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VOLUME 6 - CHAPTER 67
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Chapter 67: Solicitation
67.1 Solicitation: Lack Of Intent As Defense Theory
67.2 No Multiple Convictions For Single Solicitation Against Multiple Victims
67.3 Specific Solicitation Statute Preempts General Attempt Possession
67.4 Solicitation: Defense Theory That Request Lacked Sufficient Clarity
67.5 Solicitation: Renunciation As Defense
67.6 Solicitation: Defense Theory That Act And Intent Were Not Concurrent
67.7 Solicitation: Guilt Of Person Solicited Not Required
67.8 Solicitation: Person Solicited May Not Be Convicted Solely On Acquiescence
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VOLUME 6 - CHAPTER 67
67.1 Solicitation: Lack Of Intent As Defense Theory
RATIONALE: Without a specific defense theory instruction the jury may not understand that merely requesting someone to commit a crime is not solicitation unless the defendant also had the intent that the crime be committed.
POINTS AND AUTHORITIES: Solicitation requires intent that the crime solicited be committed. (See U.S. ex rel. Swimley v. Nesbitt (7th Cir. 1979) 608 F2d 1130, 1131; People v. Miley (CA 1984) 158 CA3d 25, 33-34 [204 CR 347]; People v. Cook (CA 1984) 151 CA3d 1142, 1147 [199 CR 269]; Laurel v. Superior Court (CA 1967) 255 CA2d 292, 297-298 [63 CR 114] [request to commit crime and specific intent required]; People v. Aalbu (CO 1985) 696 P2d 796, 805; Sheeran v. State (DE 1987) 526 A2d 886, 891; People v. McCommon (IL 1979) 399 NE2d 224, 231; Allen v. State (MD 1992) 605 A2d 960, 976-77.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
USE NOTE: Solicitation to commit murder logically requires a finding of specific intent to kill. (See People v. Bottger (CA 1983) 142 CA3d 974, 978, 980 [191 CR 408].) Hence, it is error to give the jury an instruction on the elements of murder which includes both intentional and unintentional theories of murder. (Ibid.)
RESEARCH NOTES:
Wharton’s Criminal Law (West, 15th ed. 1996) § 671, p. 522.
See generally, FORECITE National™ 305.19.5 [Solicitation].
SAMPLE INSTRUCTION # 1:
Solicitation requires both a request to commit the crime and the specific intent that it be committed.
Merely requesting someone to commit a crime does not constitute solicitation. The request must be accompanied with the specific intent that the crime be committed.
You must be convinced beyond a reasonable doubt that the defendant not only requested that the crime be committed, but also that at the time the request was made, the defendant had the specific intent that the crime be committed.
[Laurel v. Superior Court (CA 1967) 255 CA2d 292, 297-298 [63 CR 114].]
SAMPLE INSTRUCTION # 2:
The crime of solicitation to commit murder consists in the asking of another to commit the crime of murder, with the specific intent that the crime be committed.
You must be convinced beyond a reasonable doubt that __________ (defendant) solicited the commission of the crime of murder, with the specific intent to kill, before you may convict [him] [her] of the charge in Count I of the Information.
SAMPLE INSTRUCTION # 3:
The crime of solicitation to commit murder occurs when the solicitor purposely seeks to have someone murdered and tries to engage someone to do the murder.
You must therefore find beyond a reasonable doubt:
1. That __________ (defendant) solicited __________ (person solicited) to commit the crime of murder and;
2. That __________ (defendant) purposely sought to have __________ (victim) killed.
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67.2 No Multiple Convictions For Single Solicitation Against Multiple Victims
PRACTICE NOTE: "With respect to the offenses of solicitation, conspiracy and attempt, a person may not be convicted of more than one offense for a 'single course of conduct' designed to commit or to cause the commission of the same crime." (Wharton’s Criminal Law (West, 15th ed. 1996) § 674, p. 527.) Therefore, the jury should be instructed to consider whether the multiple crimes were part of a "larger all-inclusive" plan with a single objective and/or motive. (People v. Cook (CA 1984) 151 CA3d 1142, 1145-47 [199 CR 269]; see also People v. Miley (CA 1984) 158 CA3d 25, 31, fn 4 [204 CR 347]; People v. Vandelinder (MI 1992) 481 NW2d 787, 790.)
RESEARCH NOTES:
Annotation, Solicitation To Commit Crime Against More Than One Person Or Property, Made In Single Conversation As Single Or Multiple Crimes, 24 ALR4th 1324.
See generally, FORECITE National™ 305.19.5 [Solicitation].
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VOLUME 6 - CHAPTER 67
67.3 Specific Solicitation Statute Preempts General Attempt Possession
PRACTICE NOTE: In both People v. Sanchez (CA 1998) 60 CA4th 1490, 1497 [71 CR2d 309] and People v. York (CA 1998) 60 CA4th 1499, 1504-05 [71 CR2d 303] it was held that the more specific solicitation statute preempted prosecution under the more general attempt statutes. (See also FORECITE National™ 274.1.5 [Multiple Offenses: Specific Offense Preempts General Offense].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.5 [Solicitation].
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67.4 Solicitation: Defense Theory That Request Lacked Sufficient Clarity
PRACTICE NOTE: To constitute a solicitation, the proposal must be sufficiently clear to permit a reasonable person to understand what is being asked and that the achievement of that objective will likely involve the commission of a criminal offense. (See Frye v. State (MD 1985) 489 A2d 71, 74.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.5 [Solicitation].
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67.5 Solicitation: Renunciation As Defense
PRACTICE NOTE: See LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.1 p. 13.
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.5 [Solicitation].
RELATED FEDERAL MODEL INSTRUCTIONS:
See 6th Circuit Pattern Jury Instructions - Criminal 5.03.
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67.6 Solicitation: Defense Theory That Act And Intent Were Not Concurrent
PRACTICE NOTE: See State v. Rivers (ME 1993) 634 A2d 1261, 1263-64 [reversible error to instruct jury that act and intent elements of solicitation need not occur at one time].
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.5 [Solicitation].
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VOLUME 6 - CHAPTER 67
67.7 Solicitation: Guilt Of Person Solicited Not Required
PRACTICE NOTE: Unlike conspiracy, which requires a bilateral agreement between two guilty persons, it is no defense to solicitation that the person solicited could not have been convicted of the offense. (See Luzarraga v. State (FL 1991) 575 So2d 731 [no defense to solicitation that person solicited was an undercover agent]; People v. Breton (IL 1992) 603 NE2d 1290, 1294-96; State v. Sage (MT 1992) 841 P2d 1142 [defendant guilty of soliciting incest with daughter even though she would not be guilty of the crime had it occurred]; State v. Rossi (RI 1987) 520 A2d 582, 583-84 [defendant guilty of solicitation of perjury of minor even though minor could not be convicted].)
RESEARCH NOTES:
LaFave & Scott, Substantive Criminal Law (West, 1999 Supp.) § 6.1.
See generally, FORECITE National™ 305.19.5 [Solicitation].
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67.8 Solicitation: Person Solicited May Not Be Convicted Solely On Acquiescence
PRACTICE NOTE: The acquiescence of the person who is solicited to the solicitation, even if unlawfully made by an undercover agent, does not make the person solicited guilty of solicitation. (See Allen v. State (MD 1992) 605 A2d 960, 972 [collecting cases from other jurisdictions].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.19.5 [Solicitation].