Regular readers will know I’m a leagle.com junkie. The site presents box-fresh accounts of monumental gun-related stupidity. The best of these are public records of criminal appeals, wherein we get a well-written summation of the events leading to the legal wrangle. Given the captivating nature of drug deals gone bad, gang conflicts gone ballistic and other low-life gun-related murder and mayhem, I rarely pay attention to the actual ruling. But the Kentucky Supreme court’s opinion in the case of GAMBLE v. COMMONWEALTH is particularly interesting . . .
On February 7, 2007, a man later identified as Appellant Christopher Gamble walked into the Alexandria Drive branch of Chase Bank in Lexington with his head and face covered. Natalie Lindgren, an assistant manager, was working behind the teller window, and her manager Lynn Dowdy was standing nearby. Lindgren felt threatened by the man, and immediately pressed her silent alarm. Gamble walked to Lindgren’s window, passing her a bag and a note that read, “This is a robbery. I have a gun. Quietly empty your drawer fast.” Gamble also told Lindgren, “I have a gun.” Lindgren testified that she believed Gamble had a gun, though she never saw one. Lindgren placed money, including “bait money,” and a dye pack in the bag. As Gamble left, he told Lindgren, “You just saved your life.” Gamble’s hands remained in plain view the entire time, and, according to Lindgren, he never placed his hands in his pockets.
Police quickly apprehended Gamble and obtained his aunt’s consent to search her apartment, where Gamble had been living. They recovered Gamble’s dye-stained clothes; $3,516 in cash; and the torn-up robbery note. The bait money was found in a trash can near the bank. No gun was ever recovered.
Not an armed robbery then? Yes an armed robbery. (BTW That should have been “Quietly empty your drawer quickly.”)
KRS 515.020 (the first-degree robbery statute), incorporates all the elements of second-degree robbery,[ 3 ] but also requires one of three aggravating circumstances, which are listed in KRS 515.020(1){a), (b), and (c):
(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.
(2) Robbeiy [sic] in the first degree is a Class B felony.
Simple right? Here’s the hang-up:
The commentary to KRS 515.020 suggests that the definitions of “deadly weapon” and “dangerous instrument” were intended to be mutually exclusive.However, shortly after the adoption of the current Penal Code, this Court held, “Though not every `dangerous instrument’ is a `deadly weapon,’ a `deadly weapon’ ordinarily is a `dangerous instrument’ as well.” This interpretation is supported by the plain wording of KRS 500.080(3), which defines a “dangerous instrument” as
“any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury ….”
So no joy on the appeal, then. My verdict: I need to get out more.
