Calloway v. Com.
| Decision Date | 18 February 1977 |
| Parties | Robert Earl CALLOWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
Calloway was convicted of kidnapping, KRS 509.040, and sentenced to 20 years' imprisonment. We affirm.
The facts are not disputed. Calloway, his brother Charlie, and a Wayne Lanham, after a session of "sniffing glue," went to a mall in Owensboro for the specific purpose of "robbing a girl." There they seized the victim in the mall parking lot, forced her into her automobile, and, with Calloway driving, proceeded across the bridge from Owensboro to Indiana. The automobile was parked near the bridge in Indiana, and the three men took turns raping the victim. Afterwards, while still in Indiana, $30 was taken from the victim, of which Calloway, kept $20 for himself and his brother and gave $10 to Lanham. After the rape and robbery, Calloway drove them back across the bridge into Kentucky and pulled into a cemetery where the automobile became stuck in the mud. Calloway and the other two men left the victim in her car and went on their separate ways.
The victim identified the three men. She, Calloway's brother and Lanham (both of whom confessed) testified at the trial in detail about the entire episode. Calloway's confession was read to the jury.
The principal assertion of error is the failure of the trial court to submit an instruction to the jury on the exemption to the kidnapping statute, KRS 509.050. Calloway argues that his only defense to the crime charged was that his actions fell within the exemption statute.
KRS 509.040, Kidnapping, provides:
"(1) A person is guilty of kidnapping when he unlawfully restrains another person when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage.
(2) Kidnapping is a capital offense unless the defendant voluntarily releases the victim alive, substantially unharmed, and in a safe place prior to trial, in which case it is a Class B felony."
The trial court instructed under (b), to accomplish the commission of the crime of rape and/or robbery.
KRS 509.050, Exemptions, provides:
(Emphasis ours)
Calloway submitted an instruction on the exemption. The thrust of his argument is whether the interference with the victim's liberty occurs immediately with and incidental to another offense or whether the interference exceeds that which is ordinarily incident to the commission of the other offense and is a question for the jury.
The trial court properly declined to give the instruction. We are of the opinion the application of KRS 509.050 is to be determined by the trial court and not by a jury in the absence of standards by which a jury could make such a determination.
The larger question presented by Calloway's argument that his actions fall within KRS 509.050 is whether the exemption statute has any application at all in the circumstances presented here. We are of the opinion that it does not.
The purpose of KRS 509.050 and the legislative intent is supplied in the commentary to the statute:
"The necessity for this provision arises out of the fact that many of the crimes defined in this code have as an essential element, or as an incidental element, a restriction of another's liberty. For example, offenses of robbery and forcible rape are defined in such a way as to always involve physical restraint. Other offenses may involve a restriction of someone's liberty because of the manner in which they are committed. Because of this fact, a prosecutor could misuse the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses than are otherwise available. (Emphasis ours)
The logical extension of Calloway's argument approaches fantasy. What he is saying here is the unlawful restraint of the victim in Kentucky is wiped out by the fact that he raped and robbed the victim in Indiana and that by virtue of the exemption statute he should be free from any prosecution in this jurisdiction.
Accepting this reasoning would result in an absurd interpretation of the exemption statute. We do not believe the legislature intended the statute to be construed so as to reach an absurd result.
The commentary clearly explains the intention of the legislature. The statute is to act as a restraint on abusive prosecution by Kentucky authorities in charging kidnapping or degrees of unlawful imprisonment in addition to charges of rape, robbery, etc., all of which occur in Kentucky.
Here, Kentucky authorities did not charge kidnapping to secure greater punitive sanctions for the rape and robbery. Here, the charge of kidnapping to accomplish or to advance the commission of a felony was to charge the only offense committed in this jurisdiction.
We hold that KRS 509.050 is applicable only to the charge of kidnapping or degrees of unlawful imprisonment made in conjunction with other charged offenses committed in this jurisdiction. In those situations, it is the duty of the trial court to determine whether such charge constitutes an abuse of the kidnapping and unlawful imprisonment statutes according to the circumstances presented in each case.
Had this entire episode occurred in Kentucky, the trial court would then have had to make a determination of the application of KRS 509.050. The practicality of the situation in our view is that ordinarily the authorities would be satisfied with charges of rape and robbery and not be disposed to pile on additional charges unless the circumstances were unusual.
Should Calloway be charged with rape and robbery in Indiana, we do not consider that to be an "abuse of prosecution" by Kentucky authorities. In that event, he will be tried in accordance with the laws of the state of Indiana, not Kentucky.
The other contention by Calloway that improper remarks by the trial court to the entire jury panel denied him a fair trial could be argued more appropriately in a close case. Here Calloway's argument goes to the law of the case, not the facts. We are of the opinion that he does not show prejudice to the extent of denying him a fair trial.
KRS 500.030 provides, "All provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law."
We are of the opinion we have construed KRS 509.050 in accord with this section of the Penal Code.
The judgment is affirmed.
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...intend(s) the statute to be construed so as to reach an absurd result.'" Id. at 339 (emphasis added) (citing Calloway v. Commonwealth, Ky., 550 S.W.2d 501, 503 (1977)). As observed in Bradshaw v. Ball, supra, it is the function of the legislature to enact substantive criminal laws and to ap......
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