Lynn v. State

• Decision Date: 11 October 1990
• Docket Number: No. 89-497,89-497
• Citation: 567 So.2d 1043
• Parties: 15 Fla. L. Weekly D2556 Richard Allen LYNN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1043

567 So.2d 1043

15 Fla. L. Weekly D2556

Richard Allen LYNN, Appellant, v. STATE of Florida, Appellee.

No. 89-497.

District Court of Appeal of Florida Fifth District.

Oct. 11, 1990.

Richard Allen Lynn, Raiford, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

PETERSON, Judge.

Richard Allen Lynn appeals the judgment and sentence imposed following a jury verdict finding him guilty of robbery with a deadly weapon, fleeing or attempting to elude a police officer, and reckless driving. Lynn raises the issue of whether a pellet gun used in a robbery is a deadly weapon where the gun, when recovered by police, is not operational. He also alleges violation of his constitutional right to effective counsel by his counsel's failure to move for suppression of certain evidence obtained pursuant to a search. We reject his arguments and affirm.

At 8:18 p.m., on August 23, 1986, Lynn approached a cashier at a Red Lobster restaurant and instructed him to open the register and hand over the money. While the cashier was following the instructions, Lynn lifted his shirt to reveal a handgun wedged in his trousers and told the cashier to hurry up or he would "blow [the cashier's] ... brains out." When Lynn turned away briefly, the cashier activated an alarm. Lynn took the money and fled.

At 8:40 p.m., Officer Gibb, who had responded to the alarm and had obtained a description of Lynn from the cashier, saw a suspect who fit the description exiting a nearby convenience store. The suspect entered a yellow diesel Volkswagen Rabbit and was driving out of the parking lot when Gibb requested that he stop and get out of the car. Instead, the suspect turned off his lights and left at a high rate of speed, pursued by Officer Gibb in a marked police car. The chase was interrupted when the suspect pulled into the front yard of a residence and opened his car door. He was then instructed by the officer to get out with his hands over his head. The chase resumed when the suspect shut his door and took off. Shortly thereafter, however, the chase ended when the suspect lost control of his car and crashed into a fence. When Gibb again approached the car, the suspect was not in sight and was presumed to have escaped by vaulting a chain link fence. The police recovered from the Rabbit an air pellet pistol which was determined to be nonoperational at the time of recovery because pellets were jammed in the barrel and a CO2 cartridge necessary to provide propulsion for the pellets was missing.

At approximately 9:30 p.m., Lieutenant Overman responded to a BOLO for the Red Lobster robbery suspect by proceeding to another convenience store where it had been reported the suspect had been spotted. When Lieutenant Overman arrived, he observed a suspect matching the description given by the cashier. The lieutenant reported the contact by radio and detained Lynn until Deputy Davidson arrived. Davidson conducted a search of Lynn's pockets and found 50 to 100 wadded up bills and a knife. Both officers testified that Lynn bore fresh scratches and cuts, some of which were still bleeding. Lynn was then advised of his Miranda rights, handcuffed, and placed in Davidson's patrol vehicle. When the Red Lobster cashier and Officer Gibb arrived, Lynn was identified as the robber and the operator of the crashed Rabbit.

The first issue raised by Lynn is whether an air pellet pistol may be classified as a "deadly weapon" within the meaning of the robbery statute when the gun was not operational at the time it was recovered, at least 22 minutes after the robbery. This issue requires us to determine initially whether an air pellet pistol can ever be viewed as a deadly weapon. We believe that State v. Jeffers, 490 So.2d 968 (Fla. 5th DCA 1986), provides the answer to the preliminary question. The weapon involved in the Jeffers case was a pellet rifle, and this court found that it could be a deadly weapon within the meaning of section 784.045, Florida Statutes (1983), depending upon the manner in which it was used. There is no reason for distinguishing between a pellet pistol and a pellet rifle for purposes of classification as a deadly weapon, since both discharge a pellet through the use of air pressure and are capable of causing death or injury. We hold, therefore, that an air pellet pistol, depending upon its use, can be considered to be a deadly weapon within the meaning of section 812.13(2)(a), Florida Statutes (1987).

The court in Jeffers also noted that the ultimate question of whether the weapon could be classified as deadly, depending upon its use, was a question for the jury. Jeffers at 969, citing Duba v. State, 446 So.2d 1167 (Fla. 5th DCA 1984). In Duba, this court rejected the expansive view of a deadly weapon contained in M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982), and Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970), by agreeing with the dissent in Jones v. State, 238 So.2d 661 (Fla. 2d DCA 1970). The Jones dissent indicated that it was hardly possible to inflict death or great bodily harm with an unloaded gun not used as a bludgeon. The dissent reasoned that, because there had been no demonstrated present ability to inflict death or serious bodily harm with the unloaded pistol, the appellant should not have been convicted of aggravated assault.

The weapon in Duba was an air pistol designed to expel BBs through the use of a CO2 cartridge. As in the instant case, the air pistol lacked the cartridge when seized by the police, and none was found in defendant's possession. Even after loading the pistol later with a cartridge, the police were unable to operate the pistol. The trial court was reversed for prohibiting defense counsel from arguing to the jury that the air pistol was not a deadly weapon because it lacked the necessary CO2 cartridge and was not, in fact, operational. This court held that whether or not an object is a deadly weapon is a question of fact to be determined by the jury from the evidence, taking into consideration its size, shape, and material and the manner in which it was used. Duba fell short of proclaiming that an air pistol was a deadly weapon and established standards for a jury to determine that ultimate question.

In the instant case, whether the pistol was operational at the time of the crime was a question that was properly submitted to the jury. The evidence at trial was uncontroverted that, at the time it was recovered, the air pellet pistol was not operational. A witness testified that the pistol had never worked while owned by her husband (Lynn was not the owner), and a forensics expert was able to make it operate only after dislodging the jammed pellets and inserting...