[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 303.]
THE STATE OF OHIO, APPELLEE, v. KOLE, APPELLANT.
[Cite as State v. Kole, 2001-Ohio-191.]
Criminal law—Bounty hunter enters home of third party unannounced and
without permission to apprehend a fugitive—Conviction for abduction,
burglary, and having weapon while under disability, with firearm
specifications—Ineffective assistance of counsel as to abduction and
burglary counts, in conjunction with issue of whether counsel was
ineffective for failing to raise issue of firearm operability and of
applicability of gun specifications, combine to create such prejudice as to
require reversal and remand of all convictions and specifications.
(No. 00-1479—Submitted April 3, 2001—Decided July 18, 2001.)
APPEAL from the Court of Appeals for Lorain County, No. 98CA007116.
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LUNDBERG STRATTON, J.
{¶ 1} On May 31, 1996, A-B-C Bail Bonds (“A-B-C”) contracted with
fugitive recovery agent Michael Kole, defendant-appellant, to apprehend Cecil
Cobb, who had absconded after A-B-C had posted $2,500 for his release pending
trial on a robbery charge. Cobb had been released from jail a few days earlier after
serving time on an unrelated matter and had been living on the street.
{¶ 2} On May 31, 1996, Cobb stopped by the apartment of his stepbrother,
William McAuliffe, located at 325 Columbus Street, in Elyria. After speaking
briefly with McAuliffe, Cobb left the apartment because he had been offered some
work for the day. A-B-C received an anonymous telephone call stating that Cobb
could be found at the Columbus Street address.
{¶ 3} Defendant and his partner, Jose Rosario, proceeded to the address
given to them by A-B-C and at approximately three o’clock in the afternoon entered
SUPREME COURT OF OHIO
McAuliffe’s apartment without permission, and with guns drawn. They found a
man lying on a couch in the living room and demanded to know his identity.
Defendant and Rosario determined that the man was not Cobb, but his stepbrother,
McAuliffe, instead. Defendant and Rosario inquired as to the whereabouts of Cobb
while they searched the apartment.
{¶ 4} Responding to a call, officers from the Elyria Police Department
arrived at the apartment. The police ascertained the identities of McAuliffe,
defendant, and Rosario. Upon discovering the purpose of defendant and Rosario’s
presence, the officers, defendant, and Rosario departed. Later that evening,
defendant and Rosario staked out McAuliffe’s apartment, and they apprehended
Cobb.
{¶ 5} Defendant was later indicted by the Lorain County Grand Jury on one
count of abduction in violation of R.C. 2905.02(A)(2), one count of burglary in
violation of R.C. 2911.12(A)(3), and one count of having a weapon while under a
disability in violation of R.C. 2923.13(A)(2), with prior-offense-of-violence and
firearm specifications with each charge. A jury convicted defendant of all charges
and all firearm specifications, and the trial court found him guilty of all prior-offense-of-violence specifications. The Court of Appeals for Lorain County
affirmed the convictions and sentence.
{¶ 6} The cause is now before this court upon the allowance of a
discretionary appeal.
{¶ 7} This case was presented for this court to address a variety of issues,
many of which relate to the age-old practice of bounty hunting or “fugitive
recovery” in today’s parlance. In particular, we have been asked to determine
whether Ohio law permits a bounty hunter to enter the home of a third party
unannounced and without permission in order to locate and apprehend a fugitive.
Defendant urges this court to consider whether there exists an absolute statutory
defense to any and all criminal charges arising out of the act of recovering a
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fugitive. We find that defendant’s counsel at the trial and court of appeals levels
failed to present what might have been a crucial statutory defense available to the
defendant and thus rendered the defendant ineffective assistance of counsel.
Because we are remanding for a new trial, we must save these questions for another
day.
{¶ 8} In both courts below, defense counsel instead argued that defendant,
in apprehending a fugitive for a bail bonding agent, enjoyed a common-law
privilege to enter McAuliffe’s apartment and use whatever force was necessary to
apprehend Cobb. Defendant drew this argument from a United States Supreme
Court case in which the court held that “[w]hen 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.’ ” (Emphasis added.) Taylor v. Taintor (1872), 83
U.S. (16 Wall.) 366, 371-372,
21 L.Ed. 287, 290.
{¶ 9} Thus, both throughout pretrial motions to dismiss and at trial, with
regard to the abduction and burglary charges, defense counsel consistently argued
that Taylor provided an absolute privilege for defendant to enter the home of a third
party, McAuliffe, to recover the fugitive. “Privilege” is defined for the purpose of
the Revised Code as “an immunity, license, or right conferred by law, bestowed by
express or implied grant, arising out of status, position, office, or relationship, or
growing out of necessity.” R.C. 2901.01(A)(12). On the other hand, the state
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argued that although Taylor permits a bounty hunter to pursue the fugitive into his
or her own home, the bounty hunter is not permitted to pursue the fugitive into the
home of another.
{¶ 10} The court of appeals held that “[w]hile there is an absence of
controlling Ohio authority on the subject, ‘the decided trend is that the bondsman
lacks the broad authority over a third person that he possesses with respect to the
fugitive who has violated the conditions of his bail. The pivotal difference is that
the defendant who agreed to the terms of the bail bond has contracted away rights
that he would otherwise possess vis-à-vis the bondsman, whereas a third person has
not contracted away any rights,’ ” quoting Herd v. Maryland (1999), 125 Md.App.
77, 115,
724 A.2d 693, 712.
{¶ 11} Ultimately, the court of appeals concluded that “bail bondsmen have
broad authority to use reasonable and necessary force against fugitives, including,
where reasonable, a forced entry into the home of the fugitive. However, this broad
authority does not extend to infringe upon third parties who are not parties to the
bail contract.” The court continued, “Assuming, arguendo, that Kole had the
authority to use reasonable force to enter upon a third party’s dwelling to apprehend
a fugitive, this Court concludes that Kole’s use of force was unreasonable on the
facts of this particular case.” Accordingly, the court of appeals affirmed the
convictions.
{¶ 12} Defendant received new counsel for purposes of an appeal to this
court. In preparing the appeal to this court, new counsel discovered a statute that,
had it been raised at trial, is reasonably probable to have provided an affirmative
defense to the abduction and burglary charges of which defendant stood accused.
{¶ 13} R.C. 2713.22 provides: “For the purpose of surrendering the
defendant, the bail may arrest him at any time or place before he is finally charged,
or, by a written authority indorsed on a certified copy of the bond, may empower
any person of suitable age and discretion to do so.” (Emphasis added.) Therefore,
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defendant urges this court to find that he received ineffective assistance of counsel
at trial and on appeal with regard to the abduction and burglary convictions. We
agree that the failure to present this statute to the jury constituted ineffective
assistance of counsel.
{¶ 14} The United States Supreme Court has held that “[t]he benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland v. Washington (1984),
466 U.S. 668, 686,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 692-693. In making
such a determination, there are two components. “First, the defendant must show
that counsel’s performance was deficient.”
Id. at 687,
104 S.Ct. at 2064,
80 L.Ed.2d
at 693. “Second, the defendant must show that the deficient performance
prejudiced the defense.”
Id.
{¶ 15} We bear in mind that our scrutiny of counsel’s performance must be
highly deferential. Id. at 689,
104 S.Ct. at 2065,
80 L.Ed.2d at 694. But important
to our decision today is the admonition that counsel “has a duty to bring to bear
such skill and knowledge as will render the trial a reliable adversarial testing
process.”
Id. at 688,
104 S.Ct. at 2065,
80 L.Ed.2d at 694.
{¶ 16} In establishing whether counsel’s performance was deficient, the
defendant must show that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687,
104 S.Ct. at 2064,
80 L.Ed.2d at 693. While counsel clearly raised the
common-law privilege, we find that failing to raise a statutory defense that provided
that “the bail may arrest … at any time or place” amounted to deficient
performance by defense counsel at trial and that failing to raise the issue to the court
of appeals constituted deficient appellate assistance. While Taylor speaks to
entering the house of the fugitive to recover him, R.C. 2713.22 speaks to arresting
the fugitive at any time or place.
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{¶ 17} Clearly there is no rationale for failing to cite this statute to the trial
and appellate courts. Thus, it cannot be said that this omission was the result of a
trial tactic, for this statute may have insulated the defendant from criminal liability.
Rather, defense counsel appears to have missed this statute in counsel’s
investigation and research of the law. Even the prosecutor admits being unaware
of the statute. Moreover, the statute is not mentioned in the appellate decision. In
assessing counsel’s performance, we conclude that “in light of all of the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690,
104 S.Ct. at
2066,
80 L.Ed.2d at 695.
{¶ 18} This omission, even though professionally unreasonable under the
dictates of Strickland, does not warrant setting aside defendant’s convictions unless
the error had an effect on the judgment. Id. at 691,
104 S.Ct. at 2066,
80 L.Ed.2d
at 696. The second prong of Strickland requires that “the defendant must show that
the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”
Id. at 687,
104 S.Ct. at 2064,
80 L.Ed.2d at 693. In fact,
“[t]o show that a defendant has been prejudiced by counsel’s deficient performance,
the defendant must prove that there exists a reasonable probability that, were it not
for counsel’s errors, the result of the trial would have been different.” State v.
Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373, paragraph three of the
syllabus.
{¶ 19} On its face, the statute could have established a privilege for two of
the charges against defendant in this case: burglary and abduction. For example, at
the hearing on the motion to dismiss, the focus was on whether Cobb resided at the
325 Columbus Street address in Elyria. R.C. 2713.22 would have given the court
a statutory defense to consider that makes irrelevant the issue of Cobb’s residency
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and instead would have focused on the plain language of the statute, the right to
arrest the fugitive “at any time or place.”
{¶ 20} Moreover, at trial, although defense counsel submitted alternate
proposed instructions, the trial court did not accept them, and defendant did not
object to the instructions given. The instructions given focused on defendant’s
unlawful intent rather than on whether there existed a potential absolute statutory
defense. Although the instructions incorporate the defense of privilege, they
obviously did not refer to the language of R.C. 2713.22.
{¶ 21} For example, in the instruction for abduction, the court stated: “If
you find beyond a reasonable doubt that Bill McAuliffe, who was a third party,
intentionally impeded the Defendant’s lawful arrest or recapture of Cecil Cobb, you
will then consider whether the amount of force used by the Defendant in this case
was necessary, was unnecessary or unreasonable under the circumstances. If you
determine beyond a reasonable doubt the amount of force used by the Defendant in
this case was unnecessary or unreasonable under the circumstances, then you must
also find that the Defendant acted without privilege to do so. If you determine that
the amount of force used by the Defendant in this case was necessary or reasonable
under the circumstances, then you must find that the Defendant acted with privilege
to do so.”
{¶ 22} Further, the burglary instruction included the following statement:
“In this case, it is undisputed that the Defendant was working as a bounty hunter
during the incidents charged in this Indictment. Bounty hunters and/or bail
bondsmen occupy a special position in law which includes the right to enter the
residence of a suspect in order to take that suspect into custody. Bounty hunters
are not authorized to forcibly enter private dwellings of a third party to arrest the
suspect, the suspect in this case being Cecil Cobb.
{¶ 23} “In this case you must first determine whether or not Cecil Cobb was
a permanent or temporary resident at 325 Columbus Street on May 31st, 1996. If
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you find that Cecil Cobb was a permanent or temporary resident on May the 31st,
1996, then the Defendant had a right to search for him at that place. If you find that
Cecil Cobb was not a permanent or temporary resident, then the Defendant had no
privilege to search the premises at 325 Columbus Street.”
{¶ 24} In determining prejudice, the Strickland test requires the defendant
to show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694,
104 S.Ct. at 2068,
80 L.Ed.2d at 698. Further, we are reminded that
“[a] reasonable probability is a probability sufficient to undermine confidence in
the outcome.”
Id.
{¶ 25} Clearly, in light of R.C. 2713.22, the jury instructions were not a
proper statement of the law relating to a bail bonding agent entering the home of a
third party to recover a fugitive. The jury could have reached a different outcome
had the language of R.C. 2713.22 been used in the jury instruction instead of the
instructions given. We hold that counsel’s failure to present the jury with a R.C.
2713.22 statutory defense to the charges of abduction and burglary established a
reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Because we conclude that defendant did not
receive the counsel guaranteed him by the Sixth Amendment and that this case must
be remanded for a new trial, the fugitive recovery issues presented in this appeal
are not yet ripe for review. We must wait until these issues and this statute are
properly tested in a trial setting and reviewed on appeal before we may consider
them in this court.
{¶ 26} Defendant also appeals the convictions for having a weapon while
under disability and the firearm specifications. Defendant alleges that these
convictions should be reversed due to the state’s failure to prove operability of the
firearm he possessed during his pursuit of Cobb. Defendant raises the issue of
operability in this court for the first time. Nor did either trial or appellate counsel
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attack the issue of whether a gun specification can attach to a charge of weapons
under disability, an issue not yet addressed by this court.1
{¶ 27} We hold that the ineffective assistance as to the abduction and
burglary counts, in conjunction with the issue of whether counsel was ineffective
in failing to raise the issue of firearm operability and of the applicability of the gun
specifications, combine to create such prejudice to the defendant as to require
reversal and remand of all convictions and specifications.
{¶ 28} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court for a new trial.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., dissents.
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COOK, J., dissenting.
{¶ 29} At first, the majority purports to “save … for another day” the
question of whether R.C. 2713.22 permits a bounty hunter to enter the home of a
third party unannounced and without permission in order to locate and apprehend
a fugitive. Yet the majority eventually decides that “[o]n its face, [R.C. 2713.22]
could have established a privilege for two of the charges against [the] defendant in
this case” and that Kole’s trial counsel was thus ineffective for failing to raise this
statute as an affirmative defense.
{¶ 30} With all due respect, I suggest that the majority cannot have it both
ways. A reasonable probability of a different trial outcome would not exist here
1. Although this court has held that “[t]he crimes of carrying a concealed weapon, R.C. 2923.12, and having
weapons while under disability, R.C. 2923.13, are not allied offenses of similar import under R.C. 2941.25(A),
and may be committed separately and with a separate animus under R.C. 2941.25(B),” State v. Rice (1982), 69
Ohio St.2d 422,
23 O.O.3d 374,
433 N.E.2d 175, syllabus, we have not addressed the issue of whether
enhancing the offense of having a weapon while under a disability with a firearm specification, which carries
a mandatory prison term, violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.
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per Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d
674, unless R.C. 2713.22 actually provided Kole a valid statutory privilege or
defense for the jury to consider. Put another way, the majority cannot decide that
Kole’s trial counsel was constitutionally ineffective for her failure to raise the
statute without also implicitly deciding that the statute provided Kole a legitimate
defense.
{¶ 31} Today’s majority deems trial counsel’s performance constitutionally
deficient based on her failure to raise a statute that, to the best of my knowledge,
has never been cited in any opinion published by any court in this state. Even if I
were to assume, for the sake of argument, that trial counsel performed deficiently
by failing to raise the statute and that Kole thus satisfied Strickland’s first prong, I
could go no further. To be of any assistance to Kole, R.C. 2713.22 must be
interpreted to endow bounty hunters with greater rights to enter the private
dwellings of nonconsenting third parties than are possessed by our state’s law
enforcement officers. See Steagald v. United States (1981), 451 U.S. 204,
101 S.Ct.
1642,
68 L.Ed.2d 38 (holding that, absent exigent circumstances or consent, law
enforcement officers may not constitutionally search for the subject of an arrest
warrant in the home of a third party without first obtaining a search warrant).
Neither Strickland nor the Sixth Amendment requires trial counsel, or reviewing
courts for that matter, to entertain such improbabilities. See Murray v. Carrier
(1986),
477 U.S. 478, 486,
106 S.Ct. 2639, 2644,
91 L.Ed.2d 397, 407 (“ ‘the
Constitution guarantees criminal defendants only a fair trial and a competent
attorney. It does not insure that defense counsel will recognize and raise every
conceivable … claim,’ ” quoting Engle v. Isaac [1982],
456 U.S. 107, 133-134,
102 S.Ct. 1558, 1575,
71 L.Ed.2d 783, 804). Thus, I respectfully dissent.
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Gregory A. White, Lorain County Prosecuting Attorney, and Lisa A. Locke
Graves, Assistant Prosecuting Attorney, for appellee.
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January Term, 2001
David H. Bodiker, State Public Defender, and James R. Foley, Assistant
State Public Defender, for appellant.
David M. Gormley, State Solicitor, and Norman E. Plate, Assistant
Solicitor, urging affirmance for amicus curiae, Attorney General of Ohio.
__________________
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