Reed v. Butler
| Decision Date | 06 April 1988 |
| Docket Number | Civ. A. No. 87-3215. |
| Citation | 683 F. Supp. 565 |
| Parties | Milton REED v. Hilton BUTLER. |
| Court | U.S. District Court — Eastern District of Louisiana |
Milton Reed, pro se.
William Marshall, Asst. Dist. Atty., New Orleans, La, for defendant—State of Louisiana.
ORDER AND REASONS
This matter was referred to a United States Magistrate for the purpose of conducting hearings, including an evidentiary hearing if necessary, and submission of proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, the Rules governing 28 U.S.C. § 2254 cases.
Upon review of the entire record, the Court determines that the record is sufficient for the purpose of adjudication of petitioner's application, that an evidentiary hearing is not necessary, and that the application should be granted for the following reasons.
Accordingly, the Order of Reference to the Magistrate is hereby REVOKED.
Petitioner, Milton Reed, and two accomplices were convicted in a Louisiana State court of armed robbery. Reed was sentenced to a term of imprisonment of thirty years without the benefit of pardon, probation or parole. He claims his conviction is based upon an ex post facto application of the law and that the evidence was insufficient to prove an essential element of the crime of armed robbery; namely, that he was armed with a "dangerous weapon." La.Rev.Stat.Ann. § 14:64A (West 1986).
On July 12, 1977, Kenneth Oliver, employed by a cigarette vending machine company, was robbed by three individuals at about 2:00 p.m. The robbery occurred after Oliver had placed some cigarette cartons inside of his truck. While looking out of the back window of the truck, he saw three individuals pass by. He continued to look at them to be sure that they kept moving. Oliver then described what happened:1
At the time the offer was made of the gun (S-1), defense counsel made the following objection:
Your Honor, I object to S-1 on the ground that it has not been positively identified by Mr. Oliver as being the weapon that was used. It could fit the description of any number of cap pistols. They're all the same. (Emphasis added.)
The weapon which the victim identified as the one used during the course of the robbery (which he originally described as a small .22 caliber weapon), was in fact a toy pistol. A codefendant, Robert Desdunes, Jr., testified that the police entered an apartment in New Orleans where he and another man, named James Mathias, were listening to music. The following exchange occurred between Desdunes and defense counsel:
Desdunes believed the toy pistol belonged to Mathias' younger brother. Indeed, Mathias testified to that fact.
At the time of the commission of the crime in the instant case, armed robbery was defined as follows:
A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. (Emphasis added.)
La.Rev.Stat.Ann. 14:64(A) (West 1986). At the time the crime in question was perpetrated, a "dangerous weapon" "included any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." La.Rev.Stat.Ann. 14:2(3) (West 1986).
In 1983, the Louisiana legislature re-enacted and renamed the crime of armed robbery. It eliminated the crime of "armed robbery" and created a new crime of "first degree robbery."2 Under the law as it existed when Reed was convicted, the perpetrator must have been actually armed with a dangerous weapon. Under the redefined and re-enacted law, it is sufficient for the victim to "reasonably believe" that the offender is armed with a dangerous weapon, whether or not such is the case. This change was suggested by the Louisiana Supreme Court which had been grappling with the meaning of the term "dangerous weapon" under the prior statute. See, e.g., State v. Green, 409 So. 2d 563 (La.1982) (); State v. Byrd, 385 So.2d 248 (La.1980) (); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir. 1983), writ granted, rev. in part on other grounds, 452 So.2d 1177 (); State v. Levi, 259 La. 591, 250 So.2d 751 (La.1971) (); State v. Gould, 395 So.2d 647 (La.1980) ().
In each of the above cases, the core question was whether a toy pistol, an unloaded or unworkable pistol, was a "dangerous weapon." In those cases, the courts focused on the manner in which the defendant used the object and the effect such use had on the victim and bystanders. For example, in State v. Green, the Louisiana Supreme Court held, "the use of an inherently harmless object in a manner that creates circumstances likely to produce death or great bodily harm results in the inherently harmless object being a dangerous weapon within the provisions of LSA-R.S. 14:2(3) and 14:64." Green, 409 So.2d at 565. (Emphasis in the original.)
In each of the above convictions, (except Byrd, 385 So.2d 248 (La.1980), and Gould, 395 So.2d 647 (La.1980)), the Court determined that the victim reasonably believed the use of the toy pistol or the unloaded firearm would likely cause great bodily harm. As stated by the Louisiana Supreme Court in Byrd, "numerous cases have developed the theory that the victim's potential reaction to an instrumentality not inherently dangerous can be considered by the jury in determining whether the instrumentality `in the manner used' is likely to produce great bodily harm and is therefore a `dangerous weapon.'" Byrd, 385 So.2d at 250. The focus was whether "defendant's use of the toy pistol created a life endangering situation." Id.
For the first time in such cases, the conviction in Byrd for the crime of attempted armed robbery was set aside by the Supreme Court because the evidence indicated the victim's subjective reaction revealed "he did not perceive any likelihood of great bodily harm." 385 So.2d at 250. The Supreme Court in Byrd observed:
This is not to say that a toy pistol can under no circumstances be used as to create a life endangering situation which supports a guilty verdict of armed robbery. But under the facts and circumstances of this case a reasonable trier of fact, viewing the evidence in the light most favorable to the prosecution, simply cannot conclude that all elements of the offense of armed robbery have been proved beyond a reasonable doubt. (Citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
The Supreme Court further reasoned in Byrd that the distinction between the relatively smaller penalty for simple robbery (maximum of five years at the time of the crime in the instant case) compared with the minimum sentence of five years at hard labor without the benefit of parole, probation or suspension of sentence up to a maximum of ninety-nine years illustrates "the more severe penalty is intended to deter the use of truly dangerous instrumentalities." 385 So.2d at 250. As a result of the inherent problems in defining a "dangerous weapon," the Byrd court stated:
perhaps the legislature will clarify the situation. There is a presently pending bill which defines armed robbery to include the situation in which the victim is reasonably led to believe the robber is armed with a dangerous weapon. But until such clarification the doubt should be resolved in favor of lenity.
Byrd, 385 So.2d at 250, n. 3. The Louisiana legislature reacted to the suggestion of the Byrd court and enacted the first degree robbery statute discussed at page 567, supra.
In State v. Gould, 395 So.2d 647, the defendant was found guilty of armed robbery and sentenced to forty years at hard labor. In that case, the defendant placed a note on the counter of a window at a bank, which stated:
DON'T TALK! ACT NATURAL! PUT ALL THE...
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Reed v. Butler
...corpus relief, claiming that he was not armed with a dangerous weapon at the time of the robbery. The district court granted the writ, 683 F.Supp. 565; the state appeals contending that under then-controlling Louisiana law, from the evidence presented the jury could find that Reed used a da......