author: STEPHENSON, Justice. LEIBSON, Justice,

text:
    Ronnie DAMRON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 21, 1985.
    As Corrected March 21, 1985.

      Michael A. Wright, Asst. Public Advocate, Frankfort, for appellant.
    David L. Armstrong, Atty. Gen., William E. Doyle, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Ronnie Damron was convicted by a jury with verdicts as follows: escape in the first degree — five years; kidnapping a jailer— ten years; kidnapping a church pianist— ten years; theft over $100 — one year.

At the second stage of the trial, he was found guilty of being a persistent felony offender in the first degree and sentenced to twenty-one years’ imprisonment.

Damron and four other inmates of the Caldwell County jail overpowered a deputy jailer, tied him with a torn sheet, and fled the premises.

All of the inmates, after leaving the jail, broke into and spent the night in a nearby church. The next day the church pianist arrived at the church for the purpose of practicing. The former inmates overpowered her, tied her to a chair, and taking her car keys, left in her car. Damron was later apprehended in Indiana.

Damron presents four assertions of reversible error.

First, he asked for and was denied a “choice of evils” instruction, KRS 503.030. Damron testified that he escaped from jail because it was a “matter of life or death.” He testified that he was ill while in jail, lost weight, and suffered severe chest pains. Further, he testified he had been denied medical attention and felt that “it was serious enough that my life was in jeopardy.”

We are of the opinion the situation described by Damron is not sufficient to invoke the provisions of KRS 503.030. There must be a showing of a specific and imminent threat to his person in order to justify the giving of the instruction. See Senay v. Commonwealth, Ky., 650 S.W.2d 259 (1983).

Next, Damron argues that he should not have been convicted of being a first-degree persistent felony offender since he was convicted of several felonies, including a conviction for escape from jail, with concurrent sentences. KRS 532.080(4) provides:

For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned. (Emphasis added.)

Damron argues that he was in jail and that is not imprisonment within the meaning of the statute. Thus, he asserts there is proof of only one prior felony which would not subject him to first-degree status.

Simply put, does “imprisonment,” as used in the statute, contemplate jail custody while awaiting trial as well as imprisonment in a penitentiary? We are of the opinion escape from jail is encompassed in the statute.

The commentary to KRS 532.080(4) provides:

... When an individual has been convicted two times before serving any time in prison, his convictions shall be considered a single conviction for purposes of this section. This is another effort to avoid the label of persistent felony offender for persons who might be rehabilitated through an ordinary term of imprisonment for the offense most recently committed.

It is plain that the commentary is centered on the defendant being exposed to rehabilitative efforts. We regard the commentary as good advice but not necessarily all inclusive. It is pertinent as far as it goes but does not contemplate the present situation. We hold that escape from jail is an offense committed while that person was imprisoned. It is apparent that the legislature intended to deal more harshly with persons who commit crimes while incarcerated. The present situation fits legislative intent portrayed by KRS 532.080(4).

Damron was also convicted of kidnapping in the restraint of the church pianist. The jury was instructed to find Dam-ron guilty of the kidnapping of the pianist if it believed beyond a reasonable doubt that the restraint was to further the commission of theft of the car and escape. There was not a specific objection to this instruction, only a general objection that there was not sufficient evidence to convict. Although “weak,” we give Damron the benefit of the doubt and consider his argument. The proof on the charge of kidnapping the pianist is not different in any respect or degree from the proof of kidnapping of the jailer, not argued here. Certainly this restraint was to accomplish or to advance the commission of a felony (theft of the car), KRS 509.040(l)(b). Dam-ron’s argument that “she was being restrained merely to allow the theft to go smoothly without interference” does not take this case out of the operation of the statute.

At oral argument, there was an assertion the conviction on this point must be reversed for the reason that the escape had been completed. Without getting into a hair-splitting thesis on when the escape is completed, we hold that a jury issue of the matter was made out here, and there is evidence to sustain the kidnapping conviction under the facts of this case.

We have examined the complaints about the final argument by the Commonwealth and are of the opinion there is no reversible error in this respect.

The judgment is affirmed.

STEPHENS, C.J., and AKER, GANT, STEPHENSON, VANCE and WINTER-SHEIMER, JJ., concur.

LEIBSON, J., dissents and files a separate dissenting opinion.

LEIBSON, Justice,

dissenting.

Respectfully I dissent. Three different conclusions expressed in the majority opinion are in direct conflict with the statutes in point and our own previous decisions. They are as follows.

I. THE CHARGE OF KIDNAPPING THE CHURCH PIANIST

The conduct underlying the charge of kidnapping the church pianist consisted of tying her hands, taking her keys and then taking her car.

KRS 509.050, the “Exemption” section of the kidnapping statute, provides:

“A person may not be convicted of ... kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.”

There is an exception to this “exemption” in KRS 509.050. It “is not applicable to a charge of kidnapping ... incidental to the commission of a criminal escape.” Id.

The appellant was convicted of two different kidnapping offenses. One stemmed from the restraint of Michael Harper at the jail; the other from the restraint of the church pianist before taking her car. The exception to the exemption to the kidnapping statute applies to the escape from jail, but not to taking the keys and then the car from the church pianist. The Commentary to KRS 509.050 explains:

“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 on another’s liberty_ 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.
... The provision [exemption] seeks to express a policy against the use of kidnapping to impose sanctions upon conduct which involves a movement or confinement (of another person) that has no criminological significance to the evil toward which kidnapping is directed. It then provides a flexible standard by which courts are to enforce that policy. Before criminal behavior that is directed toward the completion of robbery, rape, or some other offense can constitute kidnapping, there must be an interference with liberty in excess of that which ordinarily accompanies that offense.”

The Commonwealth argues that it was unnecessary to tie the victim’s hands to take her keys and her car, but this view strains the common sense meaning of the words of the exemption statute, “unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.” Such a narrow interpretation would make the exemption statute nonexistent in almost every case, and is not a reasonable interpretation of the statute.

The charge in the indictment relating to kidnapping the church pianist states she was restrained “for the purpose of accomplishing the advancement of the commission of the felony of escape in the first degree.” The proof would not support this charge. The appellant and his companions accomplished the escape from jail a day earlier. The instruction to the jury framed this element in terms of whether “the defendant intended to accomplish or advance the commission of the theft of a motor vehicle and escape.” “Theft of a motor vehicle” was not covered by the indictment and would be inappropriate because of the exemption statute. “Escape” must be defined in the statutory terms applicable to escape in the first degree, which is confined to escape from “the detention facility in which a person is held (KRS 520.010(5)),” and does not include what you do the next day to continue on your journey.

The Commonwealth makes the convoluted argument that the appellant should have requested “an unlawful imprisonment instruction” per KRS 509.030, if he thought the evidence insufficient to convict him of kidnapping the church pianist. This argument shows the weakness, rather than the strength of the Commonwealth’s argument.

The appellant asked for a directed verdict for “insufficient evidence,” and he was entitled to one.

II. PREVIOUS CONVICTION FOR PURPOSES OF PFO STATUS

Appellant had three prior 1980 judgments of conviction from Crittenden County, all of which ran concurrently, and two 1980 judgments of conviction from Livingston County, both of which ran concurrently with the Crittenden County judgments. All of the convictions related to crimes occurring in a six week period commencing June 15, 1980.

Appellant argued that he had only one previous conviction for enhancement purposes, citing KRS 532.080(4), which provides that “two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.”

The Commonwealth argued successfully to the trial court that because one of these prior convictions was an escape from jail charge the exception (“while that person was imprisoned”) applied.

The only reasonable interpretation of the statute, consistent with the Commentary to the Penal Code and our cases analyzing the PFO statute, is that the phrase, “an offense committed while that person was imprisoned,” does not apply to in custody awaiting trial. Imprisonment refers to serving a sentence.

As stated in Combs v. Commonwealth, Ky., 652 S.W.2d 859, 861 (1983): .

“The 1974 commentary to the criminal code makes it plain that the intent of the persistent felony offender statute was to restrict its application to persons who have been previously exposed to an institutional rehabilitative effort and that when an individual has been convicted two times before being exposed to the institutional rehabilitation efforts afforded by a term of imprisonment, the two convictions shall count only as one in persistent felony offender proceedings.”

The Commonwealth argues that because a person later convicted can be given credit for jail time before conviction, the rule otherwise applicable to “concurrent or uninterrupted consecutive terms of imprisonment” does not apply. This argument may have succeeded with the trial judge, but it certainly runs contrary to the plain meaning of the statute, the Commentary, and the cases interpreting the statute.

III. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

In closing argument over objection the prosecutor argued at length to the effect that the appellant should be found guilty and severely punished to send a message to the jails and prisons as to the consequences of escape, thereby deterring future escapes.

His comments were beyond the scope of the record and the issues before the jury. They included:

“What keeps those people [on ‘minimum security’] from walking off all of the time? There are no fences. What keeps them there? They don’t want to be charged with escape.
... the threat of the law hanging over their head and quick and sure punishment for what they are going to do is more of a deterrent to escaping and taking someone hostage and kidnapping someone than all of the steel and concrete you can pore into this jail over here.
So, you sit here in a position today to establish a sentence that will reconstruct the jail, that will reconstruct a jail for a deterrent, ...
I guarantee you that a stiff, heavy penalty for that type crime, this type of crime, once or twice by a Caldwell County jury will do more to make that jail safe and secure than any amount of physical construction.”

We should face up to whether or not we permit this type of argument.

Appellant cites a number of cases for the proposition that prosecutors “should not go outside the record” to buttress the reasons for conviction, and suggest punishment other than what is appropriate for the particular crime, e.g., Baker v. Commonwealth, 268 Ky. 248, 104 S.W.2d 976 (1937); Carnes v. Commonwealth, Ky., 406 S.W.2d 849 (1966). Appellant also cites one case factually in point from another jurisdiction, People v. Panczko, 20 Ill.2d 86, 169 N.E.2d 333 (1960). But apparently there is no case squarely in point on the facts from this jurisdiction.

The rule is thus stated in the recent case of Wallen v. Commonwealth, Ky., 657 S.W.2d 232, 234 (1983):

“We have not engaged in any blanket condemnation of prosecutorial comment related to deterrence. We have condemned argument only where the prosecutor suggests that the jury convict or punish on grounds or for reasons not reasonably inferred from the evidence.”

In this case the prosecution told the jury that he would “guarantee ... that a stiff, heavy penalty ... will do more to make the jail safe and secure than any amount of physical construction.” This argument far exceeds our ruling limiting the prosecutor in argument to seeking punishment “on grounds or for reasons [to be] reasonably inferred from the evidence.”

This case should be reversed and remanded for a new trial excluding the charge of kidnapping the church pianist and limiting the PFO charge to PFO 2d.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    James Vivian MUNDAY, et al., Movants, v. O’Banion H. MUNDAY, et al., Respondents.
    Supreme Court of Kentucky.
    March 21, 1985.

      James L. Mattingly, Springfield, for mov-ants.
    Morris Butler, Greensburg, for respondents.
   STEPHENSON, Justice.

The trial court held that a joint will prevailed over a survivorship deed. The Court of Appeals reversed. We granted discretionary review and reverse the Court of Appeals.

H.E. and Nancy Munday owned a farm as joint tenants with right of survivorship. In 1960 they executed joint wills which devised the estates of each to the survivor, and upon the survivor's death the farm was devised to a son, James Munday.

H.E. Munday died in 1965, and his estate, including the farm, went to Nancy Munday. In 1978 Nancy Munday executed a deed conveying the farm to her four children equally. Subsequently, Nancy died and suit was filed to settle her estate. The trial court declared the deed null and void and ordered the farm distributed to James Munday according to the terms of the joint will. The Court of Appeals held that the farm was owned by a survivorship deed, and thus it did not pass through the estate but rather passed to Nancy Munday by operation of law. The survivorship status, according to the Court of Appeals, prevails over the terms of the joint will.

We have examined the authorities cited by both parties and find nothing in this jurisdiction on all fours with this situation. There is a multitude of cases holding that a joint will is a binding contract becoming irrevocable upon the death of one of the testators. There is also an abundance of authority that with a survivorship deed there is automatic devolution to the surviving party by operation of law. The difficulty is that none of the authorities are helpful here, where both principles are intertwined.

We are of the opinion that in this state of facts the joint will prevails over the surviv-orship clause.

At the time of the execution of the joint will, H.E. Munday and Nancy Munday knew that they held the farm under a survivorship deed. With this knowledge, they executed the joint will, and upon the death of H.E. Munday, Nancy Munday lost the power to devise the farm in any manner other than dictated by the terms of the joint will. The expressed desire of the parties to the joint will prevails over what would ordinarily be devolution by operation of law. The disposition we reach is what the parties intended. We apply an ancient Maxim of Equity. Equity regards as done that which ought to be done.

The decision of the Court of Appeals is reversed.

All concur.

      . KRS 394.540, effective date after execution of joint will, hence not considered.


author: LEIBSON, Justice. WINTERSHEIMER, Justice, STEPHENSON, Justice,

text:
    GAS SERVICE COMPANY, INC., Movant, v. CITY OF LONDON and London Utility Commission, Respondents.
    Supreme Court of Kentucky.
    March 21, 1985.

      Robert L. Milby, Hamm, Milby & Rid-ings, London, for movant.
    William R. Patterson, Landrum & Patterson, Gordon W. Moss, Hays & Moss, Lexington, for respondents.
    William A. Thielen, Lexington, for ami-cus curiae — Ky. Mun. Inc.
   LEIBSON, Justice.

This case developed as a consequence of a natural gas explosion that occurred on Fourth Street between Main and Hill Streets, in London, Kentucky, on January 16, 1979, destroying some buildings and damaging others.

A number of persons who sustained damage from the blast filed negligence actions against Gas Service Company, Inc., the movant on this appeal (referred to herein as the “Gas Company”). In turn the Gas Company filed a third party action against the City of London, Kentucky, and the London Utility Commission, its agent (collectively referred to herein as the “City”), seeking contribution and/or indemnity. The Gas Company alleged the City was responsible for installing a system of sewer lines in close proximity to existing gas lines and then later negligently repairing the sewer line so as to cause an ultimate failure in an adjacent gas line. According to testimony taken by deposition the Gas Company was prepared to prove that the City made a faulty repair which, by the process of electrolysis, destroyed the patching plate used on the sewer line and also caused a hole in the adjacent gas line. Ultimately gas thus escaping caused the explosion in controversy.

The Gas Company’s liability to the original plaintiffs is not at issue at this point. The trial court granted summary judgment to the original plaintiffs against the Gas Company on the issue of liability, and the jury assessed damages. The issues between the original plaintiffs and the Gas Company have been resolved.

However, the trial court also dismissed the Gas Company’s third party complaint for contribution and/or indemnity against the City, on grounds that it was a municipality immune from suit in the circumstances alleged. The Court of Appeals affirmed this decision. We accepted discretionary review to consider once again the legal morass that has generated around the subject of municipal immunity. We reverse for reasons that follow.

The landmark case in Kentucky on the present status of municipal immunity, written with the intention of being dispositive of this issue, is Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964).

Haney supposedly “abrogated the former rule of sovereign immunity for a municipal corporation,” making liability the rule. City of Lexington v. Yank, Ky., 431 S.W.2d 892, 893 (1968). Haney postulates:

“So, once again, we are called upon to examine this legal anachronism of municipal immunity from liability for tort.
Even the origin of this doctrine contains some elements of the mysterious. Some writers assume that it is a direct outgrowth of the divine right of the king who could do no wrong. But insofar as municipal or county or local district communities are concerned, it is generally agreed that the application of the immunity doctrine grew out of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1788), which involved a tort action against an unincorporated county.
It is equally hard to determine how this doctrine became imbedded in the law of our Commonwealth. Apparently we started without it because in Prather v. City of Lexington, 52 Ky. (13 B.Mon.) 559, 560 (1852), this was said:
‘Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual.’ ”
386 S.W.2d at 739.

Haney makes clear that there is no constitutional basis for municipal immunity. Haney then discusses the development through case law of “distinctions between functions of the municipal corporation that purportedly were governmental or public and those thought to be proprietary or private, denying liability in the case of governmental functions, but imposing it in situations involving proprietary actions.” 386 S.W.2d at 740. Haney comments:

“At most, the distinctions seem to be contrived and without sensible basis. That which was proprietary in some states was deemed governmental in others.” Id.

And, indeed, for proof of this comment we need look no further than the subject matter of the present action, a city’s liability for negligence in failure to keep its sewer system in proper repair. In Prather v. City of Lexington (1852), quoted in Haney, supra at 740, liability for failure to keep “sewers of the city in proper repair” was cited as a prime example of municipal liability. At the time of Haney we wrote “[t]he act of constructing a sewer is [regarded as] governmental in nature, with no liability [cases cited], but afterwards, if a negligent act of the city causes the basement of a connecting residence to be flooded, the city is responsible in damages. [Case cited].” Id. We further stated:

“We see no reason to belabor this point. We believe that all of these contrived devices [attempts to classify when there is liability for torts of municipal corporations] resulted from the fact that the courts for many years have been repelled by the injustice of the rule of municipal immunity and have attempted to soften its harsh application by seeking a few escape hatches.” Id.

Yet, since Haney we find Court of Appeals cases, including the present one, now classifying negligence in maintenance and repair of sewers as immune from liability, on new grounds presumably deriving from our post Haney opinions. See Court of Appeals opinions in Hempel v. Lexington-Fayette Urban Cty. Gov., Ky.App., 641 S.W.2d 51 (1982) and Carmichael v. Lexington-Fayette, etc., Ky.App.-, 608 S.W.2d 66 (1980). In Carmichael and Hempel the earlier liability based on the proprietary classification falls victim to a nebulous new classification designated an “inherent part” or “ultimate function” of municipal government.

It is understandable if the movant in the present case should wonder how we arrived in a situation where he could have recovered for damages from the city’s negligent maintenance and repair of the sewer system when municipal immunity was the rule and liability the exception, but can no longer recover now when liability is supposedly the rule and immunity the exception.

In short, with certain narrow exceptions stated in the opinion, Haney separates municipal immunity from sovereign immunity and seeks to abolish it. But subsequent decisions have so circumscribed its language that we have regressed beyond its starting point. In Haney, and in City of Louisville v. Chapman, Ky., 413 S.W.2d 74 (1967), which followed close on the heels of Haney, we regarded municipal immunity as a judicially created monstrosity which should be judicially destroyed. Fifteen years later we find that this monstrosity is not only alive and well, but grown to such proportions that it provides immunity for negligence in repair and maintenance of sewers, a function previously regarded as one proprietary in nature and not protected by municipal immunity. See City of Paris v. Baldwin Bros., 169 Ky. 802, 185 S.W. 144 (1916), City of Frankfort v. Buttimer, 146 Ky. 815, 143 S.W. 410 (1912), Toebbe v. City of Covington, 145 Ky. 763, 141 S.W. 421 (1911) and Town of Central Covington v. Beiser, 122 Ky. 715, 92 S.W. 973 (1906), all premising liability for damages on condition of city sewer facilities.

In Haney we hold that municipal corporations are no longer “immune from liability for ordinary torts.” 386 S.W.2d at 742. We then designate a narrowly defined exception to liability:

“We wish to make it plain, however, that this opinion does not impose liability on the municipality in the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions.” Id.
To further explain the new rule we add: “We think the scope of abrogation adopted by Wisconsin is a proper one and we adopt it. It is stated in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 [(1962)], as follows:
‘Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability— the exception is immunity_ Our decision does not broaden the government’s obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision.’ ”

City of Louisville v. Chapman, Ky., 413 S.W.2d 74, 76 (1967) follows on the heels of Haney and “reaffirm[s] our holding in Haney ” and the narrow exception for “the exercise of legislative or judicial or quasi-judicial or quasi-legislative functions.”

But beginning shortly thereafter in City of Louisville v. Louisville Seed Co., Ky., 433 S.W.2d 638, 641 (1968), while paying lip service to Haney we “compromise” its holding with new language raising up the municipal immunity concept like Phoenix from the ashes, language which is at least as difficult to understand and apply as the old, discarded proprietary/governmental dichotomy.

The new rule resurrects municipal immunity “when a claimant seeks to hold the city liable for a risk which is inherently part of the carrying on of the function of government, such as its failure to provide fire protection, police protection or, as here, flood protection.” 433 S.W.2d at 643. The court continues:

“We refer only to the ultimate failure and not to the situation where the city is engaging in activities with the citizen on a person to person basis as any other private citizen might do.” Id.

For the next fifteen years the courts of this Commonwealth, ours included, have struggled without success to make legal sense out of this legal jargon. The result can be described at best as unsatisfactory. For instance, in City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1969) where the City is accused of having caused an accident by failing to maintain a stop sign, we find no liability. But in Fryar v. Stovall, Ky., 504 S.W.2d 701 (1973), where the City is alleged to have been negligent in the manner in which a police officer directed traffic, we hold there is liability. And in Brown v. City of Louisville, Ky.App., 585 S.W.2d 428 (1979), where the city was accused of negligently firing “continuous-burn tear gas canisters” into the claimant’s place of business, we held that the limitations found in the Louisville Seed Co. case applied as a rationale to deny liability.

In Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977), we attempted to further explain the Louisville Seed Co. case, with no new insight.

A variety of legalisms have been suggested as helpful in understanding the rule in Haney as modified by Louisville Seed Co./Frankfort Variety. These include duty/no duty and misfeasance/nonfea-sance terminology. The abstract resolution of whether there is a duty is invariably result oriented, a question of policy-making involving the weighing of interests and a conclusion based on whether the court’s conscience is, or is not, comfortable with the result. Classifying a situation as misfeasance or nonfeasance is much the same. These classifications, like the old governmental versus proprietary classification, in the long-run prove arbitrary pigeonholes for conclusions arrived at intuitively. The decisions as to whether a given activity is an ultimate function of government, or is not an ultimate function of government, and as to when a negligent act should be considered to impact citizens singly and when collectively, have not been rationally explained, and cannot be.

The concept of liability for negligence expresses a universal duty owed by all to all. The duty to exercise ordinary care commensurate with the circumstances is a standard of conduct that does not turn on and off depending on who is negligent. With a municipal corporation as with all other legal entities, the question is not whether such a duty exists, but whether it has been violated and what are the consequences. Constitutionally, statutorily, or by court decisions, on occasion we excuse the nonperformance of this duty, but no purpose is served by denying its existence.

One of the reasons cited in Haney for abrogating municipal immunity is:

“[T]he doctrine runs counter to a basic concept underlying the law of torts, that is, that liability follows negligence.” 386 S.W.2d at 739.

Haney abolished municipal immunity “for ordinary torts.” Haney, 386 S.W.2d at 742. It retained immunity only for acts which could be classified as “the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions.” Id. We are not called upon to abolish municipal immunity. That was done 18 years ago. We are called upon simply to test the courage of the convictions previously expressed by this court. Admittedly, since Haney in cases such as Louisville Seed Co. and Frankfort Variety we have temporized in the name of financial expediency, expressing fears, real or imagined, based on speculation as to the economic impact on municipalities which might result from applying the new rule. We have so retreated that we no longer recognize claims for damages caused by the maintenance and operation of the city sewer system, claims recognized of long-standing and predating Haney. But problems with payment has never been a defense to an otherwise valid claim. As we stated in Hilen v. Hays, Ky., 673 S.W.2d 713, 718 (1984), where similar considerations were advanced, “[t]o those who speculate that [it] will cost more money ... we say there are no good economies in an unjust law.” (Emphasis original)

The only line drawn against municipal liability for torts in Haney was “the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions.” 386 S.W.2d at 742. Liability in the fact situations in Louisville Seed Co. and in Frankfort Variety is not excused by this limited exception. Those cases, and others we have discussed in this opinion applying municipal immunity in reliance on them, are overruled. The functions being carried out by municipal employees in these cases do not qualify for municipal immunity under the doctrine laid down in Haney. In such situations if negligence is proved, liability will follow.

However, there are two cases decided since Haney that do classify as immune under a reasonable interpretation of the qualifying language of Haney which exempts quasi-judicial and quasi-legislative activities as well as the official acts of judges and legislative bodies. They are Com., Dept. of Banking & Securities v. Brown, Ky., 605 S.W.2d 497 (1980), the alleged malfeasance of government employees charged with inspection and regulation of American Building and Loan Association and of Prudential Building & Loan Association when they defaulted on their obligations to depositors, and Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979), the Beverly Hills Supper Club fire disaster in the City of Southgate, where city and state employees were charged with negligent failure to enforce laws and regulations establishing safety standards for construction and use of buildings.

The question is what activities are excluded from the liability in tort imposed on municipal corporations in Haney by the exception made for “the exercise of ... quasi-legislative or quasi-judicial functions.”? “Quasi,” when used as an adjective, is defined in Webster’s Third New International Dictionary (unabr. ed. 1971), as “having some resemblance (as in function, effect, or status) to a given thing.”

Our research has failed to produce cases where this terminology is used in the precise context with which we are presently concerned. But Grogan v. Commonwealth, the Beverly Hills nightclub fire and Com., Dept. of Banking & Securities v. Brown, the building and loan association collapse, are cases where the “government takes upon itself a regulatory function,” Brown, supra at 498, which is different from any performed by private persons or in private industry, and where, if it were held liable for failing to perform that function, it would be a new kind of tort liability. We deem the limitation expressed in Haney by the terms “quasi-judicial and quasi-legislative functions” as directed at the type of regulatory activity represented by Com., Dept. of Banking & Securities v. Brown and Grogan v. Commonwealth. In these cases the government was not charged with having caused the injury, but only with having failed to prevent it by proper exercise of regulatory functions which have elements appearing quasi-judicial and quasi-legislative in nature.

The present case illustrates the problems in applying the reasoning advanced in Louisville Seed Co., supra. In Louisville Seed Co. we fashioned an exception to liability for those situations where “the act affects all members of the general public alike” rather than where “the city, by its dealings or activities, seeks out or separates the individual from the general public and deals with him on an individual basis, as any other person might do.” Louisville Seed Co., supra at 643. The Court of Appeals applies this exception here where it is alleged that the city laid out its sewer lines adjacent to the gas company’s gas lines and then proceeded to patch the sewer line in such a manner as to cause a hole in the gas line. Assuming such facts to be true, it would be difficult to visualize a situation more illustrative of activities seeking out a party and dealing with him on an individual basis.

Louisville Seed Co. expresses a concern for protecting taxpayers money from being spent on unauthorized purposes. Here the claimant, the Gas Company, is a public utility furnishing taxpayers with a service no different in kind from sewer service. The Gas Company could claim with equal validity that unless it can pursue its claim the loss that falls on it will be passed on to the utility users in its rates and is an unauthorized expenditure of their money.

None of the cases decided since Haney v. City of Lexington, limiting the impact of that decision, find fault with its legal reasoning or conclusions. We now reaffirm the legal conclusions and the rule of law set out in Haney. In the present case the movant’s third party complaint presents a claim for relief cognizable under the rule of law thus established. The decision of the Court of Appeals is reversed, and the Order of the trial court dismissing the third party complaint is set aside with directions for further proceedings in conformity with this opinion.

The doctrine of municipal liability as established in Haney and reaffirmed in this case shall apply to all pending cases, including appeals in which the issue has been preserved.

AKER, GANT, LEIBSON and VANCE, JJ., concur.

WINTERSHEIMER, J., concurs by separate opinion.

STEPHENSON, J., dissents by separate opinion in which STEPHENS, C.J., joins.

WINTERSHEIMER, Justice,

concurring.

I concur with the result reached by the majority opinion. However, some other valid considerations need to be expressed because more than half of the population of Kentucky has chosen to incorporate into municipalities. To expose half of the taxpayer-supported governments to potential liability while the remainder is immune seems to conflict with the general concept of equal protection of the law.

I fully agree with the philosophy that liability for negligent acts is a universal duty owed by every person or legal entity to every other person or legal entity. The duty to exercise ordinary care under all the circumstances is a standard of conduct that does not depend on the identity or status of the wrongdoer. All governmental organizations, municipal or otherwise, should be responsible and accountable for their conduct.

Any distinction between governmental and proprietary activity is artificial. The victim of the misconduct, provided that the claim is based on fault and duty, is wronged and entitled to redress for such a grievance by way of appropriate damages. There is no legitimate way to distinguish between private and public negligent acts.

The physical functions of government and all the manifestations thereof must be conducted in a safe and proper manner. The only valid exercise of government which should be exempt from tort liability is the purely administrative or legislative decision-making process. Redress from an improper or bad decision or from the exercise of poor judgment is at the ballot box. Compensation for the failure to exercise ordinary care under all the circumstances is obtained by means of damages.

Consequently, I do not agree with the exceptions made by the majority in regard to the use of the regulatory function as illustrated by Grogan v. Commonwealth, Ky., 577 S.W.2d 4 (1979), or Commonwealth, Dept. of Banking & Securities v. Brown, Ky., 605 S.W.2d 497 (1980). Although violations of appropriate conduct in the regulatory sector may be an extremely remote possibility for liability, the entire avenue of relief should not be foreclosed. To preserve an exception would foster a return to the case-by-case judicial erosion of the principle of accountability for wrongdoing in the same fashion that the courts have chipped away at the 21-year-old Haney, supra, decision. It seems to border on the inconsistent to permit lingering exceptions. Any classification should be uniform and very narrow and should be made by the legislature in a comprehensive governmental tort claims act. Any wounds should be fully cleansed.

Sovereign immunity is a judicially-created defense. Municipal immunity has been eliminated as part of that broad defense posture. Municipal immunity is closely interwoven with sovereign immunity, and to consider them separately is an exercise in inequality. The people of a community come together to create a local government. The precise form of that government is unimportant to them. The public demands the kind of government most responsive to its needs. Certainly the public does not want any undue liability resulting from selection of a form of government.

Sovereign immunity has been extended to counties and urban county government. See, Hempel v. Lexington-Fayette Urban County Government, Ky.App., 641 S.W.2d 51 (1982). A metropolitan sewer district has been determined to be an instrumentality of the state clothed with sovereign immunity. Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961). Almost every form of physical function that a city now provides can be delegated to private enterprise except for the ultimate basic pure-governmental decision making and the exercise of judgments connected therewith.

Ultimately the decision as to whether a municipality should be responsible in tort for the failure to provide proper services or the provision of such services in a negligent fashion is best left to the Kentucky General Assembly under the provisions of Section 231 of the Kentucky Constitution and KRS 82.081. A proper resolution of the conflicting public policy choices which the problem of municipal and governmental immunity gives rise to are best left to the legislature. That group after examining the empirical data regarding the potential liability exposure and exploring the availability of methods of defense may well decide that municipal functions are either deserving of protection or may classify them in such a way as to provide appropriate redress to the aggrieved individuals.

Approximately thirty-three states have enacted tort claims acts which in some way provide for an award of damages when there is a breach of duty to exercise ordinary care under all the circumstances. Some states have restored fairly broad immunity to cities. A few states provide for a general rule of liability subject to specific exceptions. Five states have enacted legislation which imposes open-ended liability subject to a dollar limitation in the amount of damages that are recoverable against the city.

Abrogation of the doctrine of governmental immunity only removes the defense of immunity and should not create any new liability for a municipality or other government. The removal of immunity does not impose absolute or strict liability, see Jones v. State Highway Com’n, 557 S.W.2d 225 (Mo., 1977).

In general it must be recognized that there are certain discretionary acts related to the formulation of public activity and public policy.

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines how or whether to utilize or apply existing resources. Nothing in such a statute should exonerate the public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial function. See, New Jersey Statutes, Annotated, § 59:2-3(d). For an extensive survey of municipal liability and immunity, see, McQuillan on the Law of Municipal Corporations, Volume 18.

Approximately twenty-two states have adopted what is called a “discretionary function” approach to accountability for wrongful acts. Essentially, such discretionary acts have been defined in the statutes as those acts involved in the formulation of policy while ministerial acts have been defined as those related to the execution or implementation of policy. See Rieser v. District of Columbia, 563 F.2d 462 (D.C.Cir.1977).

The General Assembly might aid the people who have incorporated into municipalities by enacting a comprehensive tort claims act which could be applicable to all units of government.

STEPHENSON, Justice,

dissenting.

First, I have a philosophical difference with the thrust of the majority opinion which treats municipal corporations the same as private corporations. There is a fundamental difference between the two. The taxpayer resident of a city is not in the same position as the stockholder of a private corporation. There are many differences which are too obvious to be enumerated. The two entities exist for different purposes. Thus, I am of the opinion the two are so different that there is a justification for treating the two differently as regards tort liability. It is true that the rule of immunity has a harsh result in denying damages to an injured person. However, there is a balancing act to be considered in whether the taxpayers of the city should bear the burden instead of the injured person.

Despite Haney, the rule of immunity has been so consistently adhered to we should consider the rule as expressing public policy and leave any change to legislative action.

Next, I find Haney a little opaque. It abolishes the governmental-proprietary test and adopts the theory of a Wisconsin case which ends with the remark that immunity should be the exception rather than the rule, whatever that means. Then, Haney, after piously rejecting the theory of municipal immunity for torts, proceeds to exempt judicial, legislative, quasi-judicial, and quasi-legislative acts from the rule.

The majority picks up on this exemption and cites Brown and Grogan as illustrative of regulatory functions which impose no liability by virtue of failure to perform. Somehow, to my amazement, these cases are wedged into a definition of quasi-judicial and quasi-legislative functions. It is obvious to me that these functions are executive in nature.

Haney and the majority are very critical of the exception to the immunity doctrine carved out over the years; according to Haney, “contrived devices,” according to the majority, “pigeonholes for conclusions arrived at intuitively.”

The majority, with a great deal of mum-bo-jumbo, states that the governmental regulatory function is different from any performed by private persons or in private industries and would be a new kind of tort liability. This should be a surprise to all. Private industry routinely carries on inspections to conform to laws and regulations.

My prediction is that these exceptions in the majority opinion will cause the same difficulty as illustrated in post-Haney cases. Perhaps these cases are not models of rational thought; yet they sought to ameliorate the harshness of the rule on immunity. On the bright side, it will call for a great many more opinions from this court explaining just what is meant by the majority opinion. I look forward to this development with anticipation.

In answer to the proposition that “liability follows negligence,” I have no hesitation in stating that the individuals who commit torts, even inspectors who fail to follow duties, should be liable. This should satisfy “the concept of liability for negligence expresses a universal duty owed by all to all.” Let the case be tried against the individual or individuals committing the tort. Thus, the injured party is not precluded from obtaining judgment against the guilty party. Whether the cause of action could be maintained against the city should be left as is or to the legislature.

It appears that the majority opinion stands on principle with exceptions.

The majority opinion will undoubtedly lead to bankruptcy of many municipalities, large and small. My only suggestion to city fathers is to run for the hills and seek help from the legislature.

STEPHENS, C.J., joins in this dissent.

      . In Louisville Seed Co., supra at 640, we state: "It is difficult to perceive how the cause of justice can be advanced by turning back the pages of history. The history of the doctrine of sovereign immunity, as it relates to municipalities, from its inception in 1788 ... to its demise in this jurisdiction in 1964 in the Haney case, supra, was never satisfactory.” (Emphasis added)

      . Prof. G. Edward White, U.Va.Law School: “The growth of negligence from the omission of a preexisting, specific duty owed to a limited class of persons to the violation of a generalized standard of care owed to all ensured the emergence of Torts as an independent branch of law.” G.E. White, Tort Law in America, An Intellectual History, 18 (1980).

      . One of the companion cases which has been heard and considered along with the present case is Sanitation District No. 1 of Campbell and Kenton Counties, Kentucky v. City of Covington, Kentucky, 84-SC-429-DG. In that case the mov-ant argues with much force that it is "a sanitation district, which is both a quasi corporation and governmental entity, which was forced to misdirect its funds to cure a potentially dangerous situation created by the negligence of a municipal corporation in the construction and/or maintenance of a storm sewer-” If true, why should this government agency have its funds misdirected to cover a loss caused by the negligence of a municipal corporation?


author: HOWERTON, Judge.

text:
    Darnell HOPEWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 15, 1985.
    Discretionary Review Denied by Supreme Court April 24, 1985.
    Opinion Ordered Published by Supreme Court April 25, 1985.

      Karen Jones, Asst. Public Advocate, Lexington, for appellant.
    David L. Armstrong, Atty. Gen., Cicely Jaracz, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before COMBS, HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

Hopewell appeals from an order of the Boone Circuit Court denying his RCr 11.42 motion for post-conviction relief. The only issue is whether the trial judge erred in denying the motion without an evidentia-ry hearing or the appointment of counsel to determine if Hopewell had been denied effective assistance of counsel at trial. Hearings and appointments are not necessary when the record in the case refutes the movant’s allegations. Newsome v. Commonwealth, Ky., 456 S.W.2d 686 (1970). We conclude that the record does support the denial, and we affirm the order.

Hopewell claims that he was denied effective assistance of counsel at trial because his counsel failed to move for a directed verdict at the close of the case. Hopewell was convicted for first-degree robbery and kidnapping and received consecutive sentences of 15 and 20 years. The convictions were affirmed by the Kentucky Supreme Court on appeal. Hopewell v. Commonwealth, Ky., 641 S.W.2d 744 (1982). Hopewell also alleged in his RCr 11.42 motion that the trial court erred by failing to give an instruction on facilitation and complicity, and that his counsel was ineffective for failing to request such instructions and to move for a directed verdict.

The evidence presented at trial was that Hopewell and a codefendant were in Hopewell’s car, and they stopped at an Amoco service station. The codefendant took a gun belonging to Hopewell, robbed the attendant, forced him into the car, tied him, and instructed Hopewell to drive away. Hopewell alleged that he was an unknowing participant in the robbery. Despite Hopewell’s contention, the evidence was such that a jury could believe that he was a knowing participant, and he was certainly not entitled to a directed verdict. The standard for appellate review is that if, under the evidence as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty, then he is not entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). The record also indicates that the jury was instructed on the crime of facilitation and, on the basis of the record as a whole, we must agree with the trial court, both as to result and to the refusal to conduct a hearing or to appoint counsel for anything other than this appeal.

The standard for reviewing an allegation of ineffective assistance involves two things. First, there must be a finding of an error in performance by the counsel, and secondly, there must be a finding that prejudice resulted from that error which had an adverse effect on the judgment. Strickland v. Washington, 466 U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Even if we concede that trial counsel should have requested a directed verdict or the instructions, we find no prejudice, because Hopewell was not entitled to a directed verdict, and the appropriate instructions were given.

The record speaks for itself, and no evi-dentiary hearing was necessary. The order of the Boone Circuit Court denying Hopewell’s RCr 11.42 motion is affirmed.

All concur.


author: BILLINGS, Judge. WELLIVER, Judge, DONNELLY, Judge,

text:
    STATE of Missouri, Respondent, v. Joseph Nicholas BECK, Appellant.
    No. 65915.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    As Modified April 2, 1985.
    Rehearing Denied April 2, 1985.
    Timothy A. Braun, Christine Miller Hendrix, St. Charles, for appellant.

      John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Judge.

Defendant Joseph Nicholas Beck was convicted of two counts of capital murder under § 565.001, RSMo 1978 and sentenced to two consecutive terms of life imprisonment. The Missouri Court of Appeals, Eastern District, reversed the judgment. We granted transfer because of the general importance and interest of the questions presented by this case. We affirm.

This case involves two threshold questions: (1) whether defendant made a knowing and intelligent waiver of the protections afforded him under the Fifth Amendment before he made oral and written statements to St. Charles County Sheriff’s deputies during his post-arrest interview in Florida on September 5, 1981 and on the plane trip back to St. Charles on September 8, 1981; and (2) whether the statements defendant made on September 5, 1981 and September 8, 1981 were obtained in violation of his right to counsel under the Sixth Amendment.

The victims, Herbert and Georgiana Kemp, were the grandparents of Julie Ann Parton — defendant’s sixteen year old girlfriend and the mother of his five month old son. Parton and the baby boy resided with the Kemps. Sometime after the baby was born, the Kemps, dissatisfied with their granddaughter’s relationship with defendant, threatened to take the child away from her if she did not end her affair with defendant.

To silence the Kemps’ criticism of his relationship with Parton, defendant murdered the Kemps on August 27, 1981, in the family room of their home. Earlier in the day, defendant and Parton had carefully planned the crime. On August 27, 1981, having just parked their car after returning from work, Mr. and Mrs. Kemp began to enter their home through the family room which was connected to the garage. Defendant, waiting inside the family room and armed with Mr. Kemp’s rifle, shot Mrs. Kemp first and then fired three bullets into Mr. Kemp. He then shot Mrs. Kemp a second time, in the head. While these gruesome events were occurring, Parton was upstairs in the kitchen with the baby boy.

After killing Mr. and Mrs. Kemp, defendant and Parton removed the victim’s bodies from the house and placed them in the trunk of Mr. Kemp’s car. They then drove to a local bank where they cashed checks on the Kemps’ account. That evening they drove to a wooded area near Festus, Missouri, where they dumped the victims’ bodies. The bodies of the slain couple were discovered the following day. Defendant and Parton fled the state that night.

Defendant, on August 30, 1981, telephoned his mother and instructed her to find him a lawyer. The next day defendant’s mother called Christine Miller Hendrix — an Assistant Public Defender in St. Charles County — and requested that Ms. Hendrix represent defendant in the present case. Defendant’s mother apparently called Ms. Hendrix because earlier she had been appointed to represent defendant on four pending but unrelated felony charges.

On September 1, 1981, Ms. Hendrix called St. Charles County Sheriff, Edward Uebinger, and requested that he notify her when defendant was apprehended. After speaking with Ms. Hendrix, Sheriff Uebinger was advised by Assistant Prosecuting Attorney Kohl that he had no legal duty to notify Ms. Hendrix because she had not yet been appointed defendant’s counsel in the case.

That same day, Prosecutor Kohl, in an ex parte proceeding, swore out an affidavit to obtain a warrant for defendant’s arrest. During this period of time, the sheriff learned that defendant was planning to meet a relative of his at the Miami, Florida airport. Responding to this lead, the sheriff sent two deputies carrying a warrant for defendant’s arrest to Miami on September 4, 1981. Defendant was arrested at the Miami airport on September 5, 1981. The oral and written statements that defendant sought to suppress, but which were admitted into evidence, were made after his arrest on September 5, 1981, and on the plane flight back to St. Charles on September 8, 1981.

Initially, it should be noted that in reviewing the trial court’s disposition of defendant’s motion to suppress, this Court necessarily must defer to the trial court’s superior opportunity to determine the credibility of the witnesses and the weight of the evidence. State v. Boggs, 634 S.W.2d 447 (Mo. banc 1982). Needless to say, this rule is a basic tenet of appellate review— and one deserving of strict compliance.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” 384 U.S. at 478, 86 S.Ct. at 1630. To protect this constitutionally grounded right, the Court delineated a number of procedural safeguards that must be made known to an individual taken into custody. However, in the same breath, the Court, speaking through Chief Justice Warren, stated that “after such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” 384 U.S. at 479, 86 5.Ct. at 1630.

Here, the record reveals that before defendant was informed of his Miranda rights on September 5, 1981, the deputy then present asked him if he could read and write. After indicating to the officer that he could read and write, defendant was handed an identical copy of the “rights card” that was about to be used to appraise him of his Miranda rights. With card in hand, defendant was then advised of his Miranda rights by the officer. Furthermore, after completing each line of the card, the deputy paused and asked defendant if he fully understood the meaning of what had just been read to him. To each successive inquiry, defendant made an affirmative response. And to further document his comprehension, defendant initialed each line on the card.

After the officer had finished reading defendant his Miranda rights, he asked defendant if he was interested in giving a statement. Defendant answered yes and then proceeded to give oral and written statements of exculpatory nature; and at no point throughout this period of time did defendant request the presence of Ms. Hendrix — or any other attorney. On September 8, 1981, defendant was again given his Miranda rights and again chose to make incriminating statements before seeking the advice of an attorney.

In arguing that this waiver was not knowing and intelligent, the defendant has focused exclusively upon the fact that he was not informed of Ms. Hendrix’ requests. The sheriff’s failure to inform defendant of this information was magnified into official misconduct that never took place but which according to the defendant was responsible for vitiating his ability to make a knowing and intelligent waiver.

Determining whether a waiver constitutes a “knowing and intelligent relinquishment or abandonment of a known right or privilege, [is] a matter which depends in each case ‘upon the particular facts and circumstances surrounding that ease, including the background, experience, and conduct of the accused.’ ” Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981), quoting with approval Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); See also, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

Defendant’s contention that his waiver was not knowing and intelligent is premised on the notion that the information that was not disclosed to him would have had a material bearing on his reasoning process had it been made known to him. However, his own testimony refutes the validity of this argument. According to his testimony and that of his mother’s, he called his mother a few days before his arrest and instructed her to find him a lawyer. It is simply incredulous to think that at the time of his arrest, defendant had forgotten that just a few days earlier he had specifically requested his mother to find him a lawyer.

Other factors to be considered under this analysis are the background, experience and conduct of the accused. In Fuentes v. Moran, 572 F.Supp. 1461 (D.R.I.1983), aff’d., 733 F.2d 176 (1st Cir.1984) the court — faced with this very same issue— noted:

The record is replete with references to myraid criminal matters with which Fuentes had been involved. He was obviously ... no stranger to the criminal justice system. While such facts do not, in and of themselves, lighten the government’s burden ... they do show rather clearly that Fuentes had considerable background upon which to draw when apprehended. The defendant’s ‘background’ is, of course, a factor in the equation, (citations omitted).

572 F.Supp. at 1472, n. 4.

Here, the defendant was not a neophyte when it came to dealing with the police and the use of attorneys. At the time defendant brutally murdered the Kemps, he was awaiting sentencing on four unrelated felonies and on probation for a number of misdemeanors.

In light of the careful attention the deputies gave to insuring that defendant was properly informed of his Miranda rights, his unequivocal responses and determined conduct, evince nothing less than a deliberate, firm, knowing, and intelligent choice to speak without the prior counsel of Ms. Hendrix or any other attorney. After reviewing all of the evidence presented, the trial court concluded that defendant had effected a knowing and intelligent waiver of his Fifth Amendment rights. This conclusion is amply supported by substantial evidence.

In addition to arguing that his Fifth Amendment rights were violated, defendant also contends that the statements he made on September 5, 1981 and September 8, 1981, were obtained in violation of his right to counsel under the Sixth Amendment.

In defining the contours of an individual’s right to counsel under the Sixth Amendment, the Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 82 L.Ed.2d 411 (1972) held that “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” 406 U.S. at 688, 92 S.Ct. at 1881. Under the teachings of Kirby, which is the rule in most jurisdictions, Cf. People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980), the question of whether the right to counsel has attached is preliminary to the question of whether the right has been violated. Should it be determined that the defendant’s right never attached, it will be unnecessary to inquire whether there was a violation.

Attachment of the right to counsel occurs at the initiation of adversary judicial proceedings against an accused “by way of formal charge, preliminary hearing, indictment, information or arraignment.” (our emphasis), 406 U.S. at 689, 92 S.Ct. at 1882. See also, Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977). When defendant was arrested and gave statements to the deputies on September 5,1981 and September 8, 1981, none of these procedural events had transpired. It was not until September 29, 1981 that an information was filed formally charging defendant with two counts of capital murder.

At the time these statements were made, the only document that had been filed was an affidavit sworn out by the prosecuting attorney — for the sole purpose of securing an arrest warrant with which to apprehend defendant who was over one-thousand miles away in Florida. Defendant would have us color this ex parte event as the initiation of adversary judicial proceedings sufficient to trigger his Sixth Amendment right to counsel. In Morris v. State, 532 S.W.2d 455 (Mo. banc 1976), this Court, citing Kirby with approval, determined that the issuance of an arrest warrant did not amount to the initiation of adversary judicial proceedings — as defined within the framework of Kirby. See also, State v. Boggs, 634 S.W.2d 447 (1982) (Sixth Amendment right to counsel attached after indictment or information or commencement of adversary criminal proceedings).

When defendant was arrested and placed in custody, his only right to counsel was that afforded him under Miranda. However, he knowingly and intelligently elected to waive this right. Defendant was the subject of an arrest warrant — and not the subject of a formal charge in the nature of an indictment or information. Holding that the swearing out of an ex parte affidavit and the issuance of an arrest warrant is akin to the initiation of adversary judicial proceedings would result in swinging the pendulum of criminal justice far too distant from society’s interest in effective and meaningful criminal investigations.

The judgment is affirmed.

RENDLEN, C.J., and HIGGINS, GUNN and BLACKMAR, JJ., concur.

WELLIVER and DONNELLY, JJ., dissent in separate opinions.

WELLIVER, Judge,

dissenting.

I respectfully dissent. The dispositive issue in this case is whether, in ligjit of the totality of circumstances, appellant knowingly and intelligently waived his Fifth Amendment right to counsel before making certain incriminating statements that were admitted into evidence at trial. Chief among the pertinent circumstances affecting the purported waiver is the conscious failure of the sheriff and the prosecutor and their subordinates to inform appellant that his retained counsel had requested to consult with him prior to police interrogation. The principal opinion obfuscates the seriousness of this omission, I submit, by ignoring both relevant evidence in the record and the weight of legal precedent on this issue. I am convinced that the statements in question are the fruit of a conspiracy of deception and evasion orchestrated by the prosecutor and the sheriff in order to create a situation likely to induce appellant into making incriminating statements without the assistance of counsel. For this reason, I believe the circuit court erred in admitting the statements.

The principal opinion casually dismisses the factual premises underlying appellant’s Fifth Amendment claims by portraying Hendrix, the assistant public defender, as a meddling interloper and denying any misconduct on the part of the sheriff or the prosecutor. The record belies the Court’s characterization of these crucial issues. Under the law as it existed at the time of appellant’s arrest, Hendrix must be viewed as appellant’s attorney at all relevant times in this proceeding. A statute then in effect provided.

A person, or someone on the person’s behalf, who is charged or detained in connection with a felony or a misdemean- or for which the punishment of a jail sentence is provided by law, in a circuit having a public defender, may request that the public defender represent him, and if the public defender is satisfied that such a person is indigent, the defender shall furnish appropriate representation.

§ 600.061, RSMo 1978 (repealed 1982 Mo. Laws 697). It is beyond dispute that Hendrix, having been approached by appellant’s mother at his direction, was entitled to represent appellant in view of the fact that he had been declared indigent in connection with other criminal charges then pending. So incontrovertible is this fact that the State has never challenged the matter. It is troubling indeed that the principal opinion omits any mention of this most relevant statute since it figured so prominently in the briefs.

The principal opinion also ignores record evidence relied on by appellant to establish police and prosecutorial misconduct. The opinion mentions only the telephone conversation between Hendrix and Sheriff Ue-binger on September 1, 1981 in which the sheriff assured Hendrix he would notify her when appellant was arrested. Following that conversation, on September 3, 1981, Hendrix encountered Assistant Prosecuting Attorney Kohl in a judge’s chambers and repeated her request that she be informed when appellant was arrested and before any questioning. Kohl did not disclose that he had advised the sheriff not to honor her request. On September 8, after learning of appellant’s arrest from newspaper reports, Hendrix again telephoned Sheriff Uebinger. The tape of the conversation demonstrates that the sheriff agreed to notify her when appellant arrived at the jail:

Ms. Hendrix: Okay, and you will notify me so I can go down and speak with him when you get him there?
Sheriff Uebinger: Right.

Later that day, however, Hendrix learned from another source that appellant had been brought to the St. Charles County jail. She immediately went to the jail, arriving at approximately 9:30 p.m., and requested but was denied permission to see appellant. Hendrix telephoned Kohl, and in the recorded conversation Kohl indicated that she was being denied access to appellant at his orders because he believed she had no right to see him. Hendrix then located an associate circuit judge who called the jail and directed that Hendrix be permitted to see appellant. Hendrix finally saw appellant at approximately 11 p.m. on September 8. However, during the span of time Hendrix waited to see appellant, deputies had again questioned appellant and he had prepared and signed a third statement, this one identical in substance to the one obtained on the plane. The circuit court later sustained appellant’s motion to suppress this statement.

After reviewing the evidence in this case, the Eastern District held that appellant could not have intelligently waived his right to counsel because he was never informed of his attorney’s efforts to consult with him. I agree. Courts in a number of jurisdictions have held that a criminal suspect cannot be held to have knowingly and intelligently waived his right to counsel when he was not informed that his attorney had requested, but had been denied an opportunity to consult with him prior to police interrogation. See Weber v. State, 467 A.2d 674 (Del.1983); People v. Smith, 93 Ill.2d 179, 66 Ill.Dec. 412, 442 N.E.2d 1325 (1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2107, 77 L.Ed.2d 312 (1983); State v. Matthews, 408 So.2d 1274 (La.1982); Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); State v. Jones, 19 Wash.App. 850, 578 P.2d 71 (1978). These decisions do not go so far as to say that Miranda rights can only be waived in the presence of counsel, a proposition this Court has rejected previously. State v. Richter, 647 S.W.2d 513, 518-19 (Mo. banc 1983); State v. Buckles, 636 S.W.2d 914, 923-24 (Mo. banc 1982); State v. McConnell, 529 S.W.2d 185 (Mo.App.1975). Nor do they stand for the proposition that an attorney can invoke his client’s Fifth Amendment rights, as such rights are personal to the holder. See United States v. Nobles, 422 U.S. 225, 233, 95 S.Ct. 2160, 2167, 45 L.Ed.2d 141 (1975). Rather, they reflect the sound judgment that in certain cases information regarding an attorney’s request to see his client is likely to have such a material bearing on the client’s decision to waive his counsel rights as to require its affirmative disclosure:

To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. If the attorney appears on request of one’s family, the fact may inspire additional confidence.

State v. Haynes, supra, 602 P.2d at 278 (footnote omitted).

Considering the totality of circumstances surrounding appellant’s purported waiver, I am convinced that he could not act knowingly and intelligently without being advised of his counsel’s requests. The record in this case leaves no doubt that the prosecutor and the sheriff conspired to induce appellant into making incriminating statements without the assistance of counsel. Through their omissions and deceptions, Kohl and Sheriff Uebinger led appellant to believe that he did not have counsel. The circuit court’s finding that the deputies who took the statements from appellant did not know that he had counsel is irrelevant. To permit evasion of constitutional rights merely by assigning uninformed deputies to carry out that which otherwise could not be done, is to promote unconscionable practices. See Weber v. State, supra, at 686.

Notwithstanding its disclaimer, the principal opinion today puts this Court’s imprimatur on a wholly unsavory example of official misconduct. “[Society’s interest in effective and meaningful criminal investigations,” supra, at-, does not require that we sanction police and prosecutorial practices that deny criminal suspects fundamental fairness. Retrial is a small price to pay for maintaining the integrity of our criminal justice system.

I would reverse and remand for retrial.

DONNELLY, Judge,

dissenting.

In this case, there is an explicit waiver of the rights to remain silent and to have an attorney. The accused “initialed each line on the [Miranda] card.”

The majority rejects the position that, in such circumstance, a confession should be suppressed only if such waiver was “obtained by coercion or because of incapacity or diminished intelligence.” State v. Clark, 592 S.W.2d 709, 721 (Mo. banc 1980) (Donnelly, J., dissenting).

In my view, this rejection is unfortunate. It devalues further the concern for victims as a component in the social equation.

I respectfully dissent.

      .It should be observed that the major thrust of defendant’s Fifth Amendment argument is that his constitutional right against self-incrimination was violated; however, he is also arguing that the statements were obtained in violation of his right to counsel under the Fifth Amendment.
      This right to counsel, which is separate and distinct from the right to counsel guaranteed by the Sixth Amendment, was delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as one of the procedural mechanisms designed to safeguard an individual’s constitutionally based right against self-incrimination. The significance of this distinction is that failure to warn an individual of his right to counsel under Miranda does not impact upon the individual’s right to counsel under the Sixth Amendment — which may or may not have attached depending on the facts involved in each case. See Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980); see also W.E. Ringel, Searches & Seizures, Arrests and Confessions, Vol. 2, § 24.4 (2nd ed. 1984); A. Amsterdam, Trial Manual for the Defense of Criminal Cases, Vol. 1, § 233 (4th ed. 1984).

      . Defendant’s remaining points concerning jury selection and failure to give an instruction have been reviewed and are without merit.

      . In accord with a plea agreement reached with the Prosecuting Attorney of St. Charles County, Parton served as a witness for the State at defendant’s trial.

      . Ms. Hendrix and Sheriff Uebinger’s conversation on September 1, 1981, was recorded as a routine in-coming call. Their conversation consisted of the following exchange:
      UNIDENTIFIED SPEAKER: Sheriffs Office.
      MS. HENDRIX: Yes. This is Christine Miller-Hendrix of the Public Defender’s. Is Sheriff Uebinger in?
      UNIDENTIFIED SPEAKER: He’s not in his office. Let me see if I can try to find him.
      MS. HENDRIX: Tell him it’s about Joe Beck.
      UNIDENTIFIED SPEAKER: Okay. And what was your name again?
      MS. HENDRIX: Hendrix, I’m the Assistant Defender.
      SHERIFF UEBINGER: Sheriff Uebinger.
      •■MS. HENDRIX: Yes, Sheriff, this is Christine Miller-Hendrix, the Public Defender.
      SHERIFF UEBINGER: Uh-huh.
      MS. HENDRIX: Joe Beck, I’m representing him now on several other charges. I, being the ardent newspaper and television water [sic] I am, didn’t even know this was coming down till Monday and didn’t know Joe was involved until sometime yesterday.
      SHERIFF UEBINGER: Uh-huh.
      MS. HENDRIX: And I just talked to his mother.
      SHERIFF UEBINGER: Uh-huh.
      MS. HENDRIX: And she said that she had talked to you on a couple of occasions. So first of all I wanted to let you know that I am representing him currently.
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: And leave you my home number which I usually don't give it out to anybody so I didn’t want to give it to her necessarily.
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: But it’s [telephone number] and if you can’t reach me, you can reach Tim and that’s [telephone number].
      SHERIFF UEBINGER: [repeating portion of telephone number].
      MS. HENDRIX: Yeah.
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: And one or the other of us should always be able to be contacted at any time if you turn Joe up. I mean, I'm sure we’ll be representing him. (our emphasis)
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: I’ve got him on about four felonies now. In fact, he’s supposed to be sentenced a week from today—
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: —in Circuit Court on one of them. So if you hear anything from him or pick him up or anything, please let me know and preferably before any questioning, in fact, I insist.
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: Thank you.
      SHERIFF UEBINGER: Okay.
      MS. HENDRIX: Bye-bye.
      SHERIFF UEBINGER: Bye.

      . The state did not raise the question of whether the mere fortuity that defendant was represented by Ms. Hendrix on four pending, but wholly unrelated, felony charges should suffice to automatically convert Ms. Hendrix into his general counsel for each and every one of his legal maladies. Consequently, we reserve judgment on this question for another day.
      However, see United States v. Masullo, 489 F.2d 217, 223 (2d Cir.1973); State v. Ture, 353 N.W.2d 502, 509-10 (Minn.1984); State v. Clawson, 270 S.E.2d 659, 668 (W.Va.1980).

      . In refusing to suppress the statements made on September 5 and 8, the experienced trial court found that "defendant at NO time prior to being interrogated, or during interrogation requested or indicated in any way that he desired to consult with counsel or have counsel present during his interrogation.” Furthermore, the court found that “defendant, prior to making any statements, was fully advised of his constitutional (Miranda) rights; and he fully understood ... that he had a right to consult with counsel and to have his lawyers present when being questioned by police.” Legal File at 162.

      . We do not quarrel with the principle that deceptive practices, collusion and other types of misconduct on the part of the police and other officials can and should serve as a basis for invalidating waivers obtained through the use of such practices. However, we find the use of the term "deceit” far too harsh and simply inaccurate to describe Sheriff Uebinger’s decision not to disclose to Ms. Hendrix that Prosecutor Kohl had advised him he had no legal duty to first notify Ms. Hendrix before attempting to seek a valid waiver and statement from defendant. The record does not substantiate the allegation that the sheriff and the prosecutor engaged in deceit and official misconduct.
      Furthermore, it should be noted that Ms. Hendrix’ request that she be notified before any questioning took place was legally insufficient to invoke defendant’s Fifth Amendment rights. Appellant’s constitutional privilege against self-incrimination is a personal one and is a right that cannot be exercised by third parties. United States v. Nobels, 422 U.S. 225, 233, 95 S.Ct. 2160, 2167, 45 L.Ed.2d 141 (1975).

      . Compare Burbine v. Moran, 589 F.Supp. 1245, 1250 (D.R.I.1984), rev'd, 753 F.2d 178 (1st Cir. 1985); State v. Burbine, 451 A.2d 22 (R.I.1982).