People v. Greer

368 N.E.2d 996, 53 Ill. App. 3d 675, 11 Ill. Dec. 388, 1977 Ill. App. LEXIS 3511

Opinions

Mr. JUSTICE KARNS

delivered the opinion of the court:

The defendant, Robert E. Greer, appeals from a judgment of the Circuit Court of St. Clair County entered upon a jury verdict finding him guilty of the offense of armed robbery. Ill. Rev. Stat. 1975, ch. 38, par. 18—2(a).

The evidence adduced at trial indicates that at approximately 9 p.m. on April 4, 1975, Ernest Godfrey was walking toward Martin Luther Eing Drive in East St. Louis when someone approached him from the rear, grabbed his arm and said, “I want your money.” The assailant then put a gun to Godfrey’s head and repeated his demand. Godfrey gave him nine dollars, a cigarette lighter, and a package of Eool cigarettes. Defendant was apprehended approximately 45 minutes after the robbery occurred. In his possession was a .22-caliber, gas operated pellet pistol; it was not loaded. One of the arresting officers testified that the weapon resembled a “357 trooper revolver” and a .45-caliber revolver.

At trial, the State introduced the expert testimony of Raymond Herr, a former East St. Louis police officer. He described the pistol taken from defendant as “a Crossman .22-caliber C02 gas gun with a three inch barrel.” Herr said that when he received the pistol it was not loaded and its gas cylinder did not contain enough C02 to fire a projectile. In order to test fire the weapon, Herr purchased a gas cylinder and some .22-caliber pellets. Herr testified that when the pistol was fired, the pellets penetrated four layers of cardboard. Despite a general objection made by defense counsel, Herr was allowed to state that, in his opinion, the pistol was a dangerous weapon. Upon cross-examination, Herr stated that the pellet gun was dangerous when operable, but that it had been inoperable until he loaded it and replaced the gas cylinder.

The Assistant State’s Attorney made the following remarks during closing argument:

“That particular weapon, as you have heard testimony from a former police officer, now investigator, Ray Herr, is in fact, an operable weapon when it is loaded. It is, in fact, a dangerous weapon even without being loaded. It is in fact a dangerous weapon by the mere fact that it was used by the defendant to take money from him. * * * You have seen the weapon and you have heard testimony from Mr. Herr concerning the capabilities of that weapon, and when, in fact, it is loaded, it is capable as he test-fired it, of penetrating 000 thicknesses of standard size cardboard. I think you can all conclude that that is a much bigger consistency than that of the human skin, and you can draw your own conclusions from that testimony.

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You have got by the threat of force with a dangerous weapon; you saw that weapon, you know what the weapon looks like, what it can do, whether it is loaded or unloaded; whether the defendant had a chance to unload it or not after the armed robbery, I don’t know. It could have been used to have beaten the victim to death for all I know.”

Defense counsel did not object to any of the foregoing comments.

Among the instructions given to the jury were People’s Instructions Nos. 7 and 8, which stated, inter alia, that in order to find the defendant guilty of armed robbery the jury had to be convinced, beyond a reasonable doubt, that defendant had been armed with a dangerous weapon at the time of the robbery. See IPI Criminal Nos. 14.01 and 14.02.

On this appeal, defendant contends that Raymond Herr should not have been allowed to state that the pellet gun was a dangerous weapon, because his opinion did not relate to the condition of the gun at the time of the robbery. Defendant also asserts that the combination of Herr’s irrelevant opinion and the State’s prejudicial closing argument, in effect, directed the jury to find that he was armed with a dangerous weapon at the time of the robbery. He argues that it was reversible error to “direct” a verdict on this issue because it presented a question for the trier of fact.

The State argues that a verdict was not directed, and that it was the jury which decided that the gun used in the robbery was dangerous. The State also urges us to hold, as a matter of public policy, that a gun, loaded or unloaded, operable or inoperable, is always a dangerous weapon within the purview of the armed robbery statute. Acceptance of this latter contention would clearly require us to affirm defendant’s conviction. We will, therefore, consider it first.

The supreme court defined a “dangerous weapon” in People v. Dwyer, 324 Ill. 363, 155 N.E. 316 (1927). The defendant in that case was charged with robbery while “armed with a certain dangerous weapon, to-wit, a certain pistol.” The defendant argued that this allegation was insufficient without the further allegation that the pistol was loaded, “because a pistol not loaded is not a dangerous weapon per se.” Although the supreme court affirmed defendant’s conviction, its reasoning in doing so is less than clear:

“A deadly weapon is an instrument that is used or may be used for the purpose of offense or defense and capable of producing death. Some weapons are deadly per se; others, owing to the manner in which they are used, become deadly. A gun, pistol or dirk-knife is itself deadly, while a small pocket knife, a cane, a riding whip, a club or baseball bat may be so used as to be a deadly weapon. [Citations.] A weapon with which death may be easily and readily produced is a deadly weapon; anything made for the purpose of destroying life or for another purpose, or not made by man at all, if it is a thing with which death can be easily and readily produced, the law recognizes as a deadly weapon. [Citation.] Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case. [Citations] * * * Such things as all persons of ordinary intelligence are presumed to know are not required to be proved, and an indictment which charges that the defendant was armed with a pistol charges that he was armed with a deadly weapon. If the question were one of fact to be determined by the jury it would be presumed from the verdict of guilty that there was sufficient evidence to sustain the charge that the pistol was a deadly weapon.” (Emphasis added.) (324 Ill. 363, 364-65, 155 N.E. 316, 317.)

Although the supreme court’s disposition of the Dwyer case might indicate that a pistol, whether loaded or unloaded, is dangerous per se, the court’s definition of a dangerous weapon belies that conclusion. Leaving aside the possibility that a firearm may be used as a bludgeon (the court did not discuss that possibility in Dwyer), it can hardly be said that an unloaded gun is “a thing with which death can be easily and readily produced.” Adding to the confusion is the court’s rather enigmatic statement that if the question were one of fact it would be presumed that the evidence sustained the jury’s determination.

Our courts have relied upon Dwyer, often sub silentio, in affirming many armed robbery convictions without requiring either production of the firearm used or proof that it was loaded and operable at the time of the robbery. (See, e.g., People v. Patrick, 53 Ill. 2d 201, 290 N.E.2d 227 (1972); People v. Mentola, 47 Ill. 2d 579, 268 N.E.2d 8 (1971); People v. Emerling, 341 Ill. 424, 173 N.E. 474 (1930); People v. Moore, 14 Ill. App. 3d 361, 302 N.E.2d 425 (1st Dist. 1973), and cases cited therein (use of dangerous weapon may be inferred from circumstantial evidence).) In People v. Harrison, 359 Ill. 295, 194 N.E. 518 (1935), for example, an armed robbery conviction was upheld even though the only evidence that the defendant was armed with a dangerous weapon was the testimony of the victim that a cold, metallic object, which fitted the description of a pistol or revolver barrel, was placed against his neck. See also People v. Wyatt, 23 Ill. App. 3d 587, 319 N.E.2d 575 (3d Dist. 1974).

The foregoing cases strongly indicate that any firearm is a dangerous weapon as a matter of law. It must be noted, however, that in none of these cases was the particular weapon involved in the crime actually introduced into evidence. (But see People v. Estes, 37 Ill. App. 3d 889, 346 N.E.2d 469 (4th Dist. 1976).) As will be seen, the courts have been reluctant to apply this per se rule with full vigor when faced with evidence that the “dangerous weapon” used in an armed robbery was, in fact, unloaded or otherwise inoperable.

In People v. Trice, 127 Ill. App. 2d 310, 262 N.E.2d 276 (1st Dist. 1970), the evidence that two defendants had committed armed robbery consisted of the victim’s testimony that one of the defendants had placed a pistol to the victim’s head and relieved him of some personal belongings and cash. When the defendants were apprehended, each of them had a .22-caliber starter pistol in his possession and the question arose whether a starter pistol was a dangerous weapon. The appellate court, citing the Dwyer case, held that this was a question for determination by the trier of fact because:

“There was testimony in the present case that the weapon was held to the head of the victim; there was also testimony that a charge from a shell can create a high flash and cause considerable damage. Based on such testimony the jury was entitled to conclude that the weapon was dangerous.” 127 Ill. App. 2d 310, 321, 262 N.E.2d 276, 282.

In People v. Ratliff, 22 Ill. App. 3d 106, 317 N.E.2d 63 (4th Dist. 1974), defendant was convicted of armed robbery and contended, on appeal, that the judgment should be reduced from armed robbery to robbery since the weapon used was a .22-caliber pistol designed to fire blank cartridges and, therefore, not a dangerous weapon. The court held that this issue was for the jury to resolve, reasoning that:

“Defendant argues that there is nothing in the record upon which it may be concluded that the weapon was dangerous ‘as used/ We note that the ‘starter pistol’ in Trice was used to threaten the victim; in Dwyer the weapon was a pistol but there was no allegation that it was loaded. It, too, was used to threaten the victim: We do not understand Dwyer, or Trice to stand for the proposition that injury or physical harm must be inflicted upon a victim as a prerequisite to a finding that the instrumentality is a dangerous weapon. .

The weapon in question is a piece of metal; it could have been a brick, a ball bat or anything else which could be utilized in a manner dangerous to the physical well-being of the individual threatened. We, therefore hold that the jury was fully justified in finding that the pistol used by the defendant was a dangerous weapon within the purview of the statute.” 22 Ill. App. 3d 106, 108, 317 N.E.2d 63, 64.

In People v. Richards, 28 Ill. App. 3d 505, 328 N.E.2d 692 (5th Dist. 1975), the victims of an armed robbery testified that a sawed-off weapon of some kind had been used by the assailant. One of the witnesses stated that he was certain that the weapon involved was a sawed-off double-barrel shotgun. Defendant testified that she had used a .22-caliber sawed-off rifle in committing the robbery. The rifle was introduced into evidence by defendant. It could not be fired because the bolt mechanism was missing and the trigger was inoperable. Defendant’s sole trial strategem was that the .22-caliber rifle was the weapon used in the robbery and that, because of its inoperative nature, it was not a dangerous weapon. Despite the conflicting evidence as to the type of weapon used in the robbery, the trial court allowed People’s Instruction No. 11 to be given. It stated that:

“The People are not required to prove beyond a reasonable doubt any non-material allegations in the indictment. The type of weapon used is not a material allegation and need not be proved beyond a reasonable doubt.”

Defendant’s conviction was reversed by this court on appeal. In reversing, we cited the well-settled rule that an instruction which removes from the jury the consideration of an element of the offense is erroneous and reasoned that, “[t]he jury could have decided that the inoperable sawed-off rifle * * * was not the weapon used, but they could hardly have found that it was a gun, and therefore a dangerous weapon, considering its patently inoperative nature and the manner of its use. The effect of People’s Instruction II and the State’s argument, however, removed that question from the jury ° 28 Ill. App. 3d 505, 510, 328 N.E.2d 692, 695.

The issue with which we are presently confronted was considered by the Appellate Court for the Third District in People v. Hill, 47 Ill. App. 3d 976, 362 N.E.2d 470 (3d Dist. 1977). The court there held that because an unloaded air pistol was a piece of metal and could have been used as a bludgeon, the trier of fact was justified in finding that it was dangerous.

In People v. Webber, 47 Ill. App. 3d 543, 362 N.E.2d 399 (2d Dist. 1977), defendant was convicted of robbery while armed with a shotgun. He argued on appeal that the shotgun was not a dangerous weapon per se because it was not proved to have been loaded. The court rejected this contention, stating that:

“Without proof which would more clearly show that the gun was not capable of being used as a dangerous weapon 0 0 0 the defendants have not overcome the legal conclusion that the shotgun was a dangerous weapon per se.” (47 Ill. App. 3d 543, 544, 362 N.E.2d 399, 400.)

The court also indicated that it would have affirmed defendant’s conviction even if he had shown that the shotgun was unloaded during the robbery. The record indicated that the barrel of the weapon was placed as close as a foot or a foot and a half away from the victim and that it was moved up and down. In the court’s words, “[t]here [was] sufficient evidence in the record to support the judge’s determination that the shotgun was clearly capable of being used to inflict injury even if it were not loaded.” 47 Ill. App. 3d 543, 545, 362 N.E.2d 399, 400.

The cases cited and discussed above indicate that if the weapons used in the robberies in Trice, Ratliff, Richards, Hill and Webber, had not been introduced into evidence, and the State had relied solely upon the testimony of eyewitnesses that the defendants had been armed with guns, their convictions would have been upheld because of the well-settled rule that a gun is per se a dangerous weapon. Because the courts were faced with evidence that the “firearms” involved in those cases would not fire, however, they felt obligated to find some other reason to affirm the convictions or, in the Richards case, to suggest that the inoperative weapon was not dangerous, or at least that the jury should not have passed on its dangerous character. Strictly speaking, then, the rule is not that any gun is a dangerous weapon as a matter of law. Illinois case law indicates that a gun is a dangerous weapon per se, unless it is shown that the particular weapon involved in the robbery was not dangerous or, in other words, that the law presumes that an object which has the outward appearance of a gun is dangerous (i.e., loaded and operable), but this presumption may be rebutted by proof that it is not.¹

This presumption is the result of two opposing considerations. On the one hand, to require the State to prove that a firearm used to commit a robbery was loaded and operable would greatly restrict the applicability of the armed robbery statute. Under such a requirement, a defendant could be convicted of armed robbery only if he were apprehended at the scene of the crime or immediately thereafter with the loaded and operable gun in his possession, or if the gun itself were discovered, identified, and found to be loaded and operable, or if the defendant actually fired the weapon. On the other hand, it would be illogical and, perhaps, unfair to convict a person of robbery “while armed with a dangerous weapon” in the face of evidence indicating that his weapon was, in fact, not dangerous.

Also influencing the development of Illinois law in this area is a failure by the courts to decide whether a subjective or objective standard should be employed in determining whether a weapon is dangerous. A subjective standard would require that the issue be resolved by “standing (or quavering) in the shoes” of the robbery victim. This standard has some appeal because a robbery victim’s belief that his assailant is armed with a dangerous weapon has great coercive effect. The State emphasizes this in its brief, pointing out that:

“We are dealing with a victim here who was accosted after dark by a robber who put a gun to his head and demanded his money. This victim was understandably terrified. He was in no position to determine the effectiveness or dangerous potential of the gun placed to his head. He could only believe, and logically so, that the gun placed to his head was loaded and potentially lethal. The situation in which the victim found himself unequivocally indicated danger.”

However, if the weapon used was not actually capable of inflicting death or grievous bodily injury, then its use was nothing more than a threat of the imminent use of force, an element of simple robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18—1.) A recent criminal law treatise cogently discusses the necessity of distinguishing between the “threat” and “dangerous weapon” elements of the crime of armed robbery, stating that:

“The great weight of authority holds that an unloaded pistol, not used as a bludgeon, is nevertheless a dangerous or deadly weapon for armed-robbery purposes. (Some jurisdictions even hold that a toy pistol is such a weapon.) The majority view seems wrong, however; intimidation by some means is a necessary ingredient of simple robbery without violence; something additional in the way of dangerousness is needed for aggravated robbery; but the robber’s use of an unloaded (or toy) gun adds nothing extra to the bare fact that he intimidated the victim.

# # *

Perhaps another way to express the matter is this: the greater punishment is awarded for armed robbery so as to deter the dangerous person who is actually capable of inflicting death or serious bodily harm. The robber with the unloaded or toy gun is not nice — is guilty in fact of (simple) robbery — but he is not the dangerous type for whom the greater penalty is reserved.” (W. LaFave and A. Scott, Criminal Law 703, 703 n. 67 (1972); see Cooper v. State, 201 Tenn. 149, 297 S.W.2d 75 (1956) (legislature intended to prevent violence often attending use of dangerous weapon; toy gun not dangerous).)

We agree with the above analysis and do not think it is inconsistent with Illinois case law. Accordingly, we reject the State’s contention here that proof of the use of a firearm is, under all circumstances, sufficient evidence that defendant was armed with a dangerous weapon.

The evidence in the instant case established that the pellet gun was unloaded approximately 45 minutes after the robbery and that its gas cylinder was, in effect, empty when Raymond Herr tested the weapon two months later. It is still possible that the gun was loaded and operable at the time of the robbery, as defendant could have fired and unloaded it after committing the offense. Moreover, the weapon was made of metal and was held close to the victim’s head; it could have been used as a bludgeon. We are, therefore, of the opinion that it was for the jury to decide whether the pellet gun was a dangerous weapon. (See People v. Webber; People v. Hill; People v. Ratliff.) Defendant concedes this point in his brief. He argues, however, that the jury was misled by errors committed at trial into ignoring evidence that the weapon may have been unloaded and inoperable when the robbery was committed.

Defendant contends that an insufficient foundation was laid for Raymond Herr’s statement that the pellet gun was dangerous because there was no showing that the gun was in the same condition when tested as it was at the time of the robbery. In other words, defendant asserts that before the State may introduce an expert’s opinion that a weapon is dangerous when loaded and operable, it must prove that the weapon was, in fact, loaded and operable when the robbery was committed. Such a foundation must normally be laid prior to the introduction of an expert’s opinion (see Jines v. Greyhound Corp., 33 Ill. 2d 83, 210 N.E.2d 562 (1965); People v. DeStefano, 30 Ill. App. 3d 935, 332 N.E.2d 626 (1st Dist. 1975); People v. Sanchez, 11 Ill. App. 3d 1079, 297 N.E.2d 230 (3d Dist. 1973); People v. Parr, 130 Ill. App. 2d 212, 272 N.E.2d 712 (1st Dist. 1970)), and we will assume, arguendo, that it was required here.

No objection was made by defense counsel when Raymond Herr explained how he had test-fired the pellet gun. This evidence, therefore, was admissible and could be considered by the jury for whatever probative value it had. (People v. Brengettsy, 25 Ill. 2d 228, 184 N.E.2d 849 (1962).) With the results of the witness’ test properly before the jury, we feel that allowing him to state a conclusion based on those results was harmless. Herr’s opinion was merely that the pellet gun was dangerous because its projectiles could penetrate four thicknesses of cardboard. Any reasonably intelligent person would reach the same conclusion. Moreover, both direct and cross-examination made it clear that in order to fire the gun, Herr had to load it and replace its gas cylinder and that his opinion applied to the weapon only in this altered condition.

Defendant also assigns as error certain remarks made by the Assistant State’s Attorney dining closing argument which emphasized the importance of Raymond Herr’s testimony. Because defendant failed to object to the remarks at trial, however, he has waived this issue for purposes of appeal. (People v. Dukett, 56 Ill. 2d 432, 308 N.E.2d 590 (1974); People v. Mackins, 17 Ill. App. 3d 24, 308 N.E.2d 92 (1st Dist. 1974) .) We also note that the remarks to which defendant takes exception dealt mostly with the results of Raymond Herr’s test rather than with his opinion. Because the results of the test were properly before the jury, it was not error to allow the Assistant State’s Attorney to refer to them in closing argument. People v. Brengettsy.

During closing argument for the defense, counsel argued that the pellet gun was not dangerous, stating “[n]ow let us go to this weapon for just a moment. A dangerous weapon, how did it become dangerous? Only when the officer made it operable.” In addition, the jury was properly instructed that in order to find defendant guilty of armed robbery it had to conclude, beyond a reasonable doubt, that he was armed with a dangerous weapon. Under the circumstances, we are convinced that the jury was well aware of defendant’s contention that the pellet gun was not dangerous and simply rejected it.

For the reasons stated above, the decision of the Circuit Court of St. Clair County is affirmed.

Affirmed.

CARTER, P. J., concurs.

Footnotes

1

The approach which Illinois courts have taken in determining whether or not a firearm is a dangerous weapon may be sensible, but its constitutionality is suspect because, in a sense, it shifts to the defendant the burden of proving that his weapon was not dangerous. (See People v. Smith, 85 Misc. 2d 1, 380 N.Y.S.2d 569 (Sup. Ct. 1976); but see Patterson v. New York,_U.S. _, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).) It is a corner-stone rule of criminal law that every person is presumed innocent until proved guilty beyond a reasonable doubt. Accordingly, the State has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime charged. This burden never shifts to the defendant; he need not prove his innocence. (Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970); People v. Weinstein; 35 Ill. 2d 467, 220 N.E.2d 432 (1966); Peoplev. Halley, 131 Ill. App. 2d 1070, 268 N.E.2d 449 (5th Dist. 1971), and authorities cited therein.) Defendant has not properly raised and preserved a constitutional argument in this case.