State v. Byrd

Citation385 So.2d 248
Decision Date23 June 1980
Docket NumberNo. 66767,66767
PartiesSTATE of Louisiana v. Charles BYRD.
CourtSupreme Court of Louisiana

Page 248

385 So.2d 248
STATE of Louisiana
Charles BYRD.
No. 66767.
Supreme Court of Louisiana.
June 23, 1980.

Page 249

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

Orleans Indigent Defender Program, Robert Barnard, New Orleans, for defendant-appellant.

LEMMON, Justice.

For attempting robbery with a toy pistol defendant was convicted of attempted armed robbery and sentenced to four years at hard labor, without benefit of parole, probation or suspension of sentence. The issue on appeal is whether the toy pistol, in the manner used under the circumstances of this case, constituted a dangerous weapon within the contemplation of R.S. 14:64 and 14:2(3).


The facts are undisputed. Defendant ordered a single piece of fried chicken at the side window of a restaurant. When the employee rang up the sale on the cash register and asked for 57 cents, defendant produced a toy pistol from his pocket and held

Page 250

it up in the air, demanding all of the money in the register. The employee stated there was no money, and defendant grabbed the piece of chicken and began to walk away. However, the employee grabbed the chicken back and closed the window on defendant, who then left the window.

Two policemen, who happened to observe the incident from across the street (and were not called by the employee), stopped defendant and searched him, finding the toy pistol.


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". 1 Under that theory the pertinent inquiry here is whether defendant's use of the toy pistol created a life endangering situation, as in State v. Levi, 250 So.2d 751 (La.1971).

The undisputed facts in this record simply do not provide reasonable support for the apparent conclusion that the toy pistol in the manner used was likely to produce bodily harm. The actions of the victim and of the defendant refute the State's contention that the manner of use created the "highly charged" atmosphere described by the Court in State v. Levi, above. While defendant admitted he intended to rob the restaurant, he asserted he used the toy pistol so as not to hurt anyone. He did not threaten to harm, nor did he even refer to the toy pistol as a weapon. The victim testified that defendant did not point the toy pistol at him. Indeed, the victim's subjective reaction indicates he did not perceive any likelihood of great bodily harm.

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 could not conclude that all elements of the offense of armed robbery have been proved beyond a reasonable doubt. 2 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The result we reach is supported by an analysis of the criminal statutes relating to Misappropriation with Violence to the Person. The offense of simple robbery requires the use of force or intimidation by one not armed with a dangerous weapon, while the offense of armed robbery requires something additional in the way of dangerousness. The seriousness of that additional something is dramatically illustrated by comparison of available sentences. For simple robbery the maximum sentence is seven years (recently raised from five), with or without hard labor, and parole, probation and suspension of sentence are available. But for armed robbery the minimum sentence is five years at hard labor, without benefit of parole, probation or suspension of sentence. Clearly, the statutory scheme contemplates the more severe penalty is intended to deter the use of truly dangerous instrumentalities. 3 Imposition of the mandatory

Page 251

sentence for offenses which do not involve dangerous weapons (and which are covered by other statutes and penalties) defeats the overall scheme and perhaps even encourages use of dangerous weapons.

We therefore set aside the conviction of armed robbery.


Decision on the decree in this case poses a separate and rather difficult problem.

When the evidence does not support a conviction of the crime charged, the Court has generally remanded with instructions to discharge the defendant. See State v. Allien, 366 So.2d 1308 (La.1978). However, the discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. See State v. Tillman, 356 So.2d 1376, n. 2 at 1379 (La.1978).

In this case all of the elements of the crime of attempted simple robbery necessarily have been proved beyond a reasonable doubt to the satisfaction of the trier of fact. The verdict of guilty of the greater offense explicitly reflects the finding that defendant attempted to commit the theft of something of value which was in within the immediate control of the victim. 4 See R.S. 14:64, 65, and 67.

Since all the elements of the lesser and included offense of attempted simple robbery have been proved beyond a reasonable doubt, this Court should not strike down all of those adequately supported findings merely because the evidence did not reasonably support the conclusion that an additional element also existed.

Past decisions of this Court can perhaps be construed to indicate a reluctance to order a judgment of conviction for a lesser and included offense. In State v. White, 315 So.2d 301 (La.1975) the jury returned a verdict of guilty of attempted theft, without specifying the value of the stolen property, when the indictment had charged attempted theft of property valued at more than $500. We held that the jury verdict could not stand because it failed to specify the property value and thus the degree of theft involved, but...

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    ...from decisions of federal and other state courts. See, e.g., State v. Grant, 177 Conn. 140, 411 A.2d 917, 920-21 (1979); State v. Byrd, 385 So.2d 248, 252-53 (La.1980); State v. Eiseman, 461 A.2d 369, 384 (R.I.1983). Others have simply entered judgment for lesser included offenses without d......
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