State v. Honken
25 Neb. Ct. App. 352
| Neb. Ct. App. | 2017Background
- Honken sought to hire two different men, on separate occasions, to kill his wife: first Derrick Shirley (texts and $400 for a rifle between Jan 16 and Feb 16, 2016) and later contacts through Mario Flores leading to an undercover officer (meetings and $500 downpayment Feb 26–29, 2016).
- The State charged two counts of conspiracy to commit first-degree murder: count I for Jan 16–Feb 16, 2016, and count II for Feb 26–29, 2016 (a 10-day gap between alleged conspiracies).
- At a stipulated bench trial, the court admitted 659 text messages between Honken and Shirley and recordings of Honken’s meetings/calls with Flores and the undercover officer.
- The district court found Shirley had effectively withdrawn (last text Feb 16 thanking him for “backing down”), concluded two distinct conspiracies existed, convicted Honken on both counts, and sentenced him to concurrent 45–50 year terms.
- Honken appealed, arguing (1) double jeopardy from multiple punishments for the same conspiracy, (2) excessive sentences, and (3) ineffective assistance of trial counsel for not raising mental‑health defenses earlier.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy – multiple conspiracy convictions | Honken: single, continuous conspiracy; adding a new coconspirator doesn’t create a new conspiracy | State: two distinct conspiracies separated by time, different coconspirators and overt acts | Court: Two separate conspiracies — no double jeopardy; Shirley’s withdrawal + 10‑day gap support separation |
| Application of conspiracy law | Honken: conspiracy continues until purpose achieved/failed, so original conspiracy persisted | State: withdrawal and lack of contact ended first conspiracy | Court: Agree with State — withdrawal effective Feb 16; conspiracy ended; new agreement later created a new conspiracy |
| Sentencing excessive | Honken: court ignored mitigating factors (substance use, later bipolar diagnosis, lack of physical violence) | State: sentence within statutory range; court considered factors and seriousness of conduct | Court: Sentences (45–50 years concurrent) within statutory limits and not an abuse of discretion |
| Ineffective assistance of counsel | Honken: trial counsel failed to raise mental‑health defenses earlier | State: record insufficient on direct appeal to evaluate effectiveness | Court: Claim not resolved on direct appeal — record inadequate; may require evidentiary hearing |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (traditional "same evidence" test for double jeopardy)
- United States v. Thomas, 759 F.2d 659 (8th Cir.) (totality of the circumstances test for multiple conspiracies)
- Savage v. State, 66 A.3d 1049 (Md. Ct. Spec. App. 2013) (distinct agreements and an appreciable break create separate conspiracies)
- State v. Henry, 875 N.W.2d 374 (Neb. 2016) (elements of conspiracy and standards for withdrawal)