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State v. Hosier

Supreme Court of Missouri, En Banc

February 3, 2015

STATE OF MISSOURI, Respondent,
v.
DAVID RUSSELL HOSIER, Appellant

Petition for certiorari filed at, 04/14/2015

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APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY. The Honorable Patricia S. Joyce, Judge.

Hosier was represented by Craig A. Johnston of the public defender's office in Columbia.

The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.

Mary R. Russell, Chief Justice. All concur.

OPINION

Page 888

Mary R. Russell, Chief Justice.

David Hosier (Defendant) was charged with and convicted of first-degree murder, armed criminal action, first-degree burglary, and unlawful possession of a firearm by a felon. He was sentenced to death for the murder charge, 15 years in prison for the armed criminal action charge, 15 years for the burglary charge and seven years for the unlawful possession of a firearm charge. He appeals his conviction, alleging certain evidence should have been suppressed or was inadmissible. He further argues that there was insufficient evidence to support a conviction for burglary.

This Court holds that: (1) evidence seized from Defendant's person and car was admissible because his flight from police and the nature of the alleged Fourth Amendment violation purged the evidence of any taint of an illegal stop; (2) Defendant was not seized until he pulled his car over in response to the police; (3) there was sufficient probable cause to support a search warrant for Defendant's apartment; (4) pictures of the guns and ammunition found in Defendant's car were admissible because they were logically and legally relevant; (5) the victim's statements on an application for a protective order and to her landlord concerning Defendant's actions were admissible under the forfeiture by wrongdoing doctrine; (6) there was sufficient evidence to support a conviction for first-degree burglary; (7) the note found in Defendant's car was authenticated by circumstantial evidence; and (8) his sentence was proportional. The judgment is affirmed.

Factual Background

The bodies of Angela Gilpin (Victim) and Rodney Gilpin (Husband) were found in the hallway of their apartment building.[1] The Jefferson City Police Department (JCPD) found 9-millimeter shell casings in the foyer and the apartment, and an autopsy later revealed that Victim died from gunshot wounds to the head and torso and Husband died from gunshot wounds to the chest. Victim was wearing her purse, which contained an application for a protective order from Defendant. The application stated that she and Defendant were

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" ex-lovers, he knows everywhere i [sic] go, who i [sic] go with, who comes to my home and is harassing me calling JCPD for no reason." She further wrote that " he stalkes [sic] me every day, has called JCPD on me Sat. Monday." She also indicated that she was afraid because Defendant had a violent history with an ex-wife. On a separate form used for obtaining service, she indicated that Defendant had " lots of firearms." [2] JCPD soon learned that Defendant and Victim had been involved in an " on again, off again" romantic relationship that Victim had ended when she reconciled with Husband. The apartment building was locked, and there were no signs of forcible entry.

In the hours after the deaths were discovered, JCPD spoke with various people who knew the victims and Defendant, including their landlord, two neighbors and Defendant's former employer.

The landlord informed JCPD that Defendant's apartment overlooked Victim's apartment and that Victim had requested a new apartment because she no longer wanted to live near Defendant. The landlord relayed a copy of a letter Victim had written him stating that she had filed for a restraining order against Defendant and that she was afraid because she did not know what Defendant would " do next." He also provided police with a criminal background check indicating that Defendant had been convicted of assault and battery in Indiana.

The landlord added that he recently told Defendant that he was no longer permitted to enter Victim's apartment building because Victim complained he had entered her apartment without permission.[3] The landlord had asked Defendant to move out by the end of September because of the growing tension.

JCPD also contacted a neighbor who had socialized with Victim the night before her death. Defendant had left several voice messages on the neighbor's cell phone that night that were threatening toward Victim. In one message, Defendant stated that he was going to " f**** finish it. I'm tired of the s***. You don't believe me. I'm tired of the s***." On another occasion after Defendant and Victim broke up, Defendant told this neighbor that if he could not have Victim, no one could.

A second neighbor told JCPD that Defendant had called her the night before the murders to say that he had left certain possessions on her car in case something happened. He also told her that he was going to " eliminate his problems." The neighbor led JCPD to her car, where they found a note and a set of keys. The note was from Defendant and instructed the neighbor to call Defendant's sister if anything happened to him. He also asked her to take care of his possessions in a storage facility. The neighbor told police that Defendant had previously stated that Victim had " f**** him over" and that he was going to " f*** her over."

JCPD also spoke with Defendant's former employer. He told them Defendant had been " let go" because he had been harassing and stalking Victim, who had been a frequent customer.

In the hours immediately following the murders, there was no response at Defendant's

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apartment and his car was not in its usual parking spot. Relying on the information they learned from the landlord, the neighbor with the threatening voicemails and Defendant's former employer, Missouri authorities applied for a search warrant for Defendant's apartment. They found 9-millimeter ammunition and an empty box of 9-millimeter shells. They also found the schematic for a 9-millimeter STEN machine gun.

They also applied for a ping order[4] to determine Defendant's location when they applied for the search warrant. The application included an affidavit in which the swearing officer stated that Defendant " has been identified as the primary suspect in the homicide investigation" and the location information was " essential . . . to obtain key evidence relevant to the ongoing criminal investigation." The ping order allowed police to determine Defendant's location in real time based on the location of his cell phone.

Using the ping order, JCPD determined that Defendant was traveling south through Oklahoma. They alerted law enforcement officials in Oklahoma that a " wanted car and person" was in the area. An officer spotted Defendant's car and activated his emergency lights to pull him over. Defendant did not stop and led police on a " moderate speed chase," evading one road block before pulling over. When he eventually stopped, he exited his car, saying, " Shoot me, and get it over with" or " end it." They were able to put him in handcuffs and found a knife on his body. In plain view in the car, police saw a bulletproof vest, gun and pistol holder.

Oklahoma authorities applied for a search warrant for Defendant's car. In the application, the swearing officer stated that he was alerted to Defendant's presence in Oklahoma by JCPD and that JCPD had identified Defendant as the primary suspect in the homicide investigation based on interviews with the neighbors. The application stated that police were aware he was in Oklahoma based on the ping order. The swearing officer stated that Defendant had violated state law by illegally possessing a firearm and failing to yield to police lights and sirens.

In searching the car pursuant to the Oklahoma warrant, police recovered two cell phones, a knife next to the driver's seat, a bulletproof vest, 400 rounds of ammunition and 15 firearms. One of these firearms was an unloaded STEN machine gun that was capable of firing 9-millimeter ammunition. It was the only gun in the car that was not in a bag, and was later determined to be the murder weapon.

They also found two notes. One note had Victim's vehicle information written on it. The other note offered incriminating evidence that Defendant had harmed someone. It stated:

If you are going with someone do not lie to them, do not play games with them, do not f*** them over by telling other people things that are not true, do not blame them for things that they have not done. Be honest with them and tell them if there is something wrong. If you do not this could happen to YOU!! People do not like being f***** with, and after so much s*** they can go off the deap [sic] end!! Had to [sic] much s***!!!

Defendant was charged with first-degree murder, armed criminal ...


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