Hornburger v. State, 92-KA-0178
| Decision Date | 09 February 1995 |
| Docket Number | No. 92-KA-0178,92-KA-0178 |
| Citation | 650 So.2d 510 |
| Parties | Gregory HORNBURGER, a/k/a Greg Hornberger v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Tom T. Ross, Jr., Ross Hunt Spell & Ross, Clarksdale, for appellant.
Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.
INTRODUCTION
Gregory Hornburger ("Hornburger") was convicted in the Coahoma County Circuit Court of burglary, and sentenced to seven years imprisonment. He appeals, citing the following error:
WHETHER THE TRIAL COURT ERRED IN GRANTING STATE'S INSTRUCTION S-8
Hornburger argues that the jury was not adequately instructed on the law. He submits that Instruction S-8 permitted the jury to find him guilty if they found he had committed any act which was an element of the crime, without first finding that he was present, consenting and encouraging the commission of the crime. He also argues that the instruction S-8 conflicts with another instruction, S-1-A. Hornburger seeks a new trial.
Instruction S-8 is virtually identical to an instruction upheld by this Court in Simmons
v. State, 568 So.2d 1192, 1203-04 (Miss.1990) and Davis v. State, 586 So.2d 817, 821 (Miss.1991). Other instructions to the jury informed them that the State was required to prove each element of the crime of burglary. However, the jury in this case was improperly instructed. Nevertheless, we find it to be a harmless error given the overwhelming weight of the evidence. Hornburger's conviction is therefore affirmed.
II.
Hornburger, along with Louis Lucas Jr., was indicted on December 18, 1991, in the Coahoma County Circuit Court for burglary of the Lucas Auto Repair Shop. The Auto Shop, located on Dog Bog Road in Clarksdale, Mississippi, was owned by Lucas' father, Louis Lucas, Sr. On January 9, 1992, Hornburger filed a motion for severance of his trial.
Trial was held before Judge John L. Hatcher on February 6, 1992. Testimony is summarized below.
Polite, a friend of Louis Lucas Sr., testified that Lucas Sr. had asked him to keep an eye on the auto repair shop he owned in Clarksdale, while he (Lucas) was on a visit to Texas in July of 1991. The shop building had two doors, one on each end; the doors were secured by locks and chains, and Polite had keys to both locks. Polite testified that he checked on the shop regularly, including around noon on Sunday, July 28, when everything appeared to be in order. That night, around 10:00 or 10:30 p.m., Polite received a call from a friend, Charles Thomas, who told him that it appeared that a door to the shop building had been pried open. Polite went to the auto shop, where he observed that the metal front door to the shop had been "pulled aloose and pried open, pried up from the bottom." 1 The next day, Polite reported to Coahoma County Deputy Williams that property was missing from the shop, including a big tool box, a couple of small tool boxes, a torque wrench, a portable air tank or compressor, and an electric grinder. 2
Tolliver, who owned a salvage yard in Shufordville, testified that around 4:30 or 5:00 p.m. on July 28, 1991, Louis Lucas, Jr. had come to his yard with Hornburger, and offered to sell him a small red tool box for $40. Tolliver said that he would not pay $40 for it. Lucas stated that he needed the money to get to Texas. At the time, Lucas Jr. was sitting in the car with Hornburger, who was driving. Tolliver testified that Hornburger seemed in a hurry, or "ready to go." When Tolliver offered to pay $20, Hornburger said "No, man, let's go," but Lucas said he would take $20. Tolliver then paid Lucas Jr. $20.
Harris, the owner of an auto repair shop in Clarksdale, stated that on Sunday afternoon, July 28, 1991, Lucas Jr. and Hornburger came to his shop in Hornburger's car. Hornburger offered to sell Harris a big red tool box; Lucas stated that the box was "a school supply box." Lucas asked for $40, then $35. Harris then gave them $30. Harris testified that Lucas Jr. and Hornburger had participated "equally" in the sale. The box was locked, and Lucas and Hornburger had not provided the key. Harris stated that he had purchased the box without viewing the contents because he knew a large box of Snap-on tools to be worth around $300. On Monday afternoon, Deputy Williams came to the shop and asked him about the box. Harris gave Williams the box. Harris stated that Hornburger had approached him shortly after that, and offered to give him his money back. Harris stated that did not take any money from Hornburger because he did not have the box to give back.
Louis Lucas Jr.
Lucas Jr. testified that around 2:30 or 3:00 on July 28, 1991, he had encountered Hornburger Me and Greg both. We got it bent, we bent it, you know. All right, at first, you know, just like the two of us, when we got there the door was closed tight. O.K. So I helped to kind of get a hold on it and he pressed--he had one of his legs pressed on the door and forced it out. Because he's stronger than I am. So that way it left enough room for me to get through there. I'm smaller than he is.
driving on Main Street, and had said to Hornburger, "let's make a move" or "let's go somewhere, let's go out of town for a minute." After the two drove from town, Lucas stated to Hornburger, "I want you to take me to a certain place, I'm going to get a tool box." Lucas testified that he and Hornburger discussed selling the tool box for money to buy drugs. Hornburger stated that he needed some gas. When they arrived at Lucas' father's shop, they siphoned about four gallons of gas from a car there. Lucas explained that they forced the door to the shop building open
Hornburger then stood outside the shop as a lookout, while Lucas went into the shop and took the small red tool box. He and Hornburger then sold the box to Tolliver for $20, got some gas, and bought drugs with the rest of the money. They then drove around drinking beer, and, agreeing that they needed more money, returned to the Lucas auto shop. With Hornburger again acting as lookout, Lucas entered the shop, and slid a large tool box to the front door. The two then toted the box to Hornburger's car. Lucas testified that they then drove to Harris' house, and Hornburger stated "just let me talk to John ... I know him real well." Hornburger then made the deal with Harris, and Lucas helped him get the box out of the car. Lucas and Hornburger then bought gas and cigarettes, then found a drug dealer and purchased more drugs. 3 Lucas testified that he and Hornburger then made a third trip to the shop, at which point Hornburger stated, Hornburger then brought a compressor out of the shop. Hornburger then brought a grinder, jig-saw, torque wrench, and a black tool box to the door of the shop, and the two put it all in the car. Lucas stated that at the time, the two thought that if they got caught, no charges would be pressed against them because it was his father's shop. 4 Lucas and Hornburger then drove to Hornburger's grandmother's house in Jonestown, and unloaded the stuff behind her house. Lucas stated that Hornburger planned to return and take the stuff "out of town." Lucas also stated that he and Hornburger agreed to wait until the next day to "get rid of the stuff." The next day, the two met after Hornburger got off work, but did not sell the stuff. Lucas was arrested in Jonestown; he told Deputy Williams that Harris and Tolliver each had a toolbox, and that Hornburger had the rest of the stuff.
On cross-examination, Lucas stated that he plead guilty to the charges against him and agreed to testify, in exchange for the prosecution's recommendation of a four-year sentence, rather than the maximum seven years.
Coahoma County Deputy Sheriff Williams testified that about 9:30 a.m. on July 29, 1991, Eugene Polite had come to the sheriff's office to report that Lucas' shop had been burglarized. Williams testified that he went to the shop and took photos; Polite told him that he needed to talk to Lucas Jr., who "might have had something to do with the break-in." Williams talked to Lucas, then got a warrant for Hornburger. He also recovered the tool boxes from Harris and Tolliver.
The defendant testified that he had been living in Jonestown for five years, prior to which he had lived in Chicago. He stated that he had worked on a farm for about two years, and had also worked at a mill and a chemical plant. Hornburger testified that he Hornburger testified that on July 27, 1991, he had been driving on Main Street in Jonestown. He encountered Lucas, who stopped him and asked if he would take him to his father's shop and pull his car to Tolliver's salvage yard. When the two arrived at the Lucas shop, they discovered that they could not pull the car, because it had two flat tires. Lucas then stated that "he would get two tool boxes and sell them; that belonged to him." Hornburger stated that Lucas then went in the back door of the building, and brought out two tool boxes, large and small. Hornburger then stated that he had seen Lucas go in a single door on the side of the shop. Hornburger testified that Lucas got the tools out, and that both of them put them in the car. Lucas told him that these were his tools, which he got from mechanics school. The two then went to Tolliver and sold one tool box. Lucas then asked Hornburger if he knew anybody who would by the other box, and Hornburger suggested John Harris. They went to Harris and sold him the box; Hornburger testified that he had "negotiated" with Harris because Harris asked him what he thought about the box. 5 Lucas then asked Hornburger if he would get the...
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