COMMONWEALTH vs. MICHAEL TARRANT.

HENNESSEY, J. The defendant was convicted in the Superior Court on two indictments; the first charged the

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crime of entering a dwelling being armed and committing therein assault with intent to commit a felony; the second charged the crime of armed robbery. The former indictment was placed on file and the defendant was sentenced to ten to twenty years at the Massachusetts Correctional Institution at Walpole on the armed robbery indictment.

An appeal was taken to the Appeals Court, and that court affirmed the conviction. Commonwealth v. Tarrant, 2 Mass. App. Ct. 483 (1974). We then granted the defendant's application for further appellate review.

The issues to be resolved in this appeal based on assignments of error brought subject to G. L. c. 278, Sections 33A-33G, are (1) whether the judge was in error in denying the defendant's motion for a directed verdict on the armed robbery indictment; (2) whether a "neutral" object, here a German shepherd dog, may be a dangerous weapon the presence of which may be sufficient to make the crime armed robbery; and (3) whether the trial judge properly instructed the jury on the prerequisites for a finding of a dangerous weapon. [Note 1]

The Appeals Court, in affirming the conviction, held, in substance, that a dog may be a dangerous weapon within the meaning of the armed robbery statute, and that on the facts of this case that crime was proved. We also affirm the conviction. We concur in the reasoning expressed in the Appeals Court opinion, and we add below certain additional reasoning impelled by the specific arguments addressed by the parties to us.

We state in brief only those facts necessary to make clear the issues raised by this appeal. On the morning of November 23, 1972, the defendant, accompanied by a

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medium sized German shepherd dog, entered the victim's apartment, walked to the bedroom, now possessed of what appeared to be a kitchen knife, ordered the awakened victim not to move, and began to collect certain articles and money. At one point the defendant asked the victim a question warning him, "If you have another radio and you aren't telling me about it, I'll kill you." During this time the dog roamed about the room, at one point moving within "a couple [of] feet" of the victim's bed. The dog apparently responded to the defendant's commands, coming to the defendant when so ordered. At the close of the Commonwealth's evidence and after the introduction of all evidence, the defendant moved for a directed verdict on the armed robbery indictment; the motion was denied.

The defendant argues that his motion for a directed verdict should have been granted because a dog is a neutral instrumentality and is not per se dangerous as is a gun; that given this fact, the Commonwealth was required to prove that the neutral instrumentality was used or was threatened to be used in a harm-inflicting manner; and that without such an affirmative demonstration of the "dangerousness" of the neutral object, here the German shepherd dog, the crime was at most simple robbery. Otherwise, the defendant submits, neutral instrumentalities could become "dangerous weapons" for the purposes of armed robbery merely on the basis of the victim's subjective perceptions. Thus, in this case it is apparently the defendant's position that the Commonwealth was required to prove that the dog growled or in some way threatened the victim by its own conduct, or that the defendant threatened to order the dog to attack.

We start with the conclusion that the motion for a directed verdict was properly denied, since the dog, on the facts of this case, could have been found to be a dangerous weapon. Although we need not rule on the issue, it seems apparent that the motion for a directed verdict was also properly denied because the indictment

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alleged that the defendant was armed with both a knife and a dog, and there was evidence to establish that he used a knife to further his purpose. Nevertheless, since we cannot discern now whether the jury found that a knife was used, or indeed may have concluded that the only dangerous weapon used was the dog, we proceed to examine the evidence and the judge's instructions concerning the dog.

Contrary to the defendant's contentions, the standard applied in this case does not depend on the victim's subjective perception but rather rests on an evaluation of the instrumentality's potential for harm as it might have objectively seemed to a reasonable individual. We have applied such a standard in cases involving simple assault, Commonwealth v. White, 110 Mass. 407 (1872), and assault by means of a dangerous weapon, Commonwealth v. Henson, 357 Mass. 686 (1970). See Commonwealth v. Slaney, 345 Mass. 135 (1962); Perkins, Criminal Law, 91-93 (1957). [Note 2]

The offense of robbery while armed is but an aggravated form of common law robbery and is to be distinguished in main by the manner of punishment and not by the material elements composing the common law

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crime of robbery. Cf. G. L. c. 265, Section 19. The statute defining the offense of armed robbery was first enacted in this Commonwealth by St. 1819, c. 124, Section 1, and has since that time been in force, with the exception that the punishment has been reduced from death to imprisonment in the State prison for life. St. 1839, c. 127. As stated in the early cases construing the statute, "[t]here is no provision, either express or implied, that the striking or wounding is to be inflicted with the weapon with which the robber is armed." Commonwealth v. Mowry, 11 Allen 20, 22 (1865). Commonwealth v. Cody, 165 Mass. 133, 137 (1896). The purpose of the statute is to make robbery while possessed of a dangerous weapon a more serious offense because such robbery "would naturally lead to resistance and conflict" in which use of the dangerous weapon may be expected to follow. Commonwealth v. Mowry, supra.

Thus, it is not only the actual use of the weapon in the sense of harm in fact inflicted that makes the crime of armed robbery aggravated; rather it is more importantly the potential for injury, and the tendency toward resistance, conflict, and violence in result which exists where robbery is perpetrated with the use of a dangerous weapon. See generally Perkins, Criminal Law 285 (2d ed. 1969); 67 Am. Jur. 2d, Robbery Section 4 (1973). It follows that, in robbery, as in assault by means of a dangerous weapon, whether the weapon is actually used to inflict harm is largely irrelevant. Rather, as we have stated, the relevant point is the "objectively menacing conduct of the defendant . . . [producing] the fear of harm which it was intended to produce, with the same consequential tendency to provoke a breach of the peace." Commonwealth v. Slaney, 345 Mass. 135, 140 (1962).

Accordingly, we conclude that the Commonwealth, in order to prove the crime of armed robbery in this case, was not required to have affirmatively demonstrated that the dog was actually dangerous (Commonwealth v.

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Henson, supra,) or was in fact used in a harm-inflicting manner, since the proper inquiry is whether the instrumentality is such as to present an objective threat of danger to a person of reasonable and average sensibility. We note that the result reached here is consistent with our reasoning in Commonwealth v. Nickologines, 322 Mass. 274 (1948), wherein we affirmed a conviction for armed robbery despite the fact that the gun used in the robbery was unloaded. In that case, as in the assault cases cited above, we focused on the instrumentality's apparent ability to inflict harm. We apply the same analysis here. [Note 3]

However, we agree with the defendant that where it appears that the instrumentality is not in its ordinary use designed to produce death or serious bodily injury, therefore qualifying as matter of law as a dangerous weapon, then its potential danger must be measured by objective standards and not by the victim's subjective apprehension. [Note 4] Accordingly, where the instrumentality is not per se harm-inducing it is a question of fact for the jury whether the circumstances surrounding the presence of the instrumentality suggest its latent character as dangerous. In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled. Relative to the

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inquiry the jury should consider whether, based on the objective conditions at the time of the assault, the exhibition of the instrumentality could reasonably engender the victim's fear and whether the perpetrator of the robbery did intend to provoke that fear in order to facilitate the theft. [Note 5] Cf. Commonwealth v. Slaney, 345 Mass. 135, 140 (1962). See generally People v. Graham, 71 Cal. 2d 303 (1969) (shod foot may in certain circumstances be a dangerous weapon); People v. Raleigh, 128 Cal. App. 105 (1932).

In sum, the issue, where a neutral object is involved, 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. [Note 6]

We must go a step further in this case to determine whether the jury were properly instructed and had before them sufficient evidence to find that the dog was a dangerous instrumentality. The defendant argues that the judge erroneously instructed the jury to evaluate whether the dog was dangerous solely on the animal's subjective impression to the victim. The judge stated that an instrumentality could be found to be a dangerous

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weapon if it reasonably appeared capable of inflicting bodily harm. [Note 7] This was a proper statement of the law.

Finally, there was sufficient evidence for the jury to find that the dog was in these circumstances a dangerous weapon within the provisions of G. L. c. 265, Section 17: the dog entered the victim's bedroom with the defendant who was carrying a knife; roamed about the room while the defendant searched for goods, moving within close proximity to the victim; and answered to the defendant's orders. A German shepherd is a relatively large and well known breed with the physical capability of inflicting harm. Further, the defendant did tell the victim that he would kill the victim if he lied to him. These are objective facts that could reasonably have persuaded the jury. Moreover it is a well known fact, one judicially noticed by the Appeals Court, that dogs may be trained to attack persons. See the statutes and cases cited in the opinion of the Appeals Court, Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 486-487 (1974). Given these facts the jury clearly had sufficient evidence to find that the victim's fear was reasonable and was intentionally caused by the defendant through the instrumentality of the dog in order to facilitate the theft.

Judgment of Superior Court affirmed.