Criminal: WHALEN V. COMMONWEALTH (COA; 6/9/2006)

WHALEN V. COMMONWEALTH
CRIMINAL:  Instructions (robbery; deadly weapon/dangerous instrument)
2005-CA-000699
PUBLISHED   
AFFIRMING (MINTON)
DATE:  6/9/2006

The jury convicted Thomas Henry Whalen of first-degree robbery, and the court sentenced him to fifteen years’ imprisonment.

The instruction at issue is similar to those set forth in Cooper’s model jury instruction book. However, Cooper’s model instruction does not contain the “while asserting he was armed” clause. According to Whalen, that “while asserting” clause is in neither the statutes nor the case law; and it allowed the jury to convict him of first-degree robbery even though no deadly weapon or dangerous instrument was “involved” in the crime. A deadly weapon or dangerous instrument must be involved in the commission of the offense of first-degree robbery because “[t]hat which separates first and second-degree robbery is (physical injury or) the involvement of either a weapon which by its very nature is deadly or an instrument which can be so employed.”

A defendant’s mere assertion that he was armed was sufficient to support a first-degree robbery conviction.  Although there is no indication that Whalen actually possessed a firearm or any other object that one would normally deem a deadly weapon or dangerous instrument, he did possess a glove, which he pointed at Newman while threatening to shoot her in the head. Newman further testified that she was frightened and believed that the glove may have  been a weapon. Thus, though it is contrary to the normal usage of the term, the glove may constitute a deadly weapon under the theory that “any object that is intended by its user to convince the victim that it is a pistol or other deadly weapon and does [so] convince him is one.”

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