Henley v. Taylor

Johnny Charles HENLEY v. H.A. TAYLOR, Circuit
Judge

CR 96-297                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 1, 1996


1.   Certiorari -- review of circuit court's determination of bail
     availability -- certiorari proper remedy for such review. --
     Certiorari is the proper remedy to review a circuit court's
     determination of the availability of bail.   

2.   Bail -- criminal defendant has absolute right before
     conviction to reasonable bail -- conditions may be placed upon
     bail if defendant is determined to be dangerous. -- Article 2,
      8, of the Arkansas Constitution provides that "All persons
     shall, before conviction, be bailable by sufficient sureties,
     except for capital offenses, when proof is evident or the
     presumption great"; a criminal defendant has an absolute right
     before conviction, except in capital cases, to a reasonable
     bail; if the defendant is determined to be dangerous, Ark. R.
     Crim. P. 9.3 sets forth certain conditions that a judicial
     officer may place upon a defendant's bail. 

3.   Bail -- non-capital defendant's absolute right to bail may be
     curbed, but not absolutely denied -- mental examination could
     have been basis for setting stringent conditions for release,
     but not for denying release altogether. -- A non-capital
     defendant's absolute right to bail may only be curbed by the
     setting of certain conditions upon his release and not by its
     complete denial; although the mental examination provided the
     judge with a basis for setting stringent conditions on
     petitioner's release, it did not give him the option of
     refusing to release defendant from incarceration.

4.   Certiorari -- circuit court's jurisdiction over mentally ill
     defendants is limited -- writ of certiorari granted and case
     remanded. -- Although a probate court may in some instances,
     after appropriate hearings, involuntarily commit for an
     extended period a mentally ill person who is dangerous to
     himself or herself or others, the jurisdiction of a circuit
     court with respect to criminal defendants thought to be
     mentally ill is limited; where the circuit court improperly
     denied petitioner's motion for pretrial release, the writ of
     certiorari was granted, and the case was remanded to the
     circuit court. 


     Petition for Writ of Certiorari; granted.
     John F. Gibson, Jr., for petitioner.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for respondent.

     Per Curiam.April 1, 1996   *ADVREP12*      





JOHNNY CHARLES HENLEY                        CR96-297
                                             Opinion Delivered:

          Petitioner                         Petition for Writ
                                             of Certiorari  
     v.

H.A. TAYLOR, CIRCUIT JUDGE

          Respondent                         Writ Granted



                           PER CURIAM
     Johnny Charles Henley petitions for certiorari and mandamus
contending the Lincoln Circuit Court improperly denied his motion
for pretrial release.  Certiorari is the proper remedy to review a
circuit court's determination of the availability of bail.  Thomas
v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).    
     Mr. Henley was charged with attempted murder and aggravated
assault on February 14, 1996.  On February 16, 1996, Circuit Judge
Fred Davis, without conducting a pre-trial release inquiry, ordered
Mr. Henley held without bond.  Mr. Henley moved to set bond.  The
motion was heard by Judge H.A. Taylor.  
     Shortly after Mr. Henley filed his motion to set bond, the
State moved the Circuit Court to commit Mr. Henley to the Southeast
Arkansas Mental Health Center for a mental examination.  The
examination was to be "for the purpose of determining whether or
not the Defendant is a clear and present danger to himself, to
others, or both, as defined in A.C.A.  20-47-207(c)."  Judge
Taylor granted the motion.
     In a report filed in the Circuit Court, Dr. Malik of the
Southeast Arkansas Mental Health Center observed that Mr. Henley
has a long history of violence and he tends to become violent when
he uses drugs and alcohol.  For those reasons, Dr. Malik concluded
Mr. Henley was a danger to others.
     Mr. Henley's petition states that based on Dr. Malik's
opinion, Judge Taylor refused to set any conditions for his
pretrial release, and in doing so stated, "I am familiar with Rule
9.3 of the Arkansas Rules of Criminal Procedure, but if any judge
is going to release Mr. Henley, it's not going to be this judge." 
Mr. Henley argues that under A.R.Cr.P. 9.3, Judge Taylor did not
have the option to refuse his pretrial release.  We agree.
     Article 2,  8, of the Arkansas Constitution provides that
"All persons shall, before conviction, be bailable by sufficient
sureties, except for capital offenses, when proof is evident or the
presumption great."  Stated another way, a criminal defendant has
an absolute right before conviction, except in capital cases, to a
reasonable bail.  Reeves v. State, 261 Ark. 385, 548 S.W.2d 822
(1977), See also Duncan v. State, 308 Ark. 205, 823 S.W.2d 886
(1992).  If the defendant is determined to be dangerous, Rule 9.3
sets forth the conditions a judicial officer may place upon a
defendant's bail if he is determined to be dangerous:



     Prohibition of Wrongful Acts Pending Trial.
          If it appears that there exists a danger that the
     defendant will commit a serious crime or will seek to
     intimidate witnesses, or will otherwise unlawfully interfere
     with the orderly administration of justice, the judicial
     officer, upon the release of the defendant, may enter an
     order:
     (a) prohibiting the defendant from approaching or
     communicating with particular persons or classes of persons,
     except that no such order shall be deemed to prohibit any
     lawful and ethical activity of defendant's counsel;
     (b) prohibiting the defendant from going to certain
     described geographical areas or premises;
     (c) prohibiting the defendant from possessing any dangerous
     weapon, or engaging in certain described activities or
     indulging in intoxicating liquors or in certain drugs;
     (d) requiring the defendant to report regularly to and
     remain under the supervision of an officer of the court.

     As can be seen from the constitutional provision and the
criminal procedure rule, a non-capital defendant's absolute right
to bail may only be curbed by the setting of certain conditions
upon his release, and not its complete denial.  Although the mental
examination provided Judge Taylor with a basis for setting
stringent conditions on Mr. Henley's release, it did not give him
the option of refusing to release him from incarceration.  
     Although a probate court may in some instances, after
appropriate hearings, involuntarily commit for an extended period
a mentally ill person who is dangerous to himself or herself or
others, Ark. Code Ann.  20-47-201 through 20-47-228 (Repl. 1991
and Supp. 1995), the jurisdiction of a circuit court with respect
to criminal defendants thought to be mentally ill is limited.  See
Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981).  
     We grant the writ of certiorari and remand to the Circuit
Court for further hearing and orders consistent with this opinion.

Glaze and Corbin, JJ, dissent.






JOHNNY CHARLES HENLEY,
                    PETITIONER,

V.

H. A. TAYLOR, CIRCUIT JUDGE,
                    RESPONDENT.



CR96-297

Opinion Delivered:  4-1-96







DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     Noting Johnny Henley's long history of violence and a
psychiatric evaluation reflecting that he is a danger to others,
the trial judge denied Henley's release prior to trial.  The trial
court is mandated to conduct a pretrial release inquiry in felony
cases where the prosecutor does not stipulate to a defendant's
release, and the trial court did so in this case.  However,
contrary to the majority per curiam opinion, the trial court is not
required to release the defendant after such an inquiry is
conducted.  In fact, A.R.Cr. P. Rule 9.1 provides that "the
judicial officer may release the defendant . . . upon an order to
appear."  (Emphasis added.)  See also Ark. Code Ann.  16-84-110
(Supp. 1995) (before conviction, the defendant may be admitted to
bail).  Consistent with Rule 9.1, A.R.Cr. P. Rule 9.3 provides as
follows:
          If it appears there exists a danger that the
     defendant will commit a serious crime or will seek to
     intimidate witnesses, or will otherwise unlawfully
     interfere with the orderly administration of justice, the
     judicial officer, upon the release of the defendant, may
     enter an order:
          (a) prohibiting the defendant from approaching or
     communicating with particular persons or classes of
     persons, except that no such order shall be deemed to
     prohibit any lawful and ethical activity of defendant's
     counsel;
          (b) prohibiting the defendant from going to certain
     described geographical areas or premises;
          (c) prohibiting the defendant from possessing any
     dangerous weapon, or engaging in certain described
     activities or indulging in intoxicating liquors or in
     certain drugs;
          (d) requiring the defendant to report regularly to
     and remain under the supervision of an officer of the
     court.  (Emphasis added.)
     The majority reads Rule 9.3 to read the trial judge must enter
an order releasing a defendant, and in doing so imposes applicable
restrictions (a) through (d) above.  Such a reading is erroneous.
     Obviously, the restrictions in Rule 9.3 are worthless if, for
example, you have a defendant like Henley, who suffers from mental
disease and an addiction which would likely cause him to be a
danger to others.  The judge voiced that concern here, the record
supports his concern, and therefore, he clearly did not abuse his
discretion in denying Henley's request to be released.
     In conclusion, I am vitally concerned when this court
interprets its own rules to permit dangerous defendants to
assimilate into society with no more than a paper court order to
protect people.  Trial courts, after appropriate inquiry, should be
given authority and discretion to make difficult release decisions,
and the appellate court's review should be limited to determining
if the lower court abused its discretion in making its decision. 
In my view, telling a trial court it has no discretion to deny a
dangerous defendant a release is irresponsible on this court's
part.
     CORBIN, J., joins this dissent.