Walker v. CommonwealthWalker v. Commonwealth
- Reporters:
- , ,
- Before:
- Cooper
Appellant Kevin Walker appeals from his conviction of violating
(1) Whenever any person within this state shall be charged on the oath of any credible person before any judge of this state with the commission of any crime in any other state and, except in cases arising underKRS 440.210 , with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge in this state setting fcnih on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising underKRS 440.210 , has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the Circuit or District Judge of the county in which he was arrested who may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(2) No bail bondsman or his agent shall arrest, detain, imprison, or remove from the state any person for having broken the terms of his bail unless a warrant for that person’s arrest has been issued as provided for in subsection (1) of this section.
(3) Any violation of subsection (2) of this section shall be deemed as a Class D felony and punishable thereas.
(Emphasis added.) Subsection (1) was enacted along with the other provisions of the UCEA in 1960. 1960 Ky. Acts, ch. 135, § 14. Subsections (2) and (3) were added by the 1976 General Assembly, 1976 Ky. Acts, ch. 95, § 1, concomitantly with the enactment of the so-called “Bail Bonding Act of 1976” which abolished the practice of commercial bail bonding in Kentucky and replaced it with the- present system of pretrial release.
Appellant owns a bail bonding company in Ohio. He also contracts himself out to other bail bonding companies as a “fugitive recovery agent” who apprehends and returns to custody bailed persons who have failed to appear in court and thereby jeopardized their bonds. On April 12, 1997, Allen Wayne Barkley was being held in jail in Cincinnati, Hamilton County, Ohio, on a misdemeanor charge of operating a motor vehicle on a suspended license, a misdemeanor charge of domestic violence, and a minor traffic offense. Ray Trimble, owner of Trimble Bail Bonding, an agent of Allegheny Mutual Casualty Company, posted a $21,000.00 bail bond to secure Barkley’s release. On June 2, 1997, Barkley failed to appear as required in the Hamilton County Municipal Court. The judge ordered his bond forfeited and issued a capi-as to the police chief of Cincinnati to apprehend Barkley and bring him to court. The capias listed a Cincinnati, Ohio, address for Barkley. He was not found at that address.
Before a bond can be finally forfeited in Ohio, the bailed person and the bondsman must be given the opportunity to “show cause” why the bond should not be forfeited.
On November 17, 1997, Appellant and two other “fugitive recovery agents” hired by Trimble were surveilling Barkley’s residence when a man -arrived in what was believed to be Barkley’s pickup truck. When the man exited the truck and began walking toward the apartment,- Appellant and his companions gave chase, ultimately forcing their way into the residence brandishing firearms and a stun gun. Although the man they had chased was not Barkley, they did find Barkley, along with his ex-wife and her three children, inside the residence. Appellant informed Barkley that he was “under arrest” and that he intended to return him to Ohio. Appellant and his companions then proceeded to handcuff and shackle Barkley and drag him outside to their vehicle against his forcible resistance. Meanwhile, someone called the Newport police, who arrived just
Appellant was subsequently indicted by a Campbell County grand jury on charges of kidnapping, burglary in the first degree, assault in the fourth degree, wanton endangerment in the second degree, and “bondsman detaining without warrant.” He was convicted of the assault and wanton endangerment charges, for which he was sentenced to a combined fíne of $450.00. These misdemeanor convictions have not been contested on appeal. He was also convicted of “bondsman detaining without warrant” for which he was sentenced to one year in prison and a fine of $1,000.00. His motion for probation of the prison sentence was denied. The Court of Appeals affirmed the felony conviction but remanded for resentencing, perceiving that the trial judge did not give due consideration to probating the sentence.
I. CONSTITUTIONAL ISSUES.
We first address Appellant’s claims that
1. Full Faith and Credit.
Appellant argues that Kentucky must give full faith and credit to Ohio law with respect to the warrantless apprehension of fugitives from Ohio who flee to Kentucky. He is mistaken. “No state is required to adopt the statutes of another state which are in conflict with their [sic] own in the absence of a statute of that forum requiring them [sic] to do so.”
Pyles v. Russell,
Ky., 36 S.W.3d 365, 367 (2000).
See also Hawkins v. State,
745 S.W.2d 511, 513-14 (Tex.Ct.App.1988) (Texas courts not required to subjugate state’s legitimate public policy expressed in statute criminalizing carrying of handguns by giving full faith and credit to California law authorizing bail bondsman with private investigator’s license to carry handgun).
Nor have we failed to give full faith and credit to the orders of the Hamilton County Municipal Court. Those orders did not purport to authorize Appellant to violate the law of Kentucky. But even if it were otherwise, “[t]he Full Faith and Credit Clause was designed to give the United States certain benefits of a unified nation, but a judgment of a sister state need not be recognized by another state if it is an improper infringement on the interests of the latter state.” Brengle v. Hurst, Ky., 408 S.W.2d 418, 420 (1966).
2. Interstate Commerce.
Evenhanded local regulation to effectuate a legitimate local public interest is valid unless pre-empted by federal action or unduly burdensome on maritime activities or interstate commerce....
In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when conferring upon Congress the regulation of commerce, never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.
Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443-44, 80 S.Ct. 813, 815-16, 4 L.Ed.2d 852 (1960) (quotations and citations omitted). Thus, in Louisville & N.R. Co. v. Kentucky, 188 U.S. 503, 22 S.Ct. 95, 46 L.Ed. 298 (1902), it was held that any interference resulting from the enforcement of a state law forbidding railroads from charging more per ton for hauling freight over shorter distances rather than longer distances was too remote and indirect to be an unconstitutional interference with interstate commerce. Id. at 518-19, 22 S.Ct. at 101-02. Likewise, we conclude that a statute requiring that alleged fugitives from bail be afforded at least a minimum of due- process only remotely and indirectly regulates the interstate business of bail bonding, thus is not unconstitutional.
3. Equal Protection.
Appellant asserts that
Nevertheless, a state may discriminate against a class, other than a suspect class, if there is a rational basis for doing so, i.e., “if there is any reasonably conceivable state of facts supporting the perceived discrimination.” Steven Lee Enters. v. Varney, Ky., 36 S.W.3d 391, 395 (2000) (quotations omitted).
[A] state may classify with reference to the evil to be prevented, and ... if the class discriminated against is or reasonably might be considered to define those from -whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience.... The state may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses.
Associated Indus, of Ky. v. Commonwealth, Ky., 912 S.W.2d 947, 956 (1995) (quoting Campbell v. Commonwealth, 229 Ky. 264, 17 S.W.2d 227, 229-30 (1929) (citations and quotations omitted)).
The evil sought to be prevented by the enactment of
Jh Due Process Clause.
Appellant’s first due process claim is that he did not have “fair warning” of the criminality of his conduct because no Kentucky statute has previously been construed as changing the common law authority of a bail bondsman as enunciated in Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 21 L.Ed. 287 (1872), viz:
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: “The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.”
Id. at 371-72 (footnotes omitted).
Appellant’s claim grossly misconstrues the “fair warning” requirement. A “fair warning” violation occurs “[w]hen a[n] ... unforeseeable state-court [sic] construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect [being] to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.”
Bouie v. City of Columbia,
378 U.S. 347, 354-55, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964). In
Bouie,
the South Carolina Supreme Court interpreted a trespass statute that prohibited
“[ejntry
on lands of another after notice prohibiting same” to prohibit the act of
remaining
on the premises of another after receiving notice to leave.
Id.
at 349-350, 84 S.Ct. at 1700-01 (emphasis added).
See also Gall v. Parker,
231 F.3d 265, 305-06 (6th Cir.2000) (detrimental application of new judicial interpretation of extreme emotional disturbance defense to conduct occurring when more favorable interpretation was in effect violated “fair warning” requirement). The “fair warning” requirement also applies to changes in common law principles that are “ ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ”
Rogers v. Tennessee,
532 U.S. 451, 460-62, 121 S.Ct. 1693, 1699-1700, 149 L.Ed.2d 697 (2001) (state court’s abolishment of common law “year and a day” rule did not violate “fair warning” requirement) (quoting
Bouie, supra,
at 354, 84 S.Ct. at 1697). However, we are not abolishing the common law rule enunciated in
Taylor, supra.
That occurred when
Appellant’s reliance on
Lopez v. McCotter,
875 F.2d 273 (10th Cir.1989), and
Commonwealth v. Wilkinson,
415 Mass. 402, 613 N.E.2d 914 (1993), is misplaced. Both of those cases were interpreting statutory equivalents of
Appellant’s second due process claim that
II. PUBLIC DUTY.
(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree.
(2) The justification afforded by subsection (1) applies when:
(a) The defendant believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or
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(Emphasis added.)
Appellant claims that his warrantless apprehension of Barkley was justified under
Alternatively, Appellant asserts that he was entitled to a jury instruction on the justification afforded by
Subsection (3) extends the justification of Subsection (1) to two situations in which a person is excused although mistaken about legal authorization. The first occurs when the actor believes his conduct to be required or authorized by a competent court or tribunal, or believes that he is executing lawful process, but the court lacks jurisdiction or there is some unknown defect in the legal process. The technicalities that control the question of jurisdiction and the legality of the process should not also control the defense of justification ....
Model Penal Code
§ 3.03 cmt. 4 (1985) (emphasis added). Likewise, the 1974 Commentary to
III. MISTAKE OF LAW.
Appellant asserts that his conduct was authorized under the law as stated in the passage quoted
supra
from
Taylor v. Taintor.
In fact, this ancient obiter dictum
2
may once have accurately described the law of Kentucky.
See
Even if accurate at one time, the
Taylor
dictum clearly does not describe the present law of Kentucky as defined since 1976 in
[Njothing the majority or minority said [in Taylor ] was intended to mean that the Extradition Clause or any other provision of the Constitution authorizes bondsmen to violate the law of a state or provisions of the federal Constitution in an effort to apprehend a bail jumper. The language from the majority opinion ... is not meant as an interpretation of federal constitutional law. It does not create for bondsmen “a clearly established right” under the Extradition Clause and hence does not shield a bondsman under federal law from arrest for violation of the law of Ohio in apprehending bail jumpers. The quoted language from Taylor v. Taintor appears to be simply an effort to state the common law powers of bondsmen, as found in Blackstone, Chapter 8, and several other sources. We find nothing in Taylor or in Chapter 8 of Blackstone, that would authorize the broad power of a bondsman at common law to “break the law” as claimed by Lund.The bondsman may be authorized under the law of the state where a bond is made to retrieve bail jumpers, but he must abide by the law of the state he enters to pursue his fugitive. Federal constitutional law does not preempt state law or immunize bondsmen from violations of local law.
Lund v. Seneca County Sheriff’s Dep’t,
230 F.3d 196, 198 (2000) (emphasis in original). We agree and conclude that the
Taylor
dictum does not preempt
Alternatively, Appellant claims that his conduct should be excused as a mistake of law because he actually believed that the
Taylor
dictum was the law of Kentucky and was unaware of the existence of
(1) A person’s ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless:
(a) Such ignorance or mistake negatives the existence of the culpable mental state required for commission of an offense; or
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(3) A person’s mistaken belief that his conduct, as a matter of law, does not constitute an offense does not relieve him of criminal liability, unless such mistaken belief is actually founded upon an official statement of the law,afterward, determined to be invalid or erroneous, contained in:
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(b) A judicial decision, opinion or judgment; or
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(Emphasis added.) Thus
The initial problem with the application of subsection (l)(a) is that
A person may be guilty of an offense without having one (1) of the culpable mental states defined inKRS 501.020 [defining intentionally, knowingly, wantonly and recklessly] only when:
(1) The offense is a violation or a misdemeanor as defined inKRS 500.080 and no particular culpable mental state is included within the definition of the offense; or
(2) The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.
As Professors Lawson and Fortune note, strict liability crimes are commonplace but “largely limited to offenses with minor penalties — traffic crimes, building, fire, health code violations, etc.”
Nonetheless, imposition of punishment in the absence of fault (i.e., “mens rea,” “intent,” “guilty mind,” or “scienter”) is generally regarded as the exception rather than the rule in our jurisprudence, especially for crimes with substantial penalties.
Lawson & Fortune,
supra,
at § 2 — 1(b)(1). A violation of
Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with re-
spect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.
Thus, a violation of
The “official statement” exception in
Under the subjective standard established in
You will find the defendant guilty of Bondsman Detaining without Warrantunder this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about November 17, 1997, and before the finding of the indictment herein, he intentionally arrested or detained Allen Wayne Barkley;
AND
B. That when he did so, he knew that a warrant for Barkley’s arrest had not been issued by a judge of a Kentucky circuit or district court.
Provided, however, you will find him not guilty under this instruction if you believe from the evidence that at the time he arrested or detained Barkley, he actually, though mistakenly, believed that language contained in the 1872 United States Supreme Court case of Taylor v. Taintor authorized him to apprehend Barkley in Kentucky without a warrant for the purpose of delivering him to Ohio authorities.
At trial, Appellant was also not permitted to read to the jury the passage from Taylor, quoted supra, upon which he claimed to rely. During guilt phase deliberations, the jury requested a copy of Taylor. This request was refused, no doubt because the court’s instructions did not include a “mistake of law” proviso. On retrial, Appellant shall be permitted to apprise the jury of the “official statement of the law” upon which he claims to have relied.
Accordingly, we affirm the Court of Appeals with respect to Appellant’s convictions and sentences for assault in the fourth degree and wanton endangerment in the second degree, and reverse the Court of Appeals with respect to Appellant’s conviction of “bondsman detaining without warrant,” and remand that charge to the Campbell Circuit Court for a new trial in accordance with the contents of this opinion. The reversal of Appellant’s conviction and sentence for violating
Notes
. The constitutionality of
. The actual holding of the case was that a Connecticut bail bondsman was not exonerated from forfeiture where he had permitted his principal to leave Connecticut and reside in New York from where he was subsequently extradited to Maine and convicted and sentenced for another offense and thus, not subject to reapprehension by the bondsman. 83 U.S. at 373-74.
. For an historical tracing of the maxim, see Edwin R. Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L.Rev. 75 (1908). The acerbic remark that “[e]verybody is presumed to know the law except His Majesty‘s judges, who have the Court of Appeal set over them to put them right,” is attributed to Judge Maulé. Paul K. Ryu & Helen Silving, Error Juris: A Comparative Study, 24 U. Chi. L.Rev. 421, 423 (1957) (citing Glanville Williams, Criminal Law, the General Part 386 (1953)).
. Knowledge, of course, can be proven by circumstantial evidence. Love v. Commonwealth, Ky., 55 S.W.3d 816, 825 (2001).