State v. King, WD

• Decision Date: 22 April 1986
• Docket Number: No. WD,WD
• Citation: 708 S.W.2d 364
• Parties: STATE of Missouri, Respondent, v. Bernard KING, Appellant. 36983.
• Court: Missouri Court of Appeals

Page 364

708 S.W.2d 364

STATE of Missouri, Respondent, v. Bernard KING, Appellant.

No. WD 36983.

Missouri Court of Appeals Western District.

April 22, 1986.

Cullen Cline, Butcher, Cline, Mallory & Covington, Columbia, for appellant.

Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, C.J. Presiding, and SHANGLER and KENNEDY, JJ.

CLARK, Chief Judge.

Bernard King was convicted on two counts of sales of marijuana in violation of § 195.020, RSMo.Cum.Supp.1984. He appeals contending the exhibit consisting of the contraband should not have been received in evidence and that a tape recording made during one of the sales and received in evidence at trial was given undue emphasis during jury deliberations. Affirmed.

The facts of the offense and preceding and subsequent events are integral components of the primary point on appeal, the asserted taint of the exhibit necessary to establish sale of the controlled substance. The events commenced when Kenneth Bailenson volunteered the information to police that a dealer was selling drugs to students at Kemper Military Academy from a residence in Fayette. Bailenson had acquired the information from a fellow student, John Baumgardner, who had bought drugs from that location on prior occasions. Bailenson agreed to cooperate with the sheriffs of Howard and Cooper counties and with the highway patrol in a plan to make undercover drug purchases at the suspected location.

On April 25, 1984, Bailenson was strip searched in preparation for an undertaking to attempt a drug buy. He was given money and a car to use and was sent to the location given by his friend Baumgardner, followed by two police officers. En route, Bailenson picked up Baumgardner to provide an introduction because Bailenson was not a known or previous customer. Baumgardner was unaware of Bailenson's undercover role or that the activity was being conducted with police surveillance.

The pair arrived at the residence previously identified by Baumgardner as a drug house and there made a purchase of two "bags" of marijuana from a person later identified as appellant. On the return trip to Boonville, Bailenson and Baumgardner stopped at a convenience store and purchased a six pack of beer and, at the suggestion of Baumgardner, they smoked some of the marijuana bought from appellant. Bailenson subsequently said he joined in the use of the marijuana to avoid arousing Baumgardner's suspicion. After dropping off Baumgardner in Boonville, Bailenson rejoined the police officers and turned over to them the remaining marijuana which had not been consumed. The quantity was weighed at a laboratory and found to be approximately 30 grams. This sale was charged as the offense named in the first count against appellant.

A second attempt to purchase drugs from appellant was arranged on May 10, 1984, again with the use of Bailenson but without the participation of Baumgardner. A Columbia police officer, Himmel, assisted by searching Bailenson before the purchase and by outfitting him with a concealed recording transmitter. Himmel drove Bailenson to within one-half block of appellant's residence and observed as Bailenson concluded a purchase of marijuana from appellant. The transaction formed the basis for the offense charged in the second count against appellant.

In his first point of alleged trial error, appellant contends the unconsumed marijuana remaining from the first purchase made April 25 should not have been admitted in evidence because the exhibit was the product of illegal and outrageous police conduct. He argues that a prosecution may not be based on criminal activity by law enforcement and that sponsorship of the illegal enterprise by the police requires suppression of evidence procured in consequence of such conduct. He cites and relies on State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982). In that case, the police hired two known criminals to commit a burglary of a business building, aided by a police officer as a participant in the crime. Hohensee acted as a lookout stationed a half block from the building and was the only one of the four participants who did not know the crime was actually a police exercise. The court held the over-involvement by the police in promoting the crime precluded prosecution of Hohensee.

The particular and unique significance of Hohensee in reported Missouri cases is its acceptance of outrageous police conduct alone as a ground to bar the prosecution of an accused. Under the Hohensee theory, the issue of outrageous conduct presents a question of law for the court. The consequence of a finding that law enforcement conduct became over-involved in the commission of the crime is not merely the exclusion of certain evidence but a dismissal of the case. Also worthy of note is the disavowal of entrapment as an element of outrageous conduct, and hence, an accused may not be prosecuted if the Hohensee defense is sustained even though the evidence demonstrates a predisposition of the accused to engage in the criminal conduct in issue.

No reported Missouri case prior or subsequent to Hohensee has been cited, or discovered through independent research, applying the outrageous conduct theory as a ground to discharge an accused. Hohensee cites Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), which does not itself adopt the outrageous conduct theory. A plurality of the justices held that the defense of entrapment was the only shield available to a defendant ensnared by police over-involvement, and that illegal activity by the police is best curbed by prosecuting the officers. A concurrence in result and a dissent reserved the prospect of ruling on a due process bar to conviction where outrageous behavior reached a demonstrable level.

Hohensee does cite two cases, United States v. Twigg, 588 F.2d 373 (3rd Cir.1978), and People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (N.Y.1978), in which the outrageous conduct theory was applied to order the accused discharged. In each, the defendant had, prior to solicitation by a police agent, not been engaged in criminal conduct, and only embarked on the illegal activity after solicitation by the police and with materials and aid from government agents. In both cases, it was conceded that a defense of entrapment was unavailable because in each, the facts showed a predisposition by the defendant to commit the crime. Both cases acknowledge the uncertainty of any well established doctrine in the light of Hampton, but suggest the effect of Hampton to be that a dismissal of a charge on due process grounds in the context of an insufficient entrapment defense has not been ruled out. Isaacson at 718, 378 N.E.2d at 81; Twigg at 378.

Isaacson offers some assistance in an attempt to raise the outrageous conduct concept to a level of at least generalized definitive boundaries. Illustrative facts branding police conduct as outrageous are there said to include (1) the manufacture by police of a crime which would not otherwise have occurred, (2) engagement by police themselves in criminal conduct, (3) use of appeals to humanitarian instincts, temptation of exorbitant gain or persistent solicitation to overcome the defendant's unwillingness to engage in the illegal activity and (4) a desire on the part of the police to obtain a conviction of the defendant without motive to prevent further crime or to protect the public. One or more of these factors may be enough to brand the law enforcement conduct as outrageous.

The facts of Twigg and Isaacson deserve mention because they aid in fleshing out the otherwise amorphous character of "outrageous conduct." In the former case, Twigg and a co-defendant,...