*1 WILBURN, Appellant, Essamond Kentucky,
COMMONWEALTH
Appellee.
No. 2008-SC-000787-MR. Kentucky.
Supreme Court 18,
March 2010.
Rehearing Denied June 2010. *2 African-American against an
tory strike below, we reasons stated juror. For the remand in and reverse and part affirm part. AND
FACTUAL PROCEDURAL
BACKGROUND most favorable to the verdict light In the about 12:30 are as follows. At the facts 18, 2007, morning April on the a.m. Terrance, brother, at- and his Wilburn locat- Expressway Liquors to rob tempted Louisville, Kentucky. ed on Lee Street as the They used their father’s 1989 Volvo getaway car. Erik evening night manager
That Buss- work- employee man Scott Reid were and they were ing liquor at the store. As beginning closing procedures, their Wil- the store with burn and Terrance entered .38 caliber carrying in the lead a Wilburn Metro Pub- Goyette, Daniel T. Louisville at pointed pistol revolver. Wilburn Lambert, Defender, Cicely lic Jaraez As- Reid and stated to the effect “we are here Defender, Hall Appellante sistant Charles money; your buddy we know for the Defender, Stopher, Public Louis- Assistant there.” back ville, KY, Appellant. Counsel per- Bussman was stock room General, Conway, Attorney Jack Ste- closing when the men forming his duties phen Bryant Humphress, Assistant Attor- the stock arrived. Wilburn went toward General, ney Appeals, Office of Criminal Bussman, room, pointed at and Frankfort, KY, Appellee. Counsel for however, did pulled trigger; .38 grabbed not fire. Bussman the store’s Justice Opinion of to the revolver from the shelf next caliber VENTERS. shots, He fired three stock room door. Wilburn, appeals Appellant, Essamond immediately fled the and the two robbers jury ver- judgment upon from a entered store and ran different directions. by the convict- dict Jefferson Circuit Court responders Police drove the area search- burglary, him two ing first-degree A short distance from ing for the robbers. first-degree robbery, counts of and of be- Street, store, Floyd police- on liquor ing persistent felony of- second-degree long af- apprehended man Terrance. Not fender. He sentenced to a total of 20 to the at- terward Terrance confessed years appeals to serve. He now his con- robbery and identified Wilburn as tempted Ky. right pursuant viction as a matter of Wilburn accomplice. his He also identified 110(2)(b), alleging § that he was Const. gunman. entitled to a directed verdict on the bur- Singer, Kenneth glary morning, The next charges store, liquor found a .38 improperly peremp- used a owner of the Commonwealth unlawfully near the business. The did not remain caliber revolver once his license loaded, ex- perhaps agree was not was revoked. with We Wilburn that night not fire the plains why did unlawfully” the “enters or remains element *3 Meanwhile, robbery. a box .38 containing met, and, burglary charge of the was not caliber bullets in the getaway was found consequently, first-degree reverse the bur- car, suggests the Wilburn glary conviction. simply forgotten
brothers
have
to
On a motion for a directed ver
robbery attempt.
load the
before the
dict,
judge
the trial
must draw all fair and
In July
upon
Wilburn was tried
reasonable inferences from the evidence in
charges
first-degree burglary,
two
favor of the Commonwealth. Common
robbery,
of first-degree
counts
and as be-
Benham,
wealth v.
(Ky.
At 511.020(1), the conclusion of the trial Wilburn provides as follows: charges. was convicted all He was sen- , (1) person guilty A burglary in the years tenced to 15 enhanced to 20 on each when, degree first with the intent charges. three All sentences were crime, knowingly he enters or commit a concurrently ordered to run for a total of unlawfully building, remains in a to serve. years appeal This followed. in effecting entry when or while in the 1) presents arguments: Wilburn three building or in the flight immediate that he was entitled to a directed verdict therefrom, he or another participant 2) burglary charge; on the that he was the crime: entitled to directed verdict on the two (a) explosives Is armed with or a 3) robbery charges; the Com- deadly weapon; or monwealth improperly peremptory used a (b) physical injury any per- Causes strike on an juror. African-American participant son who is not a in the I. WILBURN WAS ENTITLED crime; A TO
DIRECTED VERDICT ON THE (c) or threatens Uses use of a BURGLARY CHARGE dangerous against any instrument Wilburn contends that he is enti person participant who is not a tled to a directed verdict on the first- crime. degree burglary charge because he did not added). (Emphasis enter unlawfully or remain on the premis liquor es of the He argues store. that the Also relevant to our review is the General liquor public place store is a that he burglary chapter, was Provisions statute of the enter, licensed to immediately and that he provides, 511.090. It relevant fled following gunshots, Bussman’s part, and so as follows: above,
(1) as stated we background remains unlaw- factual “enters or person A law, that, he is as a matter of he upon premises when must conclude fully” in or or licensed to do so. privileged not not. did who, in- (2) regardless of his person A firing that Bussman’s agrees Wilburn tent, prem- in or upon or remains enters equiva- at him was the functional open at the time to the are ises which lawful personally lent of a communicated privilege so with license does public not to re- person order an authorized a lawful order not to he defíes unless store, point and that at that main personally communicat- remain enter or to remain in the store Wilburn’s license *4 premises the owner of such to him ed 511.090(2). However, KRS was revoked. person. authorized or other did not remain juncture, at that Wilburn favorable to the Com- light the most In rather, he fled imme- upon premises; the monwealth, present- relevant evidence fact, we must diately. upon Based (1) at following: discloses the ed at trial to remain conclude that once his license morning April 12:30 a.m. on the about revoked, un- was Wilburn did not “remain 18, 2008, open for liquor store was upon premises liquor of the lawfully”
business, including
public;
to the walk-in
committing
store with the intent
(2) Wilburn,
be-
following
with his brother
It follows that his conviction must
crime.
an
hind,
the store armed with
entered
provision
likewise fail under this
(3)
revolver;
caliber
Wilburn
unloaded .38
first-degree burglary statute.
money
attempted
and
to shoot
demanded
(4)
empty gun;
with the
Buss-
brief contains lit-
Bussman
The Commonwealth’s
grabbed
the store’s
and
quickly
countervailing analysis. merely
man
tle
It
cites
(5)
Wilburn;
Commonwealth,
his
it at
Wilburn and
v.
Bowling
fired
us to the cases
(6)
quickly
possible;
as
and
(Ky.1997),
Fugate
brother fled
and
first gas in the course of a station rob victims public. though So even Wil- open to the bery money and then fled with stolen from the intent to rob the business burn had Bowling, at 307. business. S.W.2d entered, provides the statute when he Similarly, Fugate, initially the defendant privileged he was licensed or nevertheless went to the victim’s home for a social visit entry. initial It fol- upon to be there his Subsequently, and was invited in. howev prem- did not enter the lows that Wilburn er, leg, he the victim in the and then shot 511.090(2). unlawfully. KRS ises head, him. He then killing twice looking trailer “ransacked the victim’s then becomes whether Wil- question and tore the victim’s unlawfully” premis- something to steal burn “remained chain, Fu taking wallet off its the cash.” maintaining at the same time his es while at 940. upon gate, a crime. 993 S.W.2d intent to commit Based Thus, Bowling Fugate, and the defen- to commit a crime. He was entitled to a victim(s), thereby ending, killed the charge. dant directed verdict on the We ac- by implication, his license and his lawful cordingly judg- reverse the trial court’s then unlaw- presence property, on the ment of conviction on the first-degree bur- fully remained to commit an additional glary charge, and remand the cause for crime. Those are not the facts in this entry judgment acquittal. of a Nor remain commit case. did Wilburn crimes after Bussman terminated his li- II. ENTITLED WILBURN WAS NOT by firing cense the shots at him. Thus TO A DIRECTED VERDICT OF AC-
Bowling
Fugate
not analogous.1
are
QUITTAL
THE
ON
FIRST-DE-
significant
Nor is the
principle stated
GREE ROBBERY CHARGES
present
the two cases relevant to the
case.
argues
Wilburn
that he
enti
Bowling
principle
states the
as follows:
tled to a directed verdict on the two first-
511.090(2)
“[i]mplicit in
is the con-
[KRS
]
degree robbery charges on the basis that
cept
privilege expires
that license or
once
failed
prove
Commonwealth
the .38
*5
the person commits an act
inconsistent
caliber revolver he
operable,
carried was
purposes
with the
of the
Bowl-
business.
and, correspondingly,
prove
failed to
that
ing terminated his license to be on the
deadly weapon
he was armed with a
—an
premises when he committed the criminal
necessary
element
under the provision of
Similarly,
Fugate
acts.” Id. at 307.
the
first-degree robbery
the
statute Wilburn
states,
opinion
privilege granted
“the
to
charged with violating.
disagree.
was
We
doing
one
business ceases when the licen-
noted,
As
the .38 caliber pistol Wilburn
acts,
crimes,
see commits
such as
inconsis-
was
during
robbery
armed with
the
at-
tent with the business.” Id. at 940.
loaded,
tempt was not
and so it did not fire
principle
stated in the cases is
gun
when he
the
aimed
at Bussman and
sound; however,
ap-
the Commonwealth’s
pulled
trigger.
the
Bullets fitting
gun
the
plication of it to the
of
facts
this case is
vehicle,
getaway
were found in the
it is
but
principle
not. For the
apply,
to
the defen-
why
gun
unclear from the record
was
(or
perpetrate
dant must first
a crime
not loaded—whether it
forgetfulness
act)
about,
thereby
other
bringing
by obvi-
or a deliberate decision.
implication,
ous
the revocation
li-
of his
dwelling
cense to remain
or build-
Further,
if
was not tested to see
ing. He must thereafter
remain on the
capable
being
it was
of
fired when loaded.
premises with the intention to commit a Nor,
law,
state of
is
present
under
crime,
may
completion
which
be the
of the
any
why
there
reason
such tests would be
robbery
any
Only
other crime.
then
undertaken.
See Merritt v. Common-
burglary
are the elements of
satisfied un- wealth,
(Ky.1965)
As
the Commonwealth failed
if
prove
“deadly weapon”
way
either that
used in a
unlawfully
Wilburn
unlawfully
deadly
entered or
remained on the
causes the victim to believe it is a
even,
premises
liquor
of the
store with
intent
weapon,
example,
toy gun).
Commonwealth,
initially
1. We note that Tribbett
He then killed
invited into
home.
(Ky.1978),
Bowling
S.W.2d 662
cited in both
property
his host and stole
from the resi-
Fugate,
original
and
was the
decision
dence.
line
of cases.
Tribbett the defendant was
physi-
death or other
unpub-
producing
reflected in several recent
of
serious
As
injury, may
discharged[.]”
cal
decisions,
recognized
this Court has
lished
comport
fail to
that our cases
with
difficult,
impossible,
It
if not
to recon-
currently
plain language of the
enacted
language
foregoing
cile the
statutes
statutes,
robbery
principles
that the
Merritt/Kennedy concept
with the
that the
have received criticism
stated
the cases
operability
of a
is immaterial because
eminent scholars and our intermedi-
from
object
deadly
if
so as
any
is a
used
appropri-
ate court.2
this as the
We view
the victim to believe it is a
cause
opportunity
viability
weapon.
object
ate
to re-assess the
An
which cannot “dis-
shot,
charge”
“deadly
such
cannot be a
Kennedy holding
the Merritt and
500.080(4)(b),4
weapon”
KRS
under
so
statutory
provided
light of the
framework
would seem.
code,
penal
legisla-
mindful that the
ture
elect to consider the disconnect
pre-penal
Merritt
is the
code source of
holdings
between the case
and the lan-
concept
we now examine. Merritt was
involved,
take
guage
the statutes
case,
robbery
predecessor
based on the
appropriate.3
whatever
it considers
action
515.020,
433.140,
en-
KRS
robbery
hanced the sentence for a
or bur-
provides
KRS 515.020
as follows:
glary
by anyone
committed
who “uses or
(1)
person
guilty
A
displays any pistol, gun, other firearm or
when,
degree
first
in the course of com- deadly weapon” in the commission of the
theft,
mitting
he uses or threatens the
offense. The statutes then did not define
*6
physical
upon
immediate use of
force
“pistol, gun,
deadly weap-
other firearm or
person
accomplish
another
with intent to
Expressing
prosecu-
on.”
disdain for the
the theft and when he:
argument
non-operable toy
tion’s
that a
(a)
physical injury
any
to
per-
Causes
actually
“gun”,
is
a kind of
the Court
participant
son who is not a
in the
authority
with no citation of
or further
crime; or
simply
explanation,
declared that “within
(KRS 433.140)
the context of this statute
(b)
deadly
Is armed with a
weapon;
any object
by
that is-intended
its user to
or
convince the victim that it
ais
or
(c)
Uses
threatens the immediate
deadly
other
weapon and does so convince
dangerous
upon
use of a
instrument
him
Kennedy
is one.”
327 shot, contradictory language readily capable of KRS from which a ingly pro 500.080(4)(b) by referring ducing to the unofficial death or physical injury, serious commentary accompanied Nor, may discharged.” notes and can.any subjec That adoption of the current statutes. tive belief in the mind of the victim turn a commentary, part, stated: toy deadly into a In weapon. Kennedy, we disregarded express language of the ‘deadly describing
In
what constitutes
adopted by
legislature,
statutes
relying
weapon,’
Appeals recently
the Court of
on
deadly
commentary
can be a
instead
unofficial
any object
ruled that
In
doing,
if
its user to con notes.
so
we breached
intended
a funda
statutory
victim that it
if the mental rule of
vince a
construction that
victim in fact convinced. Merritt v. we ascertain the
legisla
intention of the
Commonwealth,
(Ky.
328 If, however, 515.020(b), phrase particu- refers to with ap- KRS under weapon” pistol empty whether the pistol, the words used lar then respect for propriate 500.080(4)(b) specific define sorts is critical to deter- inoperable to or otherwise KRS of a deadly weapons. if it meets the definition mining of pistol or a pistol An unloaded weapon. KRS charged under Wilburn when considered indi- firing pin, without a 515.020(l)(b), the .38 caliber and so vidually, is not one from which shot “deadly been a carrying must have he was discharged. be of the crime to that element weapon” for 500.080(4)(b) defines be satisfied. being ambiguous, we next The statute here, relevant as fol- deadly weapon, as Motor legislative Dep’t to intent. look shot, which a “Any weapon from lows: 46, Co., 47 Transp. City v. Bus 252 S.W.2d death or oth- readily capable producing (‘When ambiguous (Ky.1952) a statute is may be dis- injury, physical er serious uncertain, legislative meaning and its charged[.]” by be determined consider- intent should a statute language literal purpose If the and the ing the whole statute given be unambiguous, must is clear and refrain from inter- accomplished”). We Bailey v. written. Common effect as an ab- preting produce a statute so as to 414, wealth, (Ky.2002). 70 S.W.3d Kentucky or unreasonable result. surd plain remainder of the statute is While the Jones, Unemployment Ins. Com’n believe the first two unambiguous, we (“The (Ky.App.1991) S.W.2d “any weapon” words of the statutory duty courts have a to accord definition— —is interpretations. subject to alternative meaning literal unless to do so language its phrase we believe the specifically, More wholly or unrea- would lead to an absurd interpretation meaning either: subject to result.”). sonable (1) object, only specific “weapon”, we Applying foregoing principles, (2) crime; or particular used in the difficulty concluding have no weapons specific to which class of “any weapon” legislature’s use of the term belongs. example, For weap- apply was intended to to the class case, may be inter present language whole, weap- ons as a and not an individual preted specific pistol refer to either the falling on within the class. other Wilburn, to a class of items carried words, again using present case as an general. pistols that includes have example, legislature must intend- to the class consist- phrase If the refers *8 pistols general, ed to refer to and not generally, all then the answer ing pistols of caliber revolver that the individual .38 Wil- discharged A shot from a is self-evident. carrying night hold-up. the of the burn was (or death seri- pistol may readily produce Interpreting phrase the to refer to an it injury), ous and makes no dif- physical weapon produce individual would an ab- pistol is not particular ference whether the all, and unreasonable result. After surd loaded, firing or a missing pin, or has a rule, general common-sense the rob- barrel, as de- clogged any particular other only to the victim into ber seeks intimidate firing it from prevent fect which would property his and avoid actual things, relinquishing the sort of pistol among shot. A rob, items, weapon use of the wants to not from which death or an the class of —he Interpreting the lan- discharged. rob and murder.5 injury-causing shot course, that, weapon want to use the in order to recognize 5. We of a robber will sometimes most, robbery. refer to the individual time of the In if guage many, to not loophole allowing cases, would create a robbers robbery armed the is not imme- gain decidedly advantageous to benefit recovered, diately therefore, proof of victim, pistol actual at the pointing of an operability its impossible would be to es- him to allowing escape but conse- tablish. We do not believe the General deadly weapon quences of enhance- Assembly impose intended to such an in- first-degree robbery6 by, ment to for ex- surmountable burden on ability the state’s ample, simply removing firing pin to robbery sustain its burden in cases. this, emptying the chamber. In of view note, also in response opinion We to that could not have legislature intended the many that items used in a that do phrase “any weapon” to refer to an indi- not meet the “deadly weapon” definition of That, weapon. quite simply, vidual is an 500.080(4), under KRS interpret as we interpretation. unreasonable legisla- herein, easily would qualify “danger- punish tion is intended to deter and first- 500.080(3). ous instrument” under KRS degree robbery, not coach a armed robber do not any We foresee substantial diffi- charge. on how to avoid the culty in the practical application of our summary, we construe KRS law, interpretation of the example, 500.080(4)(b)’s “deadly weap- definition of alleged “weapon” circumstances where the generally on” as a reference to the class of is never authenticity recovered and its can- weapons may discharge a shot that readily not be Obviously, established. an readily capable producing death or unseen, Merritt, unknown item inas or an physical injury. serious A .38 caliber re- item which the witnesses clearly recognize volver, not, operable or falls into that class toy, as a will not qualify “deadly as a weapons. toy A or a water weapon” under our statute. In other in- Therefore, does not. Wilburn was armed stances, anticipate present- we do not that a deadly weapon meaning with within the ing sufficient proof object that the was a 515.020(l)(b), and he was not entitled to deadly weapon impose will an unrealistic upon grounds a directed verdict upon burden the prosecution. The victim’s prove the Commonwealth failed to his fire- description ordinarily of the item would statutory arm met the definition of a dead- provide permit sufficient evidence to ly weapon. jury to whether among decide it was recognize We this construction of legislature sort items declared 500.080(4) will, in other circum- “deadly weapon.” be a stances, yield a result different from that by Merritt/Kennedy attained rationale. III. NO BATSON VIOLATION
But,
only
fairly
it is the
construction that
OCCURRED
respects
language
lan-
guage
longer
which we no
feel constrained
Wilburn
that a violation of
contends
ignore.
Batson v. Kentucky, 476 U.S.
106 S.Ct.
*9
1712,
(1986),
We in Jus- dissenting opinion tice Noble’s that a requiring basis the Commonwealth used proof operable peremptory that the firearm was at the strike to remove African- felony. First-degree eliminate a witness. Class C KRS 515.030. felony. is a Class B KRS 515.020. here, robbery 6. As relevant without a second-degree robbery, would be a 330 Commonwealth, v. 171 S.W.3d from the venire.7 McPherson 215604
American Juror (citations 1, (Ky.2005) and footnotes proffered reason The Commonwealth’s omitted). expressed that she removing juror was friend had been that she believed a former ultimate decision The trial court’s he did not unfairly and that prosecuted finding akin to a challenge on a Batson “is he received. Wil- deserve the sentence fact, great def which must be afforded that Juror 171652was similar- argues burn by appellate erence an court.” Chatman juror. ly situated to the stricken Commonwealth, 799, 241 S.W.3d v. omitted). (citation “Deference,” (Ky.2007) 171652 had a brother who had Juror course, appellate does not mean that the prosecuted drug on and domestic vio- been powerless provide independent court is however, juror stated charges; lence Dretke, 231, review, Miller-El v. 545 U.S. he had been treated fair- that she believed (2005) 196, 2317, 162 125 S.Ct. L.Ed.2d ly. stated that she did Juror 171652 also finding of (holding that the trial court’s police appropriately not believe acted light was erroneous in non-discrimination car investigating reports when her six convincing clear evidence to the break-ins. Louisiana, 552 U.S. contrary), Snyder Wilburn asserts the Common- (2008) 472, 128 1203, S.Ct. 170 L.Ed.2d a strike to peremptory wealth’s use of (same), showing but the ultimate burden of objecting remove Juror 215604 while not discrimination rests with the chal unlawful to Juror 171652 demonstrates that the re- Chatman, Rodgers v. lenger. supra; moval of the African-American was moti- Commonwealth, 740, 285 S.W.3d 757-758 vated race. (Ky.2009). Batson, supra, the United States Su- 215604, ju- Juror the African-American preme prohibited deliberate racial ror, during stated the Commonwealth’s during jury discrimination selection. Un- voir dire that she had a friend who had Batson, recently explained, der we with gotten up mixed some trouble sev- that, trial, following eral others and three-prong inquiry in determin- aids [a] currently serving penitentiary. time in the ing prosecutor’s per- whether a use of juror although she had neither stated emptory equal pro- strikes violated the gone to court nor maintained contact with Initially, tection clause. discrimination him, character, she knew his she believed totality be inferred from the of the unfairly, he was and she be- prosecuted prosecu- relevant facts associated with a lieved that he not the sentence did deserve during tor’s conduct a defendant’s trial. During he voir received. defense counsel’s prong requires prosecutor The second dire, that her friend’s Juror 215604 stated explanation to offer a neutral for chal- 2002, would experience, happened jurors protected lenging those ability impar- not have an effect on her Finally, class. the trial court must as- tially weigh the evidence. plausibility prosecutor’s sess the explanations light juror, of all relevant evi- Juror stat- Caucasian dire prof- during dence and determine whether the ed the Commonwealth’s voir simply pleaded who had legitimate fered reasons are she had brother on pretextual against guilty for discrimination to the minimum sentences sever- targeted drug possession class. al and domestic violence *10 7. Wilburn is African-American. however, hand,
charges. say, She went on to Juror 171652 had an experience in- family fairly that he and his were treated volving her brother in which he and his by police prosecutors. and Neverthe- family fairly. Moreover, were treated less, police’s she was critical of the conduct experience with the car break-ins de- in with connection a series of car break- scribes more an experience police with juror ins. The that she stated did not incompetence opposed to outright mis- police appropriately think the acted inves- against Thus, conduct person. an innocent tigating reports her of six car break-ins jurors the two are similarly not situated at month during period, occurring a six all in all in their respective experiences with the driveway. espe- her She believed it was police prosecutors. and The risk of bias cially inappropriate they when told her against the Commonwealth is substantially that she should leave her car unlocked to different between the two In light cases. having avoid the windows broken. Ulti- of the deference with which we review the mately, she indicated that her experience trial rulings, court’s Batson we are con- with the break-ins would have no effect on strained to conclude that the trial court did her police view of witnesses. not abuse its discretion when it found that proffered Commonwealth’s race-neu- The Commonwealth’s race-neutral basis tral reason for striking Juror 117985 was striking for Juror 215604 was that pretext not a for discrimination. juror had stated that her friend had been arrested, convicted, wrongly wrongly and CONCLUSION although
received an unfair sentence. And fair, she had indicated she could be For the foregoing reasons the judgment argued Commonwealth that “because of of the Jefferson Circuit affirmed experience very with someone close to part, in in part, reversed and the cause is qualified her we don’t think she’s abe remanded for additional proceedings con- ... good juror qualified juror for the opinion. sistent with this Ultimately, Commonwealth.” the trial
court ruled that the Commonwealth’s sitting. All ABRAMSON and given strike was for a race-neutral reason CUNNINGHAM, JJ., concur.
its reasonable concern juror that the would SCHRODER, J., only concurs in result noted, continue to have poten- concerns as by SCOTT, J., separate opinion, in which to, effect, tially her causing “lock-up” at joins. point making some a decision.
Considering give deference we must NOBLE, J., by separate dissents court, to the trial unpersuaded we are MINTON, C.J., opinion joins. the Commonwealth’s different treatment (cid:127) SCHRODER, J., concurring in result of Juror 171652 and Juror 215604 estab- only. lishes that the strike was for a race-based Merritt, degrees reason. There are several agree overruling of dif- I don’t with ference between the experiences Kennedy, two relat- Helpenstine. majority’s jurors ed the two potential analysis preclude and the new would a conviction against evoke bias first-degree robbery Commonwealth. if the defendant Juror experience 215604 related an toy replica handgun, used an exact of a which, believes, she an innocent man was which produce would the same reaction in incarcerated because of unfair treatment the victim—terror and surrender by police prosecutors. On property. interpretation the other I believe such an *11 defining “deadly weapon,” legisla- intend- lead to an absurd result not
would
(1)
It is
by
Legislature.
ture drafted four clear elements.
ed
(2)
(3) may
any weapon
from which a shot
SCOTT, J., joins.
(4)
fired,
readily capable
he
and the shot is
in-
producing
physical
of
death or serious
NOBLE, J., dissenting.
jury.
object
deadly
To define an
as a
I
respect,
all due
dissent.
With
weapon,
present.
all four elements must be
extremely
rejec-
After an
well-written
First,
many,”
any may mean
out of
ignore
tion of this
cases that
“one
Court’s
“either,”
“some,”
majority
“many,”
“every,”
or
or
plain language of the statute the
(6th
Dictionai"y
“all.”
ed.
again.
ahead and does it
Black’s Law
goes
1990).
admittedly
That definition is
some-
first-degree robbery,
of
To be convicted
However,
the Black’s
ambiguous.
what
as
presented
at least under
circumstances
explains,
any
given
the word
definition
case, Appellant
in
had to have been
this
meaning
given
by
in a
statute
the context
deadly weapon.
armed with a
See KRS
Here,
subject
matter of the statute.
it
515.020(l)(b).
500.080(4)(b)
defines a
singular weapon
modifies the
in the clear
deadly weapon,
as it is used in the
weapon being
context of that
used to
a
fire
“[a]ny weapon
from which a
It
readily
shot
is the shot that must be
shot, readily capable
producing
of
death or
capable
producing
death or serious bodi-
physical
injury, may
serious
be dis
ly injury.
weapon,
Thus a
in order to be
notes,
charged.”
majority
As the
“No
statutorily deadly,
not fire paint
could
balls
amount of intent or intimidation
a rob
marshmallows,
or
because the shot would
stick,
toy gun,
ber can turn a
or a
or a
readily capable
requisite
not be
finger
pocket”
weapon,
in the
into such a
token,
injury. By the
a
weapon
same
cases,
previous
including
and our
Merritt
could not
a shot cannot be a
Commonwealth,
(Ky.
words nor can I find any weapon is to write a term into the thing in the statute that talks about a statute that is not there. This adds the either, weapons, majority “class” of as the meaning to the statute that weapons must logic, syllogism, seems able to do. The (whatev- categorized first be into a “class” applied by majority, simplest its be), parameters may er its and that terms, is as follows: capable firing entire class must be a deadly weapons 1. Pistols are because weapon, A is not a shot. class but can fire a shot. category weapons rather a into which are weapon 2. The used this ease was a separated, capable firing any- and is not pistol. thing. weapons may The class Therefore, deadly weap- 3. it must be a may firing any not be at capable shot on. time, brings us given point back logic language any hole in to the actual of the statute: gaping is that cannot be said that the in this case which a shot be dis- from shot, deadly charged. could or otherwise. fire *12 above, is, out is a Weapon, pointed person as sin- homicide—that a causing the in the context of the statute. death of gular person requires term another ap- — plication of an abstract plain meaning The of statute refers to class to the facts in question. presumably the one in weapon, ques- one
tion, firing of a If being capable shot. this Similarly, whether a given weapon, or going longstanding to disturb a pistol, even meets the statutory defini- (and precedent given how can we not we tion of a deadly weapon requires applica- clearly legislative have invaded the prov- namely, tion of the the definition laid law— ince), then we should read the statute liter- 500.080(4)(b) out in KRS In facts. —to ally arriving instead of at the same result case, those Appel- facts include that cases, previous only by a different lant was an carrying object, commonly route. which, pistol, known as a operable, while was not loaded alleged at the time of the
The majority phrase “any states crime. While it is likely that in most weapon” things: can mean one of two instances, the pistol question will meet specific weapon used the crime or a the definition in the no amount of weapons specific class of to which the logic inductive can make it true for all weapon belongs. majority The concludes pistols. latter, i.e., that the mean the statute must
a “class of weapons,” specifically that majority’s The own attempt making at consisting refers to “the class of all distinctions under this definition demon- pistols generally,” pistol because a “is problem strates with its approach. among things, the sort of concludes, class of majority items, injury-caus- from which death or an summary, we construe KRS ing may discharged.” shot be 500.080(4)(b)’s ‘deadly definition of weapon’ a generally reference to the
Yet, defining an abstract “class” is what weapons class of may discharge which a does, every statute without reference to readily shot that is capable producing acts, results, specific objects. or That ab- physical injury. death or serious A .38 applied stract class must then be to an revolver, not, caliber operable or falls individual factual scenario to see what the into that A weapons. toy gun class of is, i.e., act, legal conclusion whether the a water not. does result, object falls within the defined Yet, example, class. For if Chapter phrase “any weapon” includes homicide, illegal defines various forms of pistols, toy pistols then it includes murder, including punished which are pistols. majority at water The reason the depending different levels on the circum- would read them out of the “class” stances and characteristics of the homi- weapons is because no shot can be This, course, legally, discharged cide. That the classes are defined from them. however, not mean that a given requires application does homi- an of the definition to (a facts, placed category cide can be into whichever a determination that the facts it seems to fit best as matter of benign toy gun) legal law. The do not match the placement (weapons dangerous of the homicide into one of class from which a question those classes is a discharged). fact—wheth- shot return to This murder, definition, manslaughter, er it is a negli- rather than reliance on an homicide, inevitable, gent legally justified category, or a kill- abstract and is in ing only jury. majority’s can be made fact reflected in the own lan- —that Indeed, whether a given guage laying death is even a out the covered “class” of replace statutory majority has done is inevitably dips back
weapons, *13 which (“pistols”), class qualify- to class with another definition add “deadly weapon” amending of the majority bypasses judicially The the effect language. has ing truly objects categories replacement into Nor does this placing statute. process, qualities open it leaves the problem, reference to the solve the since without catego- object those is a given that define of whether a question characteristics ries. pistol. admittedly been ab- discussion has This fact, majority the reads the way the
stract, example a concrete will perhaps so weapon” can refer to a “any that water Imagine plastic fruitful. a prove including pistols, all effec- class of items strong with a acid such as loaded pistol remainder of the defini- tively makes the single A shot from such hydrofluoric acid. 500.080(4)(b)surplusage. in Go- tion KRS death. toy easily could maim or cause a phrase that the ing “[i]f so far as to state satisfy the weapon a would Surely such consisting [‘any weapon’] refers to a class deadly weapon, as it is a of a definition the is pistols generally, of all then answer shot, readily capa- from a “weapon which self-evident,” part in no small because a physical death or serious producing of ble readily pistol may from a discharged “shot Yet, injury, may discharged.” be under (or physical inju- produce death serious majority’s approach, pis- the such a water unnecessary the ry),” majority the renders tol, regardless of its chemical circum- 500.080(4)(b) quali- in KRS language stances, deadly weapon. is not a (and language “any weapon” the fur- fies “deadly weapon”). ther defines example is an majority’s approach The logical as in the begging question, of the majority’s approach say- The is akin to fallacy whereby point one assumes the at of “car” includes all ing that the definition fallacy begging ques- issue. “The of sedans, law, of be- four-door as a matter in taking granted precise- tion consists motor, a they cause have four wheels and ly passing in off as an dispute, what is question has no even where sedan argument really what is no more than an of “car” legal wheels and the definition your position.” Whyte, of Jamie assertion requires that the vehicle have “a motor (2005); Against Logic 108 see also Crimes com- Simply and four wheels.” because al., Logic James et Intermediate Welton you mon sense tells that the sedan is still a (4th 1962) (stating the error “is ... ed. car, wheels, tramp even without cannot proposition committed a which re- when “car,” legal requires definition of quires proof proof’). is assumed without too, of wheels. So the intuition presence the law majority, applying The rather than deadly cannot pistol that a is a (or yet, allowing jury to the a facts better object trump legal requirement that an so), simply to do assumes that the facts fall a discharge deadly able to a shot to be within the law and because legislature Had the want- deadly weapon. have been a this case was must all without simply pistols, ed to include deadly weapon. (such the abili- additional characteristics shot), it could have listed Essentially, majority ty discharge concludes that pistols deadly weapons pis- deadly weap- all pistols are because under definition this with generally capable discharging legislature tols are ons. The chose do such as weapons, But whether the item is other classes of shots. un- “blackjack” “nightstick,” a shot is exact- included capable discharging such deadly weapon. See ly thing proved. that must be All the der the definition (c)-(h). 500.080(4)(a), assumptions But even these or on factual read into the require application Also, an of the law to classes law. the more severe penalty for object given the facts to decide whether a first-degree robbery could not be avoided “blackjack” “nightstick” other fired, actually if the and citizens n weapon. class of were actually exposed to potential deadly weapon. harm of a If no one majority opinion creates a curious actually injured, then penalty for sec- argues disconnect. It that the definition *14 ond-degree robbery if first-degree suffices 500.080(4)(b) abstract, referring is robbery proven. cannot be It is not as if class, only to a which obviates the need to get defendant would an acquittal. any given weapon consider whether meets robbery the definition. But the statute argument This is similar to the facts of question requires that a defendant be this used, case. An actual hand gun was “armed with a deadly weapon.” KRS but it was not loaded. There is a certain Substituting majority’s 515.020. defi- outrage that the Appellant would use a “deadly weapon” nition of would require not, gun, loaded or because it is certainly that a defendant be “armed with a class of extremely frightening to the victim to even weapons” to be convicted. But that would gun during see a a robbery. But I agree notion, be a ridiculous as defendant can with the majority that it is per- not the only concrete, be armed with a individual spective of the victim that is by covered (or weapon weapons), not an abstraction the language of the statute. The fact is like a “class.” Reference and application not, gun not, could and did fire. We specific, to the the concrete—what the de- actually if don’t know it could have fired if actually fendant was armed with—is ines- loaded, because it was not tested. This is capable. a failure of proof, preparation, or case not The following question always must be However, statutory meaning. even if object asked: does the actual meet all Appellant could not have been convicted of statutory elements of the That definition? first-degree robbery under the plain lan- clearly gun is not the case with a that has guage of the he could have been inoperable been rendered because its bar- second-degree robbery, convicted of plugged firing rel has been or the mecha- is all proof established. nism has been broken. question The is argument reading There is also the closer gun where the is not but loaded literally the statute would make a convic- otherwise operable. tion more difficult when weapon could argument The has been made that a not be found. This is simply problem a literal interpretation of the statute would any Certainly, under test. when weapon a allow criminal defendants to outsmart the trial, missing jury at only rely can
justice system by removing firing pin testimony on the of witnesses. If a wit- from a a robbery after and thus avoid fired, actually ness testifies that a shot was robbery first conviction. This is not a great then there is no difficulty getting law; problem with the it is problem of first-degree robbery if conviction proof. Many prove, crimes are difficult jury believes the witness. But if a witness part tamper because criminals with evi- merely gun, example, describes a hand dence after the fact. jury how does the if really know it this, just
I not Air any replica, am troubled because an Soft which is conviction should exactly popu- stand on the evidence made to scale and that is so alone, not on what the might youngsters today? majority evidence lar with toy guns intend to include not
says does test, differ- but how can the
in its “class” a convic- If the fear is that told?
ence be when there is no obtained cannot be
tion trial, majority opinion does at fear, correctly since it
not eliminate subjective perspective away with
does victim. why understand
I cannot simply to save a first- compelled feels so when the evi- robbery conviction
degree it. If all the evi- support not
dence does second-degree is a supports
dence
conviction, justice real then there is no first-degree robbery conviction
making a What is the Court speculation.
out of im- accomplish, and more
really trying It is not why doing is it this?
portantly, rather duty to rewrite the but
our it is written. interpret it as Robbery charges
I reverse on the would a new trial.
and remand for
MINTON, C.J., joins. PADGETT, Appellant,
Mark Kentucky,
COMMONWEALTH
Appellee.
No. 2008-SC-000632-MR. Kentucky.
Supreme Court 18, 2010.
March
Rehearing Denied June 2010.