FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106
Go to Volume 7 Table of Contents - Go to Chapter 106 Table of Contents

106.4 Weapons Or Firearms Possession: Defenses And Defense Theories

    106.4.4 Dangerous Or Deadly Weapons: Defense Theory That Weapon Was Not Deadly Or Dangerous

    106.4.4.1 Dangerous Or Deadly Weapon Defined: Federal Circuit Model Instructions And Notes
    106.4.4.2 Dangerous Or Deadly Weapon Defined: Defense Theory That Victim's Reaction Permits Inference That Weapon Was Not Dangerous Or Deadly
    106.4.4.3 Dangerous Or Deadly Weapon Defined: Defense Theory That Manner Of Use Permits Inference That Weapon Was Not Dangerous Or Deadly
    106.4.4.4 Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
    106.4.4.5 Vehicle As Deadly Weapon: Defense Theory That Defendant Did Not Intend To Use The Vehicle As A Weapon
    106.4.4.6 Deadly Weapon Defined: Defense Theory That Firearm Was Not Operable
    106.4.4.7 Deadly Weapon Defined: Defense Theory That Weapon Was Unloaded
    106.4.4.8 Use Of Deadly Or Dangerous Weapon: Starter Pistol Not Sufficient
    106.4.4.9 Victim's Apprehension Insufficient To Prove That Weapon Was Dangerous
    106.4.4.10 Victim's Belief May Be Relevant To Use Of Weapon But Weapon Must Be Present
    106.4.4.11 Dangerous Or Deadly Weapon Defined: Consideration Of Manner Of Use And Overall Circumstances
    106.4.4.12 Dangerous Or Deadly Weapon: Object Or Instrumentality Not Controlled By The Defendant
    106.4.4.13 Dangerous Or Deadly Weapon: Whether Bare Hands Are A Deadly Weapon
    106.4.4.14 Dangerous Or Deadly Weapon: Jury Should Determine

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

  106.4.4.1    Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes

    See FORECITE National™ Federal Models By Offense: Assaulting A Federal Officer (Without Use Of A Deadly Weapon) (18 USC 111(a)(1)).

    See FORECITE National™ Federal Models By Offense: Assaulting A Federal Officer (With Use Of A Deadly Weapon Or Inflicting Bodily Injury) (18 USC 111(b)).

    See FORECITE National™ Federal Models By Offense: Assault with Dangerous Weapon (18 USC 113(a)(3)).

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: The victim’s reaction may be relevant to whether the instrumentality was used as a "dangerous weapon." (See State v. Green (LA 1982) 409 So2d 563, 565 [toy gun a "dangerous weapon" if it creates circumstances likely to result in death or great bodily injury]; State v. Bonier (LA 1979) 367 So2d 824, 827 [victim's subjective reaction is relevant but not determinative of whether the weapon was a "dangerous weapon"].)

    But see FORECITE National™ 106.4.4.9 [Victim's Apprehension Insufficient To Prove That Weapon Was Dangerous].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

    See FORECITE National™ 106.4.4.11 [Dangerous Or Deadly Weapon Defined: Consideration Of Manner Of Use And Overall Circumstances].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

RATIONALE: Without special instruction the jury may not understand how to determine whether an instrument qualifies as a deadly weapon.

POINTS AND AUTHORITIES: Dangerous and deadly weapons into two classes. The first class includes instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons.  (People v. Graham (CA 1969) 71 C2d 303, 327 [78 CR 217].)

    Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers, hatchets and vehicles, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly as a matter of law. (Graham, 71 C2d at 327-28.) For this class of instrumentalities, which includes vehicles, the jury may not conclude that the instrumentality was a deadly or dangerous weapon unless it finds (1) that the instrument could be used as a dangerous or deadly weapon and (2) that the defendant intended so to use it. (Id. at 328.)

    See also FORECITE National™ 77.3.3.2 [Aggravated Assault: Defense Theory That The Object Used Was Not A Deadly Weapon].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

    106.4.4.5    Vehicle As Deadly Weapon: Defense Theory That Defendant Did Not Intend To Use The Vehicle As A Weapon

RATIONALE: Without special instruction the jury may improperly assume that a vehicle can be considered a dangerous or deadly weapon even if the defendant did not intend to use it as a weapon.

POINTS AND AUTHORITIES: Typically, the courts have noted that there are two classes of dangerous or deadly weapons. The first class is instrumentalities such as guns, dirks and blackjacks, which are weapons in the strict sense of the word as they are dangerous or deadly to others in their ordinary use so that, as a matter of law, they may be said to be dangerous and deadly weapons. (See People v. Graham (CA 1969) 71 C2d 303, 327 [78 CR 217].)

    Instrumentalities falling into the second class, such as ordinary razors, pocket-knives, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said to be dangerous or deadly weapons as a matter of law. (Graham, 71 C2d at 327-28.) A fact finder may only conclude that such an instrumentality is a deadly or dangerous weapon if it finds that (1) the instrument could be used as a dangerous or deadly weapon and (2) the defendant intended so to use it. (Id. at 328.)

    Under this definition, if it is alleged that a vehicle is a deadly weapon, the requisite factual findings as to both the capability and intended use of the vehicle must be made by the jury. (See e.g., State v. Cappe (AZ 1979) 594 P2d 115, 116-17 [burden of showing that accused actually intended to harm victim is met only if vehicle was aimed at the victim with the actual intent to use the automobile as a deadly weapon].)

    See also FORECITE National™ 77.3.3.2 [Aggravated Assault: Defense Theory That The Object Used Was Not A Deadly Weapon].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

    106.4.4.6    Deadly Weapon Defined: Defense Theory That Firearm Was Not Operable

RATIONALE: It would be inconsistent with the public policy underlying firearm possession criminal statutes to punish possession of an inoperable firearm.

POINTS AND AUTHORITIES: Where a firearm is defined in terms of capability to propel a dangerous projectile, it has been recognized that inoperability of the firearm may be a defense. (See MICHIGAN CRIMINAL JURY INSTRUCTIONS 11.6 [Weapons--Defense--Firearm Inoperable] (ICLE, 2nd ed. 1999); see also People v. Longshore (NY 1995) 86 NY2d 851, 852; People v. Todd (NY 1992) 582 NYS2d 352, 354 [attempted possession of weapon appropriate where weapon was loaded but inoperable due to defective spring]; but see State v. Rardon (WI 1994) 518 NW2d 330, 331 [operability not element of possession of firearm by exfelon]; Rogers v. Commonwealth (VA 1992) 418 SE2d 727, 729 [defendant guilty of possession even though weapon did not have firing pin]; State v. Orlando (NJ 1993) 634 A2d 1039, 1045 [same].)

    However, the defense has been held inapplicable to temporary inoperability. (See People v. Hill (MI 1989) 446 NW2d 140, 146 [firearm which can be made operable within a reasonable period of time was held to fall within the purview of the statutes governing use and possession of firearms].)

    See also FORECITE National™ 106.4.4.7 [Deadly Weapon Defined: Defense Theory That Weapon Was Unloaded].

    See also FORECITE National™ 106.4.4.8 [Use Of Deadly Or Dangerous Weapon: Starter Pistol Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

USE NOTE: In Michigan the operability of the firearm issue does not need to be presented to the jury unless the defendant first presents prima facie evidence of a lack of operability. Thereafter, it is the prosecution’s burden to prove beyond a reasonable doubt that the firearm was operable. (See People v. Gardner (MI 1992) 487 NW2d 515, 516.)

RESEARCH NOTES:

Annotation, Fact That Gun Was Broken, Dismantled, Or Inoperable As Affecting Criminal Responsibility Under Weapons Statute, 81 ALR4th 745 (1990).

Wharton’s Criminal Law (West, 15th ed. 1993) § 180, pp. 421-425.

See also generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION:

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: "An unloaded gun, when pointed at another, is not a deadly weapon; but, when used as a bludgeon, may or may not qualify as such a weapon, depending upon its size, weight and manner of use." (Wharton’s Criminal Law (West, 15th ed. 1993) § 197, pp. 474-75.)

    See also FORECITE National™ 77.1.3.9 [Attempted-Battery Assault: Intent To Frighten As Defense Theory].

    See also FORECITE National™ 77.1.3.13 [Attempted-Battery Assault: Present Ability Defined -- Unloaded Gun].

    See also FORECITE National™ 106.4.4.6 [Deadly Weapon Defined: Defense Theory That Firearm Was Not Operable ].

RESEARCH NOTES:

Annotation, Fact That Gun Was Unloaded As Affecting Criminal Responsibility, 68 ALR4th 507 (1989).

See also generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: A starter pistol, is not an inherently dangerous or deadly weapon and, therefore, cannot support an enhancement for use of a deadly or dangerous weapon unless there is evidence that it was going to be used as a bludgeon. (See People v. Godwin (CA 1996) 50 CA4th 1562, 1574 [58 CR2d 545].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: "Whether an object is a dangerous weapon is not dependent upon the victim’s belief that the object is a dangerous weapon. Whether an object is a dangerous weapon depends upon the object itself and how it is use[d]." (People v. Barkley (MI 1986) 390 NW2d 705, 707; People v. Stevens (MI 1980) 297 NW2d 120, 121 [victim’s apprehension cannot transform an inoperable pistol into a dangerous weapon].)

    But see FORECITE National™ 106.4.4.2 [Dangerous Or Deadly Weapon Defined: Defense Theory That Victim's Reaction Permits Inference That Weapon Was Not Dangerous Or Deadly].

RESEARCH NOTES:

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: The victim does not have to actually see the firearm in order for it to be displayed. Display includes not only exhibiting it to sight but also manifesting it to the victim’s senses and causing the victim to believe the firearm is present. (Yarborough v. Commonwealth (VA 1994) 441 SE2d 342, 344.)

    However, the prosecution still has the burden of proving that the defendant actually possessed a firearm. The possession of a firearm is an essential element and the fact that the victim merely thought or perceived that the defendant was armed was insufficient to prove that he actually possessed a firearm. (Yarborough v. Commonwealth (VA 1994) 441 SE2d 342, 344; see also Brooks v. State (MD 1989) 552 A2d 872, 875-80 [rejecting previous decisions which suggested that subjective belief in the presence of a weapon by the victim and the resulting intimidation from such belief was sufficient to establish use of a dangerous or deadly weapon].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

RATIONALE: In some situations the jury will have to consider the manner of use and the overall circumstances to determine whether an object should be found to be a dangerous or deadly weapon.

POINTS AND AUTHORITIES: "A 'deadly weapon' is any object or instrument that is likely to cause death or great bodily injury because of the manner and under the circumstances, in which it is used." (Strickler v. Murray (VA 1995) 452 SE2d 648, 650; see also State v. Gotcher (WA 1988) 759 P2d 1216, 1219.)

    "'Circumstances' include 'the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted...Ready capability is determined in relation to surrounding circumstances with reference to potential substantial bodily harm.'" (State v. Shilling (WA 1995) 889 P2d 948, 950 [citations omitted].)

    "The dangerous or deadly character of a weapon is determined by the effect likely to be produced by it. Such a weapon may be defined as any instrument which will cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction." (Wharton’s Criminal Law (West, 15th ed. 1993) § 197, p. 467.)

    "...[Some weapons] are lethal or not depending upon their capability of producing death or great bodily harm in the manner in which they are used." [Emphasis added.] [Footnote omitted.] (Id. at p. 469.)

    "[W]hat constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to '...endanger life or inflict great bodily harm.' [Citation.] Factors relevant to this determination include the circumstances under which the object is used and the size and condition of the assaulting and assaulted persons." (U.S. v. Bey (5th Cir. 1982) 667 F2d 7, 11; see also U.S. v. Johnson (4th Cir. 1963) 324 F2d 264, 266 [metal and plastic chair can be "dangerous weapon"]; U.S. v. Gibson (6th Cir. 1990) 896 F2d 206, 210 [speeding car as "dangerous weapon"]; U.S. v. Moore (8th Cir. 1988) 846 F2d 1163, 1167 [mouth and teeth of HIV positive inmate were "dangerous weapons" despite lack of proof that HIV or AIDS could be transferred by a bite; a bite's potential for "serious infection" from various kinds of germs presents the possibility of "serious bodily harm"]; U.S. v. Riggins (9th Cir. 1994) 40 F3d 1055, 1056 [age of victim as factor in determining whether object was dangerous weapon; belt and shoe can be "dangerous weapons" when used against a young child]; see also Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 4.04, comment [Dangerous Weapons] ["The 'manner of use' is critical in determining whether or not a particular instrumentality is a 'dangerous weapon.' [Citations.]"].)

    See also FORECITE National™ 106.4.4.6 [Deadly Weapon Defined: Defense Theory That Firearm Was Not Operable].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    "Dangerous instrument" means anything that is readily capable of causing death or serious physical injury under the circumstances in which it is [used] [attempted to be used] or [threatened to be used].

[See generally Wharton’s Criminal Law (West, 15th ed. 1993) § 197, p. 467; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI Inst. 1.058 [Dangerous Instrument Defined] (CLE State Bar of Arizona, 1996).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: An object which the defendant cannot control may or may not be considered a dangerous weapon. For example, it has been held that throwing a person in the ocean does not constitute the use of a deadly weapon. (See Commonwealth v. Shea (MA 1995) 644 NE2d 244, 249 [ocean was not a "dangerous weapon" even though victims were thrown overboard in choppy waters five miles from shore where no other boats were in sight].) However, an object’s stationary character does not prevent its use as a dangerous weapon. (See e.g., U.S. v. Murphy (4th Cir. 1994) 35 F3d 143, 147 [steel cell bars]; Commonwealth v. Sexton (MA 1997) 680 NE2d 23, 26 [concrete pavement was deadly weapon]; see also State v. Brinson (NC 1994) 448 SE2d 822, 825 [cell bars and floor]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.15, fn. 66.1; but see State v. Houck (FL 1995) 652 So2d 359, 360 [pavement not a dangerous or deadly weapon].)

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

    See FORECITE National™ 77.3.3.1 [Assault With Deadly Weapon: Defense Theory That Bare Hands Or Feet Are Not Deadly Weapons].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 106

PRACTICE NOTE: "Whether a weapon is deadly or dangerous is ordinarily a question of fact to be determined by all the attendant circumstances, and especially by the mode of use." [Footnote omitted.] (Wharton’s Criminal Law (West, 15th ed. 1993) § 197, p. 469; see also Wharton’s Criminal Law (West, 15th ed. 1993) § 197, pp. 470-75 [examples of deadly weapons].)

See generally, FORECITE National™ 305.23.1 [Weapons Offenses].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally FORECITE National™ 106.4.4.1 [Dangerous Or Deadly Weapons: Federal Circuit Model Instructions And Notes].