REL:09/26/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1130650
                         _________________________

                           Ex parte Willie Conner

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                           (In re:      Willie Conner

                                          v.

                               State of Alabama)

                   (Baldwin Circuit Court, CC-12-1861;
                 Court of Criminal Appeals, CR-12-2005)

SHAW, Justice.

      WRIT DENIED.        NO OPINION.

      Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.
1130650

    Shaw, J., concurs specially.

    Moore, C.J., and Parker and Murdock, JJ., dissent.




                            2
1130650

SHAW, Justice (concurring specially).

    I concur to deny the petition.

    The    petitioner,    Willie   Conner, was     seen    at   a   home-

improvement store placing a "roofing nailer" in his pants.

Two "loss-prevention managers" approached Conner after he left

the store without purchasing the nailer.1 When they attempted

to escort Conner back inside the store, Conner declared that

he had a gun, and he attempted to reach into his pocket.               He

then struggled with the loss-prevention managers.                   After

Conner was detained, a "folding knife" was found in his

pocket.    Conner   was   ultimately   convicted     of   first-degree

robbery.    See Ala. Code 1975, § 13A-8-41.

    Conner raises one issue in his certiorari petition. That

issue, even the authors of the dissenting opinions appear to

agree, contains no probability of merit. See Rule 39(f), Ala.

R. App. P.     Chief Justice Moore and Justice Murdock, who

dissent, however, have discerned another issue upon which to

grant   certiorari    review:      Whether   there   was    sufficient

evidence to sustain a conviction for first-degree robbery,

namely, whether Conner was armed with a deadly weapon or

    1
     The loss-prevention managers also suspected Conner of a
theft that had occurred earlier that day.
                                   3
1130650

dangerous instrument.      In this writing, I will explain why I

do not believe a review of that issue is proper or necessary.

    First, it must be noted that on preliminary examination

of a certiorari petition, i.e., when reviewing a request to

take up the case on appeal from the lower appellate court,

this Court has before it very limited facts.               Here, the facts

as stated in the Court of Criminals Appeals' unpublished

memorandum are properly before this Court for review.                    Rule

39(k), Ala. R. App. P.          A petitioner may attempt to add

certain   facts   found    in   the       record,   but   Conner   has    not

attempted to do so.       See Rule 39(d)(5)(A).           Thus, only those

facts stated in the Court of Criminal Appeals' unpublished

memorandum are before us.        Conner v. State (No. CR-12-2005,

Jan. 31, 2014) ___ So. 3d ___ (Ala. Crim. App. 2014) (table).

    Additionally, the standard of review on appeal from a

challenge to the sufficiency of the evidence in a criminal

case is as follows: The appellate court must accept as true

all evidence introduced by the State, recognize all legitimate

inferences in favor of the State from that evidence, and

consider all evidence in a light most favorable to the State.




                                      4
1130650

See Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App.

2003).2

    Conner was convicted of first-degree robbery. That crime

is defined at Ala. Code 1975, § 13A-8-41:

         "(a) A person commits the crime of robbery in
    the first degree if he violates [Ala. Code 1975,]
    Section 13A-8-43 [robbery in the third degree] and
    he:

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

Further:

         "(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."

    There is apparently no dispute that the elements of §

13A-8-43, Ala. Code 1975, were met in this case.        Thus, the

only remaining element that must be met for Conner to be

convicted of first-degree robbery is that he was armed with "a

deadly weapon or dangerous instrument."


    2
     Conner's case is not yet before this Court on appeal;
it is pending on preliminary examination. Nevertheless, this
standard is helpful in determining whether the petition
presents probability of merit.
                               5
1130650

    Conner makes no attempt to argue that he was not so

armed.    In fact, during the course of the underlying robbery,

he was in possession of a "folding knife," as well as the

roofing nailer.     That a jury can find that a knife is "a

deadly weapon or dangerous instrument" is a proposition beyond

dispute.    That a jury as a matter of law could not find that

a roofing nailer is a deadly weapon is a conclusion I am not

prepared to make, especially in light of the fact that we are

not presented with such a question and, further, because there

is not a hint in the facts before us indicating whether (1)

the roofing nailer was in a condition capable of being fired

when the robbery occurred or (2) whether a roofing nailer can

produce a deadly injury.

    To call Conner's folding knife a "pocketknife" might

minimize its nature as a weapon, but doing so requires the

Court to make inferences in favor of Conner and against the

State and further requires the Court to create nonexistent

facts. As noted above, this would be contrary to the standard

an appellate court would apply to view the evidence and

contrary to the actual facts before us.




                                6
1130650

    Chief Justice Moore cites Cline v. State, 571 So. 2d 368,

370-71 (Ala. Crim. App. 1990), for the proposition that a

folding knife "is not considered a deadly weapon unless used

as such." ___ So. 3d at ___.       Cline discusses whether a

"pocketknife" in that case was a deadly weapon. Nevertheless,

in Smith v. State, 601 So. 2d 201 (Ala. Crim. App. 1992), a

case decided two years after Cline, the court held that an

object the perpetrator had in his hand and placed on a shelf,

but that the victim could not identify and that was later

determined to be a "pocketknife," was a deadly weapon:

         "Finally, the victim's testimony that Smith
    appeared to have something in his hand when he
    threatened her and that he placed this object on the
    shelf above her bed, coupled with evidence that an
    open pocket knife that did not belong to the victim
    was found on the shelf above the victim's bed, was
    clearly sufficient to establish that Smith had been
    armed with a knife while effecting entry or while in
    the victim's dwelling. See Pardue v. State, 571 So.
    2d 333 (Ala. 1990). Because a knife is a deadly
    weapon ... the State clearly established that Smith
    was armed with a deadly weapon ...."

601 So. 2d at 205-06.   The perpetrator in Smith did not "use"

the pocketknife in any manner, much less as a deadly weapon.

In Goodgame v. State, 593 So. 2d 153, 154 (Ala. Crim. App.

1991), what was described by a witness as "'a little bitty

knife, a little knife,'" which the perpetrator displayed and

                               7
1130650

threatened to use to stab the victim but was not actually

"used" as a deadly weapon, was nevertheless considered a

deadly weapon for purposes of establishing the offense of

first-degree robbery.

      In the instant case, Conner had a knife in his pocket.

He attempted to reach into one of his pockets while he was

struggling with the loss-prevention managers.            His "use" of

the knife was no less than the defendant's in Smith.               The

facts that the knife might have been a mere pocketknife or

even a "little bitty" knife and was not "used" as a deadly

weapon does not mean that the jury could not have concluded

that it was a deadly weapon.          Goodgame, supra.    That Conner

declared that he had a gun but actually had a knife is not

material under § 13A-8-41(a)(1).

      Nevertheless, we do not have before us a description of

the   knife.     We know nothing about it or what the jury

observed.      We cannot determine if it is a deadly weapon like

the   knives    specifically   described    in   Ala.   Code   1975,   §

13A-1-2(7).     See Johnson v. State, 406 So. 2d 451 (Ala. Crim.

App. 1981) (concluding from the description of a knife in the

record and the fact that it could cut a telephone cord that,


                                  8
1130650

despite the fact that it did not conform with the statutory

description of knives that constituted deadly weapons, it

nevertheless was a deadly weapon).                  In any event, it would

require speculation to presume, and would be contrary to the

standard of review, that the evidence regarding the knife does

not support the State's case.               I further point out that any

notion that, if a person declares that he is armed with one

type of deadly weapon but is instead armed with a different

type of deadly weapon, then he, as a matter of law, was not

"armed with a deadly weapon" under § 13A-8-41(a)(1) should not

be   inferred     from   this    case       and    should     be    rejected   as

unprecedented.

       Although   the    Court    of    Criminal      Appeals       gratuitously

examined whether Conner could be considered armed under §

13A-8-41(b)--I say gratuitously because the court held that

the issue had not been preserved for review--nothing suggests

that    that    issue    was     actually         presented    to    the   jury.

Specifically, nothing before us suggests that the jury was

instructed that it should find Conner guilty of first-degree

robbery because he said he possessed a "gun."                        For all we

know, the jury was instructed that it could find Conner guilty


                                        9
1130650

if he simply possessed a deadly weapon, § 13A-8-41(a)(1), and

I see sufficient facts before us that would indicate no

probability of merit in an argument otherwise.

    When     this   Court,   hamstrung   by   limited   facts   and

arguments, searches for extraneous wrongs raised by no one and

not preserved for review, it will undoubtedly believe that it

has spotted some.      In our adversarial system, however, we

should rely on the parties to raise issues they believe worthy

of review. Conner identified to the Court of Criminal Appeals

certain issues he challenged on appeal.       That court addressed

them.     He then asked this Court to review portions of that

ruling.    I see nothing indicating any probability of merit in

the issue Conner actually raises.        See Rule 39(f), Ala. R.

App. P.    Therefore, I concur to deny the petition.




                                10
1130650

MOORE, Chief Justice (dissenting).

    By an unpublished memorandum, the Court of Criminal

Appeals affirmed Willie Conner's conviction for first-degree

robbery and his sentence of life imprisonment as a habitual

felony offender. Conner v. State (No. CR-12-2005, Jan. 31,

2014), ___ So. 3d ___ (Ala. Crim. App. 2014) (table). Because

the undisputed facts demonstrate that Conner was not armed

with a gun at the time of the theft, he could not be guilty of

first-degree robbery. Therefore, I respectfully dissent from

the decision to deny his petition for a writ of certiorari.

    The relevant facts are as follows. On July 5, 2012, a

cashier at a Lowe's home-improvement store in Foley informed

Alvin Barnard, a loss-prevention manager at the store, that he

had seen a man leave the store and it "looked like he had

something in his pants." Later that day the cashier informed

Barnard that the same man, subsequently identified as Conner,

was back in the store. Barnard viewed Conner on the store's

video-surveillance system and saw him take a roofing nailer

from a shelf in the tool department, place it down the front

of his pants, and leave the store without paying for the

roofing nailer.


                              11
1130650

    Barnard and a colleague followed Conner, stopped him,

identified themselves as loss-prevention managers, and asked

Conner to come back into the store. Once inside the store,

Conner said "I have a gun" and stuck his hand in his right-

front pants pocket. Perceiving Conner's statement and movement

as a threat of physical harm, Barnard wrestled Conner to the

ground    and    subdued   him.    Barnard    then       searched    Conner's

pockets, finding only a folding knife, which he removed.

Conner    also    surrendered      the    nailer    to   Barnard.    Without

resisting,      Conner   allowed    Barnard    to    escort    him    to   the

security office, where he signed a statement admitting the

theft.

    After a Foley police officer arrived, Conner told the

officer that he had not intended to resist Barnard but had

lost his balance because of the weight of the nailer in his

pants. He admitted that he had said he had a gun but stated

that he was referring to the nailer as a "nail gun." Barnard

and the police officer testified for the prosecution at trial.

The defense rested without calling any witnesses. The trial

court charged the jury on first-degree robbery and the lesser-

included offenses of third-degree robbery and third-degree


                                     12
1130650

theft of property. The jury returned a verdict finding Conner

guilty of first-degree robbery as charged in the indictment.

    Conner appeared for sentencing on August 30, 2013. The

State presented uncontested evidence that Conner had been

convicted   of   three   prior   Class   C   felonies   for   theft   of

property in the second degree. See § 13A-8-4, Ala. Code 1975.

Because first-degree robbery is a Class A felony, the trial

court was compelled to sentence Conner as a habitual felony

offender to either life imprisonment or life imprisonment

without the possibility of parole. See § 13A-5-9, Ala. Code

1975. The trial judge sentenced Conner to life imprisonment.

    Conner appealed, arguing that the reference to a gun and

the ensuing scuffle occurred after the theft was completed and

therefore could not convert the theft into a robbery. See Ex

parte Sapp, 497 So. 2d 550 (Ala. 1986). The Court of Criminal

Appeals disagreed, citing Ingram v. State, 878 So. 2d 1208

(Ala. Crim. App. 2003), for the proposition that "the force in

this case was used in the immediate flight after the theft and

not after the theft had clearly ceased." Conner also argued

that he did not represent that he was armed because, when he

said he had a gun, he was referring to the nailer as a "gun"


                                  13
1130650

and not to a firearm. Viewing the evidence in a light most

favorable to sustain the verdict, the Court of Criminal

Appeals held that, even though Conner did not have a gun, his

oral representation to that effect was sufficient to satisfy

the   armed-with-a-deadly-weapon     element   of   first-degree

robbery. § 13A-8-41(a)(1), Ala. Code 1975.

      In his pro se petition for a writ of certiorari, Conner

argues only that the Court of Criminal Appeals was incorrect

in finding that the theft had not ceased at the time Conner

allegedly threatened Barnard.

      The Court of Criminal Appeals decided that the sequence

of events that followed Conner's concealment of the nailer in

his pants was a continuous course of conduct in which Conner

attempted to escape with the merchandise and was thwarted by

the loss-prevention officers. In Ex parte Sapp, in which this

Court held that the theft had ceased before an altercation

occurred, the thief successfully left the store with a stolen

jacket. When on his own initiative he returned 5 to 10 minutes

later wearing the jacket, a security officer recognized the

store's merchandise and apprehended him. 497 So. 2d at 551. In

this case Conner did not return voluntarily to Lowe's with the


                                14
1130650

nail gun. Instead, the loss-prevention officers stopped him as

he left the store and escorted him back inside where Conner

uttered the alleged threat.

    "[Section] 13A-8-41 ... creates      the   offense   of
    robbery in the first degree:

               "'(a) A person commits the crime of
          robbery in the first degree if he violates
          section 13A-8-43 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.'

    "Under that section, the offender must violate §
    13A-8-43:

               "'(a) A person commits the crime of
          robbery in the third degree if in the
          course of committing a theft he:

                   "'(1) Uses force against the
              person of the owner or any person
              present with intent to overcome
              his   physical    resistance   or
              physical power of resistance; or

                              15
1130650

                      "'(2) Threatens the imminent
                 use of force against the person
                 of the owner or any person
                 present with intent to compel
                 acquiescence to the taking of or
                 escaping with the property.'"

Ex parte Sapp, 497 So. 2d at 550-51 (emphasis added). "Thus,

to be found guilty under these statutes, the force or threat

must have been used 'in the course of committing' the theft,

which, by statutory definition, § 13A-8-40, 'embraces acts

which occur ... in immediate flight after the attempt or

commission.'" Sapp, 497 So. 2d at 551.

    Because Conner's alleged threat of force occurred in the

course of committing a theft, namely "in immediate flight"

after   the    commission    of    the    theft,   §    13A-8-40(b),     his

petition, which raises no other ground for issuing the writ,

is unavailing. Ordinarily that would be the end of the matter.

However, a significant error on the face of the Court of

Criminal      Appeals'   unpublished      memorandum     compels   me     to

dissent. In rare circumstances this Court may consider an

issue that the petitioner failed to raise. "In the interest of

expediting     decision,    or    for    other   good   cause   shown,    an

appellate court may suspend the requirements or provisions of

any of these rules in a particular case on application of a

                                    16
1130650

party or on its own motion ...." Rule 2(b), Ala. R. App. P.

(emphasis added). The Committee Comments to Rule 2 state:

"This rule contemplates that an appellate court may relieve a

litigant   of    the   consequences     of   default   where   manifest

injustice would otherwise result." (Emphasis added.)

    The crux of the Court of Criminal Appeals' error is its

misconstruction of the following passage in the first-degree-

robbery statute:

    "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(b), Ala. Code 1975 (emphasis added). Conner's

statement that he had a gun was not conclusive evidence that

he was "so armed"; it was only prima facie evidence. The jury

was entitled to rely on the threat alone as evidence that

Conner was armed only if that evidence was not contradicted.

"Prima facie evidence" is "[e]vidence that will establish a

fact or sustain a judgment unless contradictory evidence is

produced."      Black's   Law   Dictionary    677   (10th   ed.   2014)

(emphasis added).

                                   17
1130650

       When a robber claims to have a weapon but does not

actually display one, the evidence going to prove whether he

actually was armed may be disputed. If the robber escapes

before being apprehended, the jury may infer that he discarded

the alleged weapon. But when a perpetrator like Conner is

apprehended on the spot immediately after threatening the use

of force by stating that he had a "gun," and no gun is found

on     his     person,        the   presumption    that    he    is   armed     is

conclusively rebutted. In this case evidence was presented

that       a   threat    of    imminent   use     of   force    occurred,     thus

satisfying the third-degree-robbery statute, § 13A-8-43(a)(2),

but the element in the first-degree-robbery statute of being

"armed with a deadly weapon or dangerous instrument" was not

proven.3 "The presence of a gun elevates third degree robbery

       3
     Justice Shaw's special concurrence argues unconvincingly
that the folding knife could be considered a deadly weapon. As
Justice Murdock notes in his dissent, Conner made no oral
representation about the folding knife. Additionally, I note
that a pocketknife is not considered a deadly weapon unless it
is used as such. "While a pocketknife may not be deadly per se
and ordinarily has lawful functions and uses, it may or may
not be deemed a deadly weapon, depending on the manner of its
use." Cline v. State, 571 So. 2d 368, 371 (Ala. Crim. App.
1990). See also Goodgame v. State, 593 So. 2d 153 (Ala. Crim.
App. 1991) (holding that where a defendant displayed the blade
of a pocketknife and threatened to stab the victim, the
question of whether the knife was a deadly weapon was for the
jury to decide); Thomas v. State, 31 Ala. App. 1, 4, 9 So. 2d
                                          18
1130650

to first degree robbery." Ex parte Curry, 471 So. 2d 476, 478

(Ala. 1984). The commentary to §§ 13A-8-40 through -44 notes

that "it is sometimes difficult to prove that defendant

actually was armed with a dangerous weapon, unless he is

apprehended   at   the   scene."   (Emphasis   added.)   Conner   was

apprehended at the scene, and he did not have a gun. "If in

fact the defendant refutes [the presumption that he is armed],

he may still be convicted of robbery in a lesser degree." §§

13A-8-40 through 13A-8-44 Commentary. Because the Court of

Criminal Appeals' unpublished memorandum states as a fact that

Conner did not have a gun, the presumption was rebutted by the

State's own evidence that was introduced at trial and that was

before the Court of Criminal Appeals on appeal. Conner may

therefore be convicted of "robbery in a lesser degree," but

not of first-degree robbery.

    Nevertheless, the Court of Criminal Appeals concluded

that the State provided sufficient evidence to prove that

Conner was armed with a deadly weapon: "Although Conner did

not have a gun at the time, his claim that he had a gun was a



150, 153 (1942) (noting that "a penknife is a deadly weapon --
when used as here shown" (final emphasis added)). Conner
neither used nor threatened to use the knife in any fashion.
                                   19
1130650

sufficient verbal representation that he was armed with a

deadly    weapon.   The   State     therefore   presented   sufficient

evidence to satisfy the elements of first-degree robbery." The

Court     of   Criminal   Appeals    thus   converted   a   rebuttable

presumption into a conclusive presumption, contrary to the

plain language of § 13A-8-41(b).4

    A more adequate analysis occurred in James v. State, 405

So. 2d 71 (Ala. Crim. App. 1981). In that case "while no

weapon was actually displayed, the defendant, by placing his

hand inside his coat pocket, gave the victim the impression

that he was armed with a pistol." 405 So. 2d at 72. Because

the victim reasonably believed that James was armed with a

deadly weapon, the State had made a prima facie case that

James was armed with a deadly weapon.


    4
     Section 13A-8-41(b) may also be unconstitutional on its
face by impermissibly shifting to the defendant the burden of
proof on the deadly weapon element. By using the phrase "is
prima facie evidence" rather than the phrase "may be
considered as prima facie evidence," § 13A-8-41(b) appears to
create a mandatory rather than a permissive presumption.
"Mandatory presumptions 'violate the Due Process Clause
[because] they relieve the State of the burden of persuasion
on an element of an offense.'" Townes v. State, [Ms. CR-10-
1892, June 13, 2014] ___ So. 3d ___, ___ (Ala. Crim. App.
2014) (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985)).
See also Beard v. State, 612 So. 2d 1335 (Ala. Crim. App.
1992).
                                    20
1130650

         "A conviction of first degree robbery does not
    require evidence that the accused brandished or
    displayed any weapon. Indeed, in order to be
    convicted of first degree robbery an accused need
    not even be armed with a deadly weapon or dangerous
    instrument where (1) he possesses any object
    reasonably believed to be a deadly weapon or
    dangerous instrument or represents in some manner
    that he has one and (2) there is no evidence to
    rebut   or   refute  this   reasonable  belief   or
    representation."

James, 405 So. 2d at 73 (emphasis added). Although the James

court incorrectly stated that "in order to be convicted of

first degree robbery an accused need not even be armed with a

deadly weapon or dangerous instrument,"5 405 So. 2d at 73, it

did correctly   acknowledge that the prima facie case could be

rebutted. The court concluded:

         "Here the defendant's actions instilled in the
    victim the reasonable belief that he was armed with
    a pistol. Under Section 13A-8-41(b) this constituted
    prima facie evidence that the defendant was so

    5
     Other cases have made this error. See, e.g., Dick v.
State, 677 So. 2d 1267, 1270 (Ala. Crim. App. 1996) (noting
that "'[t]his court has held on several occasions that it is
not necessary to prove that a defendant displayed a gun during
a robbery or that he actually had a gun to sustain a
conviction for Robbery in the First Degree'" (quoting Stewart
v. State, 443 So. 2d 1362, 1363-64 (Ala. Crim. App. 1983))
(emphasis added)); Holt v. State, 960 So. 2d 726, 739 n.6
(Ala. Crim. App. 2006) (stating that "an accused need not
actually be armed with a deadly weapon to be convicted of
robbery in the first degree"). For an analysis of this
problem, see Lucas v. State, 45 So. 3d 380, 394-98 (Ala. Crim.
App. 2009) (Welch, J., dissenting).
                              21
1130650

      armed. Since there was no evidence to rebut this
      presumption and as the State proved all the other
      elements of robbery in the first degree, the
      defendant's conviction must stand."

405 So. 2d at 73 (emphasis added). See also Herndon v. State,

563   So.   2d   1065,   1070   (Ala.   1990)   (noting   "that   the

presumption in § 13A-8-41(b) can be rebutted").

      In this case, by contrast, the evidence conclusively

rebutted the presumption that Conner was armed with a gun. By

omitting an essential step of the analysis, the Court of

Criminal Appeals erred in affirming Conner's conviction for

first-degree robbery and the mandatory minimum sentence of

life imprisonment.6

      Good cause exists under Rule 2(b), Ala. R. App. P., for

this Court, on its own motion, to grant Conner's petition

based on (1) an erroneous conclusion of law by the trial court

and by the Court of Criminal Appeals (and now ignored by this

Court) that Conner is guilty of first-degree robbery although

he was not in possession of a gun, and (2) the affirming of a

      6
     Justice Shaw's special concurrence notes that we do not
have the jury instructions before us or the actual testimony,
if any, as to the perceived role of the folding knife. In my
view these uncertainties, when coupled with the clear legal
error on the face of the unpublished memorandum of the Court
of Criminal Appeals, provide additional argument for granting
the petition.
                                  22
1130650

life sentence for a crime Conner could not be guilty of

committing under the facts of this case. Although stating

facts that demonstrate that Conner was not guilty of first-

degree robbery -- "Conner did not have a gun" -- the Court of

Criminal Appeals nonetheless affirmed his conviction for that

crime.

     If we were to overturn Conner's conviction for first-

degree robbery, a Class A felony, and remand for resentencing

on the lesser-included offense of third-degree robbery, a

Class C felony, Conner's minimum sentence under the habitual-

felony-offender statute would be 15 years as opposed to life

imprisonment. § 13A-5-9(c)(1) and (3), Ala. Code 1975. Surely

a   mandatory   minimum   sentence   of   life   imprisonment   is   a

manifest injustice when, under a correct reading of the

robbery statutes, the minimum available sentence is 15 years.




                                23
1130650

MURDOCK, Justice (dissenting).

    I respectfully dissent from the denial of certiorari

review.   As a threshold matter, I note my agreement with the

reasons cited by Chief Justice Moore for which this Court, in

the interest of justice in this particular case, should

overlook the failures that characterize the pro se petition

before us.

    As for the merits of this case, I acknowledge that Willie

Conner was found to be in possession of a pocketknife at the

time of his arrest. There is no suggestion in the unpublished

memorandum of the Court of Criminal Appeals, however, that any

person saw that knife or had any reason to believe that Conner

was possessed of a deadly weapon in the form of such a knife.

The discussion by the Court of Criminal Appeals as to whether

Conner    was   armed   with   a    deadly   weapon   or   dangerous

instrumentality focuses solely on his "verbal representation"

that "he had a gun."     I likewise will limit the focus of my

comments.

    In order to prove first-degree robbery in the absence of

"serious physical injury to another," see Ala. Code 1975,

§ 13A-8-41(a)(2), the State must prove that the defendant was


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"armed with a deadly weapon or dangerous instrument," see

§ 13A-8-41(a)(1). A requirement that the defendant be "armed"

means that defendant must have been armed.        I know of no other

way to read those words.

    Yet,   somehow,   the   fact    that   §   13A-8-41(b)   provides

methods, short of direct evidence of the defendant's being

armed, by which the State can present a prima facie case that

the defendant was armed, has led to restatements of the

necessary elements of first-degree robbery that suggest that

it is not necessary for the defendant actually to be armed.

In the present case, for example, after quoting Rice v. State,

620 So.2d 140, 141-42        (Ala. Crim. App. 1993), for the

proposition, in a different context, that "'the State does not

have to prove the defendant actually had a gun in order to

sustain a conviction of first-degree robbery,'" the Court of

Criminal Appeals states that, "[a]lthough Conner did not have

a gun at the time, his claim that he had a gun was a

sufficient verbal representation that he was armed with a

deadly weapon."   Even the passage in James v. State, 405

So. 2d 71, 73 (Ala. Crim. App. 1981), noted by Chief Justice

Moore in his special writing contributes to the confusion,


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stating that, "[i]n order to be convicted of first-degree

robbery, an accused need not even be armed with a deadly

weapon or dangerous instrument" under certain circumstances.

That simply is not true.

    What is true is that, in the absence of any evidence

deemed sufficient by the factfinder to rebut the prima facie

case established through presentation of certain evidence as

described in § 13A-8-41(b), the State will have proven that

the defendant was armed.   It is not true, however, that the

State need not prove that the defendant was armed; at the end

of the day, the required element of the defendant's being

armed is still a required element of the offense.   That which

is set out in § 13A-8-41(b) as prima facie evidence of that

element is only that, prima facie evidence.    Section 13A-8-

41(b) does not change what the State must prove under s 13A-8-

41(a)(2); it merely provides a tool designed to aid the State

in proving it.




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