Summary
The Supreme Court of Kentucky held that the evidence did not support a first-degree robbery conviction because no gun or other deadly weapon was seen, possessed, or expressly threatened. The court reversed the conviction and remanded, while upholding the trial court's refusal to instruct the jury on duress and theft by unlawful taking because the evidence did not support those instructions.
Topics
Practice areas
Questions Presented
- Whether the evidence supported jury instructions and a conviction for first-degree robbery under KRS 515.020(b) or (c) when Lawless kept her hand in her pocket and created the impression that she might be armed, but no weapon was seen or mentioned.
- Whether retrial for first-degree robbery was barred by double-jeopardy principles because the evidence was insufficient to support that offense.
- Whether the trial court abused its discretion by refusing to instruct the jury on duress.
- Whether the trial court abused its discretion by refusing to instruct the jury on theft by unlawful taking as a lesser-included offense.
Holdings
- Evidence that a defendant kept her hand in a pocket and appeared possibly to be armed, without any witness seeing a gun, part of a gun, or another deadly weapon, does not support a first-degree robbery instruction or conviction under KRS 515.020(b).
- Evidence that the defendant kept her hand in her pocket and caused victims to believe she might have a gun does not support first-degree robbery under KRS 515.020(c) when the defendant neither displayed nor mentioned a weapon.
- Because the evidence was insufficient to support first-degree robbery, Lawless could not be retried for that offense under federal and state double-jeopardy principles.
- The trial court did not abuse its discretion by refusing a duress instruction because Lawless's evidence showed that she had a reasonable opportunity to resist the alleged coercion after being dropped off at the bank.
- The trial court did not abuse its discretion by refusing to instruct on theft by unlawful taking because no rational juror could find that Lawless's demand for the bank's money was unaccompanied by a threat of physical force.
Key quotations
“a `mere pocket bulge' was insufficient to create a jury issue as to the existence of a deadly weapon or dangerous instrument” (679)
“No amount of intent or intimidation by a robber can turn a toy gun, or a stick, or a finger in the pocket into a deadly weapon” (680)
“no rational juror could have found that her demand for the bank's money was not accompanied by a threat of force.” (681)
Factual background
Lawless entered a Louisville bank with her hood over her head, kept her right hand in her jacket pocket, and handed a teller a note demanding money. The teller and a customer believed she might have a gun, but neither saw a gun, any part of a gun, or any other weapon. Lawless was apprehended nearby with the stolen money and later testified that an acquaintance had threatened her with a gun and forced her to rob the bank.
Procedural history
A jury convicted Lawless of first-degree robbery. The Jefferson Circuit Court entered judgment on December 16, 2008, and sentenced her to twenty years' imprisonment after her persistent-felon plea. The Supreme Court of Kentucky held that the evidence did not support first-degree robbery, reversed the judgment, and remanded for additional proceedings while rejecting the remaining instructional claims.
Remand instructions
Reverse the Jefferson Circuit Court judgment and remand for additional proceedings consistent with the opinion. Lawless may not be retried for first-degree robbery because the evidence was insufficient; if the evidence is substantially the same, the court need not give duress or theft-by-unlawful-taking instructions.