Ex parte Willie Conner.

REL:09/26/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
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Ex parte Willie Conner
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Willie Conner
v.
State of Alabama)
(Baldwin Circuit Court, CC-12-1861;
Court of Criminal Appeals, CR-12-2005)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.
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Shaw, J., concurs specially.
Moore, C.J., and Parker and Murdock, JJ., dissent.
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SHAW, Justice (concurring specially).
I concur to deny the petition.
The petitioner, Willie Conner, was seen at a home-
improvement store placing a "roofing nailer" in his pants.
Two "loss-prevention managers" approached Conner after he left
the store without purchasing the nailer.1 When they attempted
to escort Conner back inside the store, Conner declared that
he had a gun, and he attempted to reach into his pocket. He
then struggled with the loss-prevention managers. After
Conner was detained, a "folding knife" was found in his
pocket. Conner was ultimately convicted of first-degree
robbery. See Ala. Code 1975, § 13A-8-41.
Conner raises one issue in his certiorari petition. That
issue, even the authors of the dissenting opinions appear to
agree, contains no probability of merit. See Rule 39(f), Ala.
R. App. P. Chief Justice Moore and Justice Murdock, who
dissent, however, have discerned another issue upon which to
grant certiorari review: Whether there was sufficient
evidence to sustain a conviction for first-degree robbery,
namely, whether Conner was armed with a deadly weapon or
1
The loss-prevention managers also suspected Conner of a
theft that had occurred earlier that day.
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dangerous instrument. In this writing, I will explain why I
do not believe a review of that issue is proper or necessary.
First, it must be noted that on preliminary examination
of a certiorari petition, i.e., when reviewing a request to
take up the case on appeal from the lower appellate court,
this Court has before it very limited facts. Here, the facts
as stated in the Court of Criminals Appeals' unpublished
memorandum are properly before this Court for review. Rule
39(k), Ala. R. App. P. A petitioner may attempt to add
certain facts found in the record, but Conner has not
attempted to do so. See Rule 39(d)(5)(A). Thus, only those
facts stated in the Court of Criminal Appeals' unpublished
memorandum are before us. Conner v. State (No. CR-12-2005,
Jan. 31, 2014) ___ So. 3d ___ (Ala. Crim. App. 2014) (table).
Additionally, the standard of review on appeal from a
challenge to the sufficiency of the evidence in a criminal
case is as follows: The appellate court must accept as true
all evidence introduced by the State, recognize all legitimate
inferences in favor of the State from that evidence, and
consider all evidence in a light most favorable to the State.
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See Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App.
2003).2
Conner was convicted of first-degree robbery. That crime
is defined at Ala. Code 1975, § 13A-8-41:
"(a) A person commits the crime of robbery in
the first degree if he violates [Ala. Code 1975,]
Section 13A-8-43 [robbery in the third degree] and
he:
"(1) Is armed with a deadly weapon or
dangerous instrument ...."
Further:
"(b) Possession then and there of an article
used or fashioned in a manner to lead any person who
is present reasonably to believe it to be a deadly
weapon or dangerous instrument, or any verbal or
other representation by the defendant that he is
then and there so armed, is prima facie evidence
under subsection (a) of this section that he was so
armed."
There is apparently no dispute that the elements of §
13A-8-43, Ala. Code 1975, were met in this case. Thus, the
only remaining element that must be met for Conner to be
convicted of first-degree robbery is that he was armed with "a
deadly weapon or dangerous instrument."
2
Conner's case is not yet before this Court on appeal;
it is pending on preliminary examination. Nevertheless, this
standard is helpful in determining whether the petition
presents probability of merit.
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Conner makes no attempt to argue that he was not so
armed. In fact, during the course of the underlying robbery,
he was in possession of a "folding knife," as well as the
roofing nailer. That a jury can find that a knife is "a
deadly weapon or dangerous instrument" is a proposition beyond
dispute. That a jury as a matter of law could not find that
a roofing nailer is a deadly weapon is a conclusion I am not
prepared to make, especially in light of the fact that we are
not presented with such a question and, further, because there
is not a hint in the facts before us indicating whether (1)
the roofing nailer was in a condition capable of being fired
when the robbery occurred or (2) whether a roofing nailer can
produce a deadly injury.
To call Conner's folding knife a "pocketknife" might
minimize its nature as a weapon, but doing so requires the
Court to make inferences in favor of Conner and against the
State and further requires the Court to create nonexistent
facts. As noted above, this would be contrary to the standard
an appellate court would apply to view the evidence and
contrary to the actual facts before us.
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Chief Justice Moore cites Cline v. State, 571 So. 2d 368,
370-71 (Ala. Crim. App. 1990), for the proposition that a
folding knife "is not considered a deadly weapon unless used
as such." ___ So. 3d at ___. Cline discusses whether a
"pocketknife" in that case was a deadly weapon. Nevertheless,
in Smith v. State, 601 So. 2d 201 (Ala. Crim. App. 1992), a
case decided two years after Cline, the court held that an
object the perpetrator had in his hand and placed on a shelf,
but that the victim could not identify and that was later
determined to be a "pocketknife," was a deadly weapon:
"Finally, the victim's testimony that Smith
appeared to have something in his hand when he
threatened her and that he placed this object on the
shelf above her bed, coupled with evidence that an
open pocket knife that did not belong to the victim
was found on the shelf above the victim's bed, was
clearly sufficient to establish that Smith had been
armed with a knife while effecting entry or while in
the victim's dwelling. See Pardue v. State, 571 So.
2d 333 (Ala. 1990). Because a knife is a deadly
weapon ... the State clearly established that Smith
was armed with a deadly weapon ...."
601 So. 2d at 205-06. The perpetrator in Smith did not "use"
the pocketknife in any manner, much less as a deadly weapon.
In Goodgame v. State, 593 So. 2d 153, 154 (Ala. Crim. App.
1991), what was described by a witness as "'a little bitty
knife, a little knife,'" which the perpetrator displayed and
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threatened to use to stab the victim but was not actually
"used" as a deadly weapon, was nevertheless considered a
deadly weapon for purposes of establishing the offense of
first-degree robbery.
In the instant case, Conner had a knife in his pocket.
He attempted to reach into one of his pockets while he was
struggling with the loss-prevention managers. His "use" of
the knife was no less than the defendant's in Smith. The
facts that the knife might have been a mere pocketknife or
even a "little bitty" knife and was not "used" as a deadly
weapon does not mean that the jury could not have concluded
that it was a deadly weapon. Goodgame, supra. That Conner
declared that he had a gun but actually had a knife is not
material under § 13A-8-41(a)(1).
Nevertheless, we do not have before us a description of
the knife. We know nothing about it or what the jury
observed. We cannot determine if it is a deadly weapon like
the knives specifically described in Ala. Code 1975, §
13A-1-2(7). See Johnson v. State, 406 So. 2d 451 (Ala. Crim.
App. 1981) (concluding from the description of a knife in the
record and the fact that it could cut a telephone cord that,
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despite the fact that it did not conform with the statutory
description of knives that constituted deadly weapons, it
nevertheless was a deadly weapon). In any event, it would
require speculation to presume, and would be contrary to the
standard of review, that the evidence regarding the knife does
not support the State's case. I further point out that any
notion that, if a person declares that he is armed with one
type of deadly weapon but is instead armed with a different
type of deadly weapon, then he, as a matter of law, was not
"armed with a deadly weapon" under § 13A-8-41(a)(1) should not
be inferred from this case and should be rejected as
unprecedented.
Although the Court of Criminal Appeals gratuitously
examined whether Conner could be considered armed under §
13A-8-41(b)--I say gratuitously because the court held that
the issue had not been preserved for review--nothing suggests
that that issue was actually presented to the jury.
Specifically, nothing before us suggests that the jury was
instructed that it should find Conner guilty of first-degree
robbery because he said he possessed a "gun." For all we
know, the jury was instructed that it could find Conner guilty
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if he simply possessed a deadly weapon, § 13A-8-41(a)(1), and
I see sufficient facts before us that would indicate no
probability of merit in an argument otherwise.
When this Court, hamstrung by limited facts and
arguments, searches for extraneous wrongs raised by no one and
not preserved for review, it will undoubtedly believe that it
has spotted some. In our adversarial system, however, we
should rely on the parties to raise issues they believe worthy
of review. Conner identified to the Court of Criminal Appeals
certain issues he challenged on appeal. That court addressed
them. He then asked this Court to review portions of that
ruling. I see nothing indicating any probability of merit in
the issue Conner actually raises. See Rule 39(f), Ala. R.
App. P. Therefore, I concur to deny the petition.
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MOORE, Chief Justice (dissenting).
By an unpublished memorandum, the Court of Criminal
Appeals affirmed Willie Conner's conviction for first-degree
robbery and his sentence of life imprisonment as a habitual
felony offender. Conner v. State (No. CR-12-2005, Jan. 31,
2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Because
the undisputed facts demonstrate that Conner was not armed
with a gun at the time of the theft, he could not be guilty of
first-degree robbery. Therefore, I respectfully dissent from
the decision to deny his petition for a writ of certiorari.
The relevant facts are as follows. On July 5, 2012, a
cashier at a Lowe's home-improvement store in Foley informed
Alvin Barnard, a loss-prevention manager at the store, that he
had seen a man leave the store and it "looked like he had
something in his pants." Later that day the cashier informed
Barnard that the same man, subsequently identified as Conner,
was back in the store. Barnard viewed Conner on the store's
video-surveillance system and saw him take a roofing nailer
from a shelf in the tool department, place it down the front
of his pants, and leave the store without paying for the
roofing nailer.
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Barnard and a colleague followed Conner, stopped him,
identified themselves as loss-prevention managers, and asked
Conner to come back into the store. Once inside the store,
Conner said "I have a gun" and stuck his hand in his right-
front pants pocket. Perceiving Conner's statement and movement
as a threat of physical harm, Barnard wrestled Conner to the
ground and subdued him. Barnard then searched Conner's
pockets, finding only a folding knife, which he removed.
Conner also surrendered the nailer to Barnard. Without
resisting, Conner allowed Barnard to escort him to the
security office, where he signed a statement admitting the
theft.
After a Foley police officer arrived, Conner told the
officer that he had not intended to resist Barnard but had
lost his balance because of the weight of the nailer in his
pants. He admitted that he had said he had a gun but stated
that he was referring to the nailer as a "nail gun." Barnard
and the police officer testified for the prosecution at trial.
The defense rested without calling any witnesses. The trial
court charged the jury on first-degree robbery and the lesser-
included offenses of third-degree robbery and third-degree
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theft of property. The jury returned a verdict finding Conner
guilty of first-degree robbery as charged in the indictment.
Conner appeared for sentencing on August 30, 2013. The
State presented uncontested evidence that Conner had been
convicted of three prior Class C felonies for theft of
property in the second degree. See § 13A-8-4, Ala. Code 1975.
Because first-degree robbery is a Class A felony, the trial
court was compelled to sentence Conner as a habitual felony
offender to either life imprisonment or life imprisonment
without the possibility of parole. See § 13A-5-9, Ala. Code
1975. The trial judge sentenced Conner to life imprisonment.
Conner appealed, arguing that the reference to a gun and
the ensuing scuffle occurred after the theft was completed and
therefore could not convert the theft into a robbery. See Ex
parte Sapp, 497 So. 2d 550 (Ala. 1986). The Court of Criminal
Appeals disagreed, citing Ingram v. State, 878 So. 2d 1208
(Ala. Crim. App. 2003), for the proposition that "the force in
this case was used in the immediate flight after the theft and
not after the theft had clearly ceased." Conner also argued
that he did not represent that he was armed because, when he
said he had a gun, he was referring to the nailer as a "gun"
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and not to a firearm. Viewing the evidence in a light most
favorable to sustain the verdict, the Court of Criminal
Appeals held that, even though Conner did not have a gun, his
oral representation to that effect was sufficient to satisfy
the armed-with-a-deadly-weapon element of first-degree
robbery. § 13A-8-41(a)(1), Ala. Code 1975.
In his pro se petition for a writ of certiorari, Conner
argues only that the Court of Criminal Appeals was incorrect
in finding that the theft had not ceased at the time Conner
allegedly threatened Barnard.
The Court of Criminal Appeals decided that the sequence
of events that followed Conner's concealment of the nailer in
his pants was a continuous course of conduct in which Conner
attempted to escape with the merchandise and was thwarted by
the loss-prevention officers. In Ex parte Sapp, in which this
Court held that the theft had ceased before an altercation
occurred, the thief successfully left the store with a stolen
jacket. When on his own initiative he returned 5 to 10 minutes
later wearing the jacket, a security officer recognized the
store's merchandise and apprehended him. 497 So. 2d at 551. In
this case Conner did not return voluntarily to Lowe's with the
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nail gun. Instead, the loss-prevention officers stopped him as
he left the store and escorted him back inside where Conner
uttered the alleged threat.
"[Section] 13A-8-41 ... creates the offense of
robbery in the first degree:
"'(a) A person commits the crime of
robbery in the first degree if he violates
section 13A-8-43 and he:
"'(1) Is armed with a deadly
weapon or dangerous instrument;
or
"'(2) Causes serious
physical injury to another.
"'(b) Possession then and there of an
article used or fashioned in a manner to
lead any person who is present reasonably
to believe it to be a deadly weapon or
dangerous instrument, or any verbal or
other representation by the defendant that
he is then and there so armed, is prima
facie evidence under subsection (a) of this
section that he was so armed.'
"Under that section, the offender must violate §
13A-8-43:
"'(a) A person commits the crime of
robbery in the third degree if in the
course of committing a theft he:
"'(1) Uses force against the
person of the owner or any person
present with intent to overcome
his physical resistance or
physical power of resistance; or
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"'(2) Threatens the imminent
use of force against the person
of the owner or any person
present with intent to compel
acquiescence to the taking of or
escaping with the property.'"
Ex parte Sapp, 497 So. 2d at 550-51 (emphasis added). "Thus,
to be found guilty under these statutes, the force or threat
must have been used 'in the course of committing' the theft,
which, by statutory definition, § 13A-8-40, 'embraces acts
which occur ... in immediate flight after the attempt or
commission.'" Sapp, 497 So. 2d at 551.
Because Conner's alleged threat of force occurred in the
course of committing a theft, namely "in immediate flight"
after the commission of the theft, § 13A-8-40(b), his
petition, which raises no other ground for issuing the writ,
is unavailing. Ordinarily that would be the end of the matter.
However, a significant error on the face of the Court of
Criminal Appeals' unpublished memorandum compels me to
dissent. In rare circumstances this Court may consider an
issue that the petitioner failed to raise. "In the interest of
expediting decision, or for other good cause shown, an
appellate court may suspend the requirements or provisions of
any of these rules in a particular case on application of a
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party or on its own motion ...." Rule 2(b), Ala. R. App. P.
(emphasis added). The Committee Comments to Rule 2 state:
"This rule contemplates that an appellate court may relieve a
litigant of the consequences of default where manifest
injustice would otherwise result." (Emphasis added.)
The crux of the Court of Criminal Appeals' error is its
misconstruction of the following passage in the first-degree-
robbery statute:
"Possession then and there of an article used or
fashioned in a manner to lead any person who is
present reasonably to believe it to be a deadly
weapon or dangerous instrument, or any verbal or
other representation by the defendant that he is
then and there so armed, is prima facie evidence
under subsection (a) of this section that he was so
armed."
§ 13A-8-41(b), Ala. Code 1975 (emphasis added). Conner's
statement that he had a gun was not conclusive evidence that
he was "so armed"; it was only prima facie evidence. The jury
was entitled to rely on the threat alone as evidence that
Conner was armed only if that evidence was not contradicted.
"Prima facie evidence" is "[e]vidence that will establish a
fact or sustain a judgment unless contradictory evidence is
produced." Black's Law Dictionary 677 (10th ed. 2014)
(emphasis added).
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When a robber claims to have a weapon but does not
actually display one, the evidence going to prove whether he
actually was armed may be disputed. If the robber escapes
before being apprehended, the jury may infer that he discarded
the alleged weapon. But when a perpetrator like Conner is
apprehended on the spot immediately after threatening the use
of force by stating that he had a "gun," and no gun is found
on his person, the presumption that he is armed is
conclusively rebutted. In this case evidence was presented
that a threat of imminent use of force occurred, thus
satisfying the third-degree-robbery statute, § 13A-8-43(a)(2),
but the element in the first-degree-robbery statute of being
"armed with a deadly weapon or dangerous instrument" was not
proven.3 "The presence of a gun elevates third degree robbery
3
Justice Shaw's special concurrence argues unconvincingly
that the folding knife could be considered a deadly weapon. As
Justice Murdock notes in his dissent, Conner made no oral
representation about the folding knife. Additionally, I note
that a pocketknife is not considered a deadly weapon unless it
is used as such. "While a pocketknife may not be deadly per se
and ordinarily has lawful functions and uses, it may or may
not be deemed a deadly weapon, depending on the manner of its
use." Cline v. State, 571 So. 2d 368, 371 (Ala. Crim. App.
1990). See also Goodgame v. State, 593 So. 2d 153 (Ala. Crim.
App. 1991) (holding that where a defendant displayed the blade
of a pocketknife and threatened to stab the victim, the
question of whether the knife was a deadly weapon was for the
jury to decide); Thomas v. State, 31 Ala. App. 1, 4, 9 So. 2d
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to first degree robbery." Ex parte Curry, 471 So. 2d 476, 478
(Ala. 1984). The commentary to §§ 13A-8-40 through -44 notes
that "it is sometimes difficult to prove that defendant
actually was armed with a dangerous weapon, unless he is
apprehended at the scene." (Emphasis added.) Conner was
apprehended at the scene, and he did not have a gun. "If in
fact the defendant refutes [the presumption that he is armed],
he may still be convicted of robbery in a lesser degree." §§
13A-8-40 through 13A-8-44 Commentary. Because the Court of
Criminal Appeals' unpublished memorandum states as a fact that
Conner did not have a gun, the presumption was rebutted by the
State's own evidence that was introduced at trial and that was
before the Court of Criminal Appeals on appeal. Conner may
therefore be convicted of "robbery in a lesser degree," but
not of first-degree robbery.
Nevertheless, the Court of Criminal Appeals concluded
that the State provided sufficient evidence to prove that
Conner was armed with a deadly weapon: "Although Conner did
not have a gun at the time, his claim that he had a gun was a
150, 153 (1942) (noting that "a penknife is a deadly weapon --
when used as here shown" (final emphasis added)). Conner
neither used nor threatened to use the knife in any fashion.
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sufficient verbal representation that he was armed with a
deadly weapon. The State therefore presented sufficient
evidence to satisfy the elements of first-degree robbery." The
Court of Criminal Appeals thus converted a rebuttable
presumption into a conclusive presumption, contrary to the
plain language of § 13A-8-41(b).4
A more adequate analysis occurred in James v. State, 405
So. 2d 71 (Ala. Crim. App. 1981). In that case "while no
weapon was actually displayed, the defendant, by placing his
hand inside his coat pocket, gave the victim the impression
that he was armed with a pistol." 405 So. 2d at 72. Because
the victim reasonably believed that James was armed with a
deadly weapon, the State had made a prima facie case that
James was armed with a deadly weapon.
4
Section 13A-8-41(b) may also be unconstitutional on its
face by impermissibly shifting to the defendant the burden of
proof on the deadly weapon element. By using the phrase "is
prima facie evidence" rather than the phrase "may be
considered as prima facie evidence," § 13A-8-41(b) appears to
create a mandatory rather than a permissive presumption.
"Mandatory presumptions 'violate the Due Process Clause
[because] they relieve the State of the burden of persuasion
on an element of an offense.'" Townes v. State, [Ms. CR-10-
1892, June 13, 2014] ___ So. 3d ___, ___ (Ala. Crim. App.
2014) (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985)).
See also Beard v. State, 612 So. 2d 1335 (Ala. Crim. App.
1992).
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"A conviction of first degree robbery does not
require evidence that the accused brandished or
displayed any weapon. Indeed, in order to be
convicted of first degree robbery an accused need
not even be armed with a deadly weapon or dangerous
instrument where (1) he possesses any object
reasonably believed to be a deadly weapon or
dangerous instrument or represents in some manner
that he has one and (2) there is no evidence to
rebut or refute this reasonable belief or
representation."
James, 405 So. 2d at 73 (emphasis added). Although the James
court incorrectly stated that "in order to be convicted of
first degree robbery an accused need not even be armed with a
deadly weapon or dangerous instrument,"5 405 So. 2d at 73, it
did correctly acknowledge that the prima facie case could be
rebutted. The court concluded:
"Here the defendant's actions instilled in the
victim the reasonable belief that he was armed with
a pistol. Under Section 13A-8-41(b) this constituted
prima facie evidence that the defendant was so
5
Other cases have made this error. See, e.g., Dick v.
State, 677 So. 2d 1267, 1270 (Ala. Crim. App. 1996) (noting
that "'[t]his court has held on several occasions that it is
not necessary to prove that a defendant displayed a gun during
a robbery or that he actually had a gun to sustain a
conviction for Robbery in the First Degree'" (quoting Stewart
v. State, 443 So. 2d 1362, 1363-64 (Ala. Crim. App. 1983))
(emphasis added)); Holt v. State, 960 So. 2d 726, 739 n.6
(Ala. Crim. App. 2006) (stating that "an accused need not
actually be armed with a deadly weapon to be convicted of
robbery in the first degree"). For an analysis of this
problem, see Lucas v. State, 45 So. 3d 380, 394-98 (Ala. Crim.
App. 2009) (Welch, J., dissenting).
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armed. Since there was no evidence to rebut this
presumption and as the State proved all the other
elements of robbery in the first degree, the
defendant's conviction must stand."
405 So. 2d at 73 (emphasis added). See also Herndon v. State,
563 So. 2d 1065, 1070 (Ala. 1990) (noting "that the
presumption in § 13A-8-41(b) can be rebutted").
In this case, by contrast, the evidence conclusively
rebutted the presumption that Conner was armed with a gun. By
omitting an essential step of the analysis, the Court of
Criminal Appeals erred in affirming Conner's conviction for
first-degree robbery and the mandatory minimum sentence of
life imprisonment.6
Good cause exists under Rule 2(b), Ala. R. App. P., for
this Court, on its own motion, to grant Conner's petition
based on (1) an erroneous conclusion of law by the trial court
and by the Court of Criminal Appeals (and now ignored by this
Court) that Conner is guilty of first-degree robbery although
he was not in possession of a gun, and (2) the affirming of a
6
Justice Shaw's special concurrence notes that we do not
have the jury instructions before us or the actual testimony,
if any, as to the perceived role of the folding knife. In my
view these uncertainties, when coupled with the clear legal
error on the face of the unpublished memorandum of the Court
of Criminal Appeals, provide additional argument for granting
the petition.
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life sentence for a crime Conner could not be guilty of
committing under the facts of this case. Although stating
facts that demonstrate that Conner was not guilty of first-
degree robbery -- "Conner did not have a gun" -- the Court of
Criminal Appeals nonetheless affirmed his conviction for that
crime.
If we were to overturn Conner's conviction for first-
degree robbery, a Class A felony, and remand for resentencing
on the lesser-included offense of third-degree robbery, a
Class C felony, Conner's minimum sentence under the habitual-
felony-offender statute would be 15 years as opposed to life
imprisonment. § 13A-5-9(c)(1) and (3), Ala. Code 1975. Surely
a mandatory minimum sentence of life imprisonment is a
manifest injustice when, under a correct reading of the
robbery statutes, the minimum available sentence is 15 years.
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MURDOCK, Justice (dissenting).
I respectfully dissent from the denial of certiorari
review. As a threshold matter, I note my agreement with the
reasons cited by Chief Justice Moore for which this Court, in
the interest of justice in this particular case, should
overlook the failures that characterize the pro se petition
before us.
As for the merits of this case, I acknowledge that Willie
Conner was found to be in possession of a pocketknife at the
time of his arrest. There is no suggestion in the unpublished
memorandum of the Court of Criminal Appeals, however, that any
person saw that knife or had any reason to believe that Conner
was possessed of a deadly weapon in the form of such a knife.
The discussion by the Court of Criminal Appeals as to whether
Conner was armed with a deadly weapon or dangerous
instrumentality focuses solely on his "verbal representation"
that "he had a gun." I likewise will limit the focus of my
comments.
In order to prove first-degree robbery in the absence of
"serious physical injury to another," see Ala. Code 1975,
§ 13A-8-41(a)(2), the State must prove that the defendant was
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"armed with a deadly weapon or dangerous instrument," see
§ 13A-8-41(a)(1). A requirement that the defendant be "armed"
means that defendant must have been armed. I know of no other
way to read those words.
Yet, somehow, the fact that § 13A-8-41(b) provides
methods, short of direct evidence of the defendant's being
armed, by which the State can present a prima facie case that
the defendant was armed, has led to restatements of the
necessary elements of first-degree robbery that suggest that
it is not necessary for the defendant actually to be armed.
In the present case, for example, after quoting Rice v. State,
620 So. 2d 140, 141-42 (Ala. Crim. App. 1993), for the
proposition, in a different context, that "'the State does not
have to prove the defendant actually had a gun in order to
sustain a conviction of first-degree robbery,'" the Court of
Criminal Appeals states that, "[a]lthough Conner did not have
a gun at the time, his claim that he had a gun was a
sufficient verbal representation that he was armed with a
deadly weapon." Even the passage in James v. State, 405
So. 2d 71, 73 (Ala. Crim. App. 1981), noted by Chief Justice
Moore in his special writing contributes to the confusion,
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stating that, "[i]n order to be convicted of first-degree
robbery, an accused need not even be armed with a deadly
weapon or dangerous instrument" under certain circumstances.
That simply is not true.
What is true is that, in the absence of any evidence
deemed sufficient by the factfinder to rebut the prima facie
case established through presentation of certain evidence as
described in § 13A-8-41(b), the State will have proven that
the defendant was armed. It is not true, however, that the
State need not prove that the defendant was armed; at the end
of the day, the required element of the defendant's being
armed is still a required element of the offense. That which
is set out in § 13A-8-41(b) as prima facie evidence of that
element is only that, prima facie evidence. Section 13A-8-
41(b) does not change what the State must prove under s 13A-8-
41(a)(2); it merely provides a tool designed to aid the State
in proving it.
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