Man Found Napping in Car With Holdup Note

[jakethebake]

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if a cop saw him pull up to the store, and pull on a ski mask/stocking- if the cop arrested him right there i think he should be convicted.

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so he shouldn't be allowed to wear a ski maks in the cold? arresting people that may intend to commit a crime is a slippery slope.

[Patrick del Poker Grande]

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if a cop saw him pull up to the store, and pull on a ski mask/stocking- if the cop arrested him right there i think he should be convicted.

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so he shouldn't be allowed to wear a ski maks in the cold? arresting people that may intend to commit a crime is a slippery slope.

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I'll say this - I can definitely see and argue for both sides of this one. That said, I'm leaning towards the prosecution's side on this one if they're going to get him for attempted burglary or whatever. Jake, all your arguments work against each individual point - you can wear a ski mask, what's wrong with a needle, etc., but once you put them all together - the mask, the gun, the note, I think the intent is pretty clear and he was simply unable to complete the task, presumably due to whatever chemicals he had in the needles.

[J.R.]

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arresting people that may intend to commit a crime is a slippery slope.

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hence intent + substantial step

[Zoltri]

Where is poster named Lucas?
I believe he told me he was a lawyer.

And for what its worth, I dont understand all the animosity towards Jake. This guy always speaks his mind honestly and I respect him for that. [img]/images/graemlins/wink.gif[/img]

I think some people need to ease up. [img]/images/graemlins/confused.gif[/img]
Just my .02

[tolbiny]

sorry- i mispoke-
if a person drives up to a drug store and a cop sees him pull on a ski mask that is enough for the cop to stop and question him. If the cop then finds a note and a weapon/simulated weapon of some kind i think he should be arrested.

[DeezNuts]

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That's insane. Where do you draw the line? "Yea. I left home, thinking about killing my boss today." Call the cops!

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I think it's time for the Pre-Crime division to be called up and put Tom Cruise on the job.

DN

[J.R.]

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4. Application. Prosecution and defense were content with the trial judge's instructions on criminal attempt. These consisted of Instruction 5.02 and Supplemental Instruction of the Model Jury Instructions (1995) promulgated for use in our District Court. The instructions are in accord with the authority in the Commonwealth on the dangerous-proximity proposition. Thus the judge charged, following Model Instruction 5.02, that the Commonwealth must prove beyond a reasonable doubt

"[t]hat the defendant took an overt act toward committing the crime, which was part of carrying out the crime, and came reasonably close to actually carrying out the crime."

The judge described "overt act," following the Supplemental Instruction, as

"some actual, outward, physical action, as opposed to mere talk or plans. It is not enough that someone just intends to commit a crime or talks about doing so.
The overt act must also be a real step toward carrying out the crime. Preliminary preparations to commit a crime are not enough. The overt act has to be more of a step toward actually committing the crime, after all the preparations have been made. It must be the sort of act that you could reasonably expect to trigger a natural chain of events that will result in the crime, unless some outside factor intervenes." (Emphases in original.)


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Com. v. Hamel
52 Mass.App.Ct. 250, 752 N.E.2d 808
Mass.App.Ct.,2001.

[Patrick del Poker Grande]

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4. Application. Prosecution and defense were content with the trial judge's instructions on criminal attempt. These consisted of Instruction 5.02 and Supplemental Instruction of the Model Jury Instructions (1995) promulgated for use in our District Court. The instructions are in accord with the authority in the Commonwealth on the dangerous-proximity proposition. Thus the judge charged, following Model Instruction 5.02, that the Commonwealth must prove beyond a reasonable doubt

"[t]hat the defendant took an overt act toward committing the crime, which was part of carrying out the crime, and came reasonably close to actually carrying out the crime."

The judge described "overt act," following the Supplemental Instruction, as

"some actual, outward, physical action, as opposed to mere talk or plans. It is not enough that someone just intends to commit a crime or talks about doing so.
The overt act must also be a real step toward carrying out the crime. Preliminary preparations to commit a crime are not enough. The overt act has to be more of a step toward actually committing the crime, after all the preparations have been made. It must be the sort of act that you could reasonably expect to trigger a natural chain of events that will result in the crime, unless some outside factor intervenes." (Emphases in original.)


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Com. v. Hamel
52 Mass.App.Ct. 250, 752 N.E.2d 808
Mass.App.Ct.,2001.

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This doesn't clear it up at all. We're still back to arguing whether or not the guy took a clear step toward carrying out the crime or if he just made the preparations.

[J.R.]

of course it doesn't clear it up, this is just how Mass. instructs juries, because whether someone "attempted" a crime is a question of fact, not law, and is therefore up to the jury. If you were a juror on this case this is the gist of how you would be instructed to decide the "overt act" issue.

My point was this isn't really a legal question, but a factual one, and the law really doesn't have a clear grasp on what is or is not an "attempt". Its similar to pornography first amendment debate, where the law recognizes that it may not be easily defined, but you know it when you see it.

However,

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It must be the sort of act that you could reasonably expect to trigger a natural chain of events that will result in the crime, unless some outside factor intervenes.

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this line is pretty interesting, since the act complained of is getting all the stuff and showing up outside the store.

[tolbiny]

"this line is pretty interesting, since the act complained of is getting all the stuff and showing up outside the store."

If i was on the jury i would probably consider setting foot on their property (the parking lot) as an overt act. However once he falls asleep..... this is a bit tougher.