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TO: Chief Prosecuting Attorney FROM: Anne Onimus DATE: August 21, 2007 RE: Charging Joseph Haney with Commission of Armed Robbery Question Presented Did Joseph Haney effectively simulate a deadly weapon and create a lifethreatening environment, sufficient to satisfy the Arizona armed robbery statute, by thrusting his hand into a pocket and telling the store clerk that it was a "holdup" and to "[l]ie still if you want to live," when the victim was unsure whether Haney had such a weapon, when Haney used both hands to grab money from the cash register, and when the only objects found in Haney's possession were the stolen cash and a package of mints?
Brief Answer No. Mere words and threats to use a deadly weapon are insufficient to support such a charge, because under Arizona law, the victim must reasonably perceive that the robber is armed with a deadly weapon, even if the robber is merely simulating the presence of the weapon. The ambiguity of Haney's actions and the fact that Haney's victim did not perceive that he was armed do not satisfy the requirements of the Arizona armed robbery statute.
Statement of Facts This office is considering whether to prosecute Joseph Haney for armed robbery. upon a search of the suspect's pockets.m. and he said that Haney's physical size persuaded him to cooperate by opening the register. No other customers were in the store. and the officer driving it observed Haney running from the store. saying. Haney then leaped back over the counter and fled from the store. thrust his right hand into the pocket of his windbreaker. for robbing Albert's Quik-Stop. who was visibly nervous. a convenience store in Tempe. According to the store clerk. Haney. He described Haney as being large and muscular. "Can't you tell this is a holdup? Give me the money in the register. man! Don't make me hurt you!" Lopez stated he was unsure whether Haney had a weapon in the pocket." Haney grabbed money from the register with both his hands and placed the bills in the pockets of his jeans and windbreaker. A patrol car had just pulled up to the Quik-Stop's gas pumps. Haney entered the store at approximately 10:30 p. and shouted. When Lopez did so. Haney was arrested on August 12. "Lie still if you want to live. 2007. discovered the . The officer pursued and captured Haney and. approached Lopez. Haney jumped over the counter and knocked Lopez to the ground. Richard Lopez.
Rev. He did not find any type of weapon. Because Haney did not have an actual weapon when he committed the robbery. Rodriguez. 638 (Ariz. the defendant kept her right hand out of sight and threatened to "shoot the smile off" the victim's face if he did not cooperate with her.stolen money and a cylindrical package of mints in the windbreaker pocket. In the Rodriguez robbery. at 634. the court found that a robber's verbal threats to use a deadly weapon were not enough to support the perception that she was armed. In order to successfully prosecute Joseph Haney for armed robbery. the issue here is whether Haney's victim reasonably perceived Haney to be armed with a deadly weapon. In one case. 791 P. Id. 1990). Stat. the Rodriguez . In concluding that the robber did not simulate a deadly weapon. Ariz. § 13-1904(A) (West 1984). the State must prove that he was armed with or that he used or threatened to use a deadly or a simulated deadly weapon. Mere words indicating the presence of a deadly weapon are not enough to satisfy the statute.2d 633. Ann. Discussion It is unlikely that Joseph Haney will be convicted of armed robbery because the State will not be able to establish that the victim of the robbery perceived Haney to be armed with a deadly weapon. State v.
the victim perceived that a gun was pressed against his back. App. at 1013. 1991). Any object may suffice as a simulated deadly weapon.2d 393. 1986). the court upheld the armed robbery conviction of a man who used his hand under his clothing to simulate a gun during a robbery. declaring that he had a gun. The defendant in Felix pressed a nasal inhaler against his victim's back. On these facts. the court had no difficulty in finding that the defendant had simulated a deadly weapon." Id. 819 P. State v. Id. 394 (Ariz. In another decision focusing on the victim's perception. Felix. Id. 1013 (Ariz. Id. State v. App. The court found it significant that the defendant simulated a weapon with his hand.court found it significant that her hand was not visible and that she did not make any physical movement to indicate that she had a deadly weapon. In the court's view. 737 P. Because the victims in Ellison could reasonably have believed that the shape they saw under the defendant's .2d 1010. at 1012. Based on what he felt. the defendant's act posed the same potential for harm to or reaction from the victim and any bystanders. Ellison. provided that the victim reasonably perceives it to be an actual weapon. observing that "[t]he victim's perception is the same whether the weapon appears to be or is in fact real.
791 P. the defendant only implied that she had a gun when she threatened to 'shoot the smile off' the victim's face. The court distinguished this case from Rodriguez by noting that in Rodriguez." Id.2d at 633). in ambiguous circumstances. the Rodriguez court observed that if the penalty were the same for those who possessed a weapon and those who were unarmed. 791 P. the victim or bystanders." Rodriguez. In passing the armed robbery statute. the defendant created the lifethreatening environment which the armed robbery statute seeks to punish. Taken together. they are supported by the policy behind the armed robbery statute. the Arizona legislature meant to punish more severely those who used deadly or simulated deadly weapons in the course of a robbery and who thus created "[t]he potential for increased danger to. it is important to determine whether the victim could have reasonably believed that the robber had a deadly weapon. at 1012 (citing Rodriguez. or sudden and violent reaction by. Indeed.2d at 637.clothing was a gun. Id. rather than his hand. "the victim never saw anything resembling a weapon. . these cases suggest that. While these distinctions are small. there would be no deterrent to the use of weapons.
Nothing in the victim's statement. Haney simply thrust his hand into his pocket. Although the arresting officer found a cylindrical package of mints in Haney's pocket. Haney accompanied his words with action. the question is whether the store clerk could reasonably have perceived that Haney was armed. nothing in Lopez's account suggests that Haney used the package to simulate a weapon in the way the defendant in Felix used the nasal inhaler to approximate the barrel of a gun. shouting. while . such as poking his finger into the fabric of his windbreaker pocket or simulating the barrel of a gun with the package of mints. Lopez admitted not knowing whether Haney had a weapon. however. this analysis does not fit the facts of the Haney case. "Don't make me hurt you!" and instructing him to "[l]ie still if you want to live.In the present case. Haney's words. indicates such a perception. Had he simultaneously claimed that he had a gun. Like the robber in the Rodriguez case. however. not because he feared Haney was armed. And although the Ellison case established that a person's hands could be perceived to be a deadly weapon. or had he used more definitive gestures to suggest a gun. Haney's words were not enough. Haney verbally threatened his victim with harm. thrusting his hand into his pocket. Lopez said he opened the cash register because he felt physically intimidated by Haney's size." Unlike that robber. For one thing. there might be a basis for prosecution.
It must clearly apply the case law you have researched to the facts. Write the "Analysis" section. It should include only the facts that have a bearing on the issue and should be as brief as possible. and therefore. Law clerks or paralegals may also provide preliminary research legal memoranda to attorneys for a legal question or to determine the viability of a new case. including the windbreaker pocket. Had Haney been holding a weapon. Moreover. . it is unlikely he would have let it go. A legal memorandum is a document that attorneys use to analyze legal issues and evaluate the facts of a given case. This section should describe in a neutral." The first heading of the legal memo should be the "Issue" section. This is a description of the legal issue or legal question to be researched and it should be limited to one sentence.threatening. This is the main body of a legal memo. Lopez stated that he watched Haney use both hands to scoop the cash into his pockets. You should not include any secondary resources. narrative form the facts that the client has provided. This section should be no longer than two or three sentences. Write the "Issue. These facts show that Lopez never perceived the presence of a weapon. such as statutes and regulations. Include proper citations whenever you refer to a case law or other law. the hand holding the weapon would have remained in his pocket and he would not have put cash there. did not expressly suggest that he had a deadly weapon. Write a brief "Statement of the Facts" section. Write a "Short Answer" section. such as legal encyclopedias. The issue may also be written in the form of a question. Haney did not create the life-threatening environment which is necessary to support a prosecution under the armed robbery statute. Directly answer the legal issue and briefly describe the law upon which your answer is based.
not to advocate a position. Write a "Recommendations" section. Base your recommendation solely on your analysis of the legal issue. If you must determine whether the client's case is viable. the purpose of a legal memo is to neutrally evaluate a legal issue. discuss in this section why the client will prevail or lose based upon your analysis. .