State v. Hohensee, 12407

• Decision Date: 20 July 1982
• Docket Number: No. 12407,12407
• Citation: 650 S.W.2d 268
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David Elmer HOHENSEE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 268

650 S.W.2d 268

STATE of Missouri, Plaintiff-Respondent, v. David Elmer HOHENSEE, Defendant-Appellant.

No. 12407.

Missouri Court of Appeals,

Southern District,

Division One.

July 20, 1982.

Motion for Rehearing or Transfer Denied

August 10, 1982.

Application for Transfer Sustained

Sept. 14, 1982.

Cause Retransferred as Improvidently

Transferred Jan. 24, 1983.

Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

The break-in at the Brandhorst building was not of the run-of-the-mill variety. Not that George Bressie and Jimmy Yarberry, who effected the illegal entry, were strangers to crime. Indeed Bressie had ten felony convictions, most of them for burglary, and admittedly had committed six other burglaries for which he had not been convicted. Yarberry, too, had a substantial criminal record. At the time of the Brandhorst break-in both of them were "out on bond" awaiting trial for yet another burglary. The peculiar thing was that the Springfield Police Department was paying the two men to commit the break-in, and this without the consent ¹ or even knowledge of the building owner. When the two men removed the safe from the building, Officer Reginald Roberts of the Springfield Police Department helped them load it onto a truck. Sitting in his vehicle 1/2 block away, and acting as lookout for the other three men, was the defendant Hohensee. He was the only member of the quartet who did not know that the joint venture was being conducted under police sponsorship. Defendant's state of mind was solely criminal. Of the group, defendant alone was charged with burglary of the Brandhorst building.

A jury found defendant Hohensee guilty of second degree burglary, § 569.170, and conspiracy, § 564.016, and the trial court, finding defendant was a persistent offender, § 558.016, imposed consecutive sentences of ten years for the burglary and eight years for the conspiracy. Defendant appeals.

Defendant's first point attacks the validity of the burglary conviction on the ground that it was obtained in violation of "defendant's right to due process of law in that the evidence upon which that conviction rested was obtained by means of illegal and outrageous conduct on the part of law enforcement officers and their agents."

Count I of the information, on which the burglary conviction was based, charged that the defendant on July 31, 1980, "knowingly entered unlawfully in a building located at 1407 North Cedarbrook, Springfield, Missouri, and possessed by Brandhorst Battery Company, for the purpose of committing stealing therein."

The state's evidence showed that at approximately 11:00 p.m. on July 30, defendant and three other men, Bressie, Yarberry, and Roberts, were at a house located on Missouri Street in Springfield. Unknown to defendant were these facts: Roberts was a police officer; Bressie and Yarberry a couple of weeks earlier had made a "deal" with the police whereby Bressie and Yarberry, in return for leniency on another burglary charge, would supply information to the police concerning "illegal acts" and "what was going on in Springfield and who was stealing what"; pursuant to the "deal" Yarberry and Bressie were being paid weekly salaries by the police department and were working closely with Officer Roberts; a hidden movie camera and sound equipment had previously been installed in the house by Bressie and Roberts with the help of television studio personnel; the actions and conversations at the undercover house were being photographed and recorded by a concealed cameraman.

Defendant had been acquainted with Bressie since 1973. Neither was a stranger to the law. Defendant had three prior burglary convictions, the most recent in 1971. Over the years burglary was their principal topic of conversation.

During the late night conference on July 30, defendant and the other three men discussed burglarizing the Brandhorst building. Defendant was familiar with the interior of the building because he had purchased a battery there several months before. For the use of his companions, defendant drew a floor plan of the building, which included the location of a safe. Using separate vehicles, the four men proceeded to the target area shortly after midnight. Defendant drove his own vehicle and parked it in a parking lot approximately 150 yards from the Brandhorst building. He was to remain there as a lookout while his companions made the illegal entry. The other three men were in "an old Ford van." This trio proceeded to the Brandhorst building. There Yarberry and Bressie pried open the front door, entered the building, and removed the safe. Officer Roberts helped these two men load the safe into the van. The trio then drove past the lookout position of the defendant, who followed them to the undercover house. There the defendant, in the company of the others and in view of the hidden camera, opened the safe. The "swag" proved disappointing--"$6.00 and some change."

The Brandhorst break-in was only part of an undercover operation which the Springfield Police Department called "Operation Rosebud." Defendant was not arrested until some time after mid-September. The state's evidence showed that Officer Roberts' participation in the Brandhorst break-in, and Operation Rosebud generally, were authorized and approved by Roberts' superiors in the Springfield Police Department and that, in the middle of July, Officer Roberts met with "the Detective Division and supervisor" and also attended "a meeting with the prosecutor's office, with the prosecuting attorney present." Thereafter the undercover house was rented and Operation Rosebud commenced.

Defendant makes no claim of "entrapment" and indeed, in the trial court, his counsel expressly disavowed that defense. ²

On the Due Process Clause of the Fourteenth Amendment defendant bases his claim that his burglary conviction is vitiated by the "outrageous conduct" of the law enforcement personnel and their two salaried felons, Bressie and Yarberry.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973), the Court made this statement: "While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, ..., the instant case is distinctly not of that breed.... The law enforcement conduct here stops far short of violating that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." ³

In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), eight members of the Court dealt with a situation where the defendant claimed denial of due process based upon conduct of government agents which was allegedly "outrageous." In Hampton a government informant supplied heroin to the defendant who in turn sold it to government agents. Defendant was convicted of distributing heroin in violation of a federal statute.

A plurality opinion by Mr. Justice Rehnquist (in which the Chief Justice and Mr. Justice White joined) affirmed the conviction. That opinion pointed out that "entrapment" was not involved because the predisposition of the defendant to commit the crime was established. Further, said that opinion, "The remedy of the criminal defendant with respect to the acts of Government agents, which, far from being resisted, are encouraged by him, lies solely in the defense of entrapment.... The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant. Here, as we have noted, the police, the Government informant, and the defendant acted in concert with one another. If the result of the governmental activity is to 'implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission...,' Sorrells [v. United States, supra, 287 U.S. , at 442, 53 S.Ct. , at 212, 77 L.Ed. , at 417, the defendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law." (Emphasis in original.) 96 S.Ct. l.c. 1650.

Concurring in the judgment, Mr. Justice Powell, with whom Mr. Justice

Blackmun joined, said, "I therefore am unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition." Mr. Justice Powell added this statement: "I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction."

A dissenting opinion by Mr. Justice Brennan (in which Stewart and Marshall, JJ. concurred) said: "I agree with Mr. Justice POWELL that Russell does not foreclose imposition of a bar to conviction--based upon our supervisory power or due process principles--where the conduct of law enforcement authorities is sufficiently offensive, even though the individuals entitled to invoke such a defense might be 'predisposed.' Ante, [96 S.Ct.] at 1652. In my view, the police activity in this case was beyond permissible limits." Brennan, J. also expressed the view that an entrapped defendant should not be convicted if the methods employed on the government's behalf should not be countenanced, regardless of the predisposition of the defendant.

In the wake of Hampton...