People v. Jolly

Levin, J.

(concurring). I have signed the opinion of the Court because I agree that there was sufficient evidence to make a jury submissible issue on the question whether defendant Paul Michael Jolly was carrying a dangerous weapon.

The testimony of Jose Lopez that Jolly’s accomplice, Jennifer Herzog, handed Lopez a paper bag and told him that Jolly had a gun and would shoot him unless he filled the bag with money, together with the evidence of the bulge, tended to show that Jolly was armed with a gun, and made a prima facie case on the question whether he was armed with a dangerous weapon.

Although there was sufficient evidence to make a jury submissible issue on the question whether Jolly was armed with a dangerous weapon, Jolly could not properly be convicted of armed robbery unless the jury found, beyond a reasonable doubt, that he actually had a dangerous weapon. The *472jury found that he did not have a dangerous weapon, and he was found guilty of unarmed robbery.

I write separately to emphasize the difference between the question of the sufficiency of the evidence, whether the prosecutor made a prima facie case, and the question to be submitted to the jury, whether the evidence established beyond a reasonable doubt that Jolly was actually armed with a dangerous weapon.1

The opinion of the Court states:

Because the record is devoid of evidence that *473defendant actually possessed a dangerous weapon during the robbery, the prosecutor opted to follow the second method of establishing armed robbery, specifically, whether defendant used or fashioned an article to resemble a dangerous weapon. [Ante, p 465.]

This might suggest that the question was whether Jolly "fashioned” the bulge to "resemble” a dangerous weapon. I see no need or basis for such analysis. Herzog said that Jolly had a gun. That, together with the bulge, tended to establish that Jolly had a gun, a dangerous weapon, and not an article "used or fashioned” to "resemble” a dangerous weapon.2

The opinion of the Court states:

[Tjhere must be some objective evidence of the existence of a weapon or article before a jury will be permitted to assess the merits of an armed robbery charge. For example, an object pointing out from under a coat, together with statements threatening a victim with being shot, clearly satisfies the statutory definition of armed robbery. In such a case, there is evidence of actual possession of a weapon or article and the testimony regarding statements that, if believed, make clear an intent *474to convince the victim of the existence of such a weapon or article. [Ante, pp 468-469.]

I read the foregoing as stating that where there is "an object pointing out from under a coat, together with statements threatening a victim with being shot,” "there is evidence of actual possession of a weapon or article,” not that the statutory definition is satisfied without regard to whether the object is actually a dangerous weapon.

The opinion of the Court states:

The typical armed robbery case prosecuted under the feigned weapon method involves either the use of a toy gun or a finger or other object hidden in a bag or under a coat to simulate the appearance of a weapon together with threatening behavior and statements indicating the existence of a weapon. The existence of some object, whether actually seen or obscured by clothing or something such as a paper bag, is objective evidence that a defendant possesses a dangerous weapon or an article used or fashioned to look like one. Related threats, whether verbal or gesticulatory, further support the existence of a weapon or article. [Ante, pp 469-470.]

Again, where "the use of a toy gun or a finger or other object hidden in a bag or under a coat to simulate the appearance of a weapon” is involved, "together with threatening behavior and statements indicating the existence of a weapon,” the dangerous weapon prong of the armed robbery statute is in issue, not the article used or fashioned as a dangerous weapon prong.

The article used or fashioned as a dangerous weapon prong is involved where some article, harmless in itself, such as a hammer, is used as a weapon, or a bicycle chain is used or fashioned in *475a manner to lead the person assaulted to reasonably believe it to be a dangerous weapon.

Where, however, as is generally the case, the evidence tends to show that the accused was carrying a dangerous weapon, the question for the jury is whether he was actually armed with a dangerous weapon, not whether he was armed with an article used or fashioned in a manner to lead the person assaulted to reasonably believe it to be a dangerous weapon.

In People v Parker, 417 Mich 556, 564-565; 339 NW2d 455 (1983), cert den 466 US 962 (1984), this Court said:

We think it clear from that history that when enacted the words "dangerous weapon,” etc., contemplated that the defendant would actually have a dangerous weapon; this is implicit in the phrase "with intent, if resisted, to kill or maim.” The elimination of the "with intent” requirement reduced the prosecutor’s burden of proof, but does not provide a basis for construing the section as no longer requiring that the defendant actually have a dangerous weapon or an article used or fashioned in a manner to lead the persons so assaulted to reasonably believe it to be a dangerous weapon.
It is not enough that the person assaulted is put in fear; a person who is subjected to an unarmed robbery may be put in fear.
To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon — a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.
Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.
To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.
Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim.

The Penal Code provides:

Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison. [MCL 750.529; MSA 28.797.]