People v. Mark Smith

Issue before the Court: When someone displays a BB gun during a robbery that appears to be a firearm are they entitled to a jury charge on the affirmative defense to first-degree robbery because the object “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged”?

Held: Nope, says the Court in a bizarre 4-3 decision, because a BB gun is supposedly “readily capable” of causing serious physical injury as “a matter of law.” If the accused person wanted the affirmative defense (such that the conviction would become seconddegree robbery) they would have to produce evidence that demonstrates by a preponderance that the BB gun was unloaded, inoperable, or lacked sufficient power to cause blinding or other serious physical injury.

CAL Observes: This result upends decades of settled expectations – not that the majority admits such. For the majority the first-degree provision might as well impose liability if the person “displays what appears to be a pistol, revolver, rifle, shotgun machine gun, BB gun, or other firearm,” even though “BB gun” does not appear in the text of the statute. The affirmative defense for a BB gun, which we all thought existed, is all but ruled out. Even accepting that a BB gun could cause serious physical injury if fired into someone’s eye, we doubt that would be sufficient to establish the “readily capable” portion. To equate a BB gun with a firearm is counterintuitive and does harm to the statutory framework. Moreover, there seems no reasonable way for the defense to meet its newly ascribed burden to show that the BB gun was not sufficiently powered to readily cause death or serious physical injury.

The dissent (Wilson writing joined by Singas and Halligan) properly reads first-degree robbery statute (PL § 160.15) as a cohesive whole: subsection one is for causing serious physical injury (including with a BB gun); subsection two is for being actual armed with a deadly weapon (which includes a BB gun but only if the prosecution proved that it was sufficiently powerful); subsection three is for threatening the use of a dangerous instrument (which could include a BB gun); and section four is for displaying what appears to be a firearm, with the affirmative defense that if the object was not loaded or sufficiently capable the charge drops to second degree. The majority weakens the prosecution’s burden by excluding a BB gun from the fourth-section’s exception. The majority doesn’t dispute any of that and merely retorts that the dissent’s concerns “are properly left to the legislature.”