State v. Holley

• Decision Date: 03 March 1992
• Docket Number: No. 90-557-C,90-557-C
• Citation: 604 A.2d 772
• Parties: STATE v. Julio HOLLEY. A.
• Court: Rhode Island Supreme Court

Page 772

604 A.2d 772

STATE v. Julio HOLLEY.

No. 90-557-C.A.

Supreme Court of Rhode Island.

March 3, 1992.

James E. O'Neil, Atty. Gen., Aaron Weisman, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

KELLEHER, Justice.

The defendant, Julio Holley (Holley), appeals his conviction by a Superior Court jury in which he was found guilty of robbery and conspiracy to commit robbery. Subsequently the trial justice imposed a sentence of forty-five years. For reasons set forth herein, we modify Holley's conviction and remand the case to the Superior Court for the entry of a judgment of conviction of assault with the intent to rob.

For forty-three years Melkon Varadian (Varadian) and his wife owned and operated, six days a week, the Public Street Market, a neighborhood grocery store in Providence. Varadian testified that on the morning of February 6, 1987, two men entered his store. One man, whom Varadian immediately recognized as a previous customer, wore a blue jumpsuit and a blue hat with gold braid. The other man, whom Varadian did not recognize, was of shorter stature. The familiar, taller man, later identified as Zachary Spratt (Spratt), ¹ meandered his way about the market, approached the meat counter and began to recite a list of various meats Varadian was to fetch for him. Meanwhile Holley paced between the meat counter and another aisle, a distance of approximately three feet. Although Varadian commented that the price of hamburger was too high, Spratt insisted on ordering three pounds of the meat. Spratt next requested pork chops and began again to stroll about the store. While Varadian prepared the chops, he carefully eyed the wandering taller man and testified later that Spratt put two cans of tuna fish into his jacket pocket. Spratt returned to the counter and ordered two slices of cheese and followed this request with another, for two slices of bologna. Varadian testified that at this point he knew he was "in trouble." Finally Spratt asked for some hot sausage, then changed his mind and canceled that portion of the order.

Frustrated with this tedious exchange, Varadian rang up the two men's purchases, which totaled $16, whereupon Spratt complained of the high price and began removing certain packages of meat from the grocery sack. Varadian explained that he had simply prepared the foods Spratt himself had ordered, then asked him to take the two cans of tuna fish out of his pocket and "to get the hell out" of his store.

At that moment Spratt nodded to Holley, who also was standing at the counter. Responding to the signal, Holley moved towards Varadian and pushed a gun into the proprietor's belly. Varadian reacted by swinging at Holley's chin. Holley hit Varadian back, dragged the sixty-five-year-old proprietor fifteen feet up an aisle of the store, threw Varadian to the floor, and began beating him across the face with the barrel of his gun.

In the meantime Spratt was attempting to open the cash register and succeeded only in breaking the top of the machine and its keys. No cash was taken. Varadian broke free of Holley and scrambled for a telephone to notify the police. Despite their efforts Spratt and Holley fled with no money, nor did they take away any of the food ordered, save the two tins of tuna.

Providence police responding to Varadian's call conducted a showup of possible suspects, but Varadian recognized none of the individuals presented to him as the perpetrators. Varadian was treated at St. Joseph Hospital and later released but not before detectives conducted another showup that included a man named Zachary Spratt, whom Providence detectives had apprehended earlier that afternoon in possession of a gun and in the process of taking off a blue jumpsuit. Varadian instantly recognized him as the taller perpetrator. Later that same day Varadian reported to the Providence police station to examine a six-photo array that contained a black-and-white photograph of Holley taken three years prior to the crime. Varadian did not recognize any of the men depicted in the photographs as the shorter man in his store earlier that day. However, one month following the incident, on March 6, 1987, in his store, Varadian was shown another and different six-photo array that contained a color photograph of Holley taken approximately two days before. At this time Varadian immediately identified the photograph of Holley as depicting the individual who had robbed him, and he gave a statement verifying this identification three days later at the police station.

Holley raises many issues on appeal, two of which relate directly to the facts reiterated above and three of which relate to procedural matters concerning his trial. Specifically Holley contends that the trial justice erred in (1) denying Holley's motion for acquittal on the charge of robbery, (2) failing to suppress Varadian's in- and out-of-court identifications of Holley, (3) improperly allowing the state to use its peremptory-challenge power to remove from the jury the only black juror at Holley's trial, (4) denying Holley's motion to pass the case, and (5) failing to permit defense counsel to question the reason for a fourteen-month lapse of time between Holley's identification and his charging. We modify Holley's judgment on the robbery conviction and reject the remainder of his contentions.

The facts of this case have provided us with much food for thought. In his first issue on appeal Holley insists he is wrongly sentenced to forty-five years for his cohort's taking of two cans of tuna fish. Specifically Holley contends that the tuna fish, having been put into Spratt's pocket prior to any exercise of force, makes unsupportable Holley's robbery conviction. We agree.

As Rhode Island subscribes to the common-law definition of robbery, we define the crime as the "felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear." State v. Pope, 414 A.2d 781, 788 (R.I.1980) (quoting State v. Reposa, 99 R.I. 147, 149, 206 A.2d 213, 215 (1965), citing 4 Black. Comm. 241). Larceny at common law is essentially a wrongful taking without right and a carrying away of another's personal property with a felonious intent to steal. State v. Smith, 56 R.I. 168, 184 A. 494 (1936). By definition, robbery includes larceny because the robbery act requires a taking and a carrying away of another's property. 67 Am.Jur.2d Robbery §§ 1, 2 (1985). When a defendant takes possession of another's property, there is a taking; when a defendant exercises dominion and control over the property, there is possession. Finally when a defendant carries away the property, there is an asportation. We note that there cannot be an asportation unless there has first been a taking. 4 Wharton's Criminal Law § 472 (Torcia 14th ed.1981).

We observe that it is the element of force, violence, or intimidation in the taking of property that distinguishes robbery from larceny. Annot. 58 A.L.R. 656 (1929). Indeed, a seining of case law regarding what constitutes robbery indicates a clear division between force used preceding or contemporaneous with a taking of property and force used subsequent to a taking. The majority of common-law jurisdictions support the conclusion that force used to retain property already peacefully taken, or to attempt to escape, is not the force essential to satisfy the element of force required for robbery. See, e.g., Eckelberry v. State, 497 N.E.2d 233 (Ind.1986); State v. Long, 234 Kan. 580, 675 P.2d 832 (1984); State v. Hope, 77 N.C.App. 338, 335 S.E.2d 218 (1985), rev'd, 317 N.C. 302, 345 S.E.2d 361 (1986). See Annot. 93 A.L.R.3d 643, 647 (1979). By the same token, a robbery has been held to occur when a defendant uses force or fear in resisting an attempt to regain the property or in attempting to remove property from the owner's immediate presence. See Burko v State, 19 Md.App. 645, 313 A.2d 864 (1974), reversing, Gray v. State, 10 Md.App. 478, 271 A.2d 390 (1970). ²

In order to ascertain whether a robbery conviction is proper, then, we need first to determine whether the taking of property had been completed at the time the force was used by a defendant. The relevant facts indicate that Holley and Spratt had finished their taking of the tuna before Holley bludgeoned Varadian. The force Holley applied to Varadian was not aimed at the taking of the tuna, which was concealed peacefully, albeit wrongly, in Spratt's jacket. Instead the facts show, and the state argued, that the force Holley dealt upon the store owner was directed toward the moneys in the cash register, which Spratt unsuccessfully attempted to open. Consequently, as the requisite elements of common-law robbery are unsustainable, we must vacate the robbery conviction.

We are persuaded that a modification of the judgment of conviction to assault with the intent to rob, and not a judgment of acquittal, is proper in this instance. Although it was legally impossible to sustain a conviction of robbery, there is ample evidence to support a conviction of the lesser included offense of assault with intent to rob, an offense about which the jury was alternatively instructed should the robbery charge be found unsupportable.

Our modification compels a brief explanation. Although originally a prosecutorial tool, lesser-included-offense instructions serve a significant function in protecting the rights of the accused as well as the integrity of the judicial system. Beck v. Alabama, 447 U.S. 625, 633-34, 100 S.Ct. 2382, 2387-88, 65 L.Ed.2d 392, 400-01 (1980). Such instructions may allow a jury to bring the verdict more accurately into conformity with the evidence and consequently ensure a defendant the full protection of the reasonable-doubt standard. State v. Myers, 158 Wis.2d 356, 363, 461 N.W.2d 777, 780 (1990)...