Com. v. Howard

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; WILKINS; O'CONNOR; NOLAN
Citation436 N.E.2d 1211,386 Mass. 607
Decision Date25 June 1982
PartiesCOMMONWEALTH v. Ronald A. HOWARD.

Page 1211

436 N.E.2d 1211
386 Mass. 607
COMMONWEALTH

v.
Ronald A. HOWARD.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Dec. 9, 1981.
Decided June 25, 1982.

Frank R. Herrmann, Boston, for defendant.

James M. Lynch, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The defendant was convicted of robbery while "armed with a dangerous weapon." G.L. c. 265, § 17, as appearing in St.1952, c. 406, § 1. The evidence did not warrant a finding by the jury that the defendant in fact possessed any dangerous weapon. The only evidence concerning a gun was that, when the defendant approached the victim on Commonwealth Avenue in Boston, in the early hours of November 20, 1976, he had his right hand in his jacket, and he said, "Walk straight, look down, and don't try anything foolish or I'll pull the trigger."

[386 Mass. 608] The defendant moved for a directed verdict on so much of the robbery indictment as charged robbery while armed with a dangerous weapon. 1 The judge denied the motion for a directed verdict. We granted the defendant's application for direct appellate review.

The judge charged the jury, over the defendant's objection, that the Commonwealth need not prove the existence of a weapon, but that, if the defendant uttered words and indicated by the position of his body and his arms that he had a gun, "the law will take him at his word that he did have a gun." In so charging the jury, the judge relied on language in Commonwealth v. Delgado, 367 Mass. 432, 437, 326 N.E.2d 716 (1975), which, standing alone, could fairly be understood as permitting a conviction for robbery with a dangerous weapon solely on the basis that the defendant robber had spoken words indicating that he

Page 1212

had a gun, although no gun was ever seen or found. In the Delgado case, we did not endorse the concept that a jury must presume the existence of a gun from the robber's words: "Hold him or I'm going to shoot him." Id. at 436, 326 N.E.2d 716. Rather, we permitted the jury to infer the existence of a gun by saying: "(T)he jury could reasonably conclude that the defendant should be taken at his word." Id. at 437, 326 N.E.2d 716. As we point out later, the factual circumstances in the Delgado case were different from those in this case.

We conclude that where a robber had no instrumentality at all, although he said he had a gun, a conviction of armed robbery is not warranted. In short, the statute concerning armed robbery (G.L. c. 265, § 17) should not be read as including a robbery while apparently armed with a dangerous weapon when in fact the defendant was unarmed. In the case before us, the conviction of armed robbery must be reversed, and the case remanded for sentencing on the crime of unarmed robbery. 2

[386 Mass. 609] As we have said, the victim was on Commonwealth Avenue when the defendant came up to her with his hand in his jacket and uttered the words quoted above. They walked down Commonwealth Avenue for a while, until the defendant told her to go up some stairs and into an apartment building. After they entered the first set of doors, the defendant demanded the victim's wallet, and she gave it to him. When an occupant of a first floor apartment opened her apartment door and saw the victim and the defendant, the defendant told the victim to leave the apartment building, and they did. They walked to the corner of Dartmouth Street and Commonwealth Avenue, turned right, and again right, into an alley. The defendant then demanded that the victim empty her pockets, and she gave him approximately $1.50 in change. At this point, a police cruiser arrived from one end of the alley, and a second cruiser arrived shortly thereafter from the other end of the alley. The defendant was arrested at the scene. No gun was found on the defendant or in the vicinity where he was arrested. The victim never saw a gun. The jury returned verdicts of guilty of kidnapping and armed robbery.

The evidence would not have warranted the jury in finding, on the basis of a reasonable inference and beyond a reasonable doubt (Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979) ), that the defendant had a gun. No gun [386 Mass. 610] was seen. No gun was found on the defendant or at the place where he was arrested. They could not reasonably infer that the defendant had a gun, but disposed of it before the police arrived. The defendant would have had no reason to dispose of a weapon, if he had had one, before the police suddenly arrived and arrested him.

It is the absence of any basis to infer that the defendant may have had a gun that distinguishes this case from Commonwealth v. Delgado, supra 367 Mass. at 432, 326 N.E.2d 716. As appears from the opinion of the Appeals Court in the Delgado case (2 Mass.App. 865, 866, 315 N.E.2d 893 (1974) ), Delgado and three other men entered a grocery store. During the confrontation, the night manager of the grocery store was held at knife point. Delgado said, "Hold him or I'm going to shoot him." No gun was seen. After the money was taken, the

Page 1213

four men ran out of the store. As we noted in our opinion, when the case was before us on further appellate review, no gun was found on Delgado or in the area where he was apprehended. Commonwealth v. Delgado, 367 Mass. at 436, 326 N.E.2d 716. In those circumstances, it was possible that Delgado had a gun and disposed of it. We concluded that "the jury could reasonably conclude that the defendant should be taken at his word." Id. at 437, 326 N.E.2d 716. In the Delgado case, the jury would have been warranted in finding beyond a reasonable doubt that Delgado had a gun.

We do not construe the Delgado case as eliminating the statutory requirement that a defendant have a dangerous weapon but only as holding that the jury were warranted in inferring beyond a reasonable doubt that, in the circumstances, Delgado had a gun. In the case before us, the defendant's statement alone, implying that he had a gun, where no gun was seen or found and he had no opportunity or reason to dispose of it, cannot be sufficient to warrant a conviction of robbery while "armed with a dangerous weapon."

If a robbery committed while apparently armed with a dangerous weapon is to be equated with armed robbery, the Legislature may make the appropriate statutory amendment. [386 Mass. 611] We should not construe G.L. c. 265, § 17, a criminal statute, so loosely as to eliminate the requirement that there be some instrumentality which presents "an objective threat of danger to a person of reasonable and average sensibility." Commonwealth v. Tarrant, 367 Mass. 411, 416, 326 N.E.2d 710 (1975). 3 The crime of armed robbery, an aggravated form of robbery, is based in part on the potential for injury that arises from the possession of a dangerous weapon. When there is no such weapon, the potential is absent. The victim's apprehension is, of course, likely to be the same whether the defendant had a gun or only said he had a gun, but did not. The nature of any threats and a victim's apprehension may be relevant factors in sentencing a defendant on his conviction of unarmed robbery, but, in the absence of evidence warranting an inference beyond a reasonable doubt that a defendant, in fact, had some instrumentality in his possession, there can be no conviction of robbery while "armed with a dangerous weapon."

The judgment in the kidnapping case is affirmed. The robbery case is remanded to the Superior Court for the entry of a verdict of guilty of unarmed robbery and for the imposition of sentence for that offense.

So ordered.

O'CONNOR, Justice (concurring).

I agree that the evidence would not have warranted a finding by a jury that the defendant, in fact, possessed a dangerous weapon, and that a conviction of armed robbery was not warranted. I do not agree, however, that a defendant's statement, during a robbery, that he has a gun, together with evidence that he [386 Mass. 612] could have disposed of one, warrants a finding that he actually had a gun, nor do I agree that that is the holding of Commonwealth v. Delgado, 367 Mass. 432, 326 N.E.2d 716 (1975). The holding in Delgado was not that the evidence warranted a finding that the defendant actually had a gun, but that the defendant's words, "Hold him or I'm going to shoot him," were the legal equivalent of possession, making the defendant guilty of armed robbery, regardless of whether he actually had a gun.

I

The defendant's statement to the victim, "Walk straight, look down, and don't try anything foolish or I'll pull the trigger," and his gestures, were insufficient to satisfy a rational trier of fact beyond a reasonable doubt that he actually had a gun. Commonwealth v. Latimore, 378 Mass. 671, 677-

Page 1214

678, 393 N.E.2d 370 (1979). As this court stated in Latimore, "(i)n reviewing the denial of motions for directed verdicts in criminal cases, we have frequently said that 'we must consider and determine whether the evidence, in its light most favorable to the Commonwealth ... is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged.' Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975).... Such statements are elliptical and they represent but one part of the required test of the sufficiency of the evidence to permit submission of a case to the jury. Additionally, the evidence and the inferences permitted to be drawn therefrom must be of 'sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of (guilt) beyond a reasonable doubt,' as required by Commonwealth v. Cooper (264 Mass. 368, 373, 162 N.E. 729 (1928) ),...

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35 practice notes
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...Mass. 497, 513 n. 23, 359 N.E.2d 4 (1976) (plurality opinion). "Criminal statutes must be strictly construed." Commonwealth v. Howard, 386 Mass. 607, 617, 436 N.E.2d 1211 (1982) (O'Connor, J., concurring). "The result is disturbing. Every jurisdiction which has considered the issue ... hold......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2021
    ...State , 903 N.E.2d 940, 944 (Ind. 2009) ; see State v. Marshall , 188 N.C.App. 744, 656 S.E.2d 709, 714 (2008) ; Commonwealth v. Howard , 386 Mass. 607, 436 N.E.2d 1211, 1211–13 (1982).This background law confirms that the Commission's commentary expands—rather than interprets—the robbery g......
  • Com. v. Mattei, SJC-10390
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 1, 2010
    ...is misplaced. He cites to no case, and we are aware of none, where the issue was not submitted to the jury. Cf. Commonwealth v. Howard, 386 Mass. 607, 608, 436 N.E.2d 1211 (1982) (insufficient evidence for conviction of robbery while "armed with a dangerous weapon," G.L. c. 265, § 17, where......
  • Brooks v. State, No. 60
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...followed a similar approach. See, e.g., People v. Skelton, 83 Ill.2d 58, 46 Ill.Dec. 571, 414 N.E.2d 455 (1980); Commonwealth v. Howard, 386 Mass. 607, 436 N.E.2d 1211 (1982); Duckworth v. State, 477 So.2d 935 (Miss.1985); State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986); State v. Tasco,......
  • Request a trial to view additional results
34 cases
  • Com. v. Cass
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 16, 1984
    ...Mass. 497, 513 n. 23, 359 N.E.2d 4 (1976) (plurality opinion). "Criminal statutes must be strictly construed." Commonwealth v. Howard, 386 Mass. 607, 617, 436 N.E.2d 1211 (1982) (O'Connor, J., concurring). "The result is disturbing. Every jurisdiction which has considered the issue ... hold......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2021
    ...State , 903 N.E.2d 940, 944 (Ind. 2009) ; see State v. Marshall , 188 N.C.App. 744, 656 S.E.2d 709, 714 (2008) ; Commonwealth v. Howard , 386 Mass. 607, 436 N.E.2d 1211, 1211–13 (1982).This background law confirms that the Commission's commentary expands—rather than interprets—the robbery g......
  • Com. v. Mattei, SJC-10390
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 1, 2010
    ...is misplaced. He cites to no case, and we are aware of none, where the issue was not submitted to the jury. Cf. Commonwealth v. Howard, 386 Mass. 607, 608, 436 N.E.2d 1211 (1982) (insufficient evidence for conviction of robbery while "armed with a dangerous weapon," G.L. c. 265, § 17, where......
  • Brooks v. State, No. 60
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...followed a similar approach. See, e.g., People v. Skelton, 83 Ill.2d 58, 46 Ill.Dec. 571, 414 N.E.2d 455 (1980); Commonwealth v. Howard, 386 Mass. 607, 436 N.E.2d 1211 (1982); Duckworth v. State, 477 So.2d 935 (Miss.1985); State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986); State v. Tasco,......
  • Request a trial to view additional results

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