Lashley v. State (Ex parte Lashley)

323 So.3d 1207 (Mem)

EX PARTE Russell Alan LASHLEY, Jr.

(In re: Russell Alan Lashley, Jr.

v.State of Alabama )

1190753

Supreme Court of Alabama.

September 25, 2020

W. Gregory Ward, Lanett, for petitioner.

Submitted on certiorari petition only.

PER CURIAM.

WRIT DENIED; NO OPINION.

Bolin, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.

Parker, C.J., and Shaw, J., dissent.

PARKER, Chief Justice (dissenting).

Today the Court denies certiorari review of a conviction for armed robbery in a case where there was no objective evidence of a weapon. I respectfully dissent because the Court of Criminal Appeals' affirmance of the conviction conflicts with Ex parte Ware, 181 So. 3d 409 (Ala. 2014).

The following facts are derived from the Court of Criminal Appeals' unpublished memorandum and the verified statement of facts provided by defendant Russell Alan Lashley, Jr., which are ordinarily the only permissible sources of facts in evaluating a petition for certiorari review, see Rule 39(k), Ala. R. App. P. On July 2, 2015, Lashley drove up to the drive-through window of a bank in Valley, Alabama. He asked the teller, Brittany McDonald, for a deposit slip. She provided one to him before turning to help another customer. When Lashley sent her the deposit slip, she saw some writing on it and assumed that Lashley was confused about the proper bank procedure. She asked Lashley what he wanted to do. He responded, "Did you read my note?" She asked, "What note?" Lashley said, "Turn it over." McDonald turned over the note, but she was unable to read Lashley's handwriting. She asked, "What does this say?"

Lashley replied that he had two men inside the bank, and he instructed her not to press the silent alarm and to give him "all the money" or he would kill her. McDonald opened a drawer and removed "bait money," which triggered the silent alarm. McDonald gave Lashley the money, and Lashley drove away.

Lashley turned himself in and was charged with first-degree robbery. At trial, McDonald testified that Lashley did not display any weapon or make any gestures during their interaction. Lashley did not, in fact, have any accomplices in the building, nor did he tell McDonald that his purported accomplices were armed. Lashley moved for a judgment of acquittal on the first-degree-robbery charge. In response, the State argued that McDonald was afraid that Lashley was armed and that her fear created a question for the jury as to whether he was, in fact, armed with a gun. The trial court denied the motion.

The jury convicted Lashley of first-degree robbery, and the trial court sentenced him to 30 years' imprisonment. The Court of Criminal Appeals affirmed Lashley's conviction in an unpublished memorandum. Lashley v. State (No. CR-19-0327, May 22, 2020), ––– So. 3d –––– (Ala. Crim. App. 2020) (table).

The first-degree-robbery statute under which Lashley was convicted provides, in pertinent part:

"(a) A person commits the crime of robbery in the first degree if he violates Section 13A–8–43 [third-degree robbery] and he:

"(1) Is armed with a deadly weapon or dangerous instrument; or

"(2) Causes serious physical injury to another.

"(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed."

§ 13A–8–41, Ala. Code 1975. Subsection (b) "aid[s] the State in proving the element of being armed." Ware, 181 So. 3d at 418 (opinion of Murdock, J., with Parker, J., concurring). Thus, the State can establish a prima facie case of first-degree robbery by presenting evidence that (A) the defendant was armed with a deadly weapon or dangerous instrument, or (B) the defendant caused serious physical injury to another person, or (C) the defendant was in possession of an article that was used or fashioned in a manner that led a person who was present to reasonably believe that the defendant was armed with a deadly weapon or dangerous instrument, or (D) the defendant represented that he was so armed.

The State did not present evidence that Lashley was, in fact, armed or that he caused physical injury. Thus, in order for the State to establish a prima facie case of first-degree robbery, the State was required to present evidence that (C)(i) Lashley possessed an article and (ii) used or fashioned that article in a manner (iii) that led a person who was present to reasonably believe that the article was a deadly weapon or dangerous instrument, or (D) Lashley represented that he possessed a deadly weapon or dangerous instrument.

In affirming Lashley's conviction, the Court of Criminal Appeals relied on the first prong –- the "article" prong -- of subsection (b). That court observed that first-degree robbery does not require that the victim actually see a weapon. Therefore, that court posited, the victim's "subjective reasonable" belief that the defendant is armed is sufficient. Hence, McDonald's belief that Lashley was armed was sufficient to sustain his conviction.¹

In Ware, the second, "used or fashioned," element of the "article" prong of subsection (b) was at issue. There, the defendant broke into the home of the victim, raped her, and then took a ring and money from her house. 181 So. 3d at 411 (opinion of Murdock, J.). The victim testified that she "thought" she felt "something sharp" in the defendant's back pocket as he was raping her, although he never withdrew the item or used it or told the victim he was armed. Id. In three separately authored opinions, a majority of Justices agreed that the victim's testimony was insufficient to establish first-degree robbery under subsection (b).² See id. at 419-20 (opinion of Murdock, J., with Parker, J., concurring); id. at 422-23 (Lyons, Special Justice, concurring in part and concurring in result in part, joined by Main, J.); id. at 423-24 (Moore, C.J., concurring in part and dissenting in part). Specifically, the majority believed that the evidence failed to show that the defendant "used or fashioned" the article. Id. at 419 n.17 (Murdock, J.); id. at 422-23 (Lyons, Special Justice); id. at 423-24 (Moore, C.J.). "This is so," Special Justice Lyons explained, "because ‘used or fashioned’ as that phrase appears in § 13A–8–41(b) requires some conduct on [the defendant's] part." Id. at 422–23 (Lyons, Special Justice).

Lashley argues that the Court of Criminal Appeals' decision conflicts with Ware because here, like in Ware, the evidence was insufficient to meet the requirements of § 13A–8–41. I agree. In Ware, the evidence that the...