DOCSLIB.ORG

State of Utah, Plaintiff/Petitioner, V. James Christopher Mccallie, Defendant/Respondent

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
State of Utah, Plaintiff/Petitioner, V. James Christopher Mccallie, Defendant/Respondent Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs (2000– ) 2016 State of Utah, Plaintiff/Petitioner, v. James Christopher McCallie, Defendant/Respondent. Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah. Recommended Citation Brief of Appellant, State of Utah v. McCallie, No. 20160500 (Utah Supreme Court, 2016). https://digitalcommons.law.byu.edu/byu_sc2/3292 This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (2000– ) by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/ utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. Case No. 20160500-SC IN THE UTAH SUPREME COURT STATE OF UTAH, Plaintiff/Petitioner, v. JAMES CHRISTOPHER MCCALLIE, Defendant/Respondent. Brief of Petitioner On Writ of Certiorari to the Utah Court of Appeals TERA J. PETERSON (12204) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General 160 East 300 South, 6th Floor P.O. Box 140854 Salt Lake City, UT 84114-0854 SAMUEL P. NEWTON Telephone: (801) 366-0180 Law Office of Samuel P. Newton, PC The Historic KM Building CLINT T. HEINER 40 2nd Street E, Suite 222 GEORGE F. VO-DUC Kalispell, MT 59901-6113 Salt Lake District Attorney’s Office Counsel for Respondent Counsel for Petitioner TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF JURISDICTION ........................................................................ 1 INTRODUCTION .................................................................................................... 1 STATEMENT OF THE ISSUE ................................................................................ 3 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES ....................... 3 STATEMENT OF THE CASE ................................................................................. 4 A. Summary of facts. ....................................................................................... 4 B. Summary of proceedings. .......................................................................... 9 SUMMARY OF ARGUMENT .............................................................................. 19 ARGUMENT THE COURT OF APPEALS ERRONESOULY HELD THAT DEFENDANT’S INCONSISTENT, POST-MIRANDA STATEMENTS WERE EQUIVALENT TO SILENCE UNDER DOYLE V. OHIO AND ANDERSON V. CHARLES ................................... 21 A. Doyle v. Ohio and Anderson v. Charles did not create a category of silence-equivalent statements that the State cannot use at trial. ............................................................................................................. 23 B. Defendant’s statements were not about his interrogation; they were about the crime because they amounted to a denial of his involvement. .............................................................................................. 37 CONCLUSION ....................................................................................................... 39 CERTIFICATE OF COMPLIANCE ..................................................................... 40 -i- ADDENDA Addendum A: State v. McCallie, 2016 UT App 4, 369 P.3d 103 Addendum B: Controlling United States Supreme Court Precedent: Doyle v. Ohio, 426 U.S. 610 (1976) Anderson v. Charles, 447 U.S. 404 (1980) Addendum C: Constitutional Provisions, Statutes, and Rules U.S. Const. amend. V Addendum D: Defendant’s Trial Testimony, R.298:31-72 Addendum E: Closing Arguments and Mistrial Motion, R.298:91-125 -ii- TABLE OF AUTHORITIES FEDERAL CASES Anderson v. Charles, 447 U.S. 404 (1980) ........................................................ passim Dickerson v. United States, 530 U.S. 428 (2000) ...................................................... 1 Doyle v. Ohio, 426 U.S. 610 (1976) .................................................................. passim Greico v. Hall, 641 F.2d 1029 (1st Cir. 1981) ......................................................... 30 Grunewald v. United States, 353 U.S. 391 (1957) .................................................. 29 Oregon v. Hass, 420 U.S. 714 (1975) ...................................................................... 37 Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985) ............................................. 36 Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002) ............................................. 33 United States v. Agee, 597 F.2d 350 (3rd Cir. 1979) ............................................. 27 United States v. Cantebury, 985 F.2d 483 (10th Cir. 1993) .................................. 30 United States v. Caruto, 532 F.3d 822 (9th Cir. 2008) .......................................... 30 United States v. Gomez, 725 F.3d 1121 (9th Cir. 2013) ......................................... 37 United States v. Hale, 422 U.S. 171 (1975) ............................................................. 29 United States v. May, 52 F.3d 885 (10th Cir. 1995) .............................................. 33 United States v. Ochoa-Sanchez, 676 F.2d 1283 (9th Cir. 1982) ........................... 33 STATE CASES Commonwealth v. Hunsberger, 565 A.2d 152 (Penn. 1989) ............................ 34, 36 People v. McReavy, 462 N.W.2d 1 (Mich. 1990) ................................................... 27 -iii- Reynolds v. State, 114 So.3d 61 (Ala. App. 2010) ................................................ 29 Salt Lake City v. Carrera, 2015 UT 73, 358 P.3d 1067 ............................................ 3 Shaw v. State, 2014 WL 3559389 (Ala. App. 2014) ....................................... 35, 36 State v. Boyd, 992 A.2d 1071 (Conn. 2010)..................................................... 32, 36 State v. Harrison, 805 P.2d 769 (Utah App. 1991) ............................................... 33 State v. Kruger, 2000 UT 60, 6 P.3d 1116 .................................................... 4, 5, 6, 8 State v. Lee, 967 A.2d 1161 (Vt. 2008) ............................................................. 34, 36 State v. Maas, 1999 UT App 325, 991 P.2d 1108 ................................................. 38 State v. McCallie, 2016 UT App 4, 369 P.3d 103................ 1, 16, 17, 25, 28, 29, 36 State v. Sorrels, 642 P.2d 373 (Utah 1982) ............................................................ 39 State v. Tucker, 709 P.2d 313 (Utah 1985) ............................................................ 30 State v. Velarde, 675 P.2d 1194 (Utah 1984) ................................................... 31, 33 State v. Winward, 941 P.2d 627 (Utah App. 1997) .............................................. 35 FEDERAL STATUTES U.S. Const. amend. V .................................................................................... ii, 3, 23 STATE STATUTES Utah Code Ann. § 78A-3-102 (West Supp. 2016) ................................................ 1 -iv- Case No. 20160500-SC IN THE UTAH SUPREME COURT STATE OF UTAH, Plaintiff/Petitioner, v. JAMES CHRISTOPHER MCCALLIE, Defendant/Respondent. Brief of Petitioner STATEMENT OF JURISDICTION This case is before the Court on a writ of certiorari to the Utah Court of Appeals in State v. McCallie, 2016 UT App 4, 369 P.3d 103 (Addendum A). The Supreme Court has jurisdiction under Utah Code Ann. § 78A-3-102(3) (West Supp. 2016). INTRODUCTION Fifty years ago, Miranda v. Arizona required police to warn a person they are about to question that (1) the person has the right not to talk to them, and (2) if he does talk to them, anything he says can and will be used against him in court. Since then, Miranda warnings have “become so embedded in routine police practice [that they] have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000). But despite the universal understanding that anything a person says to police will be used against him in court, the court of appeals has now held that many things a person says to police actually cannot be used against him in court. And this is true, the court of appeals concluded, even when the statements conflict with the defendant’s trial testimony. Under Doyle v. Ohio, a person who chooses to exercise his right not to talk to police cannot have his silence used to impeach his testimony at trial. According to the court of appeals, silence includes statements about the interrogation rather than about the crime. Here, Defendant did not choose to exercise his right not to talk to police when they tried to question him about a shooting that had happened only moments before they arrested him. Instead, he demanded to know why police were questioning him, claimed that the police had awakened him, and professed to be unaware that the shooting had happened. Then at trial, he admitted that he knew about the shooting, but claimed the victim was shot accidentally after he pulled his gun in self-defense. The State used his post-Miranda protestations of ignorance of any shooting at all to impeach his trial admission to a shooting done while he was acting in self-defense. The court of appeals held this was error, reasoning that the statements were the same as silence because,
Load more

Recommended publications
  • Actio Libera in Causa and Intoxication
    Actio libera in causa and Intoxication Susan Dimock York University, Toronto Canada M3J 1P; [email protected] Very rough draft – please do not distribute 1.A Relation between free and unfree action The actio libera in causa doctrine is often described as applying to cases in which a person D acts at T1 is such a way as to initiate a causal sequence of events with the intention or purpose that he commit criminal offence O at T2, though the causal mechanisms chosen to cause O will also cause it to be the case that D satisfies the conditions of some criminal defense at T2. D creates the conditions of his own defense, and does so as part of an overall plan which has as its purpose the commission of the criminal offence O. Moral intuitions and legal practice suggest that allowing D to rely upon his defense at T2 to escape liability for O is unacceptable; D remains liable for O even though he satisfied the conditions of some criminal defense that would normally have precluded the finding of liability (either on failure-of-proof grounds or for reasons of exculpation). To focus our discussion, we must first get clear about the relation that holds between the subsequent unfree act and the agent in situations where we can or should impute the action to him even though it was unfree when preformed. (We will later consider the sense in which it is unfree.) Hruschka, like many others discussing the actio libera doctrine, assumes a high level of fault (purpose) in cases of imputation for purposes of assigning merit or demerit.
    [Show full text]
  • Criminal Assault Includes Both a Specific Intent to Commit a Battery, and a Battery That Is Otherwise Unprivileged Committed with Only General Intent
    QUESTION 5 Don has owned Don's Market in the central city for twelve years. He has been robbed and burglarized ten times in the past ten months. The police have never arrested anyone. At a neighborhood crime prevention meeting, apolice officer told Don of the state's new "shoot the burglar" law. That law reads: Any citizen may defend his or her place of residence against intrusion by a burglar, or other felon, by the use of deadly force. Don moved a cot and a hot plate into the back of the Market and began sleeping there, with a shotgun at the ready. After several weeks of waiting, one night Don heard noises. When he went to the door, he saw several young men running away. It then dawned on him that, even with the shotgun, he might be in a precarious position. He would likely only get one shot and any burglars would get the next ones. With this in mind, he loaded the shotgun and fastened it to the counter, facing the front door. He attached a string to the trigger so that the gun would fire when the door was opened. Next, thinking that when burglars enter it would be better if they damaged as little as possible, he unlocked the front door. He then went out the back window and down the block to sleep at his girlfriend's, where he had been staying for most of the past year. That same night a police officer, making his rounds, tried the door of the Market, found it open, poked his head in, and was severely wounded by the blast.
    [Show full text]
  • State V. Roger J. Dotz
    COURT OF APPEALS DECISION DATED AND RELEASED NOTICE FEBRUARY 27, 1996 A party may file with the Supreme Court This opinion is subject to further editing. a petition to review an adverse decision If published, the official version will by the Court of Appeals. See § 808.10 and appear in the bound volume of the RULE 809.62, STATS . Official Reports. No. 95-2418-CR-NM STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, Plaintiff-Respondent, v. ROGER J. DOTZ, Defendant-Appellant. APPEAL from a judgment of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed . Before Wedemeyer, P.J., Sullivan and Fine, JJ. PER CURIAM. Counsel for Roger Dotz has filed a no merit report pursuant to RULE 809.32, STATS . Dotz has filed two responses alleging that the stabbing of his live-in girlfriend was not intentional, that he was too intoxicated to form intent, that he was ineffectively represented by trial counsel and that his intoxication constitutes a new factor justifying a sentence reduction. Upon our independent review of the record as mandated by Anders v. California , 386 U.S. No. 95-2418-CR-NM 738 (1967), we conclude that there is no arguable merit to any issue that could be raised on appeal. The no merit report raises questions of trial court error, prosecutorial misconduct, sufficiency of the evidence, competency of trial counsel and sentence modification. 1 In his responses, Dotz appears to contend that he was intoxicated and that his intoxication either provides a basis for challenging the sufficiency of the evidence because he was too intoxicated to form intent to kill or constitutes a "new factor" justifying a reduction of his sentence.
    [Show full text]
  • The American Criminal Code: General Defenses
    University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2015 The American Criminal Code: General Defenses Paul H. Robinson University of Pennsylvania Carey Law School Matthew Kussmaul University of Pennsylvania Law Scbool--JD candidate Camber Stoddard White & Case LLP Ilya Rudyak University of Pennsylvania Law School Fox Fellow Andreas Kuersten National Oceanic and Atmospheric Administration Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Criminal Law Commons, Law and Society Commons, Legislation Commons, and the Public Law and Legal Theory Commons Repository Citation Robinson, Paul H.; Kussmaul, Matthew; Stoddard, Camber; Rudyak, Ilya; and Kuersten, Andreas, "The American Criminal Code: General Defenses" (2015). Faculty Scholarship at Penn Law. 1425. https://scholarship.law.upenn.edu/faculty_scholarship/1425 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. Journal of Legal Analysis Advance Access published March 15, 2015 THE AMERICAN CRIMINAL CODE: GENERAL DEFENSES Paul H. Robinson*, Matthew G. Kussmaul**, Camber M. Stoddardy, Ilya Rudyakz, and Andreas Kuersten§ ABSTRACT Downloaded from There are fifty-twobodies of criminal law in the USA. Each stakes out often diverse positions ona range ofissues.This articledefines the “American rule” for each ofthe issues relatingto general defenses, a first contribution toward creating an “American Criminal Code”. The article is the result of a several-year research project examining every issue relat- ing to justification, excuse, and nonexculpatory defenses.
    [Show full text]
  • Indiana Law Review
    The Defense of Voluntary Intoxication: Now You See It, Now You Don't Susan D. Burke* I. Introduction Traditionally, the general rule has been that voluntary intoxication is no defense in a criminal prosecution.' it has even been stated that "[t]he rule that voluntary intoxication is not a general defense to a charge of crime based on acts committed while drunk is so universally accepted as not to require the citation of cases. "^ In the past, Indiana has recognized certain exceptions to this general rule. Specific exceptions have included situations where chronic intoxication has created a mental disease which has allowed the defendant to raise a defense of insanity, and situations where the defendant's voluntary intoxication has been used to negate the special intent element contained in crimes requiring specific intent.^ While the former exception appears to remain unchanged,^ the latter exception as well as the general rule appear, at first glance, to have been radically altered by the Indiana Supreme Court's decision in Terry v. Stated From a practical standpoint, however, the change in Indiana's voluntary intoxication defense may be much less radical than first appears. To appreciate fully the impact of Terry and its progeny on the defense of voluntary intoxication, a brief examination of the statutory changes in the defense and the history of specific versus general intent is necessary. II. General and Specific Intent General intent has been defined as the intent to engage in the prohibited act, while specific intent requires a desire for a particular result or purpose.^ This distinction has been particularly important in *Associate Editor, Indiana Law Review.
    [Show full text]
  • 1 in the United States District Court for the Northern
    Case: 1:13-cr-00878 Document #: 42 Filed: 10/07/14 Page 1 of 12 PageID #:<pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ) ) No. 13 CR 878-1 v. ) ) Judge Robert M. Dow, Jr. DAVID CARTER, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendant David Carter’s notice of intoxication defense and request for pretrial ruling on admissibility of evidence and jury instruction [24] and on the Government’s motion to exclude argument regarding intoxication [26]. For the reasons set forth below, the Court grants in part and denies in part both motions [24 and 26]. I. Background According to Defendant David Carter, he has a lifelong history of homelessness and a lengthy, well-documented history of alcoholism. In 2008, Carter was charged with robbing the Community Bank located on W. 35th Street in Chicago, and, in 2010, he was sentenced to 77 months in prison. Prior to June 12, 2013, Carter was released to a Salvation Army halfway house to serve the remainder of his sentence. He was permitted to leave during the day, but had a nightly curfew. On June 12, 2013, the halfway house notified the United States Marshals that Carter did not return at curfew. On October 30, 2013, David Carter was charged in a two-count indictment with (1) escaping the halfway house in violation of 18 U.S.C. § 751(a) (Count One) and (2) attempted bank robbery in violation of 18 U.S.C. § 2113(a) (Count Two).
    [Show full text]
  • Alcohol- and Drug-Facilitated Sexual Assault: a Survey of the Law Jennifer Long, JD, Charlene Whitman-Barr, JD, and Viktoria Kristiansson, JD1
    STATUTin ReviewES August 2016 Alcohol- and Drug-Facilitated Sexual Assault: A Survey of the Law Jennifer Long, JD, Charlene Whitman-Barr, JD, and Viktoria Kristiansson, JD1 INTRODUCTION This in Review2 will summarize the laws addressing the sexual assault of an intoxicated victim. It will compare the elements required in each jurisdiction and describe their applicability to criminal conduct. Because many of these Statutes current rape and sexual assault laws. statutes do not specifically reference intoxication, they are sometimes overlooked in the national conversation around Sexual activity with an individual who has voluntarily consumed drugs or alcohol is not in itself6 criminal. Intoxication, whether by alcohol, drugs, or a combination of both may impact an individual’s ability to appraise danger, capacity to communicate a lack of consent, and ability to perceive or remember 7all or parts of an assault. Even where a victim’s- intoxication results from alcohol consumption alone, experts have described its effects as devastating with one noting: actions“If recreational associated drugs with were consent tools, (e.g. alcohol would be a sledgehammer.” A sexual assault occurs where a victim’s3 or inability intox ication impairs cognitive and/or physical4 functions to such an extent that5 it prevents one’s ability to consent or one’s , the ability to communicate unwillingness to engage in sexual activity Perpetratorsto appraise the use nature alcohol of conduct,and drugs or to inability facilitate to sexual control assault one’s byconduct). openly or surreptitiously administering intoxicants to crimes.their victims, Perpetrators or by targeting use alcohol victims to decrease who are the too chance intoxicated that victimsby drugs will and/or report alcohol their rape to consent.
    [Show full text]
  • IN the COURT of APPEALS of IOWA No. 14-1632 Filed August 5
    IN THE COURT OF APPEALS OF IOWA No. 14-1632 Filed August 5, 2015 TERRY HOUSTON, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Clinton County, Paul L. Macek, Judge. Terry Houston appeals from the denial of his application for postconviction relief. AFFIRMED. Les M. Blair III and Taryn R. Purcell of Blair and Fitzsimmons, P.C., Dubuque, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Mike Wolf, County Attorney, and Robin L. Strausser, Assistant County Attorney, for appellee State. Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ. 2 DOYLE, J. A jury found Terry Houston guilty of operating a motor vehicle while intoxicated (OWI). Houston appealed. This court affirmed his conviction. Houston then filed an application for postconviction relief (PCR) asserting his trial counsel was ineffective in failing to raise and assert an involuntary-intoxication defense.1 The PCR court denied Houston’s application. Houston appeals. We affirm. I. Background Facts and Procedure Houston was charged with an aggravated misdemeanor—operating a motor vehicle while under the influence of an alcoholic beverage or other drug, second offense, in violation of Iowa Code section 321J.2(1)(a) and (2)(b) (2011). The background facts were succinctly set forth in our previous opinion as follows: At trial, the officer who conducted a traffic stop because Houston was going forty-nine miles per hour in a thirty-five-mile-per-hour zone testified Houston’s breath smelled of alcohol and that Houston subsequently failed several field sobriety tests.
    [Show full text]
  • The Supreme Court of the State of Colorado
    Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Court’s homepage at http://www.courts.state.co.us Opinions are also posted on the Colorado Bar Association homepage at www.cobar.org ADVANCE SHEET HEADNOTE October 21, 2013 2013 CO 61 No. 13SA113, People v. Voth – Involuntary Intoxication – Section 18-1-804, C.R.S. (2013) – Insanity – Section 16-8-101.5, C.R.S. (2013) In this original C.A.R. 21 proceeding, the supreme court holds that the trial court abused its discretion when it found that a virus qualifies as a “substance” that can result in intoxication under section 18-1-804. The supreme court further holds that a defendant who was found to be legally insane at the time of the offense, but shortly thereafter regains sanity, may assert insanity as an affirmative defense if he or she meets all of the other relevant requirements. Supreme Court of the State of Colorado 101 West Colfax Avenue, Suite 800 • Denver, Colorado 80202 2013 CO 61 Supreme Court Case No. 13SA113 Original Proceeding Pursuant to C.A.R. 21 Chaffee County District Court Case No. 12CR72 Honorable Charles Barton, Judge In Re: Plaintiff: The People of the State of Colorado, v. Defendant: Paul Lesley Voth. Rule Made Absolute en banc October 21, 2013 Attorneys for Plaintiff: Thom K. LeDoux, District Attorney, Eleventh Judicial District Molly Chilson, Deputy District Attorney Salida, Colorado Attorney for Defendant: The Marquez Law Office, P.C. Ernest F. Marquez Salida, Colorado Attorneys for Amicus Curiae: The Gasper Law Group, PLLC Stephen A.
    [Show full text]
  • PLEADING the ENTRAPMENT DEFENSE: the PROPRIETY of INCONSISTENCY of Fortune No Man Tastes His Fill
    digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1984 Pleading the Entrapment Defense: The rP opriety of Inconsistency Michael H. Roffer New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Civil Procedure Commons, and the Criminal Law Commons Recommended Citation 28 N.Y.L. Sch. L. Rev. 1025 (1983-1984) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. NOTE PLEADING THE ENTRAPMENT DEFENSE: THE PROPRIETY OF INCONSISTENCY Of fortune no man tastes his fill. While pointing envy notes his store, And tongues extol his happiness, Man surfeited will hunger still. For who grows weary of success, Or turns good fortune from his door Bidding her trouble him no more? -Aeschylus1 INTRODUCTION Were epitaphs to attach to the grave markers of certain recently fallen political careers, perhaps none would be more appropriate than Aeschylus' cynical commentary in Agamemnon. Once prominent lead­ ers, these were men who had somehow fallen victim to both their own tragic flaws and the controversial undercover tactics of the very gov­ ernment of which they were a part. The political falls of such men as Messrs. Kelly,2 Lederer,3 Myers' and Williams,5 to name but a few, 6 by no means marked the :first time in our history where respected and trusted public leaders had been forced to resign "their offices amid alle­ gations of scandal and public wrongdoing.
    [Show full text]
  • Effect of Intox on Lesser
    Approved 2-27-89 EFFECT OF INTOXICATION ON JURY'S CONSIDERATION OF LESSER OFFENSES INVOLVING RECKLESSNESS1 (2C: 2-8b) I have already explained that evidence that the defendant ingested [intoxicant(s)] may be considered by you in determining whether the State has proven beyond a reasonable doubt that the defendant acted purposely or knowingly with respect to the offense (s) of offense(s) requiring purpose or knowledge to which intoxication defense applies) . I have also explained that if you find the State has failed to prove beyond a reasonable doubt that the defendant acted with purpose or knowledge, you must go on to consider whether the State has proven beyond a reasonable doubt the elements of (lesser included offense(s) requiring reckless mental state) . In determining whether the State has proven that the defendant acted recklessly,2 you are not to consider whether the defendant's use of [intoxicant(s)] prevented (him/her) from consciously disregarding a substantial and unjustifiable risk. You are not to consider whether the use of [intoxicant(s)] made the defendant unaware of a risk of which (he/she) would have been aware if (he/she) had been sober. In other words, the State does not have to prove that the defendant was, in fact, aware of the risk. Rather the State need only prove that the defendant would have been aware of the risk if (he/she) has been sober at the time of the offense. This means that if you find that the defendant was intoxicated, you are not to consider (his/her) actual intoxicated mental state in determining whether (he/she) acted recklessly.
    [Show full text]
  • If You Have Issues Viewing Or Accessing This File, Please Contact Us at NCJRS.Gov
    If you have issues viewing or accessing this file, please contact us at NCJRS.gov. L I I I l:­ I I I Li rl.~ , ~ .-.__________ --..a.- I ~ .. ~. 4 . 'Volume 3, NUh'1ber 2 November-December 1979- CROSS-EXAMINATION 't-- In response to the many persons who have asked are apparent and it all falls into place. that trial tactics be discussed in the Newsletter, we offer the following article on cross-exami­ 2. Tailormake Each Cross-Examination nation stra.tegies. A short note on Michigan law concerning cross-examination follows the article. The natural tendency of the trial attorney is to use t}'le same manner and same technique for every cross-examination he conducts. This is analogous to the surgeon who uses the saw for THE PREPARATION AND CONDUCT OF ever:-ything he does. The examiner must develop THE INDIVIDUAL CROSS-EXAMINA nON a repertoire of devices, techniques, etc., and choose the appropriate instrument for the speci­ A number of factors must be kept in mind fic situation. Having his objective firmly in mind to insure a planned, disciplined, safe and the attorney chooses the proper tactic to elicit effective cross-,examination. the testimony which satisfies that objective. 1. Cross-Examine by Objective :' 3. Make the Examination Psychologically Sound AdvEJ.nce The Trial Plan The witness testifying is engaged in hUman Management experts teach that "manage­ behavior. Witnesses react differently. One ment by objective" is essential for achievement. witness if pushed may back down while another The same applies to cross-examination. Many witness if pushed may remain firm and thus rambling and haphazard cross··examinations are strengthen his testimony.
    [Show full text]