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.
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.
