Closed Memo

JS6557 Professor Pratt  §16, Thursdays, 10:00 a. m. X Mailbox # 406 Final Draft Closed Memo September 5, 2012 Word Count: 2,975 On my honor, I submit this work in good faith and pledge that I have neither given nor received improper aid in its completion. /s/ JS6557 JS6557 Memorandum To: Managing Partner Salvo From: JS6557 Date: September 24, 2012 Re: McAnzen Case QUESTION PRESENTED DUIUnder Mississippi law, can McAnzen establish a defense of necessity for his DUI charge, when after realizing the severity of Hurricane Katrina and fleeing his home, he was arrested while driving under the influence even though that action was only done to prevent a significant evil and was his only adequate option to avoid the impending dangers of the storm? ESCAPE Under Mississippi common law, can McAnzen establish a necessity of defense to escape when he used no force or violence to flee custody, to avoid the mmediate threat of serious bodily harm, after he was pulled over and arrested during the o nset of the impending danger of Hurricane Katrina although he did not report himself immediately to proper authorities? BRIEF ANSWER DUI Probably yes. McAnzen will probably be able to survive a DUI charge because under Mississippi Law a defendant must meet three elements to establish a defense of necessity to DUI.He will likely meet all three elements because he drove under the influence only to prevent a significant evil, the harm he caused was disproportionate to the harm avoided, and driving was his last adequate option in hopes to avoid the impending dangers of Hurricane Katrina. ESCAPE Probably yes. McAnzen will probably be able to evade an escape charge because under Mississippi Law a prisoner must meet four elements to establish a defense of necessity to escape.Although he failed to meet all four of the elements undoubtedly, he will likely be able to establish his defense because he clearly met three of the four elements because the hurricane winds were an immediate threat of serious bodily harm, he did not have time to make a complaint to authorities, and he used no force or violence to make his escape to flee the impending dangers. STATEMENT OF FACTS After an argument with his wife, McAnzen wife left the home to recollect her thoughts while relaxed with a six-pack of beer while tuning into the local news station.The news graphically described the Hurricane that was predicted to hit but he didn’t give any warranty to it. Over the two-hour period, he consumed four of the six beers. A neighbor interrupted his television viewing to enlighten him of the actual severity of the storm and advise that McAnzen and his wife leave with him immediately. He declined the offered ride but began to worry about his wife’s absence. Although the weather began to worsen, he felt morally obligated to wait for his wife but could not find her. After waiting as long as he could he acknowledged that e had been drinking earlier in the night but if he did not leave he would have been endangered by the violent hurricane. He most likely wouldn’t survive the wrath of Hurricane Katrina. While driving he was being extremely careful but decided to put a CD in to assure he would stay awake and in doing so he crossed the centerline. He was then pulled over, in the middle of a detrimental hurricane, and eventually arrested for driving under the influence. After being pulled over for a traffic stop during the onset of Hurricane Katrina, McAnzen fled the scene as an â€Å"intention to avoid impending danger.After initially being pulled over and failing a field sobriety test, a huge gust of wind knocked over the arresting officer giving McAnzen time to escape the scene. He left the scene because he panicked after seeing the strong wind blow over the officer, which created a fear for his life. He fled to his sister’s home in Florida and when returning to Mississippi, he went immediately to his home, which indecently was completely destroyed by the destruction of the hurricane. He was then arrested. DISCUSSIONBoth of McAnzen’s decisions, driving under the influence and escaping from custody, are criminal actions but they were necessarily committed to ensure his personal safety during the onset of Hurricane Katrina. His actions are to be excused by the defense of necessity, which is when a person’s choices can be excused or justified even though they break a law because they were necessary. â€Å"Where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal. Knight v. State, 601 So. 2d 403 (Miss. 1992). Mississippi Courts generally find that for a defendant to establish a defense of necessity for a crime committed, he must prove that three elements were present: reasonable belief of fear, fear of physical harm, and no sufficient alternative. Id. In this situation he is charged with two separate crimes and both crimes are anal yzed differently according to specific elements that pertain to each of them.This is an affirmative defense because he has the burden of proof meaning he must prove that he met the elements of the defense to claim it. The following cases using the defense of necessity will help prove that McAnzen does establish his defense. The court in Stodghill v. State, 892 So. 2d 236 (Miss. 2005) found that the plaintiff George Stodghill’s attempt to use the defense of necessity in regards to his arrest for driving under the influence was not valid because he did completely satisfy all the elements of that defense.After a night of drinking at a remote cabin with family, his girlfriend became violently ill and exhibited symptoms of a seizure so he decided she needed immediate medical attention but felt like 911 would not come fast enough. Id. During the drive he committed two different offenses: speeding and crossing the centerline and subsequently he was pulled over and arrested. Id. He d id not fully comply with all of the elements because although he was trying to prevent a significant evil, there were alternative means for the transportation of his girlfriend that he chose not to rely on.Id. Willie Joe Knight, a black man, was driving along a road in a predominately white community in 1989 when after noticing a group of white children playing on the road side, he felt as if his vehicle had run over something. Knight v. State, 601 So. 2d 403 (Miss. 1992). After stopping to check for damages he concluded that he had probably run over something unimportant but was quickly startled by the screams of a witness claiming that he had run over a white child and that the child was trapped. Id.The angry crowd approached and he feared for his own safety because he, a black man, ran over a white child and with the rioting crowds pressure growing, he left the scene. Id. Knight openly stated he fled because he feared for the safety of his own life considering the racial aspect. Id. 406. The court concluded this was a case for a defense of necessity because he was motivated by fear and the present circumstances that induced that fear would be in a reasonable person in Knight's situation. Id. With this conclusion, his conviction was reversed and remanded. Id.In Corley v. State, 536 So. 2d 1314 (1988), the defendant escaped from the Carroll County Jail after he claimed to have been threatened by a jailer with a gun. After his escape he was consequently returned to the Carroll County Jail after being located at his home in Greenwood. Id. at 1317. He claimed a defense of necessity to escape because he had a fear for his life after the jailer’s threat but the Court held that his defense was not viable, therefore waived, because he chose intentionally to not return to custody after the danger was evaded. Their findings were ased on that Corley admittedly divulged that he planned on staying out of jail â€Å"as long as I could reckon. † Id. The Court found that failure to return to the authorities after reaching safety and failure to make a complaint about his danger demoted Corley’s reasoning and did not constitute his escape to be a defense of necessity because he did not meet all of the elements. Id. Since the elements were not met, the Court affirmed his conviction. Id. I. DUI McAnzen will most likely survive the DUI charge because can probably establish each element of the defense of necessity for that charge.Under Mississippi Law, to establish a necessity of defense, a defendant must prove: (1) the act charged was done to prevent a significant evil; (2) the harm caused was not disproportionate to the harm avoided; and (3) there was no adequate alternative. Stodghill v. State, 892 So. 2d 236 (Miss. 2005). 1. The act charged was done to prevent a significant evil; Courts have usually found that a defense of necessity was valid when the act charged was done to prevent a significant evil. This was established in Stodgh ill v. State, 892 So. 2d 236 (Miss. 2005).McAnzen chose to drive under the influence because it was the only way to ensure his safety from the hurricane. Like, McAnzen chose to drive under the influence because it was the only way to ensure his safety from the hurricane. His decision to drive under the influence was the only way to get him self to a safe environment although he had to break a law to do so. Like Stodghill, McAnzen drove under the influence because his only other option was not viable- to be physically harmed due to Hurricane Katrina. They both knowingly committed the same crime but only to ensure their own or other’s safety from their individual circumstances.It could be said that because hurricanes are common in this part of the country that he should have taken warnings of the storm more seriously. This cannot be entirely true because each hurricane has different levels of severity and when he realized the severity of Hurricane Katrina it was necessary that he leave his home immediately or risk being killed by the storm. 2. The harm caused was not disproportionate to the harm avoided; and Courts have previously found that a defense of necessity was valid when the harm caused was not disproportionate to the harm avoided. This was established in Stodghill v.State, 892 So. 2d 236 (Miss. 2005). McAnzen’s case easily proves this element because driving under the influence essentially saved his life because without making that decision he would have been likely killed by the effects of the storm. This is parallel to the situation in the Stoghill case because he had to make the decision to drive even though he had previously been drinking earlier in the night, in hopes to save his girlfriend who was suffering from a seizure. It could be said that McAnzen choosing to drive under the influence always has the chance to harm someone else in the process.This counter argument is not sufficient because who is to tell him that his life was not important just because he happened to drink earlier in the evening? Since the storm had rapidly gotten worse, most people had already reached safety making it a lesser chance that he would hit someone on the road. 3. There was no adequate alternative. Courts have formerly found that a defense of necessity was valid when the act is committed because there was no adequate alternative. This was not established in Stodghill v. State, 892 So. 2d 236 (Miss. 2005).The third element is established and provided by the moral obligation McAnzen felt for his wife. He declined the ride with a neighbor because he felt morally wrong leaving his wife, in the chance that she might return. When McAnzen could absolutely wait no longer for her return, he had no other adequate options but to drive to safety. His moral conscience was the reason that eventually he was stuck with no alternatives. Stodghill did not meet this. One could say that his moral obligation to wait on his wife was not an adequate r easoning to wait.He could have accepted the ride from his friend since his wife eventually never showed up and the acceptance was an adequate option. Because no one can define what a person’s certain moral obligations can or cannot be this counter argument cannot be found. He felt like he should wait on his wife, when she never returned his only option was to drive himself to safety. McAnzen frankly admits that he committed criminal acts when he operated a vehicle under the influence his argument provides that he had fitting reason to do so to ensure his own safety during the onset of Hurricane Katrina.In reference to the use of defense of necessity to his DUI charge, the court will find that it is his reasoning was appropriate and in accordance to all three elements. The Courts will likely find that a reasonable person would have made the same choices as he. I. Escape McAnzen will most likely survive the escape charge because can probably establish each element of the defens e of necessity for that charge. Courts have found that a prisoner’s escape can be permissible by law if the reason is the â€Å"intention to escape an impending danger† rather than the â€Å"intention to escape lawful imprisonment† which could not be justified.Under Mississippi Law, to establish a necessity of defense to escape, a defendant must prove: (1) immediate threat of serious bodily harm to prisoner; (2) prisoner has no time in which to make complaint to authorities about his danger (3) force or violence is not used in escape; and (4) a prisoner must intend to report immediately to proper authorities when he attains position of safety. Corley v. State, 536 So. 2d 1314 (1988). Although he does not undoubtedly meet all four elements it is likely the court will accept his defense because he clearly meets three; the fourth is very debatable. . Immediate threat of serious bodily harm to prisoner The first element is clearly met because there was an immediate threat of serious bodily harm to prisoner because McAnzen had a legitimate threat of serious bodily harm, the incoming Hurricane Katrina. His fear of impending danger was heightened when he saw the officer simply knocked over by the hurricane’s wind. Unlike McAnzen, in Corley the claim that an officer threatened him at gunpoint had not merit because it was never proven. It could be said that a gust of wind is not an immediate threat but that is not entirely true.The gust of wind was in fact an immediate threat of what was to come from the incoming hurricane. He knew that if a gust of wind was strong enough to knock down a grown man that the storm could easily kill him. 2. Prisoner has no time in which to make complaint to authorities about his danger; The second element, that the prisoner has no time to make a complaint about his danger, is easily met by the McAnzen case. Since he was arrested in the middle of existent hurricane weather he had no time to complain to authoriti es regarding his rationale for evading the danger.He was arrested without his viable reason even being considered. If the threat had been legitimate in Corley, Corley could have reported the incident to someone of authority instead of trying to handle the law himself. 3. Force or violence is not used in escape; and In the third element it states that force or violence is not used in escape. McAnzen used neither force nor violence because his escape was enabled after a natural occurrence of weather, the gust of wind, detained the officer.The argument cannot counter this because the gust of wind that knocked over the officer, allowing McAnzen to escape, was an act of nature not an act of force or violence. 4. A prisoner must intend to report immediately to proper authorities when he attains position of safety. The last element, that a prisoner must intend to report immediately to proper authorities when he attains position of safety, is the only element that is not clearly met by McAn zen but he is still likely to establish his defense.It is explicitly never met in Corley because he openly admits after the police collected him that he had no intentions of returning and would try to stay a free man as long as he could. McAnzen, on the hand doesn’t explicitly meet this element but has a completely different motive than the extreme one stated in Corley. He was forced leave the jurisdiction in which he was arrested to evade the danger of the approaching. He did not leave the jurisdiction to avoid his arrest; only to avoid the storm thus avoiding the impending danger.It will be countered that he should have immediately turned him self in. But neither who the proper authorities are nor when safety is obtained are explicitly defined. He could have believed the proper authorities were in the jurisdiction in which he was arrested. Thinking he should turn in himself in to Mississippi authorities would have given him no reason to do so when he arrived in Florida. It can be thought that he would turn himself in when returning home but his thought process was halted when he found his home had been completely destroyed.A reasonable person would have visited their home before reporting to authorities therefore this counterargument will not stand. CONCLUSION Both of McAnzen’s decisions, driving under the influence and escaping from custody, are criminal actions but they were necessarily committed to ensure his personal safety during the onset of Hurricane Katrina. He meets the individual elements of each charge that are required to establish the defense of necessity making his actions excusable. It is likely that the court will find that in his circumstances he made reasonable decisions.