BENNIE L. ARNOLD v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 20, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001716-MR
BENNIE L. ARNOLD
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 02-CI-005205
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, and KNOPF, Judges.
COMBS, JUDGE.
Bennie Arnold appeals from the Jefferson Circuit
Court’s grant of a writ of prohibition.
Finding no error, we
affirm.
On November 17, 2001, police officers were dispatched
to 26th and Jefferson Streets in Louisville after receiving a
report that a man at that location was firing a gun from his
automobile.
Arnold and his automobile matched the descriptions
given to the police of the perpetrator and the vehicle.
The
police officers stopped Arnold, ordered him to get out of his
car, and told him to lie on the ground.
They seized a .32
caliber Smith & Wesson revolver from him.
Arnold was arrested
for carrying a concealed deadly weapon in violation of KRS1
527.020, operating a vehicle without an operator’s license (KRS
186.410)(1)), and having no automobile insurance (KRS
304.39.080).
Relying on Bowman v. Commonwealth, 309 Ky. 414, 217
S.W.2d 967 (1949), Arnold moved the Jefferson District Court to
dismiss the weapon charge because the gun retrieved from him was
inoperable due to a mechanical defect.
In objecting to the
motion to dismiss, the Commonwealth argued that it was not
required to prove in its case-in-chief that the gun was capable
of firing.
The district court judge took the motion under
submission, and on May 6, 2002, she ruled that the Commonwealth
could not go forward on the weapon charge unless it could show
that the gun was operable.
The case was continued until July 9,
2002; on that date, it was passed again until July 15, 2002.
On July 12, 2002, the Commonwealth filed a petition in
the Jefferson Circuit Court seeking a writ to prohibit the
district court from enforcing its order that the Commonwealth
had to prove that the gun was operable as an element of the
crime of carrying a concealed deadly weapon.
1
Kentucky Revised Statutes.
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The circuit court
granted the petition for the writ and set aside the district
court order of May 6, 2002.
It specifically prohibited the
district court from requiring the Commonwealth to prove during
its case-in-chief that the firearm was operable.
This appeal
followed.
Arnold first argues that the writ was improperly
granted because the Commonwealth failed to demonstrate
irreparable harm.
We disagree.
A writ is a proper means of
correcting an erroneous ruling when the party aggrieved would
have no remedy by appeal.
See, Tipton v. Commonwealth, Ky.App.,
770 S.W.2d 239, 241 (1989).
As discussed below (infra at pp. 5-
7), the district court was proceeding under the misconception
that the Commonwealth bore the burden of establishing that
Arnold’s gun was in working order at the time of his arrest.
The court order prevented the Commonwealth from going forward on
the charge without such proof.
Until and unless it was
corrected as to its mistaken belief concerning the
Commonwealth’s burden of proof, the district court was
inevitably proceeding toward erroneously directing a verdict of
acquittal at the close of the Commonwealth’s case.
Thus, the
Commonwealth effectively had no remedy by appeal.
Arnold also argues that the circuit court abused its
discretion in failing to defer to the findings of the district
court.
He contends that those findings were supported by
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substantial evidence because the officer who arrested him was
present in court and “explained to the judge and parties the
condition of the gun” taken from him.
We disagree for two reasons.
not contain any sworn testimony.
First, the record does
We have listened to the
audiotape of the proceedings conducted in the Jefferson District
Court.
We did not hear any statements attributable to a police
officer -- much less sworn testimony concerning the condition of
the weapon.
gun.
Arnold’s counsel did allude to the condition of the
However, neither he nor the attorney for the Commonwealth
had arranged to have the gun tested in order to determine its
firing ability.
Additionally, the district court made no
findings concerning the gun.
Instead, it ruled as a matter of
law that the Commonwealth bore the burden of proving that the
gun was operable prior to proceeding with the case.
In discussing the standard of review to be applied to
applications for injunctive relief, the Kentucky Supreme Court
has emphasized that a reviewing court does not defer to the
rulings of a lower court on matters of law:
Where a petition for one of the
extraordinary writs alleges that a lower
adjudicatory body within its jurisdiction
has acted incorrectly, and the threshold
factors of inadequate remedy and irreparable
injury are satisfied, the writ should be
granted only upon a showing that the
challenged action reflects an abuse of
discretion. If the legitimacy of the
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challenged action presents only a question
of law, the reviewing court may of course
determine the law without necessary
deference to the lower court or hearing
officer. (Emphases added.)
Commonwealth v. Deloney, Ky., 20 S.W.3d 471, 473 (2000), citing
Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d
195, 199-200 (1997).
Finally, Arnold’s reliance on Bowman v. Commonwealth,
supra, is misplaced.
In Bowman, the prosecuting witnesses all
testified that there was an essential part missing in the gun
and that it could not be fired.
The court stated that there
was:
no contrariety in the evidence as to the
totally defective condition of the plunger so
as to make it completely ineffective in
exploding a cartridge therein so as to cause
it to fire, nor was there on [the
appellant’s] person any part of a completed
firing pistol with which the concealed one on
appellant’s person could be supplied. . . .
In the absence of such contrariety of proof
in this case and where all of it shows that
the weapon found on appellant was wholly
incapable of being fired, it clearly became
the duty of the court to have directed the
jury to acquit him.
Id., 309 Ky. at 417, 217 S.W.2d at 968.
Bowman does not address the issue of who bears the
burden of proof as to a weapon’s operability.
While the
Commonwealth usually bears the burden of proof in criminal
cases, there are exceptions with respect to certain affirmative
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defenses.
Kirk v. Commonwealth, Ky., 6 S.W.3d 823 (1999).
In
Kentucky, the operability of a firearm is not an element of the
offense of carrying a concealed deadly weapon.
inoperability is an affirmative defense.
However, its
See, Stark v.
Commonwealth, Ky., 828 S.W.2d 603 (1991), overruled in part on
other grounds in Thomas v. Commonwealth, Ky., 931 S.W.2d 446,
447 (1996).
In Mosely v. Commonwealth, Ky., 374 S.W.2d 492, 493
(1964), the Court held that the accused bore the burden of
proving the operability of the weapon:
In Couch v. Commonwealth, Ky., 255 S.W.2d
478, and Prince v. Commonwealth, Ky., 277
S.W.2d 470, it was stated that a pistol is a
deadly weapon per se and when the
Commonwealth has proved that the accused had
such a weapon concealed on or about his
person it has made out a case and if the
weapon was in such a defective condition
that it could not be fired, the burden was
upon the accused to prove such a fact in the
way of an affirmative defense. Counsel for
appellant faces up to the fact that such is
the law in this state, but suggests that the
cases should be overruled and the burden
placed upon the Commonwealth. We have been
offered no sound reason for such action.
(Emphasis added.)
On remand, if the proof is similar to that in Bowman,
Arnold will be entitled to a directed verdict.
However, the
content of the evidence at this point is not the issue.
The
issue before us is the proper allocation of the burden of proof
for asserting the affirmative defense that the gun was
inoperable.
That burden rests on Arnold rather than the
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Commonwealth.
Accordingly, we find no abuse of discretion by
the circuit court in granting the Commonwealth’s petition for a
writ of prohibition.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sheila A. Seadler
Bruce P. Hackett
Louisville, Kentucky
Karl Price
Chris Melton
Assistant County Attorneys
Louisville, Kentucky
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