Wilburn v. Commonwealth

NOBLE, J.,

dissenting.

With all due respect, I dissent.

After an extremely well-written rejection of this Court’s cases that ignore the plain language of the statute the majority goes ahead and does it again.

To be convicted of first-degree robbery, at least under the circumstances presented in this case, Appellant had to have been armed with a deadly weapon. See KRS 515.020(l)(b). KRS 500.080(4)(b) defines a deadly weapon, as it is used in the robbery statute, as “[a]ny weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged.” As the majority notes, “No amount of intent or intimidation by a robber can turn a toy gun, or a stick, or a finger in the pocket” into such a weapon, and our previous cases, including Merritt v. Commonwealth, 386 S.W.2d 727 (Ky.1965), Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky.1976), and others, clearly disregarded the plain language of the statute in so holding.

But I can’t read any ambiguity in the words “any weapon,” nor can I find anything in the statute that talks about a “class” of weapons, either, as the majority seems able to do. The logic, or syllogism, applied by the majority, in its simplest terms, is as follows:

1. Pistols are deadly weapons because a pistol can fire a shot.

2. The weapon used in this ease was a pistol.

3. Therefore, it must be a deadly weapon.

The gaping hole in this logic is that it cannot be said that the gun in this case could fire a shot, deadly or otherwise. In defining “deadly weapon,” the legislature drafted four clear elements. It is (1) any weapon (2) from which a shot (3) may he fired, (4) and the shot is readily capable of producing death or serious physical injury. To define an object as a deadly weapon, all four elements must be present.

First, any may mean “one out of many,” or “some,” “many,” “either,” “every,” or “all.” Black’s Law Dictionai"y 94 (6th ed. 1990). That definition is admittedly somewhat ambiguous. However, as the Black’s definition explains, the word any is given meaning in a given statute by the context and subject matter of the statute. Here, it modifies the singular weapon in the clear context of that weapon being used to fire a shot It is the shot that must be readily capable of producing death or serious bodily injury. Thus a weapon, in order to be statutorily deadly, could not fire paint balls or marshmallows, because the shot would not be readily capable of the requisite injury. By the same token, a weapon that could not fire a shot cannot be a deadly weapon. No one word in the statute has any more importance in meaning than the others.

Second, to suggest that a “class of weapons” should be substituted for the term any weapon is to write a term into the statute that is not there. This adds the meaning to the statute that weapons must first be categorized into a “class” (whatever its parameters may be), and that the entire class must be capable of firing a shot. A class is not a weapon, but is rather a category into which weapons are separated, and is not capable of firing anything. The weapons in the class may or may not be capable of firing a shot at any given point in time, which brings us back to the actual language of the statute: any weapon from which a shot may be discharged.

*333 Weapon, as pointed out above, is a singular term in the context of the statute. The plain meaning of the statute refers to one weapon, presumably the one in question, being capable of firing a shot. If this Court is going to disturb longstanding precedent (and how can we not given we have clearly invaded the legislative province), then we should read the statute literally instead of arriving at the same result of the previous cases, only by a different route.

The majority states that the phrase “any weapon” can mean one of two things: the specific weapon used in the crime or a class of weapons to which the specific weapon belongs. The majority concludes that the statute must mean the latter, i.e., a “class of weapons,” and specifically that it refers to “the class consisting of all pistols generally,” because a pistol “is among the sort of things, the class of items, from which death or an injury-causing shot may be discharged.”

Yet, defining an abstract “class” is what every statute does, without reference to specific acts, results, or objects. That abstract class must then be applied to an individual factual scenario to see what the legal conclusion is, i.e., whether the act, result, or object falls within the defined class. For example, KRS Chapter 507 defines various forms of illegal homicide, including murder, which are punished at different levels depending on the circumstances and characteristics of the homicide. That the classes are defined legally, however, does not mean that a given homicide can be placed into whichever category it seems to fit best as matter of law. The placement of the homicide into one of those classes is a question of fact — whether it is a murder, a manslaughter, a negligent homicide, or a legally justified killing — that can only be made by a jury. Indeed, whether a given death is even a homicide — that is, a person causing the death of another person — requires the application of an abstract class to the facts in question.

Similarly, whether a given weapon, or even a pistol, meets the statutory definition of a deadly weapon requires application of the law — namely, the definition laid out in KRS 500.080(4)(b) — to the facts. In this case, those facts include that Appellant was carrying an object, commonly known as a pistol, which, while operable, was not loaded at the time of the alleged crime. While it is likely that in most instances, the pistol in question will meet the definition in the statute, no amount of inductive logic can make it true for all pistols.

The majority’s own attempt at making distinctions under this definition demonstrates the problem with its approach. The majority concludes,

In summary, we construe KRS 500.080(4)(b)’s definition of ‘deadly weapon’ as a reference generally to the class of weapons which may discharge a shot that is readily capable of producing death or serious physical injury. A .38 caliber revolver, operable or not, falls into that class of weapons. A toy gun or a water pistol does not.

Yet, if the phrase “any weapon” includes pistols, then it includes toy pistols and water pistols. The reason the majority would read them out of the “class” of weapons is because no deadly shot can be discharged from them. This, of course, requires an application of the definition to the facts, a determination that the facts (a benign toy gun) do not match the legal class (weapons from which a dangerous shot may be discharged). This return to the definition, rather than reliance on an abstract category, is inevitable, and is in fact reflected in the majority’s own language laying out the covered “class” of *334 weapons, which inevitably dips back in the “deadly weapon” definition to add qualifying language. The majority bypasses this process, placing objects into categories without reference to the qualities and characteristics that define those categories.

This discussion has been admittedly abstract, so perhaps a concrete example will prove fruitful. Imagine a plastic water pistol loaded with a strong acid such as hydrofluoric acid. A single shot from such a toy could easily maim or cause death. Surely such a weapon would satisfy the definition of a deadly weapon, as it is a “weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged.” Yet, under the majority’s approach, such a water pistol, regardless of its chemical circumstances, is not a deadly weapon.

The majority’s approach is an example of begging the question, as in the logical fallacy whereby one assumes the point at issue. “The fallacy of begging the question consists in taking for granted precisely what is in dispute, in passing off as an argument what is really no more than an assertion of your position.” Jamie Whyte, Crimes Against Logic 108 (2005); see also James Welton et al., Intermediate Logic 256 (4th ed. 1962) (stating the error “is ... committed when a proposition which requires proof is assumed without proof’). The majority, rather than applying the law to the facts (or better yet, allowing a jury to do so), simply assumes that the facts fall within the law and that because the gun in this case was a pistol it must have been a deadly weapon.

Essentially, the majority concludes that all pistols are deadly weapons because pistols are generally capable of discharging deadly shots. But whether the item is capable of discharging such a shot is exactly the thing that must be proved. All the majority has done is replace the statutory class with another class (“pistols”), which has the effect of judicially amending the statute. Nor does this replacement truly solve the problem, since it leaves open the question of whether a given object is a pistol.

In fact, the way the majority reads the statute, that “any weapon” can refer to a class of items including all pistols, effectively makes the remainder of the definition in KRS 500.080(4)(b) surplusage. Going so far as to state that “[i]f the phrase [‘any weapon’] refers to a class consisting of all pistols generally, then the answer is self-evident,” in no small part because a “shot discharged from a pistol may readily produce death (or serious physical injury),” the majority renders unnecessary the language in KRS 500.080(4)(b) that qualifies the language “any weapon” (and further defines “deadly weapon”).

The majority’s approach is akin to saying that the definition of “car” includes all four-door sedans, as a matter of law, because they have four wheels and a motor, even where the sedan in question has no wheels and the legal definition of “car” requires that the vehicle have “a motor and four wheels.” Simply because common sense tells you that the sedan is still a car, even without wheels, cannot tramp the legal definition of “car,” which requires the presence of wheels. So too, the intuition that a pistol is a deadly weapon cannot trump the legal requirement that an object be able to discharge a deadly shot to be a deadly weapon. Had the legislature wanted to simply include all pistols, without additional characteristics (such as the ability to discharge a shot), it could have listed pistols under the definition of deadly weapons. The legislature chose to do this with other classes of weapons, such as “blackjack” and “nightstick,” included under the definition of deadly weapon. See *335 KRS 500.080(4)(a), (c)-(h). But even these classes require an application of the law to the facts to decide whether a given object is a “blackjack” or “nightstick” or other class of weapon.

The majority opinion creates a curious disconnect. It argues that the definition in KRS 500.080(4)(b) is abstract, referring only to a class, which obviates the need to consider whether any given weapon meets the definition. But the robbery statute in question requires that a defendant be “armed with a deadly weapon.” KRS 515.020. Substituting the majority’s definition of “deadly weapon” would require that a defendant be “armed with a class of weapons” to be convicted. But that would be a ridiculous notion, as defendant can only be armed with a concrete, individual weapon (or weapons), not an abstraction like a “class.” Reference and application to the specific, the concrete — what the defendant was actually armed with — is inescapable.

The following question must always be asked: does the actual object meet all elements of the statutory definition? That clearly is not the case with a gun that has been rendered inoperable because its barrel has been plugged or the firing mechanism has been broken. The question is closer where the gun is not loaded but is otherwise operable.

The argument has been made that a literal interpretation of the statute would allow criminal defendants to outsmart the justice system by removing the firing pin from a gun after a robbery and thus avoid a robbery first conviction. This is not a problem with the law; it is problem of proof. Many crimes are difficult to prove, in part because criminals tamper with evidence after the fact.

I am not troubled by this, because any conviction should stand on the evidence alone, not on what the evidence might be or on factual assumptions read into the law. Also, the more severe penalty for first-degree robbery could not be avoided if the gun was actually fired, and citizens were actually exposed ■ to the potential harm of a deadly weapon. If no one is actually injured, then the penalty for second-degree robbery suffices if first-degree robbery cannot be proven. It is not as if the defendant would get an acquittal.

This argument is similar to the facts of this case. An actual hand gun was used, but it was not loaded. There is a certain outrage that the Appellant would use a gun, loaded or not, because it is certainly extremely frightening to the victim to even see a gun during a robbery. But I agree with the majority that it is not the perspective of the victim that is covered by the language of the statute. The fact is the gun could not, and did not, fire. We actually don’t know if it could have fired if loaded, because it was not tested. This is a failure of proof, or case preparation, not of statutory meaning. However, even if Appellant could not have been convicted of first-degree robbery under the plain language of the statute, he could have been convicted of second-degree robbery, which is all the proof established.

There is also the argument that reading the statute literally would make a conviction more difficult when the weapon could not be found. This is simply a problem under any test. Certainly, when a weapon is missing at trial, the jury can only rely on the testimony of witnesses. If a witness testifies that a shot was actually fired, then there is no great difficulty in getting a first-degree robbery conviction if the jury believes the witness. But if a witness merely describes a hand gun, for example, how does the jury know if it was really a gun or just an Air Soft replica, which is made exactly to scale and that is so popular with youngsters today? The majority *336 says it does not intend to include toy guns in its “class” test, but how can the difference be told? If the fear is that a conviction cannot be obtained when there is no weapon at trial, the majority opinion does not eliminate that fear, since it correctly does away with the subjective perspective of the victim.

I simply cannot understand why this Court feels so compelled to save a first-degree robbery conviction when the evidence does not support it. If all the evidence supports is a second-degree robbery conviction, then there is no real justice in making a first-degree robbery conviction out of speculation. What is the Court really trying to accomplish, and more importantly, why is it doing this? It is not our duty to rewrite the statute, but rather to interpret it as it is written.

I would reverse on the Robbery charges and remand for a new trial.

MINTON, C.J., joins.