Brooks v. State

ADKINS, Judge. We shall here hold that the evidence in this case was insufficient to establish that a lightweight toy plastic pistol was a deadly or a dangerous weapon within the meaning of Maryland Code (1987 Repl.Yol.) Article 27, • § 488. 1 The framework within which we reach this conclusion is straightforward. On 22 December 1986 a Fotomat store in Baltimore City was robbed. The store clerk testified that the robber pulled up his shirt and showed her “a gun” tucked into the waistband of his trousers.

She gave him money from the cash register because she believed “[t]hat if I didn’t give him what he wanted, he would have shot me.” On 11 February 1987 petitioner Donald Brooks was arrested and charged with the robbery. At the time of the arrest, the police seized from Brooks’s jacket a lightweight toy plastic automatic pistol. Later that day Brooks confessed to the Fotomat robbery and to the use of . the toy gun during it. He explained that he always used the toy gun in his robbery activities “because he didn’t want to hurt anybody.” Brooks went to trial in the Circuit Court for Baltimore City (Prevas, J., presiding); he was charged with various ⁵⁸⁷ offenses, including robbery with a dangerous or deadly weapon, simple or common law robbery (Art. 27, § 486), and use of a handgun in the crime of violence (Art. 27, § 36B(d) (Supp.1988)).

The State placed in evidence his confession as well as the toy gun, which the Fotomat clerk said looked “the same” as the one the robber had displayed. In response to a question by the court, the clerk confirmed that the toy gun in evidence was in no way different from the one she had seen the night of the robbery. Despite defense counsel’s argument that the plastic pistol was not a deadly or dangerous weapon, the court overruled Brooks’s motion for judgment of acquittal on that count. The State dropped the use of a handgun charge; the armed robbery and common law robbery counts were submitted to the jury, which convicted Brooks of the former. 2 The court imposed a 20-year sentence.

In an unreported opinion, the Court of Special Appeals affirmed. Brooks v. State, No. 1239, Sept. Term, 1987 (Md.App. filed 18 Apr. 1988). Brooks now contends that the evidence was insufficient to convict him of armed robbery because the only evidence of a weapon used in the robbery was the toy gun. He insists that a lightweight toy plastic gun is neither dangerous nor deadly.

Additionally, he asserts that the court’s instructions were plain error because they permitted the jury to convict him of armed robbery with a toy gun if they found the victim believed the weapon was real and was intimidated thereby. He also raises a question about improper closing argument. As we have indicated, we are in essential agreement with Brooks on the first issue and shall ⁵⁸⁸ reverse the Court of Special Appeals on that ground.- As we explain our reasons for doing so, it will become clear that the court’s instructions were incorrect. In view of our disposition of the case, we need not consider the third issue.

I. Before we turn to that explanation, however, we must dispose of the State’s argument that we need not even address the toy gun question because the jury could have decided, as a matter of fact, that the instrumentality used in the robbery was a real handgun, not the toy that the State introduced into evidence. This argument was accepted by the Court of Special Appeals, but we do not believe we can avoid so facilely the important issue before us. Although the trial court did suggest that the jury might find that a real gun was used, the thrust of its instructions on the dangerous or deadly weapon issue was that a toy gun could qualify as such if the victim believed it to be genuine and thus was intimidated by it. But on the facts of this case, any jury finding that the gun was real would have been based on nothing more than speculation and thus improper.

See McQuiggan v. Boy Scouts of America, 73 Md.App. 705, 712 , 536 A.2d 137, 140 (1988). In the trial court, the State, defense, and judge all proceeded on the unquestioned assumption that the toy gun was the “dangerous or deadly weapon” used by Brooks. In a motion in limine, Brooks asked the court to suppress the toy gun. The basis for the motion was that since the robbery had occurred in December, but the gun was not seized until the following February, there was insufficient connection between the toy subsequently in Brooks’s possession and the instrument used in the robbery to show that the two were the same.

The State countered this by means of Brooks’s oral confession, in which he admitted using that very toy gun in the Fotomat robbery. As we have seen, both the toy gun and the confession were before the jury. Moreover, during argument on the motion for judgment of acquittal, both sides assumed that the toy gun was the ⁵⁸⁹ instrument used in the robbery. In point of fact, the State made frequent references to the “toy handgun” and its connection with Brooks (via the seizure of the gun and the subsequent confession) in an effort to overcome the principal defense, which was insufficient identification of Brooks as the culprit.

In short, the State proved its case by persuading the jury that the toy gun was the instrument used in the robbery and that it was a dangerous or deadly weapon. It is too late for it now to hypothesize the existence of something other than a toy handgun. 3 II. Having established that this robbery must be viewed as one that was committed with a toy gun, we now proceed to explain why it does not qualify as a “dangerous or deadly weapon.” The controversy swirls about two approaches to the interpretation of this phrase. One, used by the trial ⁵⁹⁰ court and now championed by the State, is subjective: a weapon is deadly or dangerous if the victim believes it to be of that character and is, therefore, intimidated by its use.

The other, espoused by Brooks, is objective: to be deadly or dangerous a weapon must be inherently of that character or must be used or useable in a manner that gives it that character. Our cases are somewhat unclear as to the test to be used. 4 A summary of these cases demonstrates the problem. In Hayes v. State, 211 Md. 111 , 126 A.2d 576 (1956), we held that an unloaded pistol could be a dangerous or deadly weapon. Judge Henderson, for the Court, first noted that “[a] dangerous weapon is one likely to produce death or great bodily injury.” Hayes, 211 Md. at 114 , 126 A.2d at 577 .

This reasoning follows the objective analysis. We recognized that the unloaded pistol used by Hayes could be used as a bludgeon and could be loaded, “under some circumstances within a matter of seconds,” thus making it objectively dangerous or deadly. Id. The opinion went on, however, to offer a subjective analysis when it argued that the Maryland armed robbery statute predicates the greater penalty attached to the use of a dangerous or deadly weapon upon the means employed in the intimidation.

So long as there is an intent to rob by that means, it is unnecessary to find an intent or ability to execute the implied threat in the event of resistance. Id. at 115 , 126 A.2d at 578 . Thus, it appears there were two alternative rationales for the holding in Hayes — the “bludgeon” or “readily dangerous” reasoning and the “intimi ⁵⁹¹ elation” reasoning. The latter is consistent with the State’s subjective approach in this case; the former with Brooks’s objective position.

In Vincent v. State, 220 Md. 232 , 151 A.2d 898 (1959), several robbers had in their possession an authentic automatic pistol and a cap gun. Vincent, 220 Md. at 236 , 151 A.2d at 901 . The victim testified only that they had used “a gun.” Id. at 234 , 151 A.2d at 900 . Vincent argued that the State had failed to establish robbery with a dangerous or deadly weapon because it had failed to establish that the “gun” was the automatic, rather than the cap gun.

Id. at 236 , 151 A.2d at 901 . In rejecting that contention, the Court observed that “[t]he evidence clearly permitted the conclusion by the trier of facts that an actual pistol was used in committing the robbery.” Id. at 237 , 151 A.2d at 901-902 . Summarizing the evidence about the automatic pistol, the Court went on to explain that, “[a]s pointed out by Judge Henderson for the Court in the Hayes case, supra, it is necessary under the statute for the State to show that the weapon used was, in reality, either dangerous (pistols are frequently used for bludgeoning) or deadly; but here there was ample evidence for the trier of facts to conclude that a real pistol was used and, as stated above, it was unnecessary for the State to establish that the pistol was loaded.” Id. at 237-238, 151 A.2d at 902 . In Davis v. State, 225 Md. 45, 46 , 168 A.2d 884, 885 (1961), we again made reference to the subjective approach in noting that “[i]t is enough if it is shown ... that the gun was used in a threatening fashion” [citing Hayes, supra ].

But it is plain that the evidence in Davis was more than sufficient to support a finding that the weapon used was a real gun — thus, objectively dangerous. Id. Next in this progression of cases is Jackson v. State, 231 Md. 591 , 191 A.2d 432 (1963), which the State claims is dispositive in the instant case. Jackson held up two taxi cab drivers, using a .22 caliber starter’s pistol that was incapable of firing anything but blank cartridges.

Jackson, 231 Md. at 593 , 191 A.2d at 433 . The gun looked just like a ⁵⁹² real one, however, and the cab drivers testified that “each believed the instrument to be an authentic pistol and was put in fear by it, and, thus coerced____” Id. Jackson was convicted of armed robbery. Id.

This Court affirmed. In the course of doing so, we declined Jackson’s invitation to “adopt the rule of Cooper v. State, [ 201 Tenn. 149 ,] 297 S.W.2d 75 ... (1956), where the [Supreme Court of Tennessee] held that a toy gun was not a dangerous or deadly weapon within the meaning of an armed robbery statute similar to ours.” Id. at 595, 191 A.2d at 434 . Instead, our predecessors relied chiefly on Hayes, supra, which was described as “[m]aking it perfectly clear that guilt under the Maryland statute is predicated upon a finding of intent to rob by means of intimidation produced by the use of a weapon, coupled with the apparent ability to execute the implied threat to use the weapon if resistance is offered____” Id. at 594, 191 A.2d at 433 [emphasis in original].

The Jackson court also observed that Hayes had “noted that pistols are frequently used as bludgeons in robberies.” Id. We held the starter’s pistol to be a dangerous weapon. Id. at 595, 191 A.2d at 434 . The device in question in Bennett and Flynn v. State, 237 Md. 212 , 205 A.2d 393 (1964), was not a gun of any sort: toy, starter’s pistol, or genuine but inoperable firearm.

It was the microphone cord of a taxicab’s radio, which robbers seized and used as a garrote to immobilize the cab driver while they took his money. Bennett, 237 Md. at 213-214 , 205 A.2d at 393 . The culprits were convicted of armed robbery, and again, this Court affirmed. Judge Sybert, who had written the opinion in Jackson , began by defining the nature of a weapon, for it was clear that a microphone cord ordinarily would not fall into that category.

Quoting 3 Wharton’s Criminal Law and Procedure § 961, at 111 (Anderson’s ed. 1957), he described a weapon as “ ‘anything used or designed to be used in destroying, defeating, or injuring an enemy, or as .an instrument of offensive or defensive combat.’ ” Bennett, 237 Md. at 214-215 , 205 ⁵⁹³ A.2d at 394. Nevertheless, Judge Sybert went on to quote from page 113 of Wharton’s treatise: “The character of a weapon as a deadly or dangerous weapon is not necessarily determined by its design, construction, or purpose. A weapon may be deadly or dangerous although not especially designed for offensive or defensive purposes or for the destruction of life or the infliction of bodily injury. Accordingly, when a weapon is in fact used in such a way as is likely to produce death or grievous bodily harm it may properly be regarded as a dangerous or deadly weapon.” Id. at 215, 205 A.2d at 394 .

The quoted language appears to rely on a'n objective test: the way in which the device is, in fact, used. This reasoning is further developed when Judge Sybert explains that “[t]he microphone cord in the instant case was used much as the garrote has been used in some foreign countries.” Id. at 216 , 205 A.2d at 395 . Then the focus seems to become more diffuse, mingling both objective and subjective elements: “Here, the taxicab driver was put in fear by the cord twisted about his neck; the cord was an effective instrument of strangulation____” Id. But the conclusion returns to objectivity: “The finding by [the trial judge] that the manner of use of the cord constituted it a dangerous weapon was fully supported by the evidence.” Id.

Yet in Myers v. State, 237 Md. 632 , 206 A.2d 704 (1965), decided less than two months after Bennett, the emphasis seems to be on subjectivity. The weapon in Myers was a fully loaded but inoperable handgun. Myers, 237 Md. at 634 , 206 A.2d at 705 . It was a deadly weapon because “there was intent to rob by means of intimidation produced by the use of a weapon, coupled with the apparent ability to use the weapon if resistance was offered.” Id.

And in Whack v. State, 288 Md. 137, 145 , 416 A.2d 265, 269 (1980), appeal dismissed, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981), we made passing references to both the Hayes subjective test (“devices used for intimidation regardless of an ability to execute the implied threat”) and the Bennett ⁵⁹⁴ objective test. Recent cases from the Court of Special Appeals also waver between the objective and subjective tests. See, e.g., Grant v. State, 65 Md.App. 547 , 501 A.2d 475 (1985), cert. denied, 306 Md. 70 , 507 A.2d 184 (1986); Battle v. State, 65 Md.App. 38 , 499 A.2d 200 (1985), cert. denied, 305 Md. 243 , 503 A.2d 252 (1986). The Maryland case law, then, gives us somewhat imprecise marching orders as to how we should go about determining whether a particular instrument is a deadly or dangerous weapon for purposes of § 488.

And we note that decisions in those jurisdictions with aggravated robbery statutes similar to § 488 are far from uniform. 5 See ⁵⁹⁵ generally Annotation, Robbery by Means of Toy or Simulated Gun or Pistol, 81 A.L.R.8d 1006 (1977). The United States Supreme Court in McLaughlin v. United States, 476 U.S. 16 , 106 S.Ct. 1677 , 90 L.Ed.2d 15 (1986), interpreted the federal bank robbery statute, 18 U.S.C.A. § 2113 (d) (West 1984). The Court held that [t]hree reasons, each independently sufficient, support the conclusion that an unloaded gun is a “dangerous weapon.” First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue.

Finally, a gun can cause harm when used as a bludgeon. 476 U.S. at 17-18 , 106 S.Ct. at 1678 , 90 L.Ed.2d at 16 [footnote omitted]. Thus, the Court seems to have adopted both the objective and subjective approaches. Relying on the subjective approach partially adopted in McLaughlin the United States Court of Appeals for the Ninth Circuit recently held that a toy gun is a “dangerous weapon” under § 2113(d). See United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.1989).

The subjective approach has been adopted in a number of decisions in states where the aggravated robbery statute ⁵⁹⁶ does not specify which approach is to be taken. See, e.g., State v. Davis, 227 Kan. 174 , 605 P.2d 572 (1980) (also discusses, with approval, the objective approach); Commonwealth v. Sanders, 736 S.W.2d 338 (Ky.1987); Commonwealth v. Nicholson, 20 Mass.App.Ct. 9 , 477 N.E.2d 1038 , cert. denied, 395 Mass. 1103 , 481 N.E.2d 197 (1985); Anderson v. State, 96 Nev. 633 , 614 P.2d 540 (1980). A contrary approach is taken by other cases construing similar statutes. For example, in Cooper, v. State, 201 Tenn. 149 , 297 S.W.2d 75 (1956), the Supreme Court of Tennessee held that a toy pistol is not a “deadly weapon” under that state’s armed robbery statute.

The court noted that were it to adopt the subjective approach, then the “use of [a] finger or hand in [the robber’s] pocket so as to simúlate the possession and threat to use a pistol” would constitute the use of a deadly weapon. 201 Tenn. at 152 , 297 S.W.2d at 77 . The court declined the invitation to adopt the subjective approach, reasoning that the Tennessee legislature intended to “prevent the kind of violence which often attends the use of a deadly weapon in the perpetration of robbery.” Id. at 153 , 297 S.W.2d at 77 . Thus, the toy pistol was not a deadly weapon.