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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Tarrant, 367
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael D. Cutler,
Thomas F. Reilly, Asst. Dist. Atty. (Robert J. McKenna, Jr., Asst. Dist. Atty.,
with him), for the Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY
and WILKINS, JJ.
HENNESSEY, Justice.
The
defendant was convicted in the Superior Court on two indictments; the first
charged the [367
An appeal
was taken to the
The issues
to be resolved in this appeal based on assignments of error brought subject to
G.L. c. 278, ss 33A‑‑33G, are (1) whether the judge was in error in
denying the defendant's motion for a directed verdict on the armed robbery
indictment; (2) whether a 'neutral' object, here a German shepherd dog, may be
a dangerous weapon the presence of which may be sufficient to make the crime
armed robbery; and (3) whether the trial judge properly instructed the jury on
the prerequisites for a finding of a dangerous weapon. ([FN1])
The
Appeals Court, in affirming the conviction, held, in substance, that a dog may
be a dangerous weapon within the meaning of the armed robbery statute, and that
on the facts of this case that crime was proved. We also affirm the conviction. We concur in the reasoning expressed in the
Appeals Court opinion, and we add below certain additional reasoning impelled
by the specific arguments addressec by the parties to us.
We state in
brief only those facts necessary to make clear the issues raised by this
appeal. On the morning of November 23,
1972, the defendant, accompanied by a [367
Mass. 413] medium sized German
shepherd dog, entered the victim's apartment, walked to the bedroom, now
posessed of what appeared to be a kitchen knife, ordered the awakened victim
not to move, and began to collect certain articles and money. At one point the defendant asked the victim a
question warning him, 'If you have another radio and you aren't telling me
about it, I'll kill you.' During this
time the dog roamed about the room, at one point moving within 'a couple (of)
feet' of the victim's bed. The dog
apparently responded to the defendant's commands, coming to the defendant when
so ordered. At the close of the
Commonwealth's evidence and after the introduction of all evidence, the
defendant moved for a directed verdict on the armed robbery indictment; the
motion was denied.
The
defendant argues that his motion for a directed verdict should have been
granted because a dog is a neutral instrumentality and is not per se dangerous
as is a gun; that given this fact, the Commonwealth was required to prove that
the neutral instrumentality was used or was threatented to be used in a harm‑inflicting
manner; and that without such an affirmative demonstruation of the
'dangerousness' of the neutral object, here the German shepherd dog, the crime
was not most simple robbery.
Otherwise, the defendant submits, neutral instrumentalities could become
'dangerous weapons' for the purposes of armed robbery merely on the basis of
the victim's subjective perceptions.
Thus in this case it is apparently the defendant's position that the
Commonwealth was required to prove that the dog growled or in some way threatened
the victim by its own conduct, or that the defendant threatened to order the
dog to attack.
[1] We
start with the conclusion that the motion for a directed verdict was properly
denied, since the dog, on the facts of this case, could have been found to be a
dangerous weapon. Although we need not
rule on the issue, it seems apparent that the motion for a directed verdict was
also properly denied because the indictment
[367 Mass. 414] alleged that the
defendant was armed with both a knife and a dog, and there was evidence to
establish that he used a knife to further his purpose. Nevertheless, since we cannot discern now
whether the jury found that a knife was used, or indeed may have concluded that
the only dangerous weapon used was the dog, we proceed to examine the evidence
and the judge's instructions concerning the dog.
[2]
Contrary to the defendant's contentions, the standard applied in this case does
not depend on the victim's subjective perception but rather rests on an
evaluation of the instrumentality's potential for harm as it might have
objectively seemed to a reasonable individual.
We have applied such a standard in cases involving simple assault,
Commonwealth v. White, 110 Mass. 407 (1872), and assault by means of a
dangerous weapon, Commonwealth v. Henson, 357 Mass. 686, 259 N.E.2d 769
(1970). See Commonwealth v. Slaney,345
Mass. 135, 185 N.E.2d 919 (1962); Perkins, Criminal Law, 91‑‑93
(1957) ([FN2])
[3][4] The
offense of robbery while armed is but an aggravated form of common law robbery
and is to be distinguished in main by the manner of punishment and not by the
material elements composing the common law
[367 Mass. 415] crime of
robbery. Cf. G.L. c. 265, s 19. The statute defining the offense of armed
robbery was first enacted in this Commonwealth by St.1819, c. 124, s 1, and has
since that time been in force, with the exception that the punishment has been
reduced from death to imprisonment in the State prison for life. St.1839, c. 127. As stated in the early cases construing the
statute, '(t)here is no provision, either express or implied, that the striking
or wounding is to be inflicted with the weapon with which the robber is
armed.' Commonwealth v. Mowry, 11 Allen
20, 22 (1865); Commonwealth v. Cody, 165 Mass. 133, 137, 42 N.E. 575
(1896). The purpose of the statute is to
make robbery while possessed of a dangerous weapon a more serious offense
because such robbery 'would naturally lead to resistance and conflict' in which
use of the dangerous weapon may be expected to follow. Commonwealth v. Mowry, supra.
[5][6]
Thus, it is not only the actual use of the weapon in the sense of harm in fact
inflicted that makes the crime of armed robbery aggravated; rather it is more
importantly the potential for injury, and the tendency toward resistence,
conflict, and violence in result which exists where robbery is perpetrated with
the use of a dangerous weapon. See
generally Perkins, Criminal Law, 285 (2d ed. 1969); 67 Am.Jur.2d, Robbery, s 4
(1973). It follows that, in robbery, as
in assault by means of a dangerous weapon, whether the weapon is actually used
in inflict harm is largely irrelevant.
Rather, as we have stated, the relevant point is the 'objectively
menacing conduct of the defendant . . . (producing) the fear of harm which it
was intended to produce, with the same consequential tendency to provoke a
breach of the peace.' Commonwealth v.
Slaney, 345 Mass. 135, 140, 185 N.E.2d 919, 923 (1962).
[7]
Accordingly, we conclude that the Commonwealth, in order to prove the crime of
armed robbery in this case, was not required to have affirmatively demonstrated
that the dog was actually dangerous (Commonwealth v. [367 Mass. 416] Henson,
supra,) or was in fact used in a harm‑inflicting manner, since the proper
inquiry is whether the instrumentality is such as to present an objective
threat of danger to a person of reasonable and average sensibility. We note that the result reached here is
consistent with our reasoning in Commonwealth v. Nickologines, 322 Mass. 274,
76 N.E.2d 649 (1948), wherein we affirmed a conviction for armed robbery
despite the fact that the gun used in the robbery was unloaded. In that case, as in the assault cases cited
above, we focused on the instrumentality's apparent ability to inflict
harm. We apply the same analysis
here. ([FN3])
[8][9][10][11]
However, we agree with the defendant that where it appears that the
instrumentality is not in its ordinary use designed to produce death or serious
bodily injury, therefore qualifying as matter of law as a dangerous weapon,
then its potential danger must be measured by objective standards and not by
the victim's subjective apprehension.
([FN4]) Accordingly, where the
instrumentality is not per se harm‑inducing it is a question of fact for
the jury whether the circumstances surrounding the presence of the
instrumentality suggest its latent character as dangerous. In resolving this issue the jury may consider
the nature, size, and shape of the object as well as the way in which it is
handled or controlled. Relative to the [367 Mass. 417] inquiry the jury should consider whether, based on the objective
conditions at the time of the assault, the exhibition of the instrumentality
could reasonably engender the victim's fear and whether the perpetrator of the
robbery did intend to provoke that fear in order to facilitate the theft. ([FN5])
Cf. Commonwealth v. Slaney,
345 Mass. 135, 140, 185 N.E.2d 919 (1962).
See generally People v. Graham, 71 Cal.2d 303, 78 Cal.Rptr. 217, 455
P.2d 153 (1969) (shod foot may in certain circumstances be a dangerous weapon);
People v. Raleigh, 128 Cal.App. 105, 16 P.2d 752 (1932).
[12] In
sum, the issue, where a neutral object is involved, turns on whether the
instrumentality under the control of the perpetrator has the apparent ability
to inflict harm, whether the victim reasonably so perceived it, and whether the
perpetrator by use of the instrumentality intended to elicit fear in order to
further the robbery. ([FN6])
[13] We
must go a step further in this case to determine whether the jury were properly
instructed and had before them sufficient evidence to find that the dog was a
dangerous instrumentality. The defendant
argues that the judge erroneously instructed the jury to evaluate whether the
dog was dangerous solely on the animal's subjective impression to the
victim. The judge stated that an
instrumentality could be found to be a dangerous [367 Mass. 418] weapon
if it reasonably appeared capable of inflicting bodily harm. ([FN7])
This was a proper statement of the law.
[14]
Finally, there was sufficient evidence for the jury to find that the dog was in
these circumstances a dangerous weapon within the provisions of G.L. c. 265, s
17: the dog entered the victim's bedroom with the defendant who was carrying a
knife; roamed about the room while the defendant searched for goods, moving
within close proximity to the victim; and answered to the defendant's
orders. A German shepherd is a
relatively large and well known breed with the physical capability of
inflicting harm. Further, the defendant
did tell the victim that he would kill the victim if he lied to him. These are objective facts that could
reasonably have persuaded the jury.
Moreover it is a well known fact, one judicially noticed by the Appeals
Court, that dogs may be trained to attack persons. See the statutes and cases cited in the
opinion of the Appeals Court, Commonwealth v. Tarrant, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑ ([FNB]), 314 N.E.2d 448
(1974). Given these facts the jury
clearly had sufficient evidence to find that the victim's fear was reasonable
and was intentionally caused by the defendant through the instrumentality of
the dog in order to facilitate the theft.
Judgment
of Superior Court affirmed.
FNa.
Mass.App.Ct.Adv.Sh. (1974) 793.
(FN1.)
The crime of armed robbery in this Commonwealth is defined in relevant
part as: 'Whoever, being armed with a dangerous weapon, assaults another and
robs, steals or takes from his person money or other property which may be the
subject of larceny shall be punished by imprisonment in the state prison for
life or for any term of years.' G.L. c.
265, s 17, as appearing in St.1952, c. 406, s 1.
(FN2.)
While it is true that this court has distinguished the offenses of
assault and assault by means of a dangerous weapon from armed robbery by
pointing out that the gist of the latter crime is robbery being armed and not
the use of the weapon (Commonwealth v. Nickologines, 322 Mass. 274, 277, 76
N.E.2d 649 (1948); Commonwealth v. Chapman, 345 Mass. 251, 254‑‑255,
186 N.E.2d 818 (1962)), it is also true that the material elements of assault
and assault by means of a dangerous weapon have direct relevance to the crime
of robbery. This follows because that
form of assault, 'in which the person senses that force may be used and is thereby
put in fear, does meet the robbery requirement when the fear facilitates the
theft.' Commonwealth v. Richards, 363
Mass. 299, ‑‑‑, 293 N.E.2d 854, 858 (1973) (Mass.Adv.Sh. (1973) 449, 453). G.L. c. 265, s 17. Cf. Commonwealth v. Jones, 362 Mass. 83, 283
N.E.2d 840 (1972) (Mass.Adv.Sh. (1972)
1155, 1157). And, where the robbery is
accomplished by an assault 'it cannot be said the actor is judged by what he
does without regard to the victim's reaction.'
Commonwealth v. Richards, supra, at ‑‑‑, 293 N.E.2d at
858 (Mass.Adv.Sh. (1973) at 453). Commonwealth v. McCarthy, 360 Mass. 366, 276
N.E.2d 696 (1971).
(FN3.)
The Proposed Criminal Code of Massachusetts c. 266, s 16(b) (1972), in
line with our analysis, defines the more serious degree of robbery if the
defendant or another participant '(1) is armed with a dangerous weapon or
apparent dangerous weapon' (emphasis added).
See Am.Law Inst., Model Penal Code, s 222.1 and Comments 1‑‑4,
pp. 68‑‑71 (Tent. draft No. 11, 1960).
(FN4.) Of course where the neutral object is in fact
used to inflict serious injury it would clearly be a dangerous weapon. As stated in Commonwealth v. Farrell, 322
Mass. 606, 614‑‑615, 78 N.E.2d 697, 702 (1948), where we held that
a lighted cigarette used to inflict burns on the victim was a dangerous weapon,
that term may be defined to mean 'any instrument or instrumentality so
constructed or so used as to be likely to produce death or great bodily harm'
(emphasis added). See cases cited
in 322 Mass. at 615, fn. 1, 78 N.E.2d
697.
(FN5.)
We emphasize that the crucial point is whether the victim could
reasonably have feared impending harm and it is not necessary that the victim
be shown to have, in fact, experienced fear.
In this regard we reaffirm the principle stated in Commonwealth v.
Slaney, supra. However, we point out
that evidence as to the victim's apprehension and subjective state although not
determinative is material to this issue.
Note that this standard differs from that applied in civil cases where
fear or at least apprehension is essential to recovery. Restatement 2d: Torts, s 22 (1965).
(FN6.)
We think that the definition of a dangerous weapon adopted in the
Proposed Criminal Code of Massachusetts c. 263, s 3(i), is well stated: 'any
firearm or other weapon, device, instrument, material or substance, whether
animate or inanimate, which in the manner which it is used or is intended to be
used is capable of producing death or serious bodily injury' (emphasis added).
(FN7.)
The judge in instructing the jury on whether the dog could be considered
a dangerous weapon stated in pertinent part: 'And I put it to you, it was a
reasonable fear (example of unloaded gun).
And under these circumstances, because such an action presents, ladies
and gentlemen, such a serious breach such a risk of activities that I can't
anticipate, that such a person ought to be held pate, that such a person ought
to be held for having used a dangerous weapon in that case that I gave
you. . . . And this I am going to instruct you on, with
any instrumentality, including an animal, that I appear to be capable of using
against you right now, in such a way as to inflict bodily harm upon you; in
short, any instrumentality, dead or alive, which oppears reasonably to a
supposed victim to be about to be used to inflict bodily harm upon him, can be
found to be a dangerous weapon' (emphasis added).
(FNB.)
Mass.App.Ct.Adv.Sh. (1974) 793,
796.