State v. Simmons

• Decision Date: 10 April 2012
• Docket Number: No. SD 31179.,SD 31179.
• Citation: 364 S.W.3d 741
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Casey Alton SIMMONS, Defendant–Appellant.
• Court: Missouri Court of Appeals

364 S.W.3d 741

STATE of Missouri, Plaintiff–Respondent,

v.Casey Alton SIMMONS, Defendant–Appellant.

No. SD 31179.

Missouri Court of Appeals,

Southern District,

Division One.

April 10, 2012.

Ellen H. Flottman, Columbia, MO, for Appellant.

Chris Koster, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, Judge.

Casey Alton Simmons (“Defendant”) appeals his conviction, following a jury trial, for conspiracy to commit murder in the second degree, in violation of section 564.016.¹ Defendant argues the trial court erred by improperly denying his motion to dismiss, which claimed that the prosecution was founded in outrageous government conduct, and the trial court plainly erred by failing to sua sponte modify Instruction No. 5, which instructed the jury on the elements of conspiracy to commit murder and mirrored MAI–CR 3d 304.10. Finding no merit in Defendant's arguments, we affirm.

Factual and Procedural History

Defendant was charged by information and found guilty by a jury of the class B felony of conspiracy to commit murder in the second degree. Following the jury's verdict, Defendant was sentenced by the Jasper County Circuit Court to nine years' imprisonment. The evidence at trial revealed the following:

Defendant contacted his ex-wife, Misty Simmons, and told her he wanted to kill Kimberlee LeClair (“Kim”).² Kim had claimed that Defendant was the father of her child. Misty spoke with a friend, Andrea Wahl, and expressed concern that Defendant was going to kill Kim because of the baby. Andrea was the ex-girlfriend of Duane George, a Jasper County Deputy Sheriff. After the conversation with Misty, Andrea contacted Deputy George and told him that Misty was concerned that Defendant was going to kill Kim. In response, Deputy George contacted Misty, and Misty stated to him that she was concerned that Defendant was going to kill Kim. Misty then agreed to cooperate in an investigation, and Deputy George referred the matter to his supervisor.

Detective Mike McDonald was assigned to the case. He was informed by Detective Sergeant Ron Thomas that Misty wanted to speak with him. Detective McDonald knew Defendant because they had worked together previously, and he initially believed the matter could be resolved because Misty was merely an angry ex-spouse wanting revenge. After speaking with Misty, Detective McDonald asked her to set up a meeting with Defendant and wear a wire to record the conversation; Misty agreed.

Misty arranged a meeting with Defendant, and the two met in a cemetery. During Misty's meeting with Defendant, Detective McDonald and another officer, Officer Haynes, listened and recorded the conversation. Defendant told Misty he wanted to murder Kim and stated that although the murder would be easy, disposal of the body would be difficult. Defendant also stated they would need to “package the body well” and then discussed wrapping the body in Saran Wrap, putting the body in a sports bag, covering the body in lime, and wrapping the body with tarps. Defendant discussed manually choking Kim, knocking Kim out with an object, and standing on Kim's neck while choking her with a rope. Defendant also stated he would need rubber gloves, a pair of size 12 shoes to throw away, and would need to burn his clothes after committing the murder to get rid of trace evidence.

After Misty's meeting with Defendant in the cemetery, the Jasper County Sheriff's Department gave Misty a $50.00 Wal–Mart gift card, which was to be used to purchase items needed to commit the murder. Misty met with Defendant again, and they went to a Wal–Mart. Following the instructions of Detective McDonald, as Misty and Defendant approached the register, Misty excused herself, went to the restroom, and called Detective McDonald. Video surveillance at Wal–Mart showed Defendant checking out at the register and paying for the items in his cart. Defendant exited the store, walked to Misty's car, and was arrested. The items purchased by Defendant included a large tarp, large trash bags, duct tape, and size 12 shoes. Defendant was charged with conspiracy to commit murder in the second degree.

At trial, defense counsel filed a motion to dismiss, claiming outrageous government conduct; the trial court denied this motion. At the close of the state's case and at the close of all the evidence, defense counsel moved for a judgment of acquittal; the trial court denied the motions. During the trial, Defendant claimed he had no intention to kill Kim and that he only talked about killing Kim and purchased the items they had talked about because he thought Misty would want to have sex with him if he did. The jury returned a verdict of guilty and recommended a sentence of nine years' imprisonment. Following the jury verdict, defense counsel again moved for a judgment of acquittal, or in the alternative, for a new trial on the basis of outrageous government conduct and improper jury instruction. These motions were denied, and the trial court sentenced Defendant to nine years' imprisonment. Defendant timely appealed.

Discussion

No Outrageous Government Conduct

Defendant's first point asserts that the trial court erred in denying Defendant's motion to dismiss because the prosecution was “founded in outrageous government conduct.” Outrageous government conduct concerns the over-involvement of police in a crime and may violate a defendant's due process rights and violate the principle of fundamental fairness. State v. Shannon, 892 S.W.2d 761, 765 (Mo.App.1995). Whether government activity breaches the threshold of outrageous conduct is a matter of law and is reviewed by this court de novo.³State v. Bradley, 882 S.W.2d 302, 308 (Mo.App.1994); State v. Adams, 839 S.W.2d 740, 743–44 (Mo.App.1992); State v. King, 708 S.W.2d 364, 366 (Mo.App.1986); State v. Hohensee, 650 S.W.2d 268, 272 (Mo.App.1982). Because, however, “[t]he weight of the evidence and the credibility of the witnesses is for the trial court's determination[,]” State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990) (citing State v. Brown, 762 S.W.2d 471, 474 (Mo.App.1988)), questions of fact are reviewed in the light most favorable to the decision rendered by the trial court. See State v. Pollard, 941 S.W.2d 831, 833 (Mo.App.1997); see also Adams, 839 S.W.2d at 744. Therefore, where the parties disagree about what activities the government or its agents performed, this court will review the facts in the light most favorable to the trial court's decision.

Where government involvement in a crime rises to the level of outrageous conduct, the proper remedy is to quash the prosecution. King, 708 S.W.2d at 367. To prove outrageous government conduct, a defendant must prove that the government conduct about which he complains formed the basis for the charges in the prosecution. Shannon, 892 S.W.2d at 765 (citing State v. Jay, 724 S.W.2d 293, 295 (Mo.App.1987)). Additionally, where police officers engage in generally accepted police practice, there is no outrageous government conduct. See Collins v. Mo. Dir. of Revenue, 2 S.W.3d 164, 168 (Mo.App.1999).

Factors “branding police conduct as outrageous” 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.

King, 708 S.W.2d at 366. “One or more of these factors may be enough to brand the law enforcement conduct as outrageous.” Id. at 366–67.

Of these four factors, Defendant argues only the first—the manufacture by police of a crime which would not otherwise have occurred. Defendant contends “it was not until Misty went to Duane, a deputy sheriff ... that [Defendant] was induced to commit an overt act which established the conspiracy,” and that “it only became a conspiracy to murder when [ Defendant ] followed his ex-wife into Wal–Mart[.]” (Emphasis added).

Hohensee, 650 S.W.2d 268, is the only Missouri case where government activity was found to constitute outrageous conduct. See Pollard, 941 S.W.2d at 834. In Hohensee, this court held government conduct to be outrageous when two known criminals were hired by the police department to commit a break-in and robbery, and an officer of the police department assisted the two criminals in removing stolenproperty from the building they had burgled. Id. at 269. The defendant sat half a block away from the scene of the burglary as a lookout and was the only one of the four men unaware of the joint venture with the police department. Id. The defendant was also the only one charged with burglary. Id. In reaching our determination that such police involvement breached the generally accepted practices of law enforcement, we noted that the criminal activity at issue—the burglary—was accomplished by government agents. Id. at 274. We also noted, “[i]f the government agents had not been there, doing their illegal acts, defendant's conduct would not be illegal.” Id. Moreover, we acknowledged that it was “difficult to conceive a situation where the government's involvement could be greater or the defendant's could be less.” Id. Although this court reversed the defendant's conviction for burglary, we upheld his conviction for conspiracy to commit burglary of another house with the same three men because

defendant gave his companions a map of the house, including the location of a safe therein. The four men rode to the house in a car driven by defendant, and defendant pointed the house out to the others. Because a vehicle was parked in the yard, indicating the house was occupied, the men returned to the undercover house. Defendant then gave the...