Petition of Humphrey

• Decision Date: 18 September 1979
• Docket Number: No. H-79-403,H-79-403
• Citation: 601 P.2d 103
• Parties: 1979 OK CR 97 Petition of Writ of Habeas Corpus of Granville Lee HUMPHREY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 103

601 P.2d 103

1979 OK CR 97

Petition of Writ of Habeas Corpus of Granville Lee HUMPHREY.

No. H-79-403.

Court of Criminal Appeals of Oklahoma.

Sept. 18, 1979.

OPINION

BUSSEY, Judge:

Petitioner, Granville Lee Humphrey, was charged by Information with Possession of Controlled Dangerous Substance, Case No. CRF-79-2159, and Carrying a Firearm, After Former Conviction of a Felony, Case No. CRF-79-2273. He posted a bond in the sum of $3,000.00 (Three Thousand Dollars) and $5,000.00 (Five Thousand Dollars) respectively. Preliminary hearing in each case was set for July 10, 1979, and continued at the request of the State to July 18, 1979.

On July 12, 1979, the District Attorney, through James R. McKinney, First Assistant, filed an application to strengthen bail asking the Court to revoke the Petitioner's present bond and deny bond alleging that it had come to the attention of the District Attorney's Office that Humphrey was "a danger to society." On that date, the Honorable Joe Cannon, District Judge of Oklahoma County, issued an ex parte order for the arrest and incarceration of Granville Humphrey until the Petitioner could be brought before the Court for a hearing in the matter.

Alias warrants were issued alleging the commission of the two crimes originally charged. Deputies of the Oklahoma County Sheriff's Office went to Humphrey's residence to serve the warrants. Petitioner was observed to run from the residence to a back fence and throw something over the fence. One deputy proceeded to retrieve the items and another arrested Petitioner. Petitioner was taken into his residence where he allegedly consented to sign a search waiver. A subsequent search revealed property believed to be stolen, and on Monday, July 16, 1979, a possession of stolen property charge was filed, Case CRF-79-2640. And, as a result of the seizure of the items allegedly thrown by the defendant, three possession of controlled dangerous substance charges were also filed on July 16, 1979, Case CRF-79-2637, 2638 and 2639. At the hearing on the application to strengthen bail on July 16, 1979, Petitioner was arraigned on the four charges and bond denied. Bond was revoked in the two pending charges.

On July 18, 1979, Petition for Writ of Habeas Corpus was filed by Petitioner in this court covering all six cases. This court on July 19, 1979, issued an order to show cause why the Writ of Habeas Corpus should not be awarded, directed to District Judge Joe Cannon and to Oklahoma County Sheriff Gene Wells to be heard July 24, 1979. Petitioner filed a brief in support of his petition for Writ of Habeas Corpus and a supplemental brief. Respondent, State of Oklahoma, through the District Attorney of Oklahoma County, filed a response brief and a supplemental brief.

There can be no question about Petitioner's right to bail since the Oklahoma Constitution ¹ makes all offenses, with the qualified exception of capital crimes, bailable. Creech v. State, Okl.Cr., 500 P.2d 861 (1972). The constitutions of 35 states (See Appendix I) contain virtually the same right to bail provision. ²

The constitutions of a minority of states (See Appendix II) contain only a prohibition against excessive bail which comes from the Eighth Amendment ³ to the United States Constitution. ⁴ Most of these states have followed the federal example and have passed statutes which require imposition of conditions such as law-abiding behavior for bond subject to court revocation for violation of state law.

Respondent in the instant proceeding is, in effect, urging this Court to find by judicial construction that this State's right to bail provision authorizes revocation of bail in the two pending cases and denial of bail for Petitioner in the four new cases, all of which allege the commission of noncapital offenses. Respondent states, ". . . (S)ocietal changes dictate this analysis." Perhaps so. But nevertheless the constitution must be amended by the people, not by this Court. We find the language of section 8 of Article 2 to be unambiguous its mandate clear. Creech v. State, supra.

In State v. Pett, 253 Minn. 429, 92 N.W.2d 205, 207 (1958), the Court held:

"Where words used in our constitution have a clear and well-defined meaning, there is no room for construction. Neither the courts nor the legislature have a right to substitute for words used in the constitution having a well-defined meaning other words having a different meaning . . . The right to amend the constitution rests exclusively with the people, and, if, constitutionally, bail is to be withheld in cases other than capital offenses at the discretion of the trial court, that change must be brought about by an amendment of the constitution. As the constitution now reads, all crimes are bailable."

"If the constitutional guarantees are wrong, let the people change them not judges or legislators." In re Underwood, 9 Cal.3d 345, 348, 107 Cal.Rptr. 401, 404, 508 P.2d 721, 724 (1973) citing In re Keddy, 105 Cal.App.2d 215, 233 P.2d 159 (1951). Five states with constitutional right to bail provisions did amend their constitutions to provide that bail could be denied in instances other than capital cases or revoked for violation of the conditions of bail. They then enacted implementing legislation compatible with the revision. ⁵ These states are Arizona, Michigan, Nebraska, Texas and Utah. (Appendix I B). In 1972 in Creech we cited Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824 (1970) which dealt with Arizona statutes providing for setting of terms for release on bond and for revocation of bond for violation of its terms. A.R.S. § 13-1577 et seq. Therein we stated:

"We should also like to commend to the consideration of the Oklahoma Legislature the provisions of the Arizona Statutes discussed in Rendel, supra."

The constitutional provision guaranteeing the right to bail to an accused in a criminal case is based upon the idea that a person accused of a crime shall be admitted to bail until adjudged guilty by the court of last resort to him. The United States Supreme Court observed in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951):

"This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. * * * Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." (Footnote omitted).

However the right to bail pending trial is not absolute under all circumstances. A clear statement of the court's inherent power in this matter is contained in People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837, 840 (1975):

"In our opinion the constitutional right to bail must be qualified by the authority of the courts, as an incident of their power to manage the conduct of proceedings before them, to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure. This action must not be based on mere suspicion but must be supported by sufficient evidence to show that it is required. Thus keeping an accused in custody pending trial to prevent interference with witnesses or jurors or to prevent the fulfillment of threats has been approved. (See Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (Harlan, Circuit Justice, 1961); Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (Douglas, Circuit Justice, 1962); see also Annot. (1972), 30 L.Ed.2d 952, 972.) We think that under both the United States and Illinois constitutions the denial of bail to an accused under such circumstances is within the inherent power of the court. Also, if a court is satisfied by the proof that an accused will not appear for trial regardless of the amount or conditions of bail, bail may properly be denied. State v. Johnson (1972), 61 N.J. 351, 294 A.2d 245; Commonwealth v. Truesdale (1972), 449 Pa. 325, 296 A.2d 829."

We find no evidence in the record which would warrant the exercise of the court's inherent power to revoke or deny bail to Petitioner. Nor does the record contain any evidence which would support Respondent's allegation that Petitioner is "a danger to society." Assuming arguendo that there was such evidence, we expressly reject the concept of an implied public safety exception to the guarantee of the right to bail. We agree with the Court in In re Underwood, supra, 9 Cal.3d at 348, 107 Cal.Rptr. at 404, 508 P.2d at 724, when it said:

"We are compelled to the conclusion that the detention of persons dangerous to themselves or others is not contemplated within our criminal bail system, and if it becomes necessary to detain such persons, authorization therefor must be found elsewhere, either in existing or future provisions of the law."

We now turn to the revocation of Petitioner's bond in CRF-79-2159 and CRF-79-2273. The State filed an application to strengthen bond on the ground it had come to the attention of the State that the defendant was "a danger to society" and the bonds insufficient. The Court issued an order ex parte for his arrest and incarceration until he could be brought before the court for a hearing to revoke the defendant's present bond and to deny bond.

This extraordinary proceeding was devoid of any element of due process. Title 22 O.S.1971, § 1109 enumerates the grounds for obtaining additional security. ⁶ The ground relied upon by the State is not among them. ⁷ Further, the defendant is entitled to notice of the hearing and the opportunity to be heard, and the State is required to prove the statutory ground upon which it relies. Only then shall the defendant be required to give additional security or be incarcerated. ⁸ Tijerina v. Baker, 78 N.M. 770, 438 P.2d 514 (1968) dealt with a similar situation. The Court observed:

"We are concerned with the procedure by which the bonds were revoked and these petitioners confined in the penitentiary. The record is...