeanor.
Mok. G.L. § 500.100 Murder
Murder is the unlawful killing of a human being with malice.
Mok. G.L. § 500.110 Murder in the First Degree
Murder is murder in the first degree if committed with premeditation and deliberation, or if the actor is engaged in the preparation for, commission of, or flight from, a felony.
Mok. G.L. § 500.120 Murder in the Second Degree
All other murder is murder in the second degree.
Mok. G.L. § 500.200 Manslaughter
Manslaughter is the unlawful killing of a human being without malice.
Mok. G.L. § 500.210 Voluntary Manslaughter
Voluntary manslaughter is a killing upon sudden quarrel or heat of passion.
Mok. G.L. § 500.220 Involuntary Manslaughter
Involuntary manslaughter is the killing of another by the commission of an unlawful act not a felony or a lawful act in a grossly negligent manner.
QUESTION TWO (20%)
Vicki Victim, age 24, has cerebral palsy and, as a result, has limited use of and strength in her arms and legs. She is otherwise alert and mentally capable. Dan Deft, a family friend, came over to visit her while no one else was at home. He began kissing Vicki, who did not resist his advances. He then laid her down gently on the bed and attempted to insert his finger into her vagina. She claims that, because she was afraid, she said nothing but she repeatedly tried to keep her legs together, ostensibly to keep him from inserting his finger. Because of her cerebral palsy, she was unable to do so effectively and he penetrated her with his finger. She became visibly upset and he withdrew. She claims she was raped.
Advise the prosecutor whether Dan can be prosecuted for any degree(s) of rape or sexual assault under the statute that follows? Explain fully.
1. Aggravated rape is sexual intercourse with another person by the reckless use of forcible compulsion when:
a. the actor inflicts physical injury on the victim; or
b. the actor uses a deadly weapon or dangerous instrument in a threatening manner; or
c. the actor knows the victim is incapacitated.
2. Aggravated rape is a class A felony.
1. Rape is sexual intercourse with another person by the reckless use of forcible compulsion.
2. Rape is a class B felony.
1. Sexual assault is reckless, non_consensual sexual intercourse with another person.
2. Sexual assault is a class C felony.
(1) "Sexual intercourse" means any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by any body part, or by any instrument or object.
(2) "Forcible compulsion" is defined as:
a. use of physical force; or
b. use of a threat, express or implied, that places a person in reasonable fear of death, physical injury or kidnapping of himself or another person; or
c. overcoming an outward expression of resistance by the victim.
(3) "Incapacitated" means that physical or mental condition, either temporary or permanent, that renders a person unconscious, unable to appraise the nature of his conduct, or unable to communicate unwillingness to an act.
(4) "Non Consensual": Consent or lack of consent may be expressed or implied. Assent does not constitute consent (thus becoming non consensual) if:
a. It is given by a person who by reason of youth, mental disease, mental defect, or intoxication lacks the mental capacity to authorize the conduct; and this lack of mental capacity makes the victim manifestly unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
b. It is induced by force, duress or deception arising from a position of power.