Criminal Procedure Practice Exam #10.

Dave suffers from a disease that sometimes causes seizures during which he is not aware of his actions and sometimes he physically attacks other persons. Dave has been convicted of aggravated assault twice within the last three years.

Dave's doctor has repeatedly instructed him to avoid alcoholic beverages because of a connection between Dave's seizures and consumption of alcohol. The assaults that led to Dave's convictions occurred after Dave had consumed alcohol.

Valerie visited Dave at his apartment. Dave gave Valerie a beer and poured one for himself. In an hour, Dave consumed four bottles of beer. An argument with Valerie ensued. When Dave became irritated and his speech slurred, Valerie decided he was intoxicated and she left the apartment. Dave grabbed a fireplace poker, followed Valerie into the hall, and struck her on the head from behind. He then returned to his apartment.

Dave's first recollection after his argument with Valerie is looking out his window and seeing an emergency squad removing a motionless Valerie from the apartment building.

Dave immediately called Perry, his attorney. Perry's secretary put the call through to Perry, but, pursuant to Perry's general instructions, listened to the conversation. Dave told Perry all that he could recall about the incident and that he thought Valerie was dead. Then Dave said: 'The poker has blood on it. Should I get rid of it?'

Perry replied, 'Leave everything as it is.'

Valerie survived the attack, but could not positively identify Dave as her assailant.

Dave was charged with attempted murder. He pleaded not guilty and not guilty by reason of insanity. At trial, during the People's case-in-chief, Valerie testified that Dave had consumed four bottles of beer in a one-hour period, and that he appeared to be intoxicated when she left his apartment. Over Dave's objections, the court admitted evidence of Dave's prior assault convictions and admitted the testimony of Perry's secretary about the conversation between Perry and Dave.

Dave testified that he had had a seizure and that he could not remember anything after his argument with Valerie. Dave's physician testified regarding the relationship of Dave's seizures to consumption of alcohol.

The trial court refused to give instructions requested by Dave on diminished capacity and insanity.

1. Did the trial court err in admitting:

(a) The evidence of prior convictions? Discuss.

(b) The testimony of Perry's secretary? Discuss.

2. Did the trial court err in refusing to instruct the jury on:

(a) Diminished capacity? Discuss.

(b) Insanity? Discuss.

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