Essamond Wilburn v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: March 17, 2010
• Docket: 2008 SC 000787
• Status: Unknown

Opinion

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ESSAMOND WILBURN APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE IRVIN G: MAZE, JUDGE NOS . 07-CR-001511-001 8 07-CR-003438

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

AFFIRMING,IN PART AND REVERSING AND REMANDING IN PART

Appellant, Essamond Wilburn, appeals from a judgment entered upon a

jury verdict by the Jefferson Circuit Court convicting him of first-degree

burglary, two counts of first-degree robbery, and of being a second-degree

persistent felony offender. He was sentenced to a total of 20 years to serve . He

now appeals his conviction as a matter of right pursuant to Ky . Const. §

110(2)(b), alleging that he was entitled to a directed verdict on the burglary and

robbery charges and that the Commonwealth improperly used a peremptory

strike against an African-American juror. For the reasons stated below, we

affirm in part and reverse and remand in part. . FACTUAL AND PROCEDURAL BACKGROUND

In the light most favorable to the verdict the facts are as follows. At

about 12 :30 a.m. on the morning of April 18, 2007, Wilburn and his brother,

Terrance, attempted to rob Expressway Liquors located on Lee Street in

Louisville, Kentucky . They used their father's 1989 Volvo as the getaway car.

That evening night manager Erik Bussman and employee Scott Reid were

working at the liquor store . As they were beginning their closing procedures,

Wilburn and Terrance entered the store with Wilburn in the lead carrying a .38

caliber revolver. Wilburn pointed the pistol at Reid and stated to the effect "we

are here for the money; we know your buddy is back there ."

Bussman was in the stock room performing his closing duties when the

men arrived. Wilburn went toward the stock room, pointed the pistol at

Bussman, and pulled the trigger; however, the gun did not fire . Bussman

grabbed the store's .38 caliber revolver from the shelf next to the stock room

door . He fired three shots, and the two robbers immediately fled the store and

ran in different directions .

Police responders drove the area searching for the robbers. A short

distance from the liquor store, on Floyd Street, a policeman apprehended

Terrance . Not long afterward Terrance confessed to the attempted robbery and

identified Wilburn as his accomplice . He also identified Wilburn as the

gunman.

The next morning, Kenneth Singer, the owner of the liquor store, found a .38 caliber revolver near the business . The gun was not loaded, which perhaps

explains why it did not fire the night of the robbery . Meanwhile, a box

containing .38 caliber bullets was found in the getaway car, which suggests

that the Wilburn brothers may have simply forgotten to load the gun before the

robbery attempt.

In July 2008, Wilburn was tried upon the charges of first-degree

burglary, two counts of first-degree robbery, and as being a second-degree

persistent felony offender. At trial, Terrance testified consistently with his

confession, identifying Wilburn as his accomplice and as being the gunman .

Various circumstantial evidence also implicated Wilburn. Wilburn's defense

was a denial that he committed the crimes, and that Terrance was lying to gain

favor in the prosecution against him .

At the conclusion of the trial Wilburn was convicted of all charges . He

was sentenced to 15 years enhanced to 20 on each of the three charges . All

sentences were ordered to run concurrently for a total of 20 years to serve .

This appeal followed .

Wilburn presents three arguments: 1) that he was entitled to a directed

verdict on the burglary charge; 2) that he was entitled to a directed verdict on

the two robbery charges; and 3) that the Commonwealth improperly used a

peremptory strike on an African-American juror. 1 . WILBURN WAS ENTITLED TO A DIRECTED

VERDICT ON THE BURGLARY CHARGE

Wilburn contends that he is entitled to a directed verdict on the first-

degree burglary charge because he did not enter or remain unlawfully on the

premises of the liquor store. He argues that the liquor store is a public place

that he was licensed to enter, and that he immediately fled following

Bussman's gunshots, and so did not unlawfully remain once his license was

revoked. We agree with Wilburn that the "enters or remains unlawfully"

element of the burglary charge was not met, and, consequently, reverse the

first-degree burglary conviction .

On a motion for a directed verdict, the trial judge must draw all fair and

reasonable inferences from the evidence in favor of the Commonwealth .

Commonwealth v. Benham, 816 S.W .2d 1$6 (Ky. 1991) . The standard for

appellate review of a denial of a motion fot a directed verdict based on

insufficient evidence is if, under the evidence as a whole, it would be clearly

unreasonable for a jury to find the defendant guilty, he is entitled to a directed

verdict of acquittal. Commonwealth v. Sa~vhill, 660 S .W.2d 3 (Ky. 1983) .

The first-degree burglary statute, K~ZS 511 .020(l), provides as follows:

(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when 'n effecting entry or while in the building or in the immediate fli ht therefrom, he or another participant in the crime: t (a) Is armed with explosives or a deadly weapon; or (b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime .

(Emphasis added) .

Also relevant to our review is the General Provisions statute of the burglary

chapter, KRS 511 .090 . It provides, in relevant part, as follows :

(1) A person "enters or remains unlawfully" in or upon premises when he is not privileged or licensed to do so .

(2) A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain personally communicated to him by the owner of such premises or other authorized person .

In the light most favorable to the Commonwealth, the relevant evidence

presented at trial discloses the following: (1) at about 12 :30 a.m . on the

morning of April 18, 2008, the liquor store was open for business, including to

the walk-in public; (2) Wilburn, with his brother following behind, entered the

store armed with an unloaded .38 caliber revolver; (3) Wilburn demanded

money and attempted to shoot Bussman with the empty gun; (4) Bussmann

quickly grabbed the store's gun and fired it at Wilburn; (5) Wilburn and his

brother fled as quickly as possible; and (6) when Wilburn and his brother

entered the store they intended to rob it.

Under KRS 51 1 .020(l), the "enters or remains unlawfully" element of

first-degree burglary may be committed in one of two ways: (1) by entering the building unlawfully ; or (2) by remaining in the building unlawfully.

KRS 511 .090(2) quickly disposes of the first possibility. The liquor store

was open to the public . So even though Wilburn had the intent to rob the

business when he entered, the statute provides that he nevertheless was

licensed or privileged to be there upon his initial entry. It follows that Wiburn

did not enter the premises unlawfully. KRS 511 .090(2) .

The question then becomes whether Wilburn "remained unlawfully" in

the premises while at the same time maintaining his intent to commit a crime .

Based upon the factual background as stated above, we must conclude that, as

a matter of law, he did not.

Wilburn agrees that Bussman's firing of the gun at him was the

functional equivalent of a personally communicated lawful order by an

authorized person not to remain in the store, and that at that point Wilburn's

license to remain in the store was revoked . KRS 511 .090(2) . However, at that

juncture, Wilburn did not remain upon the premises ; rather, he fled

immediately. Based upon this fact, we must conclude that once his license to

remain was revoked, Wilburn did not "remain unlawfully" upon the premises of

the liquor store with the intent of committing a crime . It follows that his

conviction must likewise fail under this provision of the first-degree burglary

statute.

The Commonwealth's brief contains little countervailing analysis . It

merely cites us to the cases Bowling v. Commonwealth, 942 S.W.2d 293 (Ky . 1997), and Fugate v. Commonwealth, 993 S.W .2d 931 (Ky. 1999) . It then

concludes "[a]s these cases make clear, Appellant's privilege to enter the liquor

store terminated when he entered and remained for the purpose of committing

robbery." The cited decisions, however, are distinguishable from the case at

bar.

In Bowling, the defendant killed two victims in the course of a gas station

robbery and then fled with money stolen from the business. Bowling, 942

S .W.2d at 307 . Similarly, in Fugate, the defendant initially went to the victim's

home for a social visit and was invited in . Subsequently, however, he shot the

victim in the leg, and then twice in the head, killing him . He then "ransacked

the victim's trailer looking for something to steal and tore the victim's wallet off

its chain, taking the cash." Fugate, 993 S .W .2d at 940.

Thus, in Bowling and Fugate, the defendant killed the victim(s), thereby

ending, by implication, his license and his lawful presence on the property, and

then unlawfully remained to commit an additional crime . Those are not the

facts in this case . Nor did Wilburn remain to commit crimes after Bussman

terminated his license by firing the shots at him. Thus Bowling and Fugate are

not analogous . I

Nor is the significant principle stated in the two cases relevant to the

present case . Bowling states the principle as follows: "[i]mplicit in [KRS

1 We note that Tribbett v. Commonwealth, 561 S .W.2d 662 (Ky. 1978), cited in both Bowling and Fugate, was the original decision in the line of cases . In Tribbett the defendant was initially invited into the home. He then killed his host and stole property from the residence. 511 .090(2)) is the concept that license or privilege expires once the person

commits an act inconsistent with the purposes of the business. Bowling

terminated his license to be on the premises when he committed the criminal

acts." Id. at 307. Similarly, the Fugate opinion states, "the privilege granted to

one doing business ceases when the licensee commits acts, such as crimes,

inconsistent with the business." Id. at 940 .

The principle stated in the cases is sound; however, the Commonwealth's

application of it to the facts of this case is not. For the principle to apply, the

defendant must first perpetrate a crime (or other act) thereby bringing about,

by obvious implication, the revocation of his license to remain in the dwelling

or building. He must thereafter remain on the premises with the intention to

commit a crime, which may be the completion of the robbery or any other

crime. Only then are the elements of burglary satisfied under the principle .

As discussed, the Commonwealth failed to prove either that Wilburn

unlawfully entered or unlawfully remained on the premises of the liquor store

with the intent to commit a crime. He was entitled to a directed verdict on the

charge. We accordingly reverse the trial court's judgment of conviction on the

first-degree burglary charge, and remand the cause for entry of a judgment of

acquittal.

II. WILBURN WAS NOT ENTITLED TO A DIRECTED VERDICT OF

ACQUITTAL ON THE FIRST-DEGREE ROBBERY CHARGES

Wilburn argues that he was entitled to a directed verdict on the two first- degree robbery charges on the basis that the Commonwealth failed to prove the

.38 caliber revolver he carried was operable, and, correspondingly, failed to

prove that he was armed with a deadly weapon - an element necessary under

the provision of the first-degree robbery statute Wilburn was charged with

violating. We disagree.

As noted, the .38 caliber pistol Wilburn was armed with during the

robbery attempt was not loaded, and so it did not fire when he aimed the gun

at Bussman and pulled the trigger. Bullets fitting the gun were found in the

getaway vehicle, but it is unclear from the record why the gun was not loaded -

whether it was forgetfulness or a deliberate decision.

Further, the gun was not tested to see if it was capable of being fired

when loaded. Nor, under present state of the law, is there any reason why

such tests would be undertaken. See erritt v. Commonwealth, 386 S .W .2d

727 (Ky. 1965) and Kennedy v. Commonwealth, 544 S .W.2d 219 (Ky. 1977)

(holding that any object is a "deadly weapon" if used in a way that causes the

victim to believe it is a deadly weapon, even, for example, a toy gun) .

As reflected in several recent unpublished decisions, this Court has

recognized that our cases fail to comport with the plain language of the

currently enacted robbery statutes, an that the principles stated in the cases

have received criticism from eminent s holars and our intermediate court.2

2 See Moore v. Commonwealth, 2008 WL 3890168 (Ky. Aug. 21, 2008) ; Fegley v. Commonwealth, 2008 WL 466150 (Ky. Feb. 21, 2008) ; and McIntosh v. Commonwealth, 2008 WL 2167894 (Ky. May 22, 2008) . The result we reach would be the same under Merritt and Kennedy. We view this as the appropriate opportunity to re-assess the viability of the

Merritt and Kennedy holding in the light of the statutory framework provided by

the penal code, mindful that the legislature may elect to consider the

disconnect between the case holdings and the language of the statutes

involved, and take whatever action it considers appropriate.3

KRS 515 .020 provides as follows :

(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he :

(a) Causes physical injury to any person who is not a participant in the crime ; or

(b) Is armed with a deadly weapon; or

(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime .

KRS 500.080(4)(b) defines a deadly weapon, as relevant here, as follows:

"Any weapon from which a shot, readily capable of producing death or other

serious physical injury, may be discharged[ .]"

It is difficult, if not impossible, to reconcile the language of the foregoing

statutes with the Merritt/Kennedy concept that the operability of a gun is

immaterial because any object is a deadly weapon if used so as to cause the

3 We are cognizant that "if the legislature reenacts the statute without rejecting the interpretations of the earlier act, it probably means to approve those interpretations ." Cosby v. Commonwealth, 147 S .W.3d 56, 62 (Ky. 2004) . Legislation following Merritt has not specifically rejected the conception of a "dangerous weapon" as enunciated in the decision . victim to believe it is a deadly weapon . An object which cannot "discharge"

such a shot, cannot be a "deadly weapon" under KRS 500 .080(4)(b),4 or so it

would seem.

Merritt is the pre-penal code source of the concept we now examine .

Merritt was a robbery case, based on the predecessor of KRS 515 .020, KRS

433 .140, which enhanced the sentence for a robbery or burglary committed by

anyone who "uses or displays any pistol, gun, other firearm or deadly weapon"

in the commission of the offense . The statutes then did not define "pistol, gun,

other firearm or deadly weapon ." Expressing disdain for the prosecution's

argument that a non-operable toy gun is actually a kind of "gun", the Court

with no citation of authority or further explanation, simply declared that

"within the context of this statute (KRS 433 .140) any object that is intended by

its user to convince the victim that it is a pistol or other deadly weapon and

does so convince him is one ." 386 S. W.2d at 729 . Kennedy was the first case

to address the issue after the repeal of KRS 433.140 and the enactment of KRS

515 .020 and KRS 500 .080(4)(b) . In Kennedy, this Court reconciled the Merritt

decision and the seemingly contradictory language of KRS 500 .080(4)(b) by

referring to the unofficial notes and commentary that accompanied the

adoption of the current statutes . That commentary, in part, stated :

In describing what constitutes a `deadly weapon,' the Court of Appeals recently ruled that any object can be a deadly weapon if intended by its user to convince a victim that it is deadly and if the victim is in fact convinced . Merritt v. Commonwealth, 386 S .W.2d

4 KRS 500.080(4) (a), (c), (d), (e), (fl, (g), and (h) define other forms of deadly weapons, i .e. knives, clubs, etc . 727 (Ky .1965) . In that case, the defendant was convicted of armed robbery despite the fact that the `weapon' he used may have been a toy pistol. There is no intention to change this decision through the provisions of this chapter.

Kennedy, 544 S .W.2d at 222 (Emphasis added) .

In Kennedy, the Court did not otherwise explain how the Merritt holding

fit within the language actually used in the new statutes . It did not explain

how a toy gun or finger in the pocket can be "any weapon," per KRS

500 .080(4)(b), much less a "deadly" one . Its binding of the Merritt holding to

the current statutes has been often repeated, but never re-examined.

Kennedy was soon followed by Helpenstine v. Commonwealth, 566

S .W.2d 415, 416 (Ky. 1978), which approvingly cited Merritt in holding that

"any object" could be a deadly weapon, and stated again that the operability of

the handgun used in the robbery is "not relevant ."

Notwithstanding the commentary referenced in Kennedy, there is no way,

with proper deference to the English language, that the words used in KRS

515 .020 and KRS 500 .080(4)(b) can be construed to support the conclusion

reached by this Court in Kennedy and repeated in Helpenstine. No amount of

intent or intimidation by a robber can turn a toy gun, or a stick, or a finger in

the pocket into a "weapon, from which a shot, readily capable of producing

death or serious physical injury, may be discharged." Nor, can any subjective

belief in the mind of the victim turn a toy into a deadly weapon. In Kennedy,

we disregarded the express language of the statutes adopted by the legislature, relying instead on unofficial commentary and notes. In so doing, we breached

a fundamental rule of statutory construction that we ascertain the intention of

the legislature from words used in the statutes rather than surmising what

may have been intended but was not expressed . Revenue Cabinet v. O'Daniel,

153 S .W .3d 815, 819 (Ky. 2005) . We should resort to a review of legislative

intent or legislative history only when the language of the statute is not clear .

Mitchell v. Chapman, 343 F.3d 811, 826 (6th Cir . 2003) . In Kennedy, this

Court extrapolated the Merritt holding into the current statute by erroneously

allowing the commentary to supersede the clearly contrary language of the

statute .

We find nothing in the language of the statutes now in effect that would

support Kennedy's adoption of the Merritt rule that "any object" intended by its

user to convince the victim that it is a pistol or other deadly weapon, and does

so convince him, is one. We therefore overrule Merritt as being inapplicable to

the statutes now in effect. To the extent that they apply Merritt over the

statutes currently defining robbery committed with the use of a deadly weapon,

Kennedy and Helpenstine are overruled. But, while we reject the rationale

used in Kennedy and Helpenstine to support the holding that the operability of

a firearm used in a robbery is immaterial, we do not necessarily adopt the

opposite conclusion that operability of the weapon is an essential element of

proof in an armed robbery case. Accordingly, we take a fresh look at the issue

to determine the meaning of "armed with a deadly weapon" under KRS 515 .020(b), with appropriate respect for the words used in KRS 500.080(4)(b)

to define specific sorts of deadly weapons.

Wilburn was charged under KRS 515 .020(1)(b), and so the .38 caliber

pistol he was carrying must have been a "deadly weapon" for that element of

the crime to be satisfied. KRS 500.080(4)(b) defines a deadly weapon, as

relevant here, as follows: "Any weapon from which a shot, readily capable of

producing death or other serious physical injury, may be discharged[ .]"

If the literal language of a statute is clear and unambiguous, it must be

given effect as written. Bailey v. Commonwealth, 70 S .W .3d 414, 416 (Ky.

2002) . While the remainder of the statute is plain and unambiguous, we

believe the first two words of the definition - "any weapon" - is subject to

alternative interpretations. More specifically, we believe the phrase is subject

to interpretation meaning either: (1) only the specific "weapon", or object, used

in the particular crime; or (2) the class of weapons to which the specific weapon

belongs . For example, in the present case, the language may be interpreted to

refer to either the specific pistol carried by Wilburn, or to a class of items that

includes pistols in general .

If the phrase refers to the class consisting of all pistols generally, then

the answer is self-evident . A shot discharged from a pistol may readily produce

death (or serious physical injury), and it makes no difference whether the

particular pistol is not loaded, or has a missing firing pin, or a clogged barrel,

or any other particular defect which would prevent it from firing a shot. A pistol is among the sort of things, the class of items, from which death or an

injury-causing shot may be discharged. If, however, the phrase refers to a

particular pistol, then whether the pistol is empty or otherwise inoperable is

critical to determining if it meets the definition of a deadly weapon. An

unloaded pistol or a pistol without a firing pin, when considered individually, is

not one from which a shot may be discharged .

The statute being ambiguous, we next look to legislative intent. Dept of

Motor Transp. v. City Bus Co., 252 S .W .2d 46, 47 (Ky. 1952) ("When a statute is

ambiguous and its meaning uncertain, the legislative intent should be

determined by considering the whole statute and the purpose to be

accomplished") . We refrain from interpreting a statute so as to produce an

absurd or unreasonable result. Kentucky Unemployment Ins. Com'n v. Tones,

809 S .W.2d 715, 716 (Ky. App . 1991) ("The courts have a duty to accord

statutory language its literal meaning unless to do so would lead to an absurd

or wholly unreasonable result .") .

Applying the foregoing principles, we have no difficulty in concluding that

the legislature's use of the term "any weapon" was intended to apply to the

class of weapons as a whole, and not an individual weapon falling within the

class. In other words, again using the present case as an example, the

legislature must have intended to refer to pistols in general, and not the

individual .38 caliber revolver that Wilburn was carrying the night of the hold-

up. Interpreting the phrase to refer to an individual weapon would produce

an absurd and unreasonable result. After all, as a general common-sense rule,

the robber seeks only to intimidate the victim into relinquishing his property

and avoid actual use of the weapon - he wants to rob, not rob and murder .-"

Interpreting the language to refer to the individual weapon would create a

loophole allowing robbers to gain the decidedly advantageous benefit of

pointing an actual pistol at the victim, but allowing him to escape the

consequences of the deadly weapon enhancement to first-degree robbery6 by,

for example, simply removing the firing pin or emptying the chamber. In view

of this, the legislature could not have intended the phrase "any weapon" to

refer to an individual weapon. That, quite simply, is an unreasonable

interpretation. The legislation is intended to deter and punish first-degree

armed robbery, not coach a robber on how to avoid the charge .

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. Therefore, Wilburn was armed with a deadly

weapon within the meaning of 515 .020(1)(b), and he was not entitled to a

5 We recognize that, of course, a robber will sometimes want to use the weapon in order to eliminate a witness . 6 As relevant here, robbery without a deadly weapon would be second-degree robbery, a Class C felony . KRS 515 .030 . First-degree robbery is a Class B felony. KRS 515 .020 .

16 directed verdict upon the grounds that the Commonwealth failed to prove his

firearm met the statutory definition of a deadly weapon .

We recognize that this construction of KRS 500.080(4) will, in other

circumstances, yield a result different from that attained by the

Merritt/Kennedy rationale . But, it is the only construction that fairly respects

the language of the statute, language which we no longer feel constrained to

ignore.

We reject the analysis expressed in Justice Noble's dissenting opinion

requiring proof that the firearm was operable at the time of the robbery. In

many, if not most, armed robbery cases, the gun is not immediately recovered,

and therefore, proof of its operability would be impossible to establish . We do

not believe the General Assembly intended to impose such an insurmountable

burden on the state's ability to sustain its burden in robbery cases . We also

note, in response to that opinion that many items used in a robbery that do not

meet the definition of "deadly weapon" under KRS 500 .080(4), as we interpret it

herein, would easily qualify as a "dangerous instrument" under KRS

500 .080(3) .

We do not foresee any substantial difficulty in the practical application of

our interpretation of the law, for example, in circumstances where the alleged

"weapon" is never recovered and its authenticity cannot be readily established.

Obviously, an unseen, unknown item as in Merritt, or an item which the

witnesses clearly recognize as a toy, will not qualify as a "deadly weapon" under our statute. In other instances, we do not anticipate that presenting sufficient

proof that the object was a deadly weapon will impose an unrealistic burden

upon the prosecution . The victim's description of the item would ordinarily

provide sufficient evidence to permit the jury to decide whether it was among

the sort of items declared by the legislature to be a "deadly weapon ."

III . NO BATSON VIOLATION OCCURRED

Wilburn contends that a violation of Batson v. Kentucky, 476 U.S . 79

(1986), occurred on the basis that the Commonwealth used a peremptory strike

to remove African-American Juror 215604 from the venire .? The

Commonwealth's proffered reason for removing the juror was that she

expressed that she believed a former friend had been unfairly prosecuted and

that he did not deserve the sentence he received. Wilburn argues that Juror

171652 was similarly situated to the stricken juror.

Juror 171652 had a brother who had been prosecuted on drug and

domestic violence charges ; however, the juror stated that she believed he had

been treated fairly . Juror 171652 also stated that she did not believe police

acted appropriately when investigating her reports of six car break-ins .

Wilburn asserts that the Commonwealth's use of a peremptory strike to

remove Juror 215604 while not objecting to Juror 171652 demonstrates that

the removal of the African-American was motivated by race.

7 Wilburn is African-American.

18 In Batson, supra, the United States Supreme Court prohibited deliberate

racial discrimination during jury selection. Under Batson, we recently

explained,

[a] three-prong inquiry aids in determining whether a prosecutor's use of peremptory strikes violated the equal protection clause . Initially, discrimination may be inferred from the totality of the relevant facts associated with a prosecutor's conduct during a defendant's trial . The second prong requires a prosecutor to offer a neutral explanation for challenging those jurors in the protected class. Finally, the trial court must assess the plausibility of the prosecutor's explanations in light of all relevant evidence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class .

McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005) (citations and

footnotes omitted) .

The trial court's ultimate decision on a Batson challenge "is akin to a

finding of fact, which must be afforded great deference by an appellate court."

Chatman v. Commonwealth, 241 S .W.3d 799, 804 (Ky. 2007) (citation omitted) .

"Deference," of course, does not mean that the appellate court is powerless to

provide independent review, Miller-El v. Dretke, 545 U .S. 231, (2005) (holding

that the trial court's finding of non-discrimination was erroneous in light of

clear and convincing evidence to the contrary), Snyder v. Louisiana, U .S .

128 S.Ct. 1203, (2008) (same), but the ultimate burden of showing

unlawful discrimination rests with the challenger . Chatman, supra.; Rodgers v.

Commonwealth, 285 S.W.3d 740, 757-758 (Ky. 2009) .

Juror 215604, the African-American juror, stated during the Commonwealth's voir dire that she had a friend who had gotten mixed up in

some trouble with several others and that, following a trial, was currently

serving time in the penitentiary . The juror stated although she had neither

gone to court nor maintained contact with him, she knew his character, she

believed he was prosecuted unfairly, and she believed that he did not deserve

the sentence he received . During defense counsel's voir dire, Juror 215604

stated that her friend's experience, which happened in 2002, would not have

an effect on her ability to impartially weigh the evidence .

Juror 171652, the Caucasian juror, stated during the Commonwealth's

voir dire that she had a brother who had pleaded guilty to the minimum

sentences on several drug possession and domestic violence charges . She went

on to say, however, that he and his family were treated fairly by the police and

prosecutors. Nevertheless, she was critical of the police's conduct in

connection with a series of car break-ins . The juror stated that she did not

think the police acted appropriately investigating her reports of six car break-

ins during a six month period, all occurring in her driveway. She believed it

was especially inappropriate when they told her that she should leave her car

unlocked to avoid having the windows broken. Ultimately, she indicated that

her experience with the break-ins would have no effect on her view of police

witnesses .

The Commonwealth's race-neutral basis for striking Juror 215604 was

that the juror had stated that her friend had been wrongly arrested, wrongly convicted, and received an unfair sentence . And although she had indicated

she could be fair, the Commonwealth argued that "because of that experience

with someone very close to her we don't think she's qualified to be a good juror

. . . a qualified juror for the Commonwealth ." Ultimately, the trial court ruled

that the Commonwealth's strike was for a race-neutral reason given its

reasonable concern that the juror would continue to have concerns as noted,

potentially causing her to, in effect, "lock-up" at some point in making a

decision.

Considering the deference we must give to the trial court, we are

unpersuaded that the Commonwealth's different treatment of Juror 171652

and Juror 215604 establishes that the strike was for a race-based reason.

There are several degrees of difference between the two experiences related by

the two jurors and the potential to evoke bias against the Commonwealth .

Juror 215604 related an experience in which, she believes, an innocent man

was incarcerated because of unfair treatment by police and prosecutors . On

the other hand, Juror 171652 had an experience involving her brother in which

he and his family were treated fairly . Moreover, the experience with the car

break-ins describes more of an experience with police incompetence as opposed

to outright misconduct against an innocent person. Thus, the two jurors are

not similarly situated at all in their respective experiences with the police and

prosecutors . The risk of bias against the Commonwealth is substantially

different between the two cases. In light of the deference with which we review the trial court's Batson rulings, we are constrained to conclude that the trial

court did not abuse its discretion when it found that the Commonwealth's

proffered race-neutral reason for striking Juror 117985 was not a pretext for

discrimination .

CONCLUSION

For the foregoing reasons the judgment of the Jefferson Circuit Court is

affirmed in part, reversed in part, and the cause is remanded for additional

proceedings consistent with this opinion.

All sitting. Abramson and Cunningham, JJ ., concur. Schroder, J.,

concurs in result only by separate opinion, in which Scott, J ., joins. Noble, J.,

dissents by separate opinion in which Minton, C.J., joins.

SCHRODER, J., CONCURRING IN RESULT ONLY : I don't agree with

overruling Merritt, Kennedy, and Helpenstine. The majority's new analysis

would preclude a conviction for first-degree robbery if the defendant used an

exact toy replica of a handgun, which would produce the same reaction in the

victim - terror and surrender of the property. I believe such an interpretation

would lead to an absurd result not intended by the Legislature .

Scott, J., joins.

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 . KRS 500.080(4) (b) defines a deadly weapon, .020(1)(b)

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 Meritt 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 case 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 be 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 Dictionary 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 .

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 factwhether 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

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 trump 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 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 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 .

COUNSEL FOR APPELLANT:

Daniel T. Goyette Louisville Metro Public Defender

Cicely Jaracz Lambert Assistant Appellante Defender

Charles Hall Stopher Assistant Public Defender Advocacy Plaza 717-719 West Jefferson Street Louisville, KY 40202

COUNSEL FOR APPELLEE:

Jack Conway Attorney General

Stephen Bryant Humphress Assistant Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, Kentucky 40601-8204