*1 CALLOWAY, Appellant, Earl Robert
v. Kentucky,
COMMONWEALTH
Appellee. Kentucky.
Supreme Court 18, 1977.
Feb. 10, 1977. Denied June
Rehearing
502
“(1) person A guilty of kidnapping when he unlawfully restrains another when person his intent is: (a) hold him reward; To for ransom or or Emory Farley, Defender, Jack Public (b) accomplish To or to advance the Riddell, Defender, Timothy T. Asst. Public of a felony; commission or Frankfort, appellant. for (c) bodily inflict injury To toor terror- Gen., Atty. F. Stephens, Raymond Robert another; ize victim the or or Larson, Gen., Frankfort, Atty. M. Asst. (d) To interfere with the performance appellee. governmental political function; of a or or STEPHENSON, Justice. (e) use To him as hostage. shield or Calloway was of kidnapping, convicted (2) Kidnapping a capital offense un- 509.040, years’ and sentenced to 20 KRS less the voluntarily defendant releases affirm. imprisonment. We alive, unharmed, victim substantially place and in a safe prior trial, in which disputed. Calloway, are not The facts his is a case it Class B felony.” Charlie, Wayne Lanham, brother and af- court The trial instructed “sniffing (b), glue,” ter a went to a under to ac- session complish commission of crime specific purpose mall in Owensboro for robbery. and/or “robbing girl.” There seized the lot, parking the mall forced her victim in 509.050, Exemptions, provides: KRS automobile, and, Calloway into her person may “A not be convicted of bridge across from driving, proceeded imprisonment unlawful in the first de- to Indiana. The automobile Owensboro gree, in the bridge Indiana, parked was near the and degree, kidnapping second or when his men turns the victim. raping the three took purpose criminal is the of an commission Indiana, Afterwards, while still in was $30 chapter defined outside this offense and victim, Calloway, of which taken from his interference with the liberty victim’s for himself and his brother and kept $20 immediately occurs with and incidental to gave Lanham. After the $10 to offense, commission of that unless the them robbery, Calloway drove back across interference exceeds which is ordi- bridge Kentucky pulled into into a narily incident to commission of- cemetery where the automobile became objective is the fense which of his crimi- Calloway the mud. stuck in exemption nal The purpose. provided by left the victim in her car and went men applicable is not charge section to a ways. separate on their kidnapping that arises from inter- ference another’s liberty that victim three occurs The identified the men. to the commission incidental of a criminal She, Calloway’s (both brother Lanham (Emphasis ours) escape.” confessed) whom testified at trial in episode. Calloway’s the entire detail about submitted an Calloway instruction on the to the jury. was read confession exemption. The argument thrust his whether the interference with the victim’s principal The assertion error is the immediately occurs with and inci- court to trial submit an in- failure dental another offense or whether the jury exemption on the struction interference exceeds that which is ordinari- KRS 509.050. Cal- ly incident commission of the other argues loway only that his defense to the question jury. and is a for the offense charged fell crime his actions exemption statute. within the properly The court declined 509.040, Kidnapping, provides: give the instruction. We are KRS Here, Kentucky authorities did not is to be 509.050 application charge kidnapping greater puni- to secure aby and not by the trial court determined robbery. sanctions tive by which of standards in the absence jury Here, charge to accom- a determination. make such of a to advance commission plish by Callo- question presented larger only com- was to offense felony his actions fall within argument that way’s *3 jurisdiction. in this mitted exemption is whether stat- 509.050 KRS appli hold that KRS 509.050is We at all in the circum- application any ute charge only to the of or kidnapping cable here. We are of presented stances imprisonment unlawful in of made degrees not. it does that opinion charged other conjunction offenses jurisdiction. this In in those committed and the of 509.050 purpose The situations, duty it is the of the trial court to the commen supplied is in intent legislative such whether constitutes determine statute: to the tary kidnapping of the and unlawful an abuse this arises necessity provision “The according to the cir statutes imprisonment of the crimes many fact that of the out presented in each case. cumstances essential in this code have as an defined element, a element, as an incidental or entire in episode Had this occurred liberty. For ex- of another’s the trial court would then have Kentucky, restriction robbery and forcible of ample, applica offenses to make a determination of the had to way in such a as practicality are defined 509.050. The rape tion of KRS physical ordinarily restraint. Other in our view involve is that always the situation may involve a restriction would be satisfied with authorities offenses manner charges rape robbery because of the and not be someone’s pile charges Because of on additional unless disposed are committed. in which fact, were prosecutor could misuse the unusual. the circumstances this greater pu- to secure kidnapping statute Calloway charged Should robbery and rape, nitive sanctions Indiana, robbery in we do not consider than are otherwise availa- other offenses prosecution” by an “abuse of to be that ours) (Emphasis ble. event, authorities. In that he Kentucky accordance with the laws of tried in will be logical Calloway’s extension of The Indiana, Kentucky. state of fantasy. What he is argument approaches restraint of the here is unlawful saying by Calloway The other contention Kentucky wiped by is out the fact improper by in remarks the trial court to victim that the victim in jury panel and robbed denied him a fair trial raped he entire that exemp in a by argued appropriately virtue of the could be Indiana any Calloway’sargument goes free from Here he should be close case. tion statute case, of the not the facts. We jurisdiction. in this to the law prosecution that he does not opinion of the show are reasoning result in would Accepting denying the extent of him prejudice interpretation exemption an absurd trial. fair legislature do not believe We statute. provides, provisions “All KRS 500.030 to be construed so as the statute intended be liberally shall construed accord- this code result. an absurd to reach terms, import fair of their ing clearly explains commentary in- The justice, and to objects effect promote legislature. The statute tention law.” prosecution on abusive as a restraint act we We are of have construed kidnap- Kentucky charging authorities in in accord with KRS 509.050 this section degrees or ping Penal Code. etc., robbery, charges rape, addition in judgment affirmed. Kentucky. in The which occur all of CLAYTON, JONES, specifically, “More STEPHENSON convictions STERNBERG, JJ., precluded concur. are for confinements which are toward the directed commission robbery, LUKOWSKY, REED, J., J., and C. con- crimes of violence and which only. in result cur length do not in exceed and character the confinement which PALMORE, J., type of ordinarily ac- dissents. such offenses.” company (Emphasis add- Justice, PALMORE, dissenting. ed.) 509.050, construing exemp- In ERS point made by Commentary majority opinion empha- tion (written the drafter of statute) portion Commentary sizes physical merely detentions that are prosecutor it is said that “a incidental commission of such crimes misuse the statute to secure robbery are not the evil toward rape, robbery punitive sanctions for greater kidnapping laws are directed. Pre- *4 than are avail- other offenses otherwise and against the laws sumably particular those from it the that and draws conclusion able” provide protection crimes sufficient against purpose of the statute is “to act as a the without the them aid of kidnapping stat- prosecution by on abusive Ken- restraint utes. tucky charging kidnapping authorities in In this case the detention existed for addi- degrees of unlawful in hour, maybe “about a little more.” Had etc., charges rape, robbery, all to of of tion robbery the and taken place on the Kentucky.” in which occur town, of in Kentucky side instead of abuse, mentioning possibility the After of Indiana, the assault and imprison- Commentary goes explain on to how the leading up ment offenses to and culminat- Code and crimi- Penal certain other Model ing in the and robbery would have statute, (including codes New York nal Certainly in merged appellant them. hours) requires a 12 are which detention of have convicted could not been of both particular problem. that toward directed kidnapping. That the and crimes culminat- many it in so words that is says Then there ed in Indiana should not any make differ- basis the Kentucky a different against rape ence. Indiana laws and follows: as and has robbery prosecutors courts and ca- by enforcing my “The approach pable opinion reflected KRS 509.050 them. It is provision unlike all of the above. The defendants in that the this case should have express use policy against to a been turned over to the Indiana authorities seeks Instead, to con- impose upon prosecution sanctions there. I am afraid a involves movement or confine- that KRS 509.050 has which been misunderstood duct subverted, (of may that has crimi- a person) another no result we ment nological significance many to evil good very toward a witness abuses pro- It majority is directed. then indicates it which that the by prevent. a flexible standard which courts vides intended policy. Before criminal are enforce respect Another in I a come to com- that is directed toward the behavior ways with parting majority opinion robbery, rape, or some other of- pletion of possible is in treatment of the its effect of must kidnapping, can constitute there fense portion judge’s of the trial remarks to the in an interference excess jury panel beginning at of. term ordinarily accompanies that of- during appellant court which the was tried. added.) (Emphasis fense.” my personal acquaintance own From merely re-empha- foregoing excerpt distinguished judge the able and I am the concluding portion is said in satisfied that if he had realized the similari- what sizes Commentary appearing beginning at ties between facts of case and the Chapter example mentioned him to the pan- 509: by 12 of my years would be tried in on the el, that this case bench of speak- verdict, whom he was jurors to and I want same don’t compromised used a exam- have different that. ing, your he would to do If you punishment Nevertheless, point. his ple great to illustrate law, be too under the I can should it is: here little, it. it’s reduce If too I could never compromise your not I’m you do it. saying go “I instruct increase not back there verdict, I mean that. and here’s what give every the maximum sentence in twelve- a member Suppose you’re give the minimum sentence Don’t case. you you go back there and jury and man Give a sentence fits every case. guilt; about this man’s doubt some you have vote for a verdict of the crime once along remaining with the just get but guilty.” eleven, go along I’ll you say, “Okay. for new trial filed six motion some In a going guilty, verdict of but I’m with the trial, appel- counsel for the weeks after minimum sentence.” give the absolute diligence “that after due lant stated way. compromised That’s a That’s no the trial of subsequent to this matter and agree a verdict of you Once verdict. filing of Motion and Grounds for New verdict, you appro- your set an guilty . . and the Trial . Court’s Order over- aggravated An of- punishment. priate . motion . ruling said counsel be- certainly punish- warrants fense court’s charge aware” came aggravated. In than one that ment containing passage jury panel quoted Sullivan, of Gilbert and “Let words this it is to above. From be assumed that *5 give the crime.” I’ll punishment fit present was not when the prospec- counsel example, a and I don’t want to little you were addressed and had rea- jurors tive no It would be embarrass- names. mention what been to know had said time son ago here we had A months a ing. few up bring it before trial. family attractive with young man —an Appellant’s foregoing contention that a family charged man young jurors him a deny conducedto against offense an offense—a sexual sloughed off fair trial comment lady. type thing A bizarre elderly argued appropriately it “could happen. that it nobody could believe could in close case. Here Calloway’sargument happen? Why? Why would He took case, goes to law the facts.” the river. The serious offense her across begs question. an answer It miss- Such place in southern Indiana. We took point es the that the had a choice with him prosecute for the most seri- couldn’t penalty, respect ranging from 10 they prosecute offense. All ous was years. precise aspect This detaining a against woman her jury’s function toward which the trial will, a punishment carried from remarks had been judge’s directed. Pre- years in penitentiary. seven jurors sumably accepted guidance jury mostly young women Now They those remarks. offered chose they there and went in there went back years. of 20 maximum sentence That the know in their minds thought —I argument main appellant’s goes the law thought this unbelievable. It’s incredi- the facts simply case rather than I don’t and bizarre. understand how ble possible irrelevant influence of do man would this with a seven- young upon jury’s court’s remarks choice lady. there’s some- ty-two year old So The, I think he penalty. of a substantial here. evidence was thing awry over- process due claim. that, I’ll but I’m not whelming admit the minimum give anything but going to Well, they did that —two
sentence. they might hung well have
years, and Now that’s about the
a medal on him. example that I can think poignant
most