## Facts

- Melkon Varadian and his wife owned and operated the Public Street Market, a neighborhood grocery store in Providence, Rhode Island.
- On February 6, 1987, Zachary Spratt (a taller man Varadian recognized as a prior customer) entered the store with Julio Holley.
- Spratt ordered meats slowly at the counter while Holley paced in the aisles; Varadian became suspicious and watched them closely.
- Varadian saw Spratt place two cans of tuna fish into his jacket pocket while the men were still in the store and before any confrontation at the counter.
- After Varadian rang up the purchases, Spratt complained about the prices and began taking items out of the grocery bag.
- Varadian told Spratt to remove the tuna fish from his pocket and leave the store.
- Spratt nodded to Holley; Holley came to the counter, pressed a gun into Varadian’s stomach, and a struggle followed.
- Holley struck Varadian, dragged him across the store, threw him to the floor, and beat him in the face with the gun.
- While Holley assaulted Varadian, Spratt went behind the counter and tried to open the cash register but did not succeed.
- Varadian broke free and ran toward the phone; Spratt and Holley fled.
- No money was taken from the register, and no items were taken during the assault; the only property carried away was the two tuna cans already in Spratt’s pocket.
- Holley was tried and convicted of robbery and conspiracy to commit robbery and received a lengthy sentence; he appealed, challenging (among other issues) the robbery conviction and raising claims about photo identification, jury selection, and charging delay.

## Issues

1. Whether the evidence supported a robbery conviction when the only property carried away (two cans of tuna) was taken before the use of force and no money was obtained from the cash register.
2. If robbery was not proved, whether the Supreme Court could modify the judgment to the lesser offense of assault with intent to rob rather than ordering an acquittal.
3. Whether the photographic identification procedures were so suggestive that admitting the identification violated due process.
4. Whether the prosecutor’s peremptory strike of the only Black venire member violated equal protection under Batson v. Kentucky.
5. Whether pre-charge delay violated due process because it caused actual prejudice or reflected improper prosecutorial purpose.

## Decision

- The robbery conviction was vacated because the evidence did not show a taking accomplished by force or intimidation.
- The judgment was modified to the lesser included offense of assault with intent to rob, and the case was remanded for entry of judgment and resentencing on that offense.
- The conspiracy to commit robbery conviction was affirmed.
- The court rejected Holley’s challenge to the photo identification procedures and upheld admission of the identification evidence.
- The court rejected the Batson claim, accepting the prosecutor’s stated, race-neutral reason for the peremptory strike.
- The court rejected the due process claim based on pre-charge delay.

## Legal Principles

- Rhode Island applies the common-law definition of robbery: the felonious and forcible taking from the person (or presence) of another by violence or by putting the victim in fear.
- For robbery, the violence or intimidation must accompany or precede the taking; force used only after a completed larceny does not transform that larceny into robbery.
- When defendants use violence while attempting to steal but do not complete a taking by means of that violence, the conduct can support assault with intent to rob rather than robbery.
- An appellate court may modify a conviction to a lesser included offense when the jury was instructed on the lesser offense and the evidence would support conviction on that lesser offense.
- Photo identification evidence violates due process only if police procedures were unnecessarily suggestive and created a substantial likelihood of misidentification; otherwise the identification is for the jury to weigh.
- Under Batson, once a defendant makes a prima facie showing of discrimination, the State must offer a race-neutral explanation, and the trial court determines whether purposeful discrimination was proved; demeanor-based reasons may qualify as race-neutral if credited by the trial justice.
- A due process claim based on pre-charge delay generally requires a showing of actual prejudice and improper government purpose; without both, the claim fails.

## Conclusion

Because the only completed taking was the tuna that Spratt had already pocketed before Holley used force, and the later gun assault accompanied only an unsuccessful attempt to obtain cash, the evidence did not establish robbery but did establish assault with intent to rob; the Supreme Court therefore modified the robbery conviction to the lesser offense, affirmed the conspiracy conviction, rejected Holley’s identification, jury-selection, and delay claims, and remanded for entry of the modified judgment and resentencing.


State v. Holley, 604 A.2d 772 (1992)