People v. Banks

563 N.W.2d 200, 454 Mich. 469
CourtMichigan Supreme Court
DecidedJune 3, 1997
Docket103593, Calendar No. 15
StatusPublished
Cited by13 cases

This text of 563 N.W.2d 200 (People v. Banks) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Banks, 563 N.W.2d 200, 454 Mich. 469 (Mich. 1997).

Opinions

Cavanagh, J.

The issue presented in this case is whether there was sufficient evidence to support defendant’s conviction for armed robbery.1 The specific legal question, however, that we are required to address yet again is: What is the nature and quantum of evidence that satisfies the “armed” component of armed robbery?

[471]*471i

The relevant testimony at trial was provided by Jennifer Lusk, who was working at the Dairy Mart store that defendant and another man, Hubbard Hudson, were convicted of robbing.2 On March 22, 1993, at approximately 1 A.M., defendant and Hudson entered the Dairy Mart store, Hudson looked at the cash register, and then both men left. Approximately fifteen minutes later, they returned and again left without doing anything. After another fifteen-minute interval, the two men entered the store yet again, but this time defendant approached the front of the counter and Hudson positioned himself at the side of the counter. Lusk testified that Hudson had his left hand in the “slash pocket” of his jacket and said to her, “You are going to be robbed.” When asked what Hudson did with his hand while it was in his pocket, Lusk said that he “Just kind of moved it around a little bit.” Lusk never saw a weapon or any other article being fashioned as a weapon, but she followed Hudson’s orders that she dump the contents of the cash register onto the counter. Defendant scooped up the money off the counter while Hudson went behind the counter and, with the same hand he had had in his pocket, took some lottery tickets, but Lusk still saw no weapon or any other article. Both men then left the store.

After trial, the jury found defendant guilty of aiding and abetting an armed robbery. In a split decision, the Court of Appeals affirmed defendant’s conviction. We granted leave, 451 Mich 917 (1996), and now reverse.

[472]*472n

In People v Saenz, 411 Mich 454, 458; 307 NW2d 675 (1981), this Court unanimously reversed a conviction for armed robbeiy, summarizing the relevant evidence as follows: “[T]he victim’s testimony . . . was that he thought the defendant had a weapon of some kind; he saw no article which resembled a weapon; he saw no bulge under defendant’s coat nor his hand shaped to look like a weapon.” This Court noted the prosecutor’s argument “that the victim believed the defendant had a weapon and that this was a reasonable belief under the circumstances,” but dismissed this argument, noting that it “addresses only one consideration and ignores the requirement that the belief must be induced by the use or fashion of ‘any article’ with which the assailant is armed.” Id. at 457-458. This Court then noted that there was no testimony that the defendant “used his hand and a covering so as to resemble a gun” and, accordingly, concluded that the victim’s testimony “cannot be the basis for an armed robbery conviction.” Id. at 458. The underlying principle is that a subjective belief that a weapon exists is insufficient to satisfy the armed robbery statute.

In People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983), this Court further explicated the requirements for an armed robbery conviction:3

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.
[473]*473To 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.

In People v Jolly, 442 Mich 458; 502 NW2d 177 (1993), the victim was working in a restaurant around midnight when “a man [defendant Jolly] and a woman entered the restaurant. After ordering some food from [the victim], the woman handed him a paper bag and told him her companion had a gun and would shoot him unless he filled the bag with money. [The victim] never saw a gun, and the male robber’s hands were in view at all times; however, he did as the woman asked.” Id. at 461.

At trial, the prosecutor asked the victim what, other than the woman’s assertion, made him think that the male robber had a gun. The following exchange then took place:

[The Victim]: [S]he said, “He has a gun.”
[Prosecutor]: Okay. Was there anything else that made you believe or think about a gun, in your mind?
[474]*474A. Not really. Normally when, you know, somebody says they have a gun, I just, you know, I just thought that he had a gun.
Q. Okay. Was there anything that made you think that, though, any more?
* * *
A. Well, there was like when he came in he was standing right in front of me. I saw a bulge in his mid, mid area of his — he had a vest on, I saw a bulge. I didn’t know if it was a gun or not. She said that he had a gun and I assumed because there was a bulge it could have been a buckle or anything, and I didn’t know. So I just went by what she said and just did what she asked. [Id. at 462-463.]

In Jolly, the precise legal question presented was whether there was sufficient evidence to submit the issue of armed robbery to the jury. The Jolly majority quoted the excerpt from Parker, and drew the following conclusions:

A fair reading of Parker does not require submission of a dangerous weapon or other article into evidence, nor does it require that a witness see the malee or model number of a gun or knife before the issue can be submitted to the jury. What cannot reach the jury is proof that only focuses on the subjective belief of the victim. In other words, there 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 to convince the victim of the existence of such a weapon or article. The facts in Parker indicate that the victim never saw anything that could have been the [475]

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People v. Banks
563 N.W.2d 200 (Michigan Supreme Court, 1997)

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Bluebook (online)
563 N.W.2d 200, 454 Mich. 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-banks-mich-1997.