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Armed Robbery? What is a weapon in Massachusetts?

Hi. My brother is charged with armed robbery because he took some money from a kid while holding a bottle in his hand. That's crazy and I think the prosecutor is just trying to ruin his life by charging too much. What kind of a weapon is enough to make a robbery armed robbery instead of just regular robbery in MA? Doesn't it have to be a real weapon? Thanks.

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Your brother's case presents one of those situations that arise with an armed robbery allegation where the alleged perpetrator of a crime carries with him an object that it not, in and of itself, a weapon (like a gun or a knife), but which could in some cases be used as a weapon.  I cannot say whether, if the case actually goes to trial (hopefully not), that the Commonwealth will prevail on the armed robbery charges.  Ultimately it is a question of fact for the jury.  In the case of Commonwealth vs. Tarrant, 367 Mass. 411 (1975), the Supreme Judicial Court of Massachusetts summarized the issue:  "(W)here a neutral object is involved, (the question) turns on whether the instrumentality under the control of the perpetrator has the apparent ability to inflict harm, whether the victim reasonably so perceived it, and whether the perpetrator by use of the instrumentality intended to elicit fear in order to further the robbery."

So, it is form of the reasonable person standard.  The question becomes whether a reasonable person, when presented with the "weapon" under similar circumstances would perceive a danger of harm from the instrument.  The prosecutor will not have to convince the jury that the instrument was actually dangerous or used in a way that caused damage, but only that it presented an "objective threat of danger to a person of reasonable and average sensibility."

Accordingly, the facts will rule.  If your brother was sipping from a bottle of coke and asked the victim for his money, the outcome may be different from a situation where your brother wielded a broken bottle under the nose of the victim while threatening bodily harm.  Hope that helps.



It is unfortunate that your brother has found himself in the situation you describe. Through the court process, information (evidence) will be reviewed which allows the prosecutor and defense attorney to evaluate the strengths and weaknesses of the case. Based on that evidence, along with the circumstances of the incident, occasionally a plea can be worked out on a lesser included offense.  If you would like to know more details about the court process, please contact my office at info@trottierlaw.com with your name and phone number or visit my website.
 
Attorney David A. Trottier
 


Submitted Sat, 05/12/2012 - 14:31

The comments posted by the editor are right on the money. A bottle could certainly be deemed to be a dangerous weapon for purposes of the Armed Robbery Statute. If your brother's case is still in District Court (and he has not yet been indicted)and he is interested in working out a plea bargain, his lawyer should approach the DA about a reduction of the armed robbery charge to an Assault or an Assault with a Dangerous Weapon or a Larceny from a Person Charge or some combination of those charges. This would keep the case out of Superior Court, thereby eliminating the possibility of a sentence to the State Prison. A District Court Judge cannot sentence anyone to the State Prison. A District Court Judge can sentence to a county House of Correction but not to the State Prison. We recently had a similar case in Somerville District Court where our client robbed a kid (he knew!) with a knife. He had other charges pending as well and wanted to avoid State Prison. The DA (Midlesex County) agreed to reduce the Armed Robbery to Larceny from a Person and the client took a sentence to the House of Correction (with NO probation after). Good Luck.
 
Attorney Robert Lewin.


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