*2
Jack-
THORNBERRY, GEE
Before
WIL-
and
307,
son v. Virginia,
2781,
99
LIAMS,
Judges.
Circuit
(1979).
L.Ed.2d 560
GEE,
Judge:
Circuit
Louisiana,
In
is defined
“the theft of
anything
value from the
Appellant L.H. Hillie
by
was convicted
person of another or
in the imme-
Louisiana court of attempted armed rob-
another,
diate control of
by use of force or
bery and
years imprison-
sentenced to five
intimidation, while armed with
exhausting
remedies,
ment. After
state
he
weapon.”
(West
La.Rev.Stat.Ann. 14:64
filed a petition in United States District
“
1974).
Under Louisiana
‘[djanger-
pursuant
to 28
alleg-
U.S.C. §
weapon’
ous
gas,
includes
or
any
liquid
oth-
ing that
produced
the evidence
at trial was
er substance or instrumentality, which in
prove
insufficient
that he was armed
the manner
is calculated or
likely
with a
weapon, an essential ele-
produce
great
death or
bodily harm.” La.
ment of the
He
appeals
crime.
now
from
14:2(3) (West 1974).
Rev.Stat.Ann.
In Hil-
the district court’s denial of that petition.
lie’s
the instrumentality was an um-
examining
After
the record and the Louisi-
brella handle covered with a
so
towel
ana case law concerning the definition of
look
gun.
Louisiana,
like a
“dangerous weapon,” we affirm.
whether
instrumentality resembling
July
plainclothes
three
“dangerous weapon”
firearm is a
ais
policemen observed Hillie
across
walking
issue
be decided within the
parking
lot toward the
door
the First
immediate
of an
context
Bank
National
of Commerce in New Or
jury
case. The
must first of all find that
leans. One of
saw
pull
them
ob
gas,
some
or
or
liquid
other substance
ject from his waistband and cover it with a
“inanimate”
instrumentality was used.
towel.
object
The officer
believed
Then the
must
jury
determine whether in
was a
policemen
revolver. The
Hil
stopped
manner
used it was “calcu-
lie before he entered the bank
seized
and
produce
great
lated
death
likely
“revolver” —an
umbrella
handle.
bodily harm.”
Tucked into Hillie’s waistband was a brown
(La.1979)
State v.
paper bag containing
read,
a note that
(emphasis
original).
twenties,
“This
a stick-up.
Place
fifties
issue,
deciding this
the trier
fact—
and hundreds on the counter.”
On
judge may
in this case the state court
evidence,
strength of the
physical
one
—
consider whether
officer’s testimony,
testimony
and the
two bank tellers
who established
likely
there was an actual
of seri-
danger
bank,
valuables
at
were
Hillie was con-
bodily
anyone present
harm
Attempt
carrying
1.
commit a crime is defined and
the umbrella handle after his umbrella
(West
illegal
day
La.Rev.Stat.Ann.
14:27
had been broken
the wind earlier
1974).
crime of
is forbid-
so that he could determine
the handle fit
(West 1974).
den
La.Rev.Stat.Ann. 14:64
home;
handleless umbrella that he had at
opin-
“stick-up”
simply something
Hillie’s conviction
affirmed without
note was
Court in ion
waiting
job
for
had sketched while
interview
Hillie,
(La.1980).
appropriate deference, we conclude that the judgment below must be (8) part or unless that of the of record the State Court proceeding which the AFFIRMED. determination of such factual issue was made, pertinent ato of determination THORNBERRY, Judge, Circuit concur- of sufficiency support the evidence to ring specially: determination, such factual is produced Because of reluctance to reverse the my provided hereinafter, and the Fed- Supreme reading Court of Louisiana’s of eral on a part Court consideration of such I concur in the of opinion of the record as a whole concludes majority. such factual determination not fairly I possibil- am nonetheless troubled supported by the record .... (emphasis ity its one word affirmance Hil- added). lie’s conviction for armed rob- Supreme Court, Mata, v. Sumner 449 bery, Supreme Court Louisiana has 101 L.Ed.2d prohibited criminalized behavior by any not (1981), interpreted has this portion of the statute, lawfully thereby enacted state de- statute and has clear that it is to be priving Hillie of his constitutional right applied strictly. Therefore, for us over- against deprivation liberty without due turn the disturbing conviction below by of law. process factual determination that a deadly weapon required now, would be to make Until the Louisiana courts re- explicit finding that such a quired factual de- that an ordinarily harmless instru- supported termination was not “fairly by mentality actually be in a manner the record.” On our reading likely produce calculated or death or Second approved Circuit case Supreme great bodily harm it can before be labelled Hil- behavior like v. er intended criminalize In State of an umbrella handle.1 Stat- (La.1979), lie's non-use 367 So.2d rejected the claim explicitly Legislature differently, ed otherwise harm- possible incidentally did not choose this statute sufficient instrumentality as club was less rob- “attempted create the crime weapon’s to the factual issue as raise a dangerous weap- bery with court doing, In so dangerousness. on.” statutory lan- relevant closely the hewed Indeed, to con- far more reasonable “[djangerous weap- guage, providing that Legislature intend- clude which, any instrumentality on includes ... use of ed to criminalize used, is likely produce in the manner instrumentality. an otherwise harm.” La.Rev.Stat. great bodily death carries simple The offense added). 1974) 14:2(3)(West (emphasis Ann. years, seven maximum sentence of with Bonier was case of recognize that Parole, probation, without hard labor. are all available. suspension of sentence subsequent attempted in a sen- robbery, the minimum But for armed labor, years tence is at hard without five identified the (La.1980), again the court probation, or parole, suspension benefit of defendant’s pertinent inquiry as “whether As sentence. toy pistol life-endan- statutory “Clearly, Byrd: Court said Id. at 250 add- gering (emphasis situation.” *5 pen- the more contemplates scheme severe the Byrd’s toy actual ed). Because truly the use of alty is intended deter situ- life-endangering not create a pistol did Byrd, 385 instrumentalities.” dangerous ation, not a the court found that it was This holds for policy at 251. true So.2d weapon, and reversed his convic- dangerous and otherwise harmless both tion. whenever the are dangerous weapons latter Byrd, Bonier and both in such a manner to be- actually used found an otherwise Court of Louisiana that implicitly dangerous. come danger- be harmless could armed creating attempted offense actually when used one ous dangerous robbeiy attempted with an language defining statutoiy because subsuming it weapon, then under “dangerous weapon” explicitly stated as attempted offense of are, course, Criminal statutes much. may go- well be Supreme Court narrowly construed. meant Legislature’s intent im- ing beyond the to an actual use test is well-suited The stiffer for posing considerably penalties like robbery case where aid of robberies committed with the committed, robbery actually as to well dangerous weapon weapons, where no like case doing, may In so actually was used. gets along far enough where defendant sanction not imposing a criminal contem- attempt actually use the otherwise plated by any statute. instrumentality in manner which harmless hand, job of the the other it is the On dangerous weapon. it into a converts apply courts to construe and law. applied cannot be in a like the one case test Legislature every foresee us, possibly cannot got where even before defendant never it intends that a starting I think situation gate. From this Let us assume given apply. law to conclude that reasonable Su- 14:2(3) argument that Legislature nev- sake section persuaded my grenade, A application I am not could be convicted.” hand that pistol, pre-robbery “is a irre- use test in a loaded actual spective “proves or exhibited.” by the rea- of how used too much ... since same Gould, (on (La.1980) soning making rehear- apprehended one for the while grenade ing)- awith demand note and a hand bank preme 14:2(3) Court’s of section gering situation. a permissible this case constitutes con- one, case like this I assume arguen- struction of that statute consonant with do that the test um- would be whether the
legislative intent. that must brella handle was used in a manner indicat- whether, consider under Jackson Virgin- ing that it was to be create a ia, 443 U.S. L.Ed.2d pro- situation. The record (1979), the evidence is that such no vides no indication that had Hillie walked rational proof trier-of-fact have found into the bank with his umbrella handle guilt beyond reasonable doubt. towel, draped "in would endan- amI not certain that sup- evidence gered anyone’s life. There no evidence the, ports jury’s verdict under Jackson. bank contained an armed guard, of attempt Crimes fall on a continuum be- expected whose attempt reaction to Hillie’s conspiracy, tween and actual commission of could have created a life-endangering situa- They distinguished the crime. are from tion. Hillie’s attempted Because conspiracy they require some overt stage, was thwarted early at so too much act toward commission crime. speculation is inherent in the conclusion no with the difficulty conclusion that Hillie the manner in which he would have is guilty of attempted robbery. Walking used the umbrella handle would have creat- toward a bank note cer- carrying stick-up ed a life-endangering situation. Criminaliz- tainly constitutes an overt act toward the ing activity on such a speculative foun- commission of a Applying precisely dation is what the actual test reasoning same armed rob- designed to avoid. we must ask bery, ourselves whether Hillie remember, In Byrd, we must defendant committed an overt act sufficient consti- tried up to hold the cashier at the tute an to convert the otherwise window a fried chicken stand with a into umbrella handle pistol. The Louisiana Court found Walking toward bank with an although a toy could under some wrapped umbrella handle a towel cer- *6 circumstances be used to create a life-en- tainly suggests that the handle is intended ver- dangering supporting a guilty perceived and as if a gun. used it were robbery, dict of armed such was not the test Under Louisiana of a case, case there.2 In I fear that our in an armed or a Supreme without articu- thwarted armed is wheth- decision, lating er the the basis its is in effect phony creates a life-endan- applied instrumentality 2. The actual test thus in has far been harmless otherwise only pre- conceivably cases have been used in could speculation life-endangering clude as to how otherwise manner to create situa- tion, not, just instrumentality might clearly have been but was how unac- show enough ceptable speculation Byrd type where we know how it was this is. about Had stand, actually majori- used to determine use cre- it to its never made the chicken ty’s reading life-endangering Admittedly, ated a our situation. of Louisiana law in case would jury guilty this is a than find different use of test that authorize him case, presented was, Byrd actually robbery. it at- our where we cannot deter- As life-endangering tempted mine whether situation was the botched but failed to use created because the as to otherwise harmless instru- in such manner convince mentality was never used. the fact Court that he had creat- only life-endangering Similarly, the test has been rule ed a had used situation. bank, speculation controverting it to the but failed face evi- instrumentality’s attempted robbery, dence as the use he made of his actual use certainly speculation lobby might well does not umbrella handle in the bank authorize where, possible precluded finding probable jury even have from him its Conjecture Yet where he our was never used. about bank, Su- how otherwise harmless never made it to the might preme simply presumes is an Court that his use of insufficient basis con- verting necessarily dangerous weapon precisely have into umbrella handle would speculative. life-endangering because is so situation. Cases it. could have cre- holding that Hillie situation, but
ated attempt to do when there fact so
he did in evidence, explicit finding, no no and so even done
he would had to. wanted however, court, appellate
As federal con- arbiters of decisions
are not the final I am not abso-
struing state law. Because that the Louisiana
lutely certain Legislature’s reading beyond 14:2(3), be- section and
intent court has itself determined
cause that myste- its somewhat supports
the evidence statute, am of that
rious construction opinion ma-
obliged to concur
jority in this case. KING, Jr., Shirley G.
G. Harold
King, Plaintiffs-Appellants, BANK OF BA-
FIDELITY NATIONAL ROUGE, Capital Inc.
TON Investment Co., Equity Capital
and Louisiana De-
fendants-Appellees.
No. 82-3379. Appeals,
United Court of States
Fifth Circuit.
Aug.