State v. Johnson
2004 WL 2599394, 890 So. 2d 19 (2004)
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Rule of Law:
An object not inherently dangerous can qualify as a "dangerous weapon" for armed robbery if, in the manner used, it is calculated or likely to produce death or great bodily harm, and a defendant waives objections to inadmissible 'other crimes' evidence if a timely motion for mistrial is not made.
Facts:
- On August 8, 2003, Anthony Johnson was released from Avoyelles Correctional Center.
- Later on August 8, 2003, Anthony Johnson entered a Spur filling station where Wayne Olschner was working as a cashier.
- Johnson demanded money from Olschner, stating, "Don't make me kill you," while holding an object covered with a towel, which Olschner believed was a weapon.
- Johnson took money from the cash register after Olschner stated he could not open the safe.
- Johnson then ordered Olschner to kneel on the floor and struck him in the head three times with the object wrapped in the towel.
- Johnson inadvertently left an envelope at the scene containing his parole papers with his name and release date.
- Police located Johnson at the Inn Motel, where he spontaneously asked if the papers he left at the filling station had helped them find him.
- Officers found a railroad spike, a blue towel, and an orange bag containing the stolen money and Johnson's personal letters in his motel room.
Procedural Posture:
- On September 19, 2003, the Jefferson Parish District Attorney filed a bill of information charging Anthony Johnson with armed robbery in the trial court (the court of first instance).
- On September 22, 2003, Anthony Johnson was arraigned in the trial court and pled not guilty.
- Anthony Johnson filed motions to suppress identification and a statement, which the trial court denied on November 19, 2003.
- Anthony Johnson filed a Motion in Limine to exclude evidence regarding his prison release, which the trial court denied on December 16, 2003.
- On January 21-22, 2004, a twelve-person jury in the trial court found Anthony Johnson guilty as charged of armed robbery.
- On January 29, 2004, the trial court sentenced Anthony Johnson to twenty years at hard labor without benefit of parole, probation, or suspension of sentence.
- The State of Louisiana filed a habitual offender bill of information against Anthony Johnson, alleging he was a third felony offender, which Johnson denied. Hearings were held on February 2, 2004, and August 5, 2004, with a ruling pending.
- On February 11, 2004, Anthony Johnson filed a Motion to Reconsider Sentence and a Motion for Appeal in the trial court.
- On February 14, 2004, the trial court denied the Motion to Reconsider Sentence and granted the Motion for Appeal, allowing Anthony Johnson (appellant) to appeal his conviction and sentence to the Court of Appeal of Louisiana, Fifth Circuit, with the State of Louisiana as the appellee.
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Issue:
1. Does a railroad spike, concealed in a towel and used to strike a victim during a robbery, constitute a 'dangerous weapon' sufficient to support an armed robbery conviction, even if the victim did not explicitly see the weapon? 2. Did the trial court err in admitting evidence of the defendant's recent release from prison and related statements, as 'other crimes' evidence, during his armed robbery trial?
Opinions:
Majority - Clarence E. McManus
1. Yes, a railroad spike concealed in a towel and used to strike a victim during a robbery constitutes a 'dangerous weapon' sufficient to support an armed robbery conviction, even if the victim did not explicitly see the weapon. The court applied the 'Jackson v. Virginia' standard for sufficiency of evidence, requiring a rational trier of fact to find essential elements beyond a reasonable doubt. Louisiana R.S. 14:64 defines armed robbery as taking value by force or intimidation while armed with a dangerous weapon. LSA-R.S. 14:2(3) defines a 'dangerous weapon' as any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. The dangerousness of an object is a fact question for the jury. For inherently harmless instrumentalities, the jury must find an "actual likely danger of serious bodily harm... in the highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear of his life." A victim's subjective belief is not determinative, but creating an atmosphere of intimidation is relevant. Here, a railroad spike can be used as a bludgeon, and Olschner testified Johnson hit him three times with the object. Johnson admitted using the spike to imply a weapon and hitting Olschner. The jury reasonably concluded the spike was a dangerous weapon. The victim's failure to explicitly see the weapon does not preclude an armed robbery conviction if the defendant creates an atmosphere of intimidation prompting reasonable fear. Olschner believed the concealed object was a weapon and felt threatened. 2. No, the trial court did not err in denying the motion in limine to exclude evidence of Johnson's prison release because the defendant waived the error by not making a timely motion for a mistrial. The trial court found the prison release papers and Johnson's spontaneous statements probative because they connected Johnson to the crime scene and amounted to an admission. While the prosecutor intentionally elicited testimony referring to 'other crimes' evidence, potentially triggering LSA-C.Cr.P. art. 770, the defendant failed to make a timely motion for a mistrial. Under Article 770, a defendant's failure to move for a mistrial is a waiver of the error, precluding appellate review of the merits of the objection.
Analysis:
This case significantly clarifies the interpretation of "dangerous weapon" in Louisiana armed robbery statutes, emphasizing the manner of an object's use and its potential for harm over its inherent nature or the victim's explicit sight of the weapon. It reinforces that creating an atmosphere of intimidation, leading to reasonable fear, can establish the dangerous weapon element. Furthermore, the ruling serves as a critical reminder of the procedural necessity for defense counsel to make timely motions for mistrial when 'other crimes' evidence is deliberately introduced by the prosecution, as failure to do so waives the right to appeal that specific objection.
