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Final Written Assignment 9 Internal Legal Memorandum of Law MEMORANDUM TO: Chief Prosecuting Attorney FROM: DATE: December 4, 2010 RE: Charging Bob and Susan Tuttle of Negligent Supervision Question Presented
Did Joseph Haney effectively simulate a deadly weapon and create a life-threatening environment, sufficient to satisfy the Arizona armed robbery statute, by thrusting his hand into a pocket and telling the store clerk that it was a “holdup” and to “[l]ie still if you want to live,” when the victim was unsure whether Haney had such a weapon, when Haney used both hands to grab money from the cash register, and when the only objects found in Haney’s possession were the stolen cash and a package of mints? Brief Answer No.
Mere words and threats to use a deadly weapon are insufficient to support such a charge, because under Arizona law, the victim must reasonably perceive that the robber is armed with a deadly weapon, even if the robber is merely simulating the presence of the weapon. The ambiguity of Haney’s actions and the fact that Haney’s victim did not perceive that he was armed do not satisfy the requirements of the Arizona armed robbery statute. Statement of Facts This office is considering whether to prosecute Joseph Haney for armed robbery. Haney was arrested on August 12, 2007, for robbing Albert’s Quik-Stop, a convenience store in Tempe.
According to the store clerk, Richard Lopez, Haney entered the store at approximately 10:30 p. m. No other customers were in the store. Haney, who was visibly nervous, approached Lopez, thrust his right hand into the pocket of his windbreaker, and shouted, “Can’t you tell this is a holdup? Give me the money in the register, man! Don’t make me hurt you! ” Lopez stated he was unsure whether Haney had a weapon in the pocket. He described Haney as being large and muscular, and he said that Haney’s physical size persuaded him to cooperate by opening the register.
When Lopez did so, Haney jumped over the counter and knocked Lopez to the ground, saying, “Lie still if you want to live. ” Haney grabbed money from the register with both his hands and placed the bills in the pockets of his jeans and windbreaker. Haney then leaped back over the counter and fled from the store. A patrol car had just pulled up to the Quik-Stop’s gas pumps, and the officer driving it observed Haney running from the store. The officer pursued and captured Haney and, upon a search of the suspect’s pockets, discovered the stolen money and a cylindrical package of mints in the windbreaker pocket.
He did not find any type of weapon. Discussion It is unlikely that Joseph Haney will be convicted of armed robbery because the State will not be able to establish that the victim of the robbery perceived Haney to be armed with a deadly weapon. In order to successfully prosecute Joseph Haney for armed robbery, the State must prove that he was armed with or that he used or threatened to use a deadly or a simulated deadly weapon. Ariz. Rev. Stat. Ann. § 13-1904(A) (West 1984).
Because Haney did not have an actual weapon when he committed the robbery, the issue here is whether Haney’s victim reasonably perceived Haney to be armed with a deadly weapon. Mere words indicating the presence of a deadly weapon are not enough to satisfy the statute. In one case, the court found that a robber’s verbal threats to use a deadly weapon were not enough to support the perception that she was armed. State v. Rodriguez, 791 P. 2d 633, 638 (Ariz. 1990). In the Rodriguez robbery, the defendant kept her right hand out of sight and threatened to “shoot the smile off” the victim’s face if he did not cooperate with her.
Id. at 634. In concluding that the robber did not simulate a deadly weapon, the Rodriguez court found it significant that her hand was not visible and that she did not make any physical movement to indicate that she had a deadly weapon. Any object may suffice as a simulated deadly weapon, provided that the victim reasonably perceives it to be an actual weapon. State v. Felix, 737 P. 2d 393, 394 (Ariz. App. 1986). The defendant in Felix pressed a nasal inhaler against his victim’s back, declaring that he had a gun. Based on what he felt, the victim perceived that a gun was pressed against his back.
Id. On these facts, the court had no difficulty in finding that the defendant had simulated a deadly weapon. Id. In another decision focusing on the victim’s perception, the court upheld the armed robbery conviction of a man who used his hand under his clothing to simulate a gun during a robbery. State v. Ellison, 819 P. 2d 1010, 1013 (Ariz. App. 1991). The court found it significant that the defendant simulated a weapon with his hand, observing that “[t]he victim’s perception is the same whether the weapon appears to be or is in fact real. ” Id. at 1012.
In the court’s view, the defendant’s act posed the same potential for harm to or reaction from the victim and any bystanders. Id. at 1013. Because the victims in Ellison could reasonably have believed that the shape they saw under the defendant’s clothing was a gun, rather than his hand, the defendant created the life-threatening environment which the armed robbery statute seeks to punish. The court distinguished this case from Rodriguez by noting that in Rodriguez, “the victim never saw anything resembling a weapon; the defendant only implied that she had a gun when she threatened to ‘shoot the smile off’ the victim’s face. Id. at 1012 (citing Rodriguez, 791 P. 2d at 633). While these distinctions are small, they are supported by the policy behind the armed robbery statute. In passing the armed robbery statute, the Arizona legislature meant to punish more severely those who used deadly or simulated deadly weapons in the course of a robbery and who thus created “[t]he potential for increased danger to, or sudden and violent reaction by, the victim or bystanders. ” Rodriguez, 791 P. 2d at 637.
Indeed, the Rodriguez court observed that if the penalty were the same for those who possessed a weapon and those who were unarmed, there would be no deterrent to the use of weapons. Id. Taken together, these cases suggest that, in ambiguous circumstances, it is important to determine whether the victim could have reasonably believed that the robber had a deadly weapon. In the present case, the question is whether the store clerk could reasonably have perceived that Haney was armed. Haney’s words were not enough. Like the robber in the Rodriguez case, Haney verbally threatened his victim with harm, shouting, “Don’t make me hurt you! and instructing him to “[l]ie still if you want to live. ” Unlike that robber, however, Haney accompanied his words with action, thrusting his hand into his pocket. Although the arresting officer found a cylindrical package of mints in Haney’s pocket, nothing in Lopez’s account suggests that Haney used the package to simulate a weapon in the way the defendant in Felix used the nasal inhaler to approximate the barrel of a gun. And although the Ellison case established that a person’s hands could be perceived to be a deadly weapon, this analysis does not fit the facts of the Haney case.
Haney simply thrust his hand into his pocket. Had he simultaneously claimed that he had a gun, or had he used more definitive gestures to suggest a gun, such as poking his finger into the fabric of his windbreaker pocket or simulating the barrel of a gun with the package of mints, there might be a basis for prosecution. Nothing in the victim’s statement, however, indicates such a perception. For one thing, Lopez admitted not knowing whether Haney had a weapon. Lopez said he opened the cash register because he felt physically intimidated by Haney’s size, not because he feared Haney was armed.
Haney’s words, while threatening, did not expressly suggest that he had a deadly weapon. Moreover, Lopez stated that he watched Haney use both hands to scoop the cash into his pockets, including the windbreaker pocket. Had Haney been holding a weapon, it is unlikely he would have let it go; the hand holding the weapon would have remained in his pocket and he would not have put cash there. These facts show that Lopez never perceived the presence of a weapon, and therefore, Haney did not create the life-threatening environment which is necessary to support a prosecution under the armed robbery statute