State v. Jackson

• Decision Date: 18 December 2012
• Docket Number: No. SC 92532.,SC 92532.
• Parties: STATE of Missouri, Plaintiff, v. Kirk JACKSON, Defendant.
• Court: Missouri Supreme Court

384 S.W.3d 208

STATE of Missouri, Plaintiff,

v.Kirk JACKSON, Defendant.

No. SC 92532.

Supreme Court of Missouri,

En Banc.

Oct. 30, 2012.

Rehearing Denied Dec. 18, 2012.

Louis R. Horwitz, Lou Horwitz LLC, St. Peters, for Jackson.

Breck K. Burges and Rebecca Shaffar, St. Charles County prosecutor's office, St. Charles, for the State.

Robert P. McCulloch, Clayton, for Missouri Association of Prosecuting Attorneys, which submitted a brief as a friend of the Court.

LAURA DENVIR STITH, Judge.

Kirk Jackson requests relief following the St. Charles County circuit court's setting of a $75,000 cash-only bond, arguing that the setting of a cash-only bond violates the requirement of article I, section 20 of the Missouri Constitution that “all persons shall be bailable by sufficient sureties, except for capital offenses.”

The constitutional directive that persons be bailable by sufficient sureties does not require that only commercial bondsmen can stand as sureties. Historically, and today, other third parties and a reasonable cash bond required of defendant have been permitted to stand as surety so long as the bail requirement is used to serve the purpose of securing the defendant's appearance at trial rather than for preventing pretrial release or for other disallowed purposes. Moreover, under article I, section 32 of Missouri's Constitution adopted in 1992, courts can deny bail or impose special conditions on bail if necessary to protect the victim or the community. For all of these reasons, the trial court did not err in exercising its discretion to require a cash-only bond.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 29, 2012, the State issued a warrant for Mr. Jackson's arrest. According to prosecutors, Mr. Jackson operated a massage therapy business and secretly videotaped clients while they undressed. One female client purportedly became suspicious and, following her massage, discovered a camera hidden in a tissue box in the corner of the room. Local police conducted an undercover operation and soon thereafter searched the business pursuant to the warrant. The raid allegedly led to the discovery of a camera hidden in a wall hanging, and a subsequent search of Mr. Jackson's home led to the seizure of an external hard drive containing images of female clients partially or fully nude. Mr. Jackson was arrested and sought release on bail.

All agree that the right to bail is governed by Missouri's constitution and this Court's rules. Article I, section 20 provides that “all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” Article I, section 32 provides that “upon a showing that the defendant poses a danger to a crime victim, the community, or any other person, the court may deny bail or may impose special conditions which the defendant and surety must guarantee.” Rule 33.01(b) provides that a court “shall set such conditions for release as will reasonably assure the appearance of the accused.” Rule 33.01(d) provides that the court “shall in all cases release the accused upon his written promise to appear”—that is, release the defendant on his own recognizance—unless “the court determines that such release will not reasonably assure the appearance of the accused.”

Rule 33.01(d) provides a variety of methods of ensuring the defendant's return if the trial court believes that conditions are necessary to reasonably assure the accused's appearance, only one of which is to “require the execution of a bond in a stated amount with sufficient solvent sureties.” Other methods of providing reasonable assurance, that is, surety, of the appearance of the accused set out in Rule 33.01(d) include providing for a supervising custodian, restricting the defendant's location and travel, requiring regular personal reports, requiring the deposit of 10 percent or less of the bond with the court itself, or requiring “the deposit in the registry of the court of the sum in cash or negotiable bonds ...” and such other conditions as the court may find appropriate to assure the defendant's return, taking into account the many factors set out in that rule.¹

Pursuant to Rule 33.01, the circuit court set Mr. Jackson's bond at $75,000, cash only, without the possibility of executing a 10–percent cash bond. On April 27, 2012, the State indicted Mr. Jackson on 14 counts of felony invasion of privacy for filming victims without their knowledge or consent. Mr. Jackson sought relief in the Missouri court of appeals and now applies to this Court for relief pursuant to Rule 33.09.² He requests this Court to hold that the trial court's requirement that he post cash-only bail violates the provision of article I, section 20 that bail shall be permitted by “sufficient sureties.”

II. STANDARD OF REVIEW

Resolution of the issues presented requires interpretation of article I, section 20 and article I, section 32. “Constitutional interpretation is a question of law and is subject to de novo review.” Akers v. City of Oak Grove, 246 S.W.3d 916, 919 (Mo. banc 2008).

III. CASH–ONLY BAIL IS PERMITTED BY THE MISSOURI CONSTITUTION

Mr. Jackson argues that the judge's imposition of cash-only bail violates the provision in article I, section 20 of Missouri's Constitution that “all persons shall be bailable by sufficient sureties, except for capital offenses.” This clause, under Mr. Jackson's analysis, prohibits courts from mandating cash-only bail and, instead, requires that courts provide defendants with the option of posting a surety bond and that only a third party can serve as a surety. He also contends that requiring cash-only bail serves to keep a defendant in jail rather than to secure his return from release.

A. Missouri's Constitutional Requirement of “Sufficient Sureties ”

Missouri's first constitution, adopted in 1820, contained a bail provision identical to that used today. It provided: “That all persons shall be bailable by sufficient sureties, except for capital offences, when the proof is evident or the presumption great.” Mo. Const. art. XIII, § 11 (1820). This provision seems to combine aspects of two earlier types of bail provisions utilized in America. The earliest colonial provision concerning the right to bail was the Massachusetts Body of Liberties of 1641, which provided: “No mans person shall be restrained or imprisoned by any Authority what so ever, before the Law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance.” Donald B. Verrilli, Jr., The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Colum. L.Rev. 328, 337 (1982). The Northwest Ordinance embraced a similar expression, declaring that “all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.” Northwest Ordinance, July 13, 1787.

Missouri's 1875 constitution did not change this language other than to update spelling and grammar. Mo. Const. art. II, § 24 (1875). Missouri's current constitution, adopted in 1945, similarly repeats the wording of the earlier constitutions, stating that “all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” Mo. Const. art. I, § 20. It is as to the meaning of this provision of the 1945 Constitution that the parties disagree. Neither party cites any language in the debates of the delegates to the 1820, 1875 or 1945 constitutional conventions that explains the meaning of the words “sufficient sureties,” and this Court's own review of the transcripts of those debates has found no discussion of the term.³ This Court turns, therefore, to case law for guidance.

B. Courts Addressing Use of Cash–Only Bail in Missouri and Elsewhere

While this Court's decisions have not had occasion to interpret article I, section 20 directly, in State v. Echols, 850 S.W.2d 344 (Mo. banc 1993), this Court did approve the use of a cash payment as surety for a defendant's appearance. The trial court had set defendant Echols' bail at $100,000, “fully secured.” Echols' grandfather delivered a $100,000 check to court personnel, who then completed a bond form in Echols' name. Following a jury finding that Echols was guilty of first-degree murder and armed criminal action, the trial court set aside the bond and ordered Echols to surrender or be taken into custody.⁴ Echols never returned.

This Court upheld the trial court's refusal of the grandfather's request to set aside the forfeiture of the $100,000 bond, stating that “[m]oney posted in a cash bond is presumed to be the property of the defendant” even if it was supplied by a third party. Id. at 347. This is because if the cash were not presumed to be the defendant's property, “there would be little or no incentive for the defendant to appear in court because he would lose nothing by failing to appear.” Id. In other words, Echols reasoned that the cash stood as surety for the defendant's appearance, and if it were not the defendant's own cash or treated as such, then it would not be sufficient to assure the defendant's appearance—it would not provide sufficient surety.

More than two-thirds of states have a constitutional provision equivalent to Missouri's provision that defendants must be bailable by “sufficient sureties.” See State v. Brooks, 604 N.W.2d 345, 350 (Minn.2000). Although the sufficient sureties provision has been in effect in many of these states for almost 200 years, cases addressing its meaning do not appear to have arisen until the last few decades. The reasoning in Echols, however, is consistent with that used by the five state courts that have upheld the use of cash-only bail over the objection that a third-party bondsman must be permitted to stand as surety under this constitutional language.

Perhaps the most detailed interpretation of the clause was given by the Iowa Supreme Court in State v. Briggs, 666 N.W.2d 573 (...