State v. Hokenson
Supreme C0urt of Idaho
96 Idaho 283, 527 P.2d 487 (1974).
Opinion
Appellant Fred W. Hokenson, armed
with a homemade bomb and a knife, entered Dean's Drug Center, Lewiston, on the
evening of January 13, 1972 with the intent to commit robbery. The resulting
course of events ended with the death of Officer Ross D. Flavel. In June, 1972,
trial was held in the Second Judicial District Court for Nez Perce County and a
jury found the appellant guilty of murder in the first degree. Judgment of
conviction was entered and sentence of life imprisonment was imposed. This
appeal is from that judgment.
On the evening of January 13,
1972, Kent Dean, owner and manager of Dean's Drug Center, Lewiston, received a
call from an individual (later identified as appellant Fred W. Hokenson) asking
him to return to the store and fill a prescription which was urgently needed.
Upon agreeing to do so, Mr. Dean, accompanied by his wife and two small sons,
returned to the store arriving shortly after 7:00 p. m. After a short wait,
appellant Fred W. Hokenson entered the rear of the Drug Center wearing a gas
mask and carrying a sack close to his shoulder in his right hand. He stated,
"Nobody moves, nobody gets hurt."
Kent Dean immediately raced over
to the appellant and grabbed him in a bear hug. The two men struggled, rolled
against the counter, and Dean obtained a headlock on Hokenson. Hokenson then
stated that he had a bomb. Mr. Dean asked his wife to call the police and to get
his gun. While she was doing so, the two men fell to the ground and the
appellant again mentioned the bomb. Dean managed to grasp the sack the appellant
was holding and to slide it approximately ten feet away. Upon coming to rest,
cylindrical rods could be seen protruding from the sack's top.
While both men were still on the
floor Dean heard the appellant say, "Okay, I have a knife and this is it." Dean
felt the knife at the back of his neck but changed his position and managed to
wrestle it away.
Mrs. Dean called the police and
returned to the rear of the store. She was holding a gun on the appellant and
Mr. Dean was still grasping Hokenson in a headlock when the police arrived.
Officer Ross D. Flavel entered the store through the rear door and upon learning
the facts started handcuffing Hokenson. After securing appellant's left wrist,
he told Mrs. Dean that another officer, Tom Saleen, was at the front of the
store. Mrs. Dean promptly let him in and the two officers along with Mr. Dean
completed the task of handcuffing Hokenson.
Officer Flavel then left the store
and backed the patrol car to the rear door. Upon his return Mrs. Dean mentioned
the bomb. Officer Flavel approached the device, picked it up and identified it
as being a bomb. Some conflict then exists in the testimony concerning the
following events. Officer Saleen testified that Officer Flavel began pulling
wires out of the device and that Hokenson stated that it would make no
difference since they only had thirty seconds to live.
The Deans testified that Officer Flavel merely had his hands on the sack
at the time of Hokenson's statement and subsequent explosion. Nonetheless, the
device did explode killing Officer Flavel and injuring Officer Tom Saleen and
Kent Dean.
The following morning two
handwritten notes were found near the rear of the store. One established drugs
as being the object of the robbery and the other contained a threat against
Dean's family.
Appellant pleaded not guilty to
murder under I.C. § 18-603 applicable at the time. 2 It reads as follows:
"18-603.
Murder. -- (1) Except as provided in section 18-604(1)(b) of this code, criminal
homicide constitutes murder when:
(a) it is
committed purposely or knowingly; or
(b) it is
committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the
actor is engaged or is an accomplice in the commission of,
or an attempt to commit, or flight after committing or
attempting to commit robbery, rape, or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree,
but a person convicted of murder may be sentenced to death, as provided in
section 18-607 of this code."
***
Asserted error in denying
appellant's motion for acquittal, or in the alternative, the verdict is contrary
to the evidence.
Appellant argues that since he was
under arrest and in custody at the time of the explosion, the attempted crime
had been fully terminated and therefore he was not liable for the death under
I.C. § 18-603.
Idaho Code § 18-603 provides that
a criminal homicide is murder if it is committed recklessly under circumstances
manifesting extreme indifference to the value of human life. This recklessness
and indifference is presumed if the actor is engaged in the commission of,
attempt to commit, or flight after committing or attempting to commit robbery.
The state argues that the evidence presented showed beyond a reasonable doubt
that the homicide was committed recklessly under circumstances manifesting
extreme disregard to human life. As such, the state argues their case was
established without the aid of the felony-murder presumption. We agree.
The statute requires no showing
that the homicide took place during the attempted robbery. The appellant's act
of carrying an active bomb into the store, knowing it to be extremely dangerous
as shown by his handling, manifests extreme indifference to the value of human
life. This act, coupled with the ensuing explosion and death, suffices without
the presumption to establish murder under I.C. § 18-603(1)(b).
Further, this Court cannot accept
the appellant's contention that he should escape liability under the
felony-murder rationale. The record shows that the appellant entered the store
armed with a homemade bomb and a knife with the intent to commit robbery. His
handling of the bomb illustrated his full cognizance of its characteristics. The
fact he was met by resistance on the part of his intended victim, and in fact
placed under arrest, does not release him from the final consequence of his act.
In the case of People v. Welch, 8
Cal.3d 106, 104 Cal.Rptr. 217, 501 P.2d 225 (1972) the California Supreme Court
stated:
"* * *
homicide is committed in perpetration of the felony if the killing and the
felony are parts of one continuous transaction * * *. The person killed need not
be the object of the felony." 104 Cal.Rptr. at 225, 501 P.2d at 233.
In Commonwealth v. Banks, 454 Pa.
401, 311 A.2d 576, 578 (1973) the court stated that liability would be imposed
where the conduct causing the death was done in furtherance of the design to
commit the felony. 8
The explosion causing the death of
Officer Flavel clearly falls within the above two definitions. A person is
criminally liable for the natural and probable consequences of his unlawful acts
as well as unlawful forces set in motion during the commission of an unlawful
act. The appellant voluntarily set in motion an instrumentality which carried a
very real probability of causing great bodily harm. Death ensued, and the fact
appellant was under arrest does not erase criminal liability.
* * *
Judgment Affirmed. [Felony-Murder
Rule Applied ]