State v. Honken

25 Neb.App. 352

905 N.W.2d 689

STATE of Nebraska, appellee,

v.Robert S. HONKEN, appellant.

No. A-17-195.

Court of Appeals of Nebraska.

Filed December 12, 2017.

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., Grand Island, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Inbody, Pirtle, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Following a stipulated bench trial, Robert S. Honken was found guilty of two counts of conspiracy to commit first degree murder. The district court for Hamilton County sentenced him to 45 to 50 years' imprisonment on each count, to be served concurrently. Honken now appeals his convictions and sentences. Following our review of the record, we affirm.

BACKGROUND

This case arises out of Honken's attempt to hire two different men to kill his wife. The parties agreed upon the following stipulated facts, which were submitted at trial:

On January 16, 2016, Honken contacted Derrick Shirley via text message regarding a construction job. Honken and Shirley met at Honken's residence on January 18. After meeting, Honken asked Shirley if he would kill Honken's wife. The parties entered into an agreement wherein Shirley would kill Honken's wife in exchange for monetary compensation.

Honken and Shirley communicated primarily through text messages. Following Shirley's subsequent arrest, law enforcement recovered 659 text messages between the parties from Shirley's cell phone. In the messages, Honken provided a substantial amount of information regarding his wife, her residence and property, and her daily routine to assist Shirley in planning her murder. The parties also discussed how the murder would occur, and Honken requested on several occasions that Shirley make the incident look like a robbery. Shirley admitted that in the course of his agreement with Honken, he drove by Honken's wife's residence approximately 20 times.

Honken gave Shirley $400 for the purchase of a firearm to kill his wife. Shirley asked a friend to purchase the weapon, a .22-caliber rifle, for him. The rifle was purchased on February 10, 2016, and Shirley took possession of it. Law enforcement later recovered the rifle from his residence.

The final message between Honken and Shirley was sent on February 16, 2016. In that message, Honken wrote to Shirley:

"I was just wanting to say thank you for backing down when you did. I had a short talk and I think it's going to lead to more talks and possibly a [sic] end to all of this? I have [a] friend that said I have through the duration of the divorce to prove to her that I want things to work out. I have deleted the messages on my cloud and phone. Thank you again for backing down and I don't want you to ever reconsider what I requested of you before. I think it was a God [sic] thing that you stepped back. I would like the .22 when it works out because I have a friend down in the Harvard area that said he would keep it so me and the boys can rabbit hunt around his farm! I can't thank you enough for heading [sic] the call and backing down. This and any other messages will be deleted but I'll keep your contact information in the event we're able to work things out and de [sic] the remodel work. Thanks again...."

Shirley later told law enforcement that he did not go through with the murder of Honken's wife because he "had prayed about it and just did not have the heart." Shirley had no further communication with Honken after the final message that Honken sent on February 16, 2016.

On February 24, 2016, Honken left a voice mail for Mario Flores regarding remodeling work at his home. In his voice mail, Honken identified himself as "Sam." Flores returned the call the next day, and the parties agreed to meet at a gas station in Aurora, Nebraska, on February 26. During the meeting, Honken asked Flores if he knew anyone "who could help him kill his wife." Flores responded that he did know people who could help, but that he would not get involved in it himself.

That same day, Flores contacted the Aurora Police Department to report his contact with "Sam." Flores met with an investigator from the Nebraska State Patrol, and during the meeting, Flores made a telephone call to "Sam" that was recorded by law enforcement. During the call, "Sam" stated multiple times that he wanted his wife to be killed, discussed the cost of hiring someone to do so, and discussed how and when he would like her murder to occur. "Sam" repeatedly affirmed that he was serious about killing her and identified himself as "Robert," the owner of a business in Aurora. Honken told Flores that he had previously paid someone else $400 to kill his wife but that person had backed out and taken his money. While Honken stated he did not recall that person's name, he provided sufficient information that law enforcement was able to identify him as Shirley.

Flores told Honken that he did have the name and telephone number of someone Honken could hire and that this person would contact him in the next several days. Later that day, Honken texted Flores from a different telephone number and stated that he "would like the hitman" to contact him at that number because it was a prepaid cell phone and he intended to dispose of it when he no longer needed it.

On February 29, 2016, an investigator with the Nebraska State Patrol made a recorded telephone call to the number Honken provided and posed as a potential hitman. During the call, Honken identified himself as both "Rob" and "Sam." Honken advised the investigator that he was in need of his services. The investigator stated that he would call Honken again with a time and place for them to meet, and Honken responded that he would be able to do so.

Several hours later, the investigator placed another call to Honken and instructed Honken to meet him at a truckstop in Aurora. Honken drove to the specified location and met with the investigator in the investigator's vehicle. The investigator wore a wire during the meeting to record his conversation with Honken.

Honken told the investigator that he wanted his wife " ‘gone’ " and that he would like her to be killed by March 4, 2016. When the investigator requested "$3000 up front," Honken said that he would be able to obtain the money within several days. He provided the investigator with a photograph of his wife, as well as a map of her residence. Honken showed the investigator his driver's license, identifying him as Honken, and stated that the address on his license was his wife's current address. Honken provided the investigator with information as to what type of vehicle his wife drove and when she was likely to be home alone. He also requested that the investigator make her death "look like a robbery" and said that he wanted it to be done " ‘quick and easy.’ "

The investigator requested $500 for expenses. Honken withdrew the funds from an automated teller machine inside the truckstop and gave them to the investigator.

Honken was pulled over shortly after departing the truckstop and placed under arrest. He admitted to law enforcement that he had hired Shirley and the undercover investigator to kill his wife. Regarding his agreement with Shirley, Honken stated that Shirley had contacted him approximately 3 weeks prior because he had gotten "cold feet" and decided not to go forward with their plan.

In March 2016, the State charged Honken with two counts of conspiracy to commit first degree murder in the county court for Hamilton County. Following a preliminary hearing, the county court found probable cause and bound the case over to the district court. Honken was charged with the same two counts, both Class II felonies, in district court. In the information, the State charged Honken in count I with conspiracy that began on or about January 1 through February 26, 2016. Count II charged Honken with conspiracy that began on or about February 26 through 29.

Honken filed a plea in abatement, asserting that the evidence at the preliminary hearing was insufficient to show probable cause that the alleged offenses had been committed and that he had committed them. At a hearing on his motion, Honken argued that he should have been charged with only one count of conspiracy rather than two. The district court overruled Honken's motion, finding that there was probable cause for two separate offenses.

Following the denial of his plea in abatement, Honken filed a motion to dismiss either count of the information, claiming that charging him with both counts violated his right against double jeopardy. In response, the State filed an amended information in which it shortened the time period during which it alleged count I occurred. The amended information asserted that the first offense occurred between January 16 and February 16, 2016, rather than between January 1 and February 26.

Honken waived his right to a jury trial, and a hearing on his motion to dismiss occurred simultaneously with his bench trial on the stipulated facts set forth above. The district court overruled Honken's motion to dismiss, finding that Honken had engaged in two separate conspiracies, and found him guilty of two counts of conspiracy to commit first degree murder. Honken was sentenced to 45 to 50 years' imprisonment on each conviction, with the sentences to run concurrently. Honken now appeals from his convictions and sentences.

ASSIGNMENTS OF ERROR

Honken assigns, restated, that the district court erred in (1) violating his right against double jeopardy by convicting and sentencing him to multiple punishments for the same offense and (2) imposing excessive sentences. Honken also argues that he received ineffective assistance of his trial counsel.

STANDARD OF REVIEW

Whether two provisions are the same offense for double jeopardy purposes presents a question of law, on which an appellate court reaches a conclusion independent of the court below. State v. Huff , 282 Neb. 78, 802 N.W.2d 77 (2011).

An appellate court will not...