# Engberg v. Meyer

> Wyoming Supreme Court · October 17, 1991 · 820 P.2d 70

URL: https://www.frixlaw.com/law-library/cases/1386258

## Case

- **Full name:** Roy Lee ENGBERG, Appellant (Petitioner), v. Joseph B. MEYER, Attorney General of the State of Wyoming, and Duane Shillinger, Warden of the Wyoming State Penitentiary, Appellees (Respondents)
- **Court:** Wyoming Supreme Court
- **Decided:** October 17, 1991
- **Citations:** 820 P.2d 70; 1991 Wyo. LEXIS 160; 1991 WL 207178
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Brown, Ret, Thomas, Cardine, Urbigkit, MacY
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

820 P.2d 70 (1991)
Roy Lee ENGBERG, Appellant (Petitioner),
v.
Joseph B. MEYER, Attorney General of the State of Wyoming, and Duane Shillinger, Warden of the Wyoming State Penitentiary, Appellees (Respondents).
No. 87-15.
Supreme Court of Wyoming.
October 17, 1991.
*72 Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, and Martin J. McClain, Deputy State Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., and John W. Renneisen, Deputy Atty. Gen., for appellees.
Before BROWN, C.J., [*] Ret., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
THOMAS, Justice, writing for the Court on the issues affecting guilt or innocence, and CARDINE, Justice, writing for the Court on the issues affecting the imposition of the capital sentence.
MACY, J., filed an opinion dissenting in part and concurring in part.
URBIGKIT, J., filed an opinion dissenting in part and concurring in part.
THOMAS, J., filed an opinion dissenting with respect to the reversal of the capital sentence, in which BROWN, C.J., Ret., joined.
In this appeal from the denial of post-conviction relief in a capital murder case, the issues divide, as does the pertinent statute, between those matters that affect the determination of guilt or innocence and those that impact the imposition of the capital sentence. Because of a division of the court with respect to the disposition of this case, with three justices agreeing that Roy Lee Engberg (Engberg) was lawfully convicted of first degree murder but one of those justices agreeing with the other two that the capital sentence should be set aside, the majority opinion of the court with respect to those issues affecting guilt *73 or innocence has been assigned to Justice Thomas and the majority opinion of the court with respect to the issues affecting the imposition of the capital sentence has been assigned to Justice Cardine.
THOMAS, Justice (on the question of guilt or innocence of first degree murder).
The first function of the court in this appeal is to apply our rule of procedural waiver. Next, questions that could not be presented on direct appeal or for which cause exists to avoid procedural waiver must be examined for error of constitutional magnitude. With respect to the conviction of the crime of first degree murder, these questions include: failure of the prosecution to advise Engberg of a hypnotic session with a key witness; a claim of ineffective assistance of counsel on direct appeal (this issue requires that we afford incidental attention to two other contentions); a claim of cumulative error that was prejudicial to Engberg's right to a fair trial; a charge of conflict of interest because a member of the attorney general's legal staff had served as counsel for Engberg on his direct appeal; and a claim that this court has structured an unfair and constitutionally infirm process for seeking post-conviction relief. All but five of the claims asserted by Engberg as fatally affecting his conviction fall under the rule of procedural waiver. With respect to the others, we conclude that none serve as a ground for setting aside the conviction of first degree murder. We affirm the dismissal by the trial court of Engberg's petition for post-conviction relief insofar only as that dismissal relates to the propriety of his conviction.
Engberg was convicted, after a trial by jury, of the crimes of felony murder in violation of § 6-4-101(a), W.S. 1977, and armed robbery in violation of § 6-4-402, W.S. 1977. Following these findings of guilty, the jury received evidence with respect to whether capital punishment should be imposed and, in accordance with § 6-2-102, W.S. 1977 (June 1983 Repl.), found five statutory aggravating circumstances and no statutory mitigating circumstances, but did determine, as a non-statutory mitigating circumstance, the fact that the crimes may have been induced by economic and family conditions. The jury then recommended capital punishment, which was imposed by the court pursuant to § 6-2-102(f), W.S. 1977 (June 1983 Repl.). A sentence of twenty-five to thirty years was imposed for the aggravated robbery. Engberg appealed the judgment and sentence for these crimes, and this court affirmed. A more detailed statement of the facts underlying Engberg's conviction can be found in Engberg v. State, 686 P.2d 541 (Wyo. 1984), cert. denied 469 U.S. 1077 , 105 S.Ct. 577 , 83 L.Ed.2d 516 (1984).
After this court affirmed his convictions and denied his petition for rehearing, counsel was appointed for Engberg to assist him in presenting a petition for post-conviction relief. Engberg asserted twenty issues to the district court in support of his petition for rehearing. The State of Wyoming moved to dismiss the petition pursuant to Rule 12(b)(6), W.R.C.P. Following oral argument, the trial court entered a memorandum of findings of fact and conclusions of law explaining its decision to grant the State's motion. An order was entered in the district court dismissing Engberg's petition for post-conviction relief. This appeal is taken from that order.
For the sake of completeness, all of the issues asserted by Engberg are set forth in Appendix I to this opinion. Our examination of those issues convinces the court that all but six of them could, or should, have been raised on direct appeal, and no good cause is shown in this appeal for the failure to include them in the direct appeal. We have said:
"* * * This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction nor is it to be treated as an appeal. Questions which may be raised by a motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Those issues which could have been presented on appeal are not open to *74 challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judicata." Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo. 1988) (citations omitted).
This is a rule of procedural waiver very like that applied in the federal courts.
"* * * [A] convicted person is foreclosed from raising in a post-conviction proceeding any claim of error which he could or should have presented on appeal unless he demonstrates good cause for not presenting the issue on appeal and actual prejudice arising from the failure to present it. This adoption of a rule parallel to the rule applied in the federal courts will facilitate in a material way the task of the federal courts in examining issues raised in federal post-conviction proceedings in which review is sought of a conviction in the State of Wyoming." Cutbirth, 751 P.2d at 1262 .
This rule of procedural waiver is applicable to, and forecloses from direct consideration, the first issue and the third through the fifteenth issues set forth in the appendix.
The remaining issues as articulated by Engberg are:
"2. Whether the State's failure to disclose its use of hypnosis as means of enhancing Kay Otto's memory violated its ethical obligations and denied appellant his right to due process of law, his right of confrontation, and his right to effective assistance of counsel.
* * * * * *
"16. Whether appellant's right to be free from cruel and unusual punishment and to due process was violated by the jury's finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery when the robbery had already been used to elevate the crime to capital murder.
"17. Whether the cumulative nature of the error is such that, regardless of the harmlessness of any one error, together they prejudiced appellant's rights to due process, fundamental fairness, and a reliable determination that the death penalty should be imposed.
"18. Whether appellant was afforded effective assistance of counsel during his appeal to the Wyoming Supreme Court.
"19. Whether it was improper for the office of the Attorney General to represent the State in post-conviction proceedings to urge that an Assistant Attorney General's proper representation was a procedural bar to the issues raised in appellant's petition for post-conviction relief.
"20. Whether this Court's discussion and holding in prior cases with regard to petitions for post-conviction relief ignore the plain and obvious statutory language and establish a procedure which is violative of fundamental fairness due process and equal procedure and whether it has established a confusing and unworkable process wherein courts simply dismiss petitions for post-conviction relief to get rid of them."
The State of Wyoming styles these issues as arguments and, responding first to "Issue 20," states them as follows:
"I. Was there error in the procedures followed in the lower court on Engberg's petition for post-conviction relief?
* * * * * *
"VIII. Was Engberg deprived of a fair trial, due process or confrontation by the failure of the State to disclose Kay Otto's contact with a hypnotist?
* * * * * *
"XIII. Was the jury properly instructed as to statutory aggravating circumstances; was Engberg denied due process or subjected to cruel and unusual punishment?
"XIV. Did Engberg receive effective assistance of counsel on appeal?
"XV. Does the cumulative nature of any errors in this case warrant relief?
"XVI. Is the Attorney General's entire staff disqualified from post-conviction proceedings because one of Engberg's four attorneys on direct appeal has since become an Assistant Attorney General?"
*75 Engberg urges with respect to these issues that error was committed during or after his direct appeal or that he has demonstrated good cause for not presenting the issues at that time. We agree that Issues 18, 19 and 20 quoted above could not have been raised on direct appeal. We conclude that good cause has been demonstrated to avoid the rule of procedural waiver with respect to Issues 2 and 16. As to the former, the prosecutor did not disclose the hypnotic session to Engberg, and it was not discovered until after his direct appeal. With respect to Issue 16, it is premised upon recent federal decisions which would require a conclusion that Engberg's sentence was imposed in violation of the Constitution of the United States of America, if we should accept the principles found in those cases. The change in the law demonstrates sufficient cause to avoid our rule of procedural waiver. Finally, the claim of cumulative error will be considered, but only with respect to those issues properly before the court in this appeal.
We first address Engberg's claims relating to the hypnosis of a key witness, Kay Otto, the victim's sister, who was with the victim when he was shot and killed by Engberg. We are satisfied that good cause has been demonstrated for not presenting this issue on appeal, and error must be found for violation of the standards set forth in our precedents. Even though some of our state standards were articulated subsequent to Engberg's conviction, he would have been entitled to invoke them because his case had not been decided finally at the time those rules were promulgated. We conclude, however, that this error does not require that post-conviction relief be granted because Engberg has not demonstrated substantial prejudice.
The record now discloses that a hypnotic session was conducted in an effort to enhance Kay Otto's recollection of the events at the time her brother was killed. This information was not disclosed to Engberg or his counsel prior to the return of the jury's verdict and, in fact, was not discovered until the preparation of Engberg's petition for post-conviction relief. When the question was raised, the district court permitted interrogatories to be filed and, in response, the State admitted the hypnotic session. By the affidavits of Kay Otto and the police officer who conducted the hypnotic session, the State suggests that the hypnosis was unsuccessful. Engberg contends that an evidentiary hearing must be conducted in order to resolve that question. We are satisfied that no hearing is required because, under our case law, any attempt to hypnotize a witness must be disclosed.
The State relies upon language from Haselhuhn v. State, 727 P.2d 280, 284 (Wyo. 1986), cert. denied 479 U.S. 1098 , 107 S.Ct. 1321 , 94 L.Ed.2d 174 (1987), in which the court stated:
"* * * [T]he State must advise the defendant of the fact that a witness has been previously hypnotized and make available to the defendant on request all statements and proceedings relating to the hypnosis."
See also Gee v. State, 662 P.2d 103 (Wyo. 1983); Chapman v. State, 638 P.2d 1280 (Wyo. 1982). The State insists that this language reaches only situations in which the witness actually was hypnotized. In Chapman , however, we articulated the proposition that the fact or degree of hypnosis is difficult to evaluate. We are satisfied that a defendant need not depend upon the conclusion of the State with respect to that fact. We never have suggested that the requirement of disclosure is dependent upon the success of the effort at hypnosis. See Haselhuhn; Pote v. State, 695 P.2d 617 (Wyo. 1985); Chapman .
We also are satisfied that Engberg was entitled to claim the benefit of this disclosure requirement. He was convicted on December 20, 1982. Our decision in Gee was announced on April 28, 1983. While we suggested in that decision that the rule articulated was implicit in Chapman , which did antedate Engberg's conviction, we do not rely upon the proposition that the State was on notice by virtue of Chapman . Engberg was entitled to the benefit of the rule announced in Gee because it must be applied retroactively.
*76 In Ostwald v. State, 538 P.2d 1298 (Wyo. 1975), we adopted the principles set forth in Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967), in order to determine whether a defendant should receive the benefit of retroactive application of a decision by this court. [1] We applied those principles, as they should be applied in this case, when we said in Flores v. State, 572 P.2d 746, 747 (Wyo. 1977):
"Where the purpose served by the ruling would be to `substantially improve the accuracy of the fact finding process at trial' a retroactive application of such decision is mandated, United States v. United States Coin & Currency, 401 U.S. 715 , 91 S.Ct. 1041, 1046 , 28 L.Ed.2d 434 (1971) * * *."
Essentially, this is the rule advanced in Solem v. Stumes, 465 U.S. 638 , 104 S.Ct. 1338 , 79 L.Ed.2d 579 (1984); United States v. Johnson, 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982); Hankerson v. North Carolina, 432 U.S. 233 , 97 S.Ct. 2339 , 53 L.Ed.2d 306 (1977); Williams v. United States, 401 U.S. 646 , 91 S.Ct. 1148 , 28 L.Ed.2d 388 (1971). In such an instance, neither good faith reliance on the old law nor the impact on the administration of justice are sufficient to require only prospective application. Williams . The product of our decisions concerning hypnosis is that the rule does enhance the fact finding process because of its utility in testing the credibility of the witness.
Furthermore, retroactive application is not foreclosed on grounds that Engberg's case was "finally decided." E.g., Flores, 572 P.2d 746 ; Ostwald, 538 P.2d 1298 . Our rule with respect to "finally decided" cases relates to the availability of appeal after the judgment of conviction has been rendered. When appeal has been exhausted, we hold the case to have been "finally decided." Flores; Ostwald. See also Clenin v. State, 573 P.2d 844 (Wyo. 1978), confirmed on reh'g sub nom. Summers v. State, 731 P.2d 558 (Wyo. 1989) (rule enunciated in Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), applied retroactively to cases on direct appeal). Because Engberg's appeal had not been decided at the time we decided Gee, 662 P.2d 103 , Engberg should receive the benefit of the rule announced in Gee .
Even in light of these principles, our examination of the record persuades us beyond a reasonable doubt that this error was not prejudicial. There is no reasonable probability that the jury's verdict would have been different had the use of hypnosis with respect to Kay Otto been disclosed. This is not an instance in which she was the only witness who identified Engberg; several other witnesses testified that he was the murderer. In addition, the record contains an abundance of circumstantial evidence linking Engberg to the robbery and the murder. On the day of the murder, he inexplicably departed from Casper where the murder occurred; he had acquired money on that day, but the source of those funds is unexplained; he paid his overdue rent and rent for a week in advance even though he abandoned the rented premises that same day; he used aliases to conceal his identity; he was deceptive with respect to the purpose for which he purchased a used car in Rawlins after the car driven from Casper failed; material evidence was found along the road between Rawlins and Salt Lake City, Utah; at various times, Engberg, or his wife, had pawned a .38 caliber revolver; a round of ammunition which would fit that revolver was discovered in the pocket of a vest in the abandoned mobile home; additional rounds were located in Engberg's motel room when he was arrested; and, in the automobile purchased in Rawlins, an orange-toned, multicolored ski cap and a brown lightweight jacket similar to those worn by the killer were found. See Engberg, 686 P.2d 541 . Under these circumstances, the loss of the opportunity *77 to impeach Kay Otto with respect to the use of hypnosis could not lead to any different result.
We also address Engberg's argument that the failure to disclose the use of hypnosis constituted a violation of his right to due process as announced in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Brady requires the state to disclose "evidence that is both favorable to the accused and `material either to guilt or punishment.'" United States v. Bagley, 473 U.S. 667, 674 , 105 S.Ct. 3375, 3379 , 87 L.Ed.2d 481 (1985); Brady . Impeachment evidence, like exculpatory evidence, is within the Brady rule and must be disclosed if material. Bagley ; Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). We have stated previously that evidence of hypnosis is valuable for impeachment purposes:
"* * * [T]he credibility of a witness could be seriously impaired by hypnosis under certain circumstances inasmuch as:
"`The issue relative to the admissibility of testimony of witnesses who were previously hypnotized is whether the product of the hypnosis was to refresh or develop the witness' own recollection or to teach the witness and add additional facts to the recollection beyond that which has been mentally stored in the memory, consciously or unconsciously. The issue is properly one for the fact finder — as are all issues relative to the credibility of the witness.' [ Chapman v. State, ] 638 P.2d at 1282 .
"And we carefully inquired in Chapman v. State, supra, as to whether or not the defendant had adequate opportunity to determine and present to the jury the evidence relative to aspects of hypnotism and its use on the particular witness." Gee, 662 P.2d at 104 .
See Chapman, 638 P.2d 1280 ; Napue v. People of the State of Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959); People v. Pugh, 156 Cal. App.3d 544 , 203 Cal. Rptr. 43 (1984). The failure to disclose the use of hypnosis deprived Engberg of the opportunity to effectively cross-examine an important eye witness; the jury was not privy to the use of hypnosis in weighing the credibility of Kay Otto.
The federal standard is that the failure of the prosecution to disclose evidence found to be material requires reversal of a conviction. Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987). In a shift from the approach suggested in United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), the Supreme Court held in Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , that no specific request is required for disclosure of impeachment evidence. The test with respect to materiality, however, now reads:
"* * * The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682 , 105 S.Ct. at 33 .
The federal courts of appeal have considered the rule in Bagley to be retroactive. Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.1987), cert. denied 484 U.S. 929 , 108 S.Ct. 296 , 98 L.Ed.2d 256 (1987); United States v. Ingraldi, 793 F.2d 408 (1st Cir.1986); Brogdon v. Blackburn, 790 F.2d 1164 , reh'g denied 793 F.2d 1287 (5th Cir.1986), cert. denied 481 U.S. 1042 , 107 S.Ct. 1985 , 95 L.Ed.2d 824 , reh'g denied 483 U.S. 1012 , 107 S.Ct. 3245 , 97 L.Ed.2d 749 , cert. denied sub nom. Brogdon v. Butler, 483 U.S. 1040 , 108 S.Ct. 13 , 97 L.Ed.2d 802 (1987); United States v. Pflaumer, 774 F.2d 1224 (3rd Cir.1986), cert. denied 475 U.S. 1046 , 106 S.Ct. 1263 , 89 L.Ed.2d 572 (1986); State v. Hall, 329 S.E.2d 860 (W. Va. 1985). Trial counsel for Engberg did request all statements of proposed witnesses and submitted a general request for all exculpatory evidence. These requests were granted by the trial court. We need not determine whether the request should have been understood to cover use of hypnosis to enhance the testimony of the witness. If the evidence of hypnosis was material *78 under the federal definition, disclosure was required. Brady; Bagley.
The reasoning which explains that there was no prejudicial error under our state rule also applies to the claim under Brady and Bagley . This conclusion is consistent with several federal cases which have found that the product of overwhelming evidence is that any evidence relating to hypnosis is not material and that no error occurred under federal standards. Trujillo; Ingraldi; Pflaumer; United States v. Risken, 788 F.2d 1361 (8th Cir.1986). Compare Bowen v. Maynard, 799 F.2d 593 (10th Cir.1986), cert. denied 479 U.S. 962 , 107 S.Ct. 458 , 93 L.Ed.2d 404 (1986) (identification evidence against defendant significantly impeachable by withheld evidence and case otherwise weak); Hall, 329 S.E.2d 860 (most important issue was identification testimony of a witness which was subject to impeachment by withheld evidence). This analysis under the federal standard resulting in a conclusion that non-disclosed evidence of hypnosis was not material further persuades us that the failure to disclose the hypnotic session, in accordance with Gee, 662 P.2d 103 , was harmless. [2]
Engberg's claim that he was denied effective assistance of appellate counsel, as advanced in his 18th stated issue, is not subject to the rule of waiver because it could not be raised in his appeal. His argument that ineffective assistance may be found because of the failure of counsel to raise every issue argued in his motion for post-conviction relief is not persuasive. The failure to raise an issue on appeal, even if meritorious, does not demonstrate ineffective assistance of appellate counsel. Cutbirth, 751 P.2d 1257 . We noted in Cutbirth, 751 P.2d at 1263 , that, as a matter of tactical choice, counsel presenting an appeal may choose not to raise certain issues to avoid lessening "the impact of specific issues which counsel feels offer a reasonable chance of success," citing Jones v. Barnes, 463 U.S. 745 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983). See Kennedy v. Shillinger, 759 F. Supp. 1554 (D.Wyo. 1991). We have followed the majority of the federal courts in adopting the standard articulated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , reh'g denied 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984), for the purpose of determining effective assistance of appellate counsel. Appellant must persuade us that the representation afforded to him was deficient by demonstrating errors so serious that appellate counsel could not be considered to be functioning in accordance with the constitutional guarantee and that, furthermore, the deficient performance was prejudicial to the appellant.
Because of the inherent difficulty in applying that standard, developed for evaluating the effectiveness of trial counsel, to appellate proceedings, we adopted a process in Cutbirth pursuant to which the claim of ineffective assistance of appellate counsel is resolved by the application of objective criteria. We held that ineffective assistance of appellate counsel is demonstrated by showing: first, the particular facts, as found in the trial record without resort to speculation or equivocal interference, upon which the claim of inadequate representation by appellate counsel rests; and, second, that those record facts serve to invoke a clear and unequivocal rule of law which was transgressed in a clear and obvious, not merely arguable, way. In addition, the appellant must show that he was prejudiced because the failure to present the issue on direct appeal resulted in an *79 adverse effect upon some substantial right possessed by him; that is, had this court been presented the issue on direct appeal, it would have reversed the conviction.
We have weighed Engberg's claims against this standard, and we conclude that most of his arguments do not even suggest a clear and obvious transgression of a clear and unequivocal rule. It is appropriate to consider specifically two of those claims because, arguably, they meet the standard. We shall consider Engberg's contention that he should have been permitted to present expert testimony relating to the identification by an eye witness. We also will consider his claims relating to the exclusion of the testimony of his wife, Donna Engberg.
Engberg claims that the trial court erred in refusing to allow the testimony of an expert witness, Dr. Loftus, with respect to factors which she, and others, have identified, through experimental research, as influencing the reliability of eye witness identification. Engberg presented a memorandum to the trial court in which he advanced the following reasons for admissibility of the testimony:
"1. It will assist the trier of fact to understand the evidence or determine the facts in issue.
"2. The unreliability of eyewitness identification poses one of the most serious problems in the administration of criminal justice.
"3. The psychological facts and their effect on the witness' credibility are clearly beyond the common knowledge of most juries.
"4. The psychological expert does not invade the province of the jury because it need not involve any opinion on the credibility of a particular witness' testimony, but merely reviews the relevant psychological findings and enumerates the various factors affecting the reliability of eyewitness identification."
The State of Wyoming opposed admission of the testimony by a memorandum which advanced these arguments:
"1. Such testimony is not proper subject matter for expert testimony under Wyoming law as it relates to opinion evidence in the area of common knowledge.
"2. Such testimony at best could be classified as speculation, generalization and theory.
"3. Cross-examination and argument are the proper means of dealing with eye-witness identification testimony.
"4. The testimony would be an invasion of the jury's function to be the sole judge of the weight and credibility of evidence.
"5. Any probative value of the testimony is substantially outweighed by prejudice to the State.
"6. Any probative value of the testimony is also substantially outweighed by its tendency to mislead, distract and confuse the real issues of the case."
The district court ruled that the testimony would not be received because it invaded the province of the jury. In addressing this claim in the post-conviction proceeding, the trial court determined that exclusion of the testimony was within its discretion and, further, that any error was harmless.
A traditional rule had been developed, prior to Engberg's trial, that courts generally would not admit expert testimony as to the reliability of eye witness identification because that testimony either would not be helpful or would invade the province of the jury. [3] More recent research seems to demonstrate that the process is more complex than earlier assumed, and some of the research findings are contrary to intuitive perceptions. See State v. Chapple, 135 Ariz. 281 , 660 P.2d 1208 (1983); People v. McDonald, 37 Cal.3d 351 , 208 Cal. Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 (Cal. 1984), and articles cited therein. Furthermore, the liberal policy reflected in Rule 702, F.R.E., which is identical to Rule 702, *80 W.R.E., and the elimination of the ultimate issue rule has caused some courts to review the viability of previously accepted holdings with respect to the admissibility of expert testimony relating to eye witness identification. United States v. Moore, 786 F.2d 1308 (5th Cir.1986), reh'g denied 791 F.2d 928 (1986); United States v. Downing, 753 F.2d 1224 (3rd Cir.1985). There does appear to be a modern trend more favorable to the admission of expert testimony relating to eye witness identification. The rule still is, however, that such testimony is subject to the discretion of the trial court in any given instance. United States v. Poole, 794 F.2d 462 ; opinion amended, reh'g. denied 806 F.2d 853 (9th Cir.1986); Moore; United States v. Smith, 736 F.2d 1103 (6th Cir.1984), cert. denied 469 U.S. 868 , 105 S.Ct. 213 , 83 L.Ed.2d 143 (1984); Downing; Chapple; McDonald; People v. Beaver, 725 P.2d 96 (Colo. App. 1986); Bloodsworth v. Maryland, 307 Md. 164 , 512 A.2d 1056 (1986), cert. denied 548 A.2d 128 (1988); State v. Buell, 22 Ohio.St.3d 124, 489 N.E.2d 795 (1986), cert. denied, 479 U.S. 871 , 107 S.Ct. 240 , 93 L.Ed.2d 165 , reh'g denied 479 U.S. 1000 , 107 S.Ct. 609 , 93 L.Ed.2d 607 (1986); State v. Moon, 45 Wash. App. 692 , 726 P.2d 1263 (1986), appeal after remand 48 Wash. App. 647 , 739 P.2d 1157 (1987). When we couple that specific concept with our consistent rule in Wyoming that the admission of expert testimony is within the discretion of the trial court, Price v. State, 807 P.2d 909 (Wyo. 1991); Triplett v. State, 802 P.2d 162 (Wyo. 1990); Brown v. State, 738 P.2d 1092 (Wyo. 1987); Jahnke v. State, 682 P.2d 991 (Wyo. 1984); Buhrle v. State, 627 P.2d 1374 (Wyo. 1981); we must conclude that there was no transgression of a clear and unequivocal rule of law. Also, if the effectiveness of appellate counsel is evaluated in the light of the prevailing law at the time of the appeal, which is appropriate, the case law clearly favored exclusion of the testimony. Although this claim would not have been specious if raised on appeal, the failure to raise it did not constitute ineffective assistance of appellate counsel.
We also shall consider Engberg's sixth claim of error, set forth in the appendix, under the claim of ineffective assistance of appellate counsel. In arguing that the trial court erred in permitting his wife to invoke the privilege of spousal immunity despite his waiver, Engberg contends that the privilege is that of the party spouse. He also asserts error in the exclusion of hearsay testimony of Janet Garner, who would have testified as to earlier statements by the wife, Donna Engberg. Engberg's position is that Donna's refusal to testify made her an unavailable witness and this circumstance justified admission of the hearsay pursuant to Rule 804, W.R.E. At trial, and in its resolution of Engberg's motion for post-conviction relief, the district court found that the spousal privilege was vested in the witness spouse. It also ruled that the proffered hearsay testimony of Janet Garner could not be received.
Early in the case, Engberg invoked his right to prevent his wife from testifying against him under the privilege of spousal immunity. When it later became apparent that certain damaging hearsay testimony concerning what Donna Engberg had stated to a police officer could be received, Engberg then waived his right to prevent his wife from testifying. It appears that this tactical decision was premised on the proposition that Engberg would benefit if Donna testified favorably to him and, if she did not, that is, if her testimony was consistent with what she earlier told the police officer, Engberg would be able to impeach her by relying upon the statements that she had made to Janet Garner.
Subsequent to Engberg's advice to the court of his decision to waive the privilege, given in chambers, Donna Engberg was called to the stand by the State. [4] We quote the ensuing dialogue from the record:
*81 "MR. GUETZ: Mrs. Engberg, you are the wife of the defendant, Roy Engberg, are you not?
"MRS. ENGBERG: Yes.
"MR. GUETZ: Is it your wish to testify in this case?
"MRS. ENGBERG: No.
"MR. GUETZ: Are you willing to testify in this case.
"MRS. ENGBERG: Not if I don't have to.
"MR. GUETZ: Mrs. Engberg, you know, that is your choice to make and we are asking you now what choice you want to make in this case, whether you want to testify or not?
"MRS. ENGBERG: No, I don't.
"MR. GUETZ: May we approach the bench, Your Honor?
"THE COURT: You may."
Thereafter, this discussion was conducted at the bench:
"THE COURT: Mr. Guetz, she doesn't want to testify.
"MR. GUETZ: We can't force her to.
"THE COURT: No, you can't force her to.
"MR. SKAGGS: I want the opportunity to cross-examine her and assert the immunity on every question.
"THE COURT: You want what?
"MR. SKAGGS: I want the opportunity to cross-examine her and assert the immunity on every question.
"THE COURT: I don't think if she refused to testify that — I would ask you, Mr. Guetz, to explain to her clearly that she has spousal immunity and she doesn't have to testify.
"MR. SKAGGS: I oppose that. She does not have the privilege. Roy has the privilege.
"THE COURT: She can assert the privilege.
"MR. SKAGGS: Your Honor, under case law, it is Roy's privilege to assert, not hers.
"THE COURT: Under the more recent rule, she can assert the immunity herself. Absolutely, she can assert that immunity on her own.
"MR. SKAGGS: Your Honor, now the prosecution is going to be in a position where they can comment on her asserting the immunity.
"MS. MILLER: If we could take a short recess. Obviously the State has had an opportunity to talk to her. Perhaps we should have the same opportunity to talk to this witness before she asserts the immunity on behalf of our client.
"THE COURT: Do you have an objection?
"MR. GUETZ: I suppose not, Your Honor, but she voiced what her feelings are."
We understand the trial judge's reference to the modern rule to reflect a misapprehension on his part that his decision was controlled by recent authority from the Supreme Court of the United States. The same position is reflected in the conclusions of law filed in connection with the denial of Engberg's motion for post-conviction relief.
In Trammel v. United States, 445 U.S. 40 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980), the Supreme Court of the United States held that a witness spouse may invoke the privilege of spousal immunity. That was said to be the rule of the federal common law and was contrary to what had been proposed as Rule 505, W.R.E., which would have limited the privilege of spousal immunity to the party spouse but was not adopted by Congress. In a similar vein, the court rejected the earlier decision of Hawkins v. United States, 358 U.S. 74 , 79 *82 S.Ct. 136, 3 L.Ed.2d 125 (1958), in which the court held that the privilege of spousal immunity could be claimed by both the witness spouse and the party spouse. The United States Supreme Court decisions are not controlling. Consequently, the position of the federal courts with respect to federal common law is nothing more than persuasive authority.
The rule of privilege arising out of spousal immunity is set forth in Wyoming by statute. Section 1-12-101, W.S. 1977, provides:
"(a) the following persons shall not testify in certain respects:
* * * * * *
"(iii) husband or wife, except as provided in W.S. 1-12-104; * * *."
In the absence of the exception, this statutory provision would sound in competency, not privilege. Section 1-12-104, W.S. 1977, referred to in the preceding statute, then provides:
"No husband or wife shall be a witness against the other except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one against the other. They may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist."
This statutory language described different situations to which different rules apply. The first sentence of the statute clearly states that a husband or wife shall not be a witness against the other except in certain situations which are not found in the circumstances of this case. The second sentence provides that a husband or wife may be a witness for the other as though the marital relation did not exist. Engberg's claim of error must be examined under the first sentence of this statute because the record is clear that his wife was called as a witness by the State. A spouse who is called as a witness by the State in a criminal proceeding perforce must be called as a witness against the defendant. The record also is clear that Engberg did not attempt to call his wife as a witness for him.
In the prior cases in which this court has considered the statute, it never has had occasion to address a situation like this. In Chamberlain v. State, 348 P.2d 280 (Wyo. 1960), the wife was called as a rebuttal witness against the husband in a prosecution of the husband for statutory rape of a minor child. The court there concluded that the statute was subject to judicial interpretation; that the exception relating to a crime committed by one against the other was not limited to corporal violence against the person of the wife; and that the crime for which the defendant was prosecuted was such a special wrong and personal offense against his wife as justified her being permitted to testify. In Pike v. State, 495 P.2d 1188 (Wyo. 1972), the court recognized that it would be error per se, if the husband objected, to permit a wife to testify when called by the State as a witness unless the exception found in the statute was invoked. The court also held that the error under the circumstances of that case was not prejudicial. In Simms v. State, 492 P.2d 516 , cert. denied 409 U.S. 886 , 93 S.Ct. 104 , 34 L.Ed.2d 142 (1972), the court recognized a waiver of the privilege by the husband who was the defendant. When the claim of privilege was asserted, the trial court ruled that the State could use the transcript of her testimony at the preliminary examination, which was given prior to the marriage, if the wife did not testify. Although complaining that he was forced to so elect, the husband waived the privilege, and this court found no error. Then in Seyle v. State, 584 P.2d 1081 (Wyo. 1978), the court, citing Chamberlain , held that, in a case in which the charge was first degree murder of a child, the testimony of the wife is equally available to the State and to the defendant under this statute. The husband complained, on appeal, of comment by the prosecutor upon his failure to call the wife as a witness, and the court simply held that was not plain error. The court relied upon State v. Spears, 76 Wyo. 82 , 300 P.2d 551 (1956), in which the court held that it was proper to comment upon the defendant's failure to produce the wife as a witness when she was available to him but not to the prosecution.
*83 In none of these cases did the court directly consider whether a witness spouse might directly invoke the privilege if called to testify against a party spouse. Because we address the issue only with respect to the effective assistance of appellate counsel, we are limited to a determination of whether a clear and unequivocal rule of law was transgressed. In this regard, it seems fair to say that the first sentence of § 1-12-104, W.S. 1977, perpetuates the common law rule of the privilege of spousal immunity in instances in which the testimony of a spouse is offered against a party spouse, although the statute, as construed, may explain the exception of what constitutes a crime against a witness spouse. See Chamberlain. We again turn to the eminent authority on rules of evidence, Professor Wigmore, relied on in Chamberlain . In 8 Wigmore, Evidence § 2241 (McNaughton rev. 1961), there is a discussion of who possesses the privilege. It begins with the recognition that the reason most commonly offered in support of this privilege, the prevention of marital dissention, results in the privilege belonging to the party only and not to the witness. It goes on:
"* * * But taking the other suggested reason for the privilege, namely, immunity from the repugnant situation of being condemned by one's spouse or of becoming the instrument of a spouse's condemnation (§ 2228 supra ), the privilege seems to be equally that of party and of witness. In other words, while the defendant husband is entitled to be protected against condemnation through the wife's testimony, the witness wife is also entitled to be protected against becoming the instrument of that condemnation — the sentiment in each case being equal in degree and yet different in quality.
"The latter view seems generally to be accepted by implication underlying the various judicial utterances, but precise rulings are naturally rare and depend much on the wording of statutes. It is established in some courts that at least the privilege belongs to the party spouse against whom the other is offered as a witness. Rarely is the privilege denied to belong to the witness spouse; and rarely also is it denied to belong to the party spouse. 8 Wigmore, Evidence § 2241 at 254-55 (McNaughton rev. 1961) (footnotes omitted; emphasis in original).
A conclusion that the legislature intended to make the privilege available to both the witness spouse and the party spouse is consistent with this language. The mandatory words "shall be," read in the light of the concept of privilege, properly can be construed to permit the witness spouse to avoid "becoming the instrument of that condemnation" even though the party spouse chooses to waive that protection. If we accept Wigmore's description of the concept of entitlement to invoke the privilege, it certainly is arguable that the trial court correctly ruled that Mrs. Engberg could claim the privilege albeit an erroneous reason may have been advanced. Under those circumstances, we cannot discern any clear and unequivocal rule of law which was violated and, therefore, we cannot find ineffective assistance of appellate counsel for failure to assert error in the direct appeal with respect to permitting the witness spouse to claim the privilege. We agree with the trial court that Engberg was not entitled to post-conviction relief for these reasons.
To complete the examination of Engberg's contentions in this regard, we also consider the claim of error premised upon the refusal of the trial court to admit the hearsay testimony of Janet Garner. That hearsay testimony could only be received if Donna Engberg were not available as a witness. Engberg insists that the extension to Donna Engberg of the right to claim the privilege of spousal immunity made her unavailable but, at that stage in the trial, she was unavailable as a witness only for the State of Wyoming. Even though she might have been the possessor of a privilege not to testify against Engberg, nothing in the statute extends a privilege to the spouse when called by the defendant in a criminal case. In order for Engberg to demonstrate unavailability to him, he had to call his wife as a witness. If she then had continued to refuse to *84 testify, the court could have found that she was unavailable and the Janet Garner testimony possibly would have been admissible. In the absence of an effort to call her as a witness in his behalf, Engberg cannot assert error for the refusal of the trial court to receive the hearsay testimony.
Even assuming that Engberg was misled by the trial court and, for this reason, believed he could not call his wife as a witness on his behalf, we still could find no error in the decision of the trial court not to receive the hearsay testimony of Janet Garner. If a witness is allowed to rely upon a privilege erroneously, unavailability has been found by some courts. See United States v. McCloskey, 682 F.2d 468 (4th Cir.1982). But see United States v. Mathis, 559 F.2d 294 (5th Cir.1977); 4 D. Louisell & C. Mueller, Federal Evidence § 406 at 1029 (1985). Unavailability is only one prerequisite for receiving hearsay testimony under Rule 804(b)(6), W.R.E. See Hopkinson v. State, 632 P.2d 79 (Wyo. 1981), cert. denied 455 U.S. 922 , 102 S.Ct. 1280 , 71 L.Ed.2d 463 (1982). As the language of the rule requires, the hearsay testimony also must be supported by circumstantial guarantees of trustworthiness. The contradictory versions of the events reported by Donna Engberg to the police officer and Janet Garner concerning Engberg's involvement in the murder demonstrate that the circumstantial guarantee of trustworthiness was not present. There was no corroborating evidence presented which could be relied upon to enhance the trustworthiness of the version reported to Janet Garner. In the absence of the circumstantial guarantees of trustworthiness, the hearsay testimony could not be admitted properly. See 4 D. Louisell & C. Mueller, Federal Evidence § 491, and cases cited at n. 12. For the same reason, admission of this testimony was not required in order to meet fundamental standards of due process. See Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987); Green v. Georgia, 442 U.S. 95 , 99 S.Ct. 2150 , 60 L.Ed.2d 738 (1979); Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973).
Our conclusions with respect to these issues also dispose of the claim of cumulative error which Engberg asserts. See Schmunk v. State, 714 P.2d 724 (Wyo. 1986); Browder v. State, 639 P.2d 889 (Wyo. 1982). The result of those cases depends, of course, upon the existence of error. In this instance, we conclude that there was no error and, consequently, there is no claim to consider of the cumulative effect of trial errors. Jennings v. State, 806 P.2d 1299 (Wyo. 1991); Justice v. State, 775 P.2d 1002 (Wyo. 1989).
As a final matter, we turn to Engberg's arguments raised in issues 19 and 20. We can see no demonstration of any prejudice to Engberg even if one could conclude that error was committed by the representation by the attorney general of the state in this action when a present member of his staff represented Engberg in his direct appeal. We can discern no way in which that alleged conflict would have been disadvantageous to Engberg in the post-conviction process. Furthermore, in Wyoming, we require something more than simply assertions of impropriety. We cannot acknowledge, without some factual showing, that a member of the attorney general's staff who had a conflict of this nature would have any involvement in, or knowledge of, the work done on behalf of the State of Wyoming. In addition, the objective evaluation of effective assistance of counsel on appeal avoids the concern that the attorney general might involve the member of his staff who did serve as counsel for Engberg in order to insulate that staff member from the ineffectiveness accusation.
As to Engberg's argument that the post-conviction procedure which has been adopted in Wyoming is fundamentally unfair, that argument must be advanced by someone who was disadvantaged by the process. We are satisfied that Engberg's claims have received every consideration to which they are entitled under our statute and under the Constitutions of the State of Wyoming and the United States. If a different post-conviction procedure is to be invoked, that is a matter which must be *85 addressed by the legislature. The one which is in place, as applied to Engberg, did not result in any deprivation of his constitutional rights.
Our review of the issues raised by Engberg in this appeal from the denial of his motion for post-conviction relief persuades this court that, with respect to Engberg's conviction of first degree murder, we correctly held that:
"* * * Our examination of the record and the law persuades us that there is no error with respect to any of the claims made by the appellant, * * *." Engberg, 686 P.2d at 544 .
Insofar as his guilt of the crime of first degree murder is concerned, we affirm the order of the district court dismissing Engberg's petition for post-conviction relief and conclude that Engberg has exhausted any substantial state remedies.
APPENDIX I
STATEMENT OF THE ISSUES
1. Whether the Court's refusal to permit appellant to call an expert on eye-witness identification was error which deprived appellant of his right to a fundamentally fair trial and his right to compulsory process.
2. Whether the State's failure to disclose its use of hypnosis as means of enhancing Kay Otto's memory violated its ethical obligations and denied appellant his right to due process of law, his right of confrontation, and his right to effective assistance of counsel.
3. (a) Whether appellant was denied due process of law by the extradition procedure used to bring him to Wyoming such that the proceedings here must be declared null and void.
(b) Whether appellant was denied due process by the introduction of evidence that he had to be beaten by the police officers who arrested him in order to prevent him from fleeing.
4. Whether the State's introduction of evidence showing that appellant frequently used aliases denied him his right to a fundamentally fair trial.
5. (a) Whether appellant's rights under the Fifth Amendment to the United States Constitution and Article 1, § 11 of the Wyoming Constitution were violated when evidence that he refused to wear a stocking cap so that he could be photographed was introduced at his trial and argued as evidence of guilt.
(b) Whether appellant's right to confront witnesses was denied him by the court's refusal to permit cross-examination of the police officer who photographed him concerning appellant's medical condition.
6. (a) Whether a defendant's spouse can invoke spousal privilege and decline to testify when the defendant seeks to have the spouse testify.
(b) Whether the Sixth Amendment to the United States Constitution and Article 1, § 10 of the Wyoming Constitution were violated by the trial judge's erroneous ruling that appellant could not call Donna Engberg as a witness, cross-examine her, nor introduce her prior statements for impeachment purposes.
(c) Whether a defendant's spouse who refuses to testify is an unavailable witness whose hearsay statements may be admitted into evidence.
7. Whether the use of a conclusive presumption to convict appellant of first degree murder is plain error and requires reversal of the conviction.
8. Whether appellant's rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution were violated by the introduction of evidence seized by the police during a warrantless search of appellant's trailer.
9. Whether the testimony of the ballistics expert was incompetent and should have been disregarded, and should be disregarded now, and thus whether there is insufficient evidence to support the conviction.
10. (a) Whether the prosecution's use and manipulation of the press prior to appellant's trial deprived appellant of his right to a fair trial.
(b) Whether appellant's right to effective assistance of counsel was denied him by *86 his initial court-appointed attorney's failure to combat the prosecution's misuse of the media.
11. Whether the trial court's failure to excuse venireman Alberts for cause deprived appellant of his right to a fair trial by an impartial jury.
12. Whether the voir dire procedure used at appellant's trial denied him his right to a fair trial by an impartial jury.
13. (a) Whether the introduction of evidence in the penalty phase that appellant had escaped from the authorities in Missouri denied him his right to due process and a fundamentally fair finding that the death penalty should be imposed.
(b) Whether the prosecutor's closing argument in the penalty phase of the trial deprived appellant of his right to due process and fundamentally fair trial when the prosecutor argued appellant needed to be executed in order to restrain him and when the Wyoming Supreme Court has previously recognized that kind of argument is only proper where the heinous, atrocious, or cruel aggravating circumstance is involved.
14. Whether the court's refusal to permit appellant the opportunity to present evidence of a mitigating circumstance, the cruelty of the manner of execution, denied appellant his right to due process of law and a fundamentally fair finding to impose the death penalty.
15. Whether appellant's right to due process and to be free from cruel and unusual punishment was violated by the statutory presumption in favor of death under Wyoming law which requires the defendant to bear the burden of demonstrating that sufficient mitigating circumstances outweigh the aggravating circumstances so as to warrant leniency.
16. Whether appellant's right to be free from cruel and unusual punishment and to due process was violated by the jury's finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery when the robbery had already been used to elevate the crime to capital murder.
17. Whether the cumulative nature of the error is such that, regardless of the harmlessness of any one error, together they prejudiced appellant's rights to due process, fundamental fairness, and a reliable determination that the death penalty should be imposed.
18. Whether appellant was afforded effective assistance of counsel during his appeal to the Wyoming Supreme Court.
19. Whether it was improper for the office of the Attorney General to represent the State in post-conviction proceedings to urge that an Assistant Attorney General's proper representation was a procedural bar to the issues raised in appellant's petition for post-conviction relief.
20. Whether this Court's discussion and holding in prior cases with regard to petitions for post-conviction relief ignore the plain and obvious statutory language and establish a procedure which is violative of fundamental fairness due process and equal procedure and whether it has established a confusing and unworkable process wherein courts simply dismiss petitions for post-conviction relief to get rid of them."
CARDINE, Justice, concurring in the opinion of THOMAS, Justice, except with respect to issues relating to the sentencing phase of the trial.
I
The jury returned a death verdict in appellant's sentencing trial. This case is before us upon a petition for post-conviction relief. Death penalty cases are different from all other cases. The punishment is final. If it is wrong, it cannot be corrected; it cannot be undone; it cannot be made right. And so, we review this case with utmost care and detail for the purpose of assuring ourselves that we do not impose the death penalty unlawfully, arbitrarily, or unjustly by slavish adherence to doubtful application of technical doctrine.
Appellant claims error, presenting the following issue for our review:
*87 "Whether appellant's right to be free from cruel and unusual punishment and to due process were violated by the jury's finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery when the robbery had already been used to elevate the crime to capital murder."
This issue was raised in part on direct appeal and addressed in part by Justice Rose, dissenting, in Engberg v. State, 686 P.2d 541, 558-62 (Wyo. 1984), cert. denied 469 U.S. 1077 , 105 S.Ct. 577 , 83 L.Ed.2d 516 (1984) ( Engberg I. ) Subsequent developments in case law and revision of our statutes require that we review death penalty sentencing in this post-conviction relief proceeding.
The issues we here address are whether the use of the underlying robbery to support two independent aggravating circumstances, and the use of the robbery as an aggravating circumstance when it had already been used to elevate the crime to capital murder were permissible. We conclude that both uses of the robbery were impermissible; that jury instructions relating to the aggravating and mitigating circumstances were incorrect; and that, accordingly, appellant's sentence must be vacated and this case remanded for resentencing.
Appellant was convicted of felony murder under W.S. 6-4-101 (Dec. 1977 Repl.) (now W.S. 6-2-101):
"(a) Whoever * * * in the perpetration of, or attempt to perpetrate, any * * * robbery * * * kills any human being * * * is guilty of murder in the first degree.
"(b) A person convicted of murder in the first degree shall be punished by death or life imprisonment according to law."
Wyoming allows assessment of the death penalty only upon conviction of first degree murder, which is murder with premeditated malice or felony murder. Felony murder occupies a unique place in our jurisprudence. It allows a defendant who commits an unpremeditated murder to be convicted of first degree murder. The only requirement is that the murder occur during the defendant's perpetration, or attempt to perpetrate, one of the felonies listed in the statute. Thus, we consider whether the death penalty was properly invoked following appellant's conviction of first degree (felony) murder, the felony being robbery.
The United States Supreme Court has stated that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment, prohibits a state from imposing the death penalty in an arbitrary and capricious manner. Instead, the sentencing body must be provided with standards which will genuinely narrow the class of crimes and the persons against whom the death penalty is imposed by allowing it to make an individualized determination on the basis of the character of the individual and the circumstances of the crime. Zant v. Stephens, 462 U.S. 862, 878-80 , 103 S.Ct. 2733, 2743-44 , 77 L.Ed.2d 235 (1983)
"To avoid [unconstitutional, arbitrary and capricious sentencing], an aggravating circumstance * * * must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Id., 462 U.S. at 877 , 103 S.Ct. at 2742.
See also Gregg v. Georgia, 428 U.S. 153, 206-07 , 96 S.Ct. 2909, 2940-41 , 49 L.Ed.2d 859 , reh. denied 429 U.S. 875 , 97 S.Ct. 197 , 50 L.Ed.2d 158 (1976); Furman v. Georgia, 408 U.S. 238, 294 , 92 S.Ct. 2726, 2754-55 , 33 L.Ed.2d 346 (Brennan, J., concurring), reh. denied 409 U.S. 902 , 93 S.Ct. 89 , 34 L.Ed.2d 164 (1972).
Wyoming has chosen to meet this requirement by creating a separate statutory sentencing procedure under which the jury considers aggravating and mitigating factors in deciding whether the death penalty should be imposed in each case of first degree murder. The pertinent part of Wyoming's death penalty statute read as follows:
"(d)(i) After hearing all the evidence, the jury shall deliberate and render a recommendation *88 of sentence to the judge, based upon the following:
"(A) Whether one (1) or more sufficient aggravating circumstances exist as set forth in subsection (h) of this section;
"(B) Whether sufficient mitigating circumstances exist as set forth in subsection (j) of this section which outweigh the aggravating circumstances found to exist; and
"(C) Based upon these considerations, whether the defendant should be sentenced to death or life imprisonment.
* * * * * *
"(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foremen of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. * * * If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.
"(f) Unless the jury trying the case recommends the death sentence in its verdict, the judge shall not sentence the defendant to death but shall sentence the defendant to life imprisonment as provided by law. Where a recommendation of death is made, the court shall sentence the defendant to death.
* * * * * *
"(h) Aggravating circumstances are limited to the following:
"(i) The murder was committed by a person under sentence of imprisonment;
"(ii) The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person;
"(iii) The defendant knowingly created a great risk of death to two (2) or more persons;
"(iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb;
"(v) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
"(vi) The murder was committed for pecuniary gain;
"(vii) The murder was especially heinous, atrocious or cruel;
"(viii) The murder of a judicial officer, former judicial officer, district attorney, former district attorney or former county and prosecuting attorney, during or because of the exercise of his official duty.
"(j) Mitigating circumstances shall be the following:
"(i) The defendant has no significant history of prior criminal activity;
"(ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
"(iii) The victim was a participant in the defendant's conduct or consented to the act;
"(iv) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;
"(v) The defendant acted under extreme duress or under the substantial domination of another person;
"(vi) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired;
"(vii) The age of the defendant at the time of the crime." W.S. 6-4-102 (Dec. 1977 Repl. & 1982 Cum.Supp.).
The jury, applying the statutory provisions detailed above, found the following aggravating circumstances:
"1. That the murder was committed by a person under sentence of imprisonment.
"2. That the Defendant was previously convicted of another murder in the first *89 degree or a felony involving the use or threat of violence to the person.
"3. That the Defendant knowingly created a great risk of death to two (2) or more persons.
"4. That the murder was committed while the Defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit any robbery.
"5. That the murder was committed for pecuniary gain."
The constitutional difficulty with W.S. 6-4-102 as it existed at the time of Engberg's sentencing was that it allowed Engberg's felony murder to both convict him and, without more, sentence him to death by allowing imposition of the death penalty upon the jury finding: "at least one (1) * * * aggravating circumstance" — that being "(h)(iv) murder * * * committed * * * in the commission of * * * any robbery." This statute provided no requirements beyond the crime of felony murder itself to narrow and appropriately select those to be sentenced to death and therefore, on its face, permitted arbitrary imposition of the death penalty. This statutory scheme of death sentencing preserved in felony murder the very evil condemned and held unconstitutional in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 . It permitted in felony murder cases a sentence to death without applying any standards that generally narrowed the class of crimes and persons who were given the death penalty. The statute recreated a sentencing scheme that the United States Supreme Court found resulted in death sentences being imposed unevenly, unfairly, arbitrarily and capriciously. The infirmity in this statute has since been corrected by the legislature as we shall later discuss.
In Furman , the Court, faced with the same kind of sentencing scheme as now before us, observed that:
"Juries (or judges, as the case may be) have practically untrammeled discretion to let an accused live or insist that he die." 408 U.S. at 248 , 92 S.Ct. at 2731.
and stated further that:
"When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." 408 U.S. at 293 , 92 S.Ct. at 2754 (Brennan, J., concurring).
The Court held that imposing the death penalty under statutes without guidelines and criteria to rationally and uniformly select cases for imposition of death rather than life to be arbitrary in application and therefore unconstitutional.
In this case, the enhancing effect of the underlying felony (robbery) provided two of the aggravating circumstances which led to Engberg's death sentence: (1) murder during commission of a felony, and (2) murder for pecuniary gain. As a result, the underlying robbery was used not once but three times to convict and then enhance the seriousness of Engberg's crime to a death sentence. All felony murders involving robbery, by definition, contain at least the two aggravating circumstances detailed above. This places the felony murder defendant in a worse position than the defendant convicted of premeditated murder, simply because his crime was committed in conjunction with another felony. This is an arbitrary and capricious classification, in violation of the Furman/Gregg narrowing requirement.
Additionally, we find a further Furman/Gregg problem because both aggravating factors overlap in that they refer to the same aspect of the defendant's crime of robbery. While it is true that the jury's analysis in capital sentencing is to be qualitative rather than a quantitative weighing of aggravating factors, Engberg I, at 553, the jury should not be presented with two aggravating factors merely because the underlying felony was robbery, rather than some other felony. The mere finding of an aggravating circumstance implies a qualitative value as to that circumstance. The qualitative value of an aggravating circumstance is unjustly enhanced when the same underlying fact is used to create multiple aggravating factors.
*90 When an element of felony murder is itself listed as an aggravating circumstance, the requirement in W.S. 6-4-102 that at least one "aggravating circumstance" be found for a death sentence becomes meaningless. Black's Law Dictionary, 60 (5th ed. 1979) defines "aggravation" as follows:
"Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself." (emphasis added)
As used in the statute, these factors do not fit the definition of "aggravation." The aggravating factors of pecuniary gain and commission of a felony do not serve the purpose of narrowing the class of persons to be sentenced to death, and the Furman/Gregg weeding-out process fails.
In our review of state precedent applying the Furman/Gregg criteria to statutory aggravating factors, we find the case of State v. Cherry, 298 N.C. 86 , 257 S.E.2d 551 (1979), cert. denied 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980), particularly persuasive. In that case, the defendant shot and killed a supermarket employee during a robbery. The jury convicted the defendant of felony murder. During the sentencing phase, the jury was submitted, and found as an aggravating circumstance, among others, that the murder was committed while the defendant was engaged in the commission of robbery with a firearm. The North Carolina Supreme Court stated that "[o]nce the underlying felony has been used to obtain a conviction of first degree murder, it has become an element of that crime and may not thereafter be the basis for additional prosecution or sentence." Cherry, 257 S.E.2d at 567 . The court held that "when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony." Id., at 568.
We distinguish Lowenfield v. Phelps, 484 U.S. 231, 246 , 108 S.Ct. 546 , 98 L.Ed.2d 568 , reh. denied 485 U.S. 944 , 108 S.Ct. 1126 , 99 L.Ed.2d 286 (1988), which involved the killing of three persons and a conviction of three counts of first degree murder in Louisiana. The sole aggravating circumstance found by the jury was that "the offender knowingly created a risk of death or great bodily harm to more than one person." Lowenfield, 484 U.S. at 243 , 108 S.Ct. at 554 . The Court reaffirmed the requirement of a statutory narrowing scheme for application of the death penalty, stating:
"To pass constitutional muster, a capital-sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983); cf. Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976)." 484 U.S. at 244 , 108 S.Ct. at 554.
That Court noted the statutes of the state of Louisiana provide five grades of homicide and, within the statute, narrows the class of offenders who receive death or life by providing separately for those who receive life without possibility of parole. Thus, two statutory schemes were permissible. The Court stated:
"[T]he narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase." Lowenfield, 484 U.S. at 246 , 108 S.Ct. at 555 .
and continued:
"Here, the `narrowing function' was performed by the jury at the guilt phase when it found defendant guilty of three *91 counts of murder under the provision that `the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.' The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally-required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion." 484 U.S. at 246 , 108 S.Ct. at 555.
The United States Supreme Court found in the Lowenfield case that Louisiana provided the narrowing process at the guilt phase of the trial. The clear provisions of the Wyoming statute provide that the narrowing occur in the sentencing phase of the trial. Lowenfield , therefore, does not govern our disposition in this case.
Another compelling reason for reversing appellant's death sentence is that since he was sentenced, the legislature has modified the death penalty statute by making three changes which affect the aggravating circumstances used in his case.
First, the legislature removed most of the previous list of felonies, including robbery, from the list of crimes which constitute aggravating circumstances in W.S. 6-2-102(h)(iv). The new version reads as follows:
"The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb." W.S. 6-2-102(h)(iv) (1991 Cum.Supp.).
Second, the legislature has qualified the question of what kinds of crimes are deemed motivated by pecuniary gain:
"The murder was committed for compensation, the collection of insurance benefits or other similar pecuniary gain." W.S. 6-2-102(h)(vi) (1991 Cum.Supp.)
Finally, the legislature made murder connected with other violent felonies an aggravating circumstance only when premeditated malice is present:
"The defendant killed another human being purposely and with premeditated malice and while engaged in, or as an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual assault, arson, burglary or kidnapping." W.S. 6-2-102(h)(xii) (1991 Cum.Supp.). (emphasis added)
We think these changes demonstrate a recognition by the legislature that the system of aggravating circumstances in place at Engberg's sentencing was problematic because of the bootstrapping effect of felony murder convictions. The current statute should govern a second sentencing phase trial because it does not contain the deficiency of the earlier statute. Cf. Attletweedt v. State, 684 P.2d 812 (Wyo. 1984).
Our disposition in this case requires that we overrule a portion of our opinion in Engberg I. In Engberg I, we addressed the contention that submission to the jury of "murder for pecuniary gain" and "murder * * * committed while the defendant was engaged * * * in the commission of * * * any robbery" was improper because both aggravating circumstances referred to the same aspect of the defendant's crime. We found the reasoning of the North Carolina court persuasive:
"In State v. Oliver, 302 N.C. 28 , 274 S.E.2d 183 (1981), that court held that the aggravating circumstance identified as murder for pecuniary gain examines the defendant's motive, not his conduct, and while not an element of the offense the jury properly may consider his motive with respect to the issue of a capital sentence. Later that court held that the aggravating circumstance of murder for pecuniary gain almost always appropriately will be submitted to the jury where the murder is committed during the *92 course of an armed robbery. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439 (1981). The thrust of the North Carolina court's holdings is that these two aggravating circumstances both may be submitted to the jury." Engberg, 686 P.2d at 553 .
Since the entry of our opinion in Engberg I, the North Carolina Supreme Court — relied upon and cited by us with approval — has further explained Oliver , in State v. Quesinberry, 319 N.C. 228 , 354 S.E.2d 446 (1987). In Quesinberry , the court synthesized Oliver and Cherry and held that, where a defendant is convicted of felony murder only, it is inappropriate to consider both pecuniary gain and the fact that a robbery was committed as separate aggravating factors because the motive cannot be divorced from the act for the purpose of aggravation. Quesinberry, 354 S.E.2d at 452 . Accordingly, we no longer find Oliver valid for the principle cited in Engberg I. We agree with the North Carolina court and, for this and the other reasons cited, overrule Engberg I to the extent that it is inconsistent with this opinion. We now hold that where an underlying felony is used to convict a defendant of felony murder only, elements of the underlying felony may not again be used as an aggravating factor in the sentencing phase. We acknowledge the jury's finding of other aggravating circumstances in this case. We cannot know, however, what effect the felony murder, robbery and pecuniary gain aggravating circumstances found had in the weighing process and in the jury's final determination that death was appropriate.
Although the above issues are dispositive in the penalty phase of this case, we also make note of amended W.S. 6-2-102 concerning jury determination of mitigating circumstances. W.S. 6-2-102(e) (1991 Cum.Supp.) states in part:
"(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. In nonjury cases the judge shall make such designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence. The jury, if its verdict is a sentence of death, shall designate in writing signed by the foreman of the jury:
"(i) The aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt;
"(ii) The mitigating circumstance or circumstances which it unanimously found by a preponderance of the evidence; and
"(iii) The mitigating circumstance or circumstances which any individual juror found by a preponderance of the evidence. " (emphasis added)
The emphasized portion was added in 1989. 1989 Wyo. Sess. Laws ch. 171, § 1. The version of the statute in effect at the time of the sentencing phase simply stated:
"(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foreman of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence." 1977 Wyo. Sess. Laws ch. 122 § 1. See W.S. 6-4-102 (Dec. 1977 Repl.).
The change reflects the United States Supreme Court's decision in Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), a decision made while this petition was still pending before this court. In Mills , the Court held that the trial court in a death sentence case must clearly instruct the jury that each individual juror may consider any mitigating circumstance he or she finds to exist in making a sentencing determination, regardless of whether the jury unanimously found that mitigating circumstance to exist. 486 U.S. at 377-80 , 108 S.Ct. at 1867-68. Reversal is required unless a "substantial possibility" that this occurred can be ruled out.
*93 The sentencing phase instructions in this case required that the jury find an aggravating circumstance beyond a reasonable doubt and mitigating circumstances by a preponderance of evidence. The instruction for weighing the factors against each other did not indicate whether the mitigating factors must be found unanimously. Another instruction told the jury that it must unanimously agree on a verdict of death, and if it is unable to do so, the court will impose a sentence of life. The verdict form gave the jury two choices. The jury could either find the mitigating circumstances outweighed the aggravating circumstances and sentence Engberg to life, or that the mitigating circumstances did not outweigh the aggravating circumstances and sentence him to death. Nowhere in the instructions or verdict form was the jury told that the mitigating circumstances need not be found unanimously by the jury but that the mitigating circumstances may be found by individual jurors and weighed by them individually in deciding the life or death question.
Because W.S. 6-2-102 (1991 Cum.Supp.) will govern retrial of the sentencing phase of this case, we need not decide whether to extend the Mills decision to Engberg in a retroactive manner. See Sawyer v. Smith, ___ U.S. ___, 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990); Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989); Flores v. State, 572 P.2d 746 (Wyo. 1977). Nevertheless, it is important to remember that our law has always been "that matters which convict require unanimity, and failure to convict can result from the vote of one juror and that aggravating and mitigating circumstances should be dealt with in the same way." Hopkinson v. State, 798 P.2d 1186, 1190 (Wyo. 1990) (Cardine, J., dissenting). The right to a unanimous verdict is beyond dispute. Taylor v. State, 612 P.2d 851, 853 (Wyo. 1980); see Wyo. Const. Art. I, § 9. It is essential that Engberg be accorded the proper instructions on finding and considering mitigating circumstances in a retrial of the penalty phase of his felony murder conviction.
II
The dissenting opinion quotes the author of this opinion's writing from Hopkinson, at 1188 — first out of context and then to suggest that I have no feeling for victims of crime.
First, out of context, I am quoted as refusing to accept the law of capital punishment because "I am convinced now that this is an unwise policy." Omitted from the quote is the very next sentence:
"I am convinced also that, at this time in our history, these statutes are constitutional and, therefore, the law. I have taken an oath to support, obey and defend the constitution and will honor that oath." Hopkinson, at 1188.
Second, it is said that my discussion of death and killing applies only to perpetrators, implying that I have no feeling for victims of crime. Thus, quoting me again from Hopkinson and then editorializing it is stated:
"These are noble words. Would they had been uttered to memorialize a torture victim, a family literally blown apart, or an innocent victim of an armed robbery rather than in support of convicted, cold-blooded killers." Thomas, J., dissenting, at 5.
I assure the dissenting justice that my feelings about life and death and killing apply to victims as well as all mankind. I do not apologize for a feeling of regret over the killing of other human beings — something in which others seem to revel. My greatest hope is that someday we, as a civilized society, will stop the slaughter — the killing — of all human beings. Educating people about how to live with each other is the surest path to achievement of this result. Now we do it either poorly, or not at all.
The dissent, after quoting other writings of the author of this opinion, referencing him by name and stating that his words have a "hollow ring," incredulously asserts that these references are not to that justice at all. The illogical discussion to support this claim could be understood only had it come from Alice in Wonderland, see Harvey v. State, 774 P.2d 87, 113 (Wyo. 1989) (Thomas, J., dissenting). The dissent lectures *94 that the majority opinion, because joined by two other justices, is the product of the court, not the drafter, and therefore a direct reference to a single justice is not a reference to that justice at all. Surely, what is sauce for the goose is sauce for the gander. The dissenting opinion is joined by a second justice. Therefore, it is the product of the court in dissent and, as suggested, nothing said in reference to a justice is a reference to that justice at all.
With that rule established, and being sensitive to the feelings of my colleagues, I agree that the time has come for candor in our discussion. Perhaps the real basis for my esteemed colleague's vigorous dissent can be gleaned from its observation that the majority opinion would "have the effect of eliminating the death penalty in the only two remaining cases in Wyoming * * *." Op. at 168. How tragic it is to lament the perceived loss of opportunity to kill these two men. However, there is no need for sorrow. The statement is incorrect. It is incorrect because Engberg will now, on remand, be given a lawful sentencing hearing at which a jury can correctly consider life or death upon proper instructions on the law and, if appropriate, impose the death penalty.
The dissent criticizes the majority for its citation of a dissenting opinion and alleged reliance on dictum. Op. at 168. However, the proposition that "`matters which convict require unanimity, and failure to convict can result from the vote of one juror and that aggravating and mitigating circumstances should be dealt with in the same way,'" Hopkinson v. State, 798 P.2d 1186, 1190 (Wyo. 1990) (Cardine, J., dissenting), is not merely dictum or a hypothetical argument in a dissent. Rather, that is the premise for the current statutory scheme and required instruction under the Wyoming death penalty statute. W.S. 6-2-102(e)(i) through (iii). The changes in the statutory mitigating factor scheme are relevant and not an "effort to eliminate capital punishment in Wyoming, * * * by articulating dictum," dis. op. at 3, because Engberg will be resentenced under that amended scheme. Therefore, the revised Wyoming statutory scheme as well as the controlling United States Supreme Court precedent of Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), are mandatory and important considerations in our disposition of this case and not merely "articulating dictum[.]"
The dissent states — without empirical data, study, citation of authority or any basis whatsoever — that "there is evidence of the fact that prosecutors are not seeking the death penalty in cases in which a sentence to death well might be appropriate because they do not believe that the judiciary will permit the execution." Op. at 168. This bald assertion is unsupported. But there is evidence to support the proposition that spending limits in district attorneys' offices result in plea bargains. As a long-time, most respected Wyoming district attorney said when interviewed,
"he is aware of two possible capital cases in other counties that never went to court because the counties couldn't afford the expense. The prosecutors settled for a plea bargain."
and
"[i]f a prosecution means bringing in witnesses from out-of-state, the cost may be the deterrent that fosters a plea bargain." Barron, Defense needs $, prosecutor can deal, Casper Star-Tribune, Sept. 22, 1991, at A8, col. 3, 4.
Unfounded, unsupported blame for lack of death penalty executions placed on decisions of this court is neither constructive nor helpful. The effect, as always, is to oversimplify the debate with the `I'm tough-on-crime, you're soft-on-crime' accusations. It is the sort of demagoguery that political candidates seize upon and unfairly exploit. The problem with these simplistic buzz words and slogans is that they often obscure the real and specific issues and do not aid in the solution of pressing problems. For example, a populous state in this country recently passed a milestone in that, for the first time in its history, it counted more than 100,000 persons incarcerated in its prisons. That is a milestone because it is more persons in prison than in any industrialized nation anywhere in the *95 world, except the United States of America. Should we begin to look at that state's milestone and ask ourselves if the `tough-on-crime' approach is really working? We have more violent crime than any of the other western industrialized nations. We have a greater drug problem than any others. We have more murders. We are one of a small minority of developed countries that retains the death penalty. All of this deserves serious and thoughtful study. While recognizing that crime must be punished and offenders incarcerated, we should also understand that in doing so we treat the disease and not the cause. The causes are many, and they deserve serious study, debate, and consideration.
The business of law, by its very nature, involves conflict, controversy, and disagreement. A healthy discussion of different points of view is the very essence of law — it is the way we grow, live better with each other, and improve our system of law to better serve society. It was in this spirit that discussion of the important questions presented in this case was undertaken.
It is said by the dissent that we have abolished the death penalty. The claim is absurd. The death penalty exists pursuant to legislation adopted in 1989 by the Wyoming legislature. Because we are a government of laws and not of men, we must reverse the sentencing phase of this case.
Whether a prosecutor, a member of the executive branch of government, seeks capital punishment or life imprisonment is a decision placed with his office. The decision ought to result from an honest, fair assessment of the facts and circumstances present in each particular case. I am confident the prosecutor will not shirk the duty in this case by whining about the court or complaining about the difficulty caused by delay. Presenting to a sentencing jury aggravating and mitigating factors is not really burdensome or difficult. Surely the prosecutor will eschew the suggestion of such difficulty and do his job honestly, reasonably, and as required by law.
Conviction affirmed. Sentence vacated and case remanded for proceedings consistent with this opinion.
MACY, Justice, dissenting in part and concurring in part.
I dissent to that portion of Justice Thomas' opinion pertaining to the question of Engberg's guilt or innocence. It is unreasonable for this Court to require that, in order to avoid procedural default, defense counsel should have called Engberg's wife a second time after she had already refused to testify. This is the very type of secondguessing of defense counsel's trial strategy which we have said we will not do when we are reviewing a claim of ineffective assistance of counsel. See Seeley v. State, 715 P.2d 232 (Wyo. 1986). Also, while the record shows that at trial both counsel and the court ignored Wyo. Stat. § 1-12-104 (1988), Justice Thomas' construction of the statute violates Engberg's constitutionally protected right to obtain witnesses in his favor. U.S. Const. amend. VI; Wyo. Const. art. 1, § 10. See also Section V.B. of Chief Justice Urbigkit's opinion dissenting in part and concurring in part.
I concur with Justice Cardine that it was impermissible to use the underlying robbery as an aggravating circumstance when it had already been used to elevate the crime to first-degree murder. It is also impermissible to use the robbery to support two independent aggravating circumstances.
TABLE OF CONTENTS
Page
I. HISTORY OF THE PROCEEDINGS AND ISSUES PRESENTED 96
II. FACTS 100
III. SCOPE OF REVIEW 100
A. Introduction and Outline 100
B. Scope of Review in Death Penalty Cases 101
C. Constitutional Right Forfeiture by Procedural Default 103
*96
IV. INEFFECTIVENESS OF COUNSEL 104
V. GUILT PHASE ISSUES 116
A. Errors Contended 116
B. The Refusal by the Trial Court to Allow Engberg the Right to Call his
Wife as a Witness 116
C. What the Record and Totality of Procedures Established 122
D. Use of Secondary Evidence From an "Unavailable Witness" 123
E. Prejudice in Witness Presentation in Open Court 127
F. Eyewitness Identification Witness — Refusal of the Trial Court to Allow
the Engberg to Call an Expert Witness to Testify on the Potential for
Error in Identification 128
G. The Failure of the Prosecutor to Inform Engberg and His Attorney That
They Had the Principal Eyewitness Hypnotized to Enhance Her Memory
and Subsequent Denial of a Post-Trial Hearing 139
H. Additional Guilt Phase Issues Raised by Engberg 152
VI. DEATH PENALTY ISSUE 153
A. The Death Penalty in "Modern" America 154
B. Felony Murder as a Predicate for Capital Punishment 156
C. Present Wyoming Statute 160
D. Weighing and Burden of Persuasion Conflicts Now Ameliorated by
Present Law 163
E. Other Death Penalty Issues 165
VII. CONCLUSION 166
URBIGKIT, Chief Justice, dissenting in part and concurring in part.
This post-conviction-relief appeal provides this court's second consideration of Roy Lee Engberg's conviction and death sentence for the murder of a Wells Fargo guard delivering money to a grocery store in Casper, Wyoming. I dissent in this second absolution of trial and appellate advocacy errors involved in conviction and concur with the opinion of Justice Cardine in death penalty reversal.
I.
HISTORY OF THE PROCEEDINGS AND ISSUES PRESENTED
Following jury verdict and death sentence, initial appeal was taken with five issues stated: (1) right to individual voir dire of jurors; (2) peremptory challenges used to create a death qualified jury; (3) insufficient evidence of intent to kill to justify the death penalty; (4) duplicate use of robbery and an offense committed for pecuniary gain as aggravating factors; and (5) proportionality of the death penalty.
In Engberg v. State, 686 P.2d 541, 544 (Wyo.), cert. denied 469 U.S. 1077 , 105 S.Ct. 577 , 83 L.Ed.2d 516 (1984) ( Engberg I ), this court observed that "[t]he only factual issue at the trial of this case was the identity of the perpetrator." In decision, this court found "[t]he desideration and methodology of voir dire examination of the jurors" was discretionary. Id. at 547 . On the second issue, use of peremptory challenges going beyond Witherspoon expendables, Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 , reh'g denied 393 U.S. 898 , 89 S.Ct. 67 , 21 L.Ed.2d 186 (1968), we said:
Within the limits imposed by Swain v. State of Alabama, supra [ 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 , reh'g denied 381 U.S. 921 , 85 S.Ct. 1528 , 14 L.Ed.2d 442 (1965)], peremptory challenges must be recognized as partisan in nature and idiosyncratic in application. They are part of the tools of interested and able advocates. As such they always have been viewed as wholly discretionary and beyond inquiry with respect to motivation and intention.
Engberg I, 686 P.2d at 549 . The intent to kill issue was addressed by this court in decision that intentional homicide would *97 not be a requirement for the felony murder death penalty sentence.
The most significant issue addressed in Engberg I was dual use of murder for pecuniary gain and robbery as distinct aggravating circumstances. In validating the instruction, this court concluded that "the rule [permitting submission of both as separate circumstances] is premised upon an assumption that the number of aggravating circumstances has some independent significance." Id. at 553 . This was the thesis of aggregating numerically aggravating circumstances. Finally, Engberg I determined that the death penalty was neither excessive nor disproportionate when compared with other capital cases in Wyoming. Id. at 555 .
Initial appellate briefing was apparently prepared by law school students in the Defender Aid Program at the University of Wyoming. The appellate attorney in the public defender's office left that position and new counsel filed a petition for rehearing first presenting what is now the Lockhart-Lowenfield issue, Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied 474 U.S. 1013 , 106 S.Ct. 546 , 88 L.Ed.2d 475 (1985); Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 , reh'g denied 485 U.S. 944 , 108 S.Ct. 1126 , 99 L.Ed.2d 286 (1988), of use of the aggregative factor to achieve the felony murder status and then use of the same factor for an aggravating death penalty circumstance. The issue was foreclosed to Engberg by the denial of the petition for rehearing.
In this second appeal ( Engberg II ), following trial court denial of post-conviction relief, we are now presented with a 212-page appellant brief stating additional or differently phrased issues:
ISSUE 1
* * * the court's refusal to permit appellant to call an expert on eye-witness identification was error which deprived appellant of his right to a fundamentally fair trial and his right to compulsory process.
ISSUE 2
* * * the State's failure to disclose its use of hypnosis as means of enhancing Kay Otto's memory violated its ethical obligations and denied appellant his right to due process of law, his right of confrontation, and his right to effective assistance of counsel.
ISSUE 3
(a) * * * appellant was denied due process of law by the extradition procedure used to bring him to Wyoming such that the proceedings here must be declared null and void.
(b) * * * appellant was denied due process by the introduction of evidence that he had to be beaten by the police officers who arrested him in order to prevent him from fleeing.
ISSUE 4
* * * the State's introduction of evidence showing that appellant frequently used aliases denied him his right to a fundamentally fair trial.
ISSUE 5
(a) * * * appellant's rights under the Fifth Amendment to the United States Constitution and Article 1, § 11 of the Wyoming Constitution were violated when evidence that he refused to wear a stocking cap so that he could be photographed was introduced at his trial and argued as evidence of guilt.
(b) * * * appellant's right to confront witnesses was denied him by the court's refusal to permit cross-examination of the police officer who photographed him concerning appellant's medical condition.
ISSUE 6
(a) * * * a defendant's spouse can invoke spousal privilege and decline to testify when the defendant seeks to have the spouse testify.
(b) * * * the Sixth Amendment to the United States Constitution and Article 1, § 10 of the Wyoming Constitution were violated by the trial judge's erroneous *98 ruling that appellant could not call Donna Engberg as a witness, cross-examine her, nor introduce her prior statements for impeachment purposes.
(c) * * * a defendant's spouse who refuses to testify is an unavailable witness whose hearsay statements may be admitted into evidence.
ISSUE 7
* * * the use of a conclusive presumption to convict appellant of first degree murder is plain error and requires reversal of the conviction.
ISSUE 8
* * * appellant's rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution were violated by the introduction of evidence seized by the police during a warrantless search of appellant's trailer.
ISSUE 9
* * * the testimony of the ballistics expert was incompetent and should have been disregarded, and should be disregarded now, and thus whether there is insufficient evidence to support the conviction.
ISSUE 10
(a) * * * the prosecution's use and manipulation of the press prior to appellant's trial deprived appellant of his right to a fair trial.
(b) * * * appellant's right to effective assistance of counsel was denied him by his initial court-appointed attorney's failure to combat the prosecution's misuse of the media.
ISSUE 11
* * * the trial court's failure to excuse venireman Alberts for cause deprived appellant of his right to a fair trial by an impartial jury.
ISSUE 12
* * * the voir dire procedure used at appellant's trial denied him his right to a fair trial by an impartial jury.
ISSUE 13
(a) * * * the introduction of evidence in the penalty phase that appellant had escaped from the authorities in Missouri denied him his right to due process and a fundamentally fair finding that the death penalty should be imposed.
(b) * * * the prosecutor's closing argument in the penalty phase of the trial deprived appellant of his right to due process and fundamentally fair trial when the prosecutor argued appellant needed to be executed in order to restrain him and when the Wyoming Supreme Court has previously recognized that kind of argument is only proper where the heinous, atrocious, or cruel aggravating circumstance is involved.
ISSUE 14
* * * the court's refusal to permit appellant the opportunity to present evidence of a mitigating circumstance, the cruelty of the manner of execution, denied appellant his right to due process of law and a fundamentally fair finding to impose the death penalty.
ISSUE 15
* * * appellant's right to due process and to be free from cruel and unusual punishment was violated by the statutory presumption in favor of death under Wyoming law which requires the defendant to bear the burden of demonstrating that sufficient mitigating circumstances outweigh the aggravating circumstances so as to warrant leniency.
ISSUE 16
* * * appellant's right to be free from cruel and unusual punishment and to due process were violated by the jury's finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery *99 when the robbery had already been used to elevate the crime to capital murder.
ISSUE 17
* * * the cumulative nature of the error is such that, regardless of the harmlessness of any one error, together they prejudiced appellant's rights to due process, fundamental fairness, and a reliable determination that the death penalty should be imposed.
ISSUE 18
* * * appellant was afforded [in]effective assistance of counsel during his appeal to the Wyoming Supreme Court.
ISSUE 19
* * * it was improper for the office of the attorney general to represent the State in post-conviction proceedings to urge that an assistant attorney general's proper representation was a procedural bar to the issues raised in appellant's petition for post-conviction relief.
ISSUE 20
* * * this court's discussion and holding in prior cases with regard to petitions for post-conviction relief ignore the plain and obvious statutory language and establish a procedure which is violative of fundamental fairness[,] due process and equal procedure [sic] and whether it has established a confusing and unworkable process wherein courts simply dismiss petitions for post-conviction relief to get rid of them.
The State frames these issues as:
Argument I
Was there error in the procedures followed in the lower court on Engberg's petition for post-conviction relief?
Argument II
Was it error to admit evidence of consciousness of guilt at trial?
Argument III
Was Engberg's motion to suppress evidence seized at the trailer properly denied?
Argument IV
Did any impropriety or illegality in Engberg's extradition to Wyoming affect the jurisdiction of the Wyoming courts?
Argument V
Was Engberg denied a fair trial due to pretrial publicity; was Engberg denied effective trial counsel due to pretrial publicity?
Argument VI
Was the jury selection process * * * proper?
Argument VII
Was the admission or exclusion of expert testimony discretionary and did the exercise of that discretion affect a constitutional right in this case?
Argument VIII
Was Engberg deprived of a fair trial, due process or confrontation by the failure of the State to disclose Kay Otto's contact with a hypnotist?
Argument IX
Was Engberg denied due process by the trial court's ruling that his spouse had a privilege not to testify?
Argument X
Was evidence of Engberg's status as an escapee properly admitted in the penalty phase; was the prosecution's closing argument at the penalty phase proper?
Argument XI
Was Engberg's proffer of evidence in "mitigation" to show the effects of lethal gas, etc., properly excluded; is this issue moot?
Argument XII
Is there a presumption in favor of the death penalty under Wyoming statutes in violation of due process or cruel and unusual punishment?
Argument XIII
Was the jury * * * properly instructed as to statutory aggravating circumstances; was Engberg denied due process or subjected to cruel and unusual punishment?
Argument XIV
Did Engberg receive effective assistance of counsel on appeal?
*100 Argument XV
Does the cumulative nature of any errors in this case warrant relief?
Argument XVI
Is the attorney general's entire staff disqualified from post-conviction proceedings because one of Engberg's four attorneys on direct appeal has since become an assistant attorney general?[ [1] ]
II.
FACTS
Vernon Rogers and his sister, Kay Otto, employed by Wells Fargo, were making an armored van money delivery to a grocery store in Casper. The two left the store to find themselves face to face with a man armed with a gun. Vernon Rogers was almost instantly shot and killed in front of his sister and the robber escaped with a bag of money. About a week later, Engberg was arrested while drunk in Las Vegas, Nevada on New Years Day following a family violence complaint by his wife. The injury Engberg received from the police during arrest required both hospitalization and a surgical operation.
Engberg was eventually brought to Wyoming and charged with premeditated murder and felony murder. During the trial, Engberg was denied the right to call his wife as his witness when the trial judge incorrectly applied federal rather than controlling state law on testimonial privilege. Additionally, he was denied the opportunity to introduce expert witness testimony on the potential for error in eyewitness identification. Furthermore, Engberg and his attorney were kept unaware that the police attempted to have the principal eyewitness hypnotized to enhance her memory. Engberg was convicted of felony murder and aggravated robbery and sentenced to death on the murder conviction and a consecutive term of twenty-five to thirty years on the robbery conviction. [2]
III.
SCOPE OF REVIEW
A. Introduction and Outline
Consideration of this death penalty appeal within the limited issues raised on initial appeal and the broad based attack now made in post-conviction relief requires application of three different concepts. First, the heightened scrutiny standard of review for death penalty cases requires recognition. Second is the limitation that post-conviction relief addresses a constitutional issue which is found in this case to be primarily ineffectiveness of appellate counsel in failure to raise the issues in initial appeal. Finally, constitutional forfeiture by procedural default is presented in contended waiver by the omission of appellate counsel in the initial appeal since Cutbirth v. State, 751 P.2d 1257 (Wyo. 1988) must also be considered. I cannot join the majority of this court for guilt phase resolution *101 which justifies the conviction by a combination of our absolution and denial of procedural default committed by both trial and appellate counsel.
This court should assess these concepts within post-conviction-relief review standards applicable to a capital case. I will pursue the substantive issues, including denied testimony of Engberg's wife, expert eyewitness identification and hypnotism of a witness. Other Engberg II issues will only be considered to the extent that consideration will be helpful for future cases, although I will not significantly reconsider the issues raised and determined in initial appeal which occurred before I came on this court. This is not a broad based sufficiency of the evidence case but instead confined to post-conviction-relief review of W.S. 7-14-101 through 7-14-108 initially enacted by the Wyoming legislature to address constitutional issues in criminal convictions. Present discussion is developed within a massive body of case law since this homicide occurred and also since the opinion in Engberg I was written. Thousands of appellate death penalty decisions have been published and segmented issues, penalty or guilt, have been addressed by the United States Supreme Court in at least thirty significant decisions. [3]
B. Scope of Review in Death Penalty Cases
When the penalty of execution is provided for criminal punishment, this court should consider assignments of error now first presented under the same standard used by the supreme courts of Utah, Louisiana, and Ohio. These courts carve out a death penalty exception to their contemporaneous objection rule.
The State responds to a number of defendant's claims of reversible error by urging this Court not to consider or rule on such claims because they were inadequately preserved at trial. We decline to adopt that approach and instruct the State to hereafter brief all issues on their merits in death penalty cases.
A general rule of appellate review in criminal cases in Utah is that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal. As early as 1931, however, this Court recognized an exception to the general rule governing the scope of appellate review in criminal cases where the death penalty was imposed. * * * Nevertheless, because of the serious and permanent nature of the penalty imposed in such cases, there needs to continue to be a death penalty exception to the contemporaneous objection rule. Accordingly, this Court has customarily considered assignments of error which were not preserved at trial but were raised and briefed for the first time on appeal.
* * * * * *
* * * [W]e have the sua sponte prerogative in such cases to notice, consider, and correct manifest and prejudicial error which is not objected to at trial or assigned on appeal, but is palpably apparent on the face of the record. Not only is such standard in keeping with controlling statutory and case law, but it also furthers the policy of safeguarding a defendant's right to a fair trial in a death penalty case by permitting review of the proceedings below even in the absence of compliance with procedural technicalities.
State v. Tillman, 750 P.2d 546, 551-53 (Utah 1987) (footnotes omitted and emphasis added). See Furman v. Georgia, 408 U.S. 238, 306 , 92 S.Ct. 2726, 2760 , 33 L.Ed.2d 346 , reh'g denied 409 U.S. 902 , 93 *102 S.Ct. 89, 34 L.Ed.2d 164 , reh'g denied 409 U.S. 902 , 93 S.Ct. 89 , 34 L.Ed.2d 163 , reh'g denied 409 U.S. 902 , 93 S.Ct. 90 , 34 L.Ed.2d 164 (1972), Stewart, J., concurring; Reid v. Covert, 354 U.S. 1, 65 , 77 S.Ct. 1222, 1262 , 1 L.Ed.2d 1148 (1957), Harlan, J., concurring; Hamblen v. State, 527 So.2d 800, 808 (Fla. 1988), Barkett, J., dissenting; State v. Bay, 529 So.2d 845 (La. 1988); and State v. Kirkpatrick, 443 So.2d 546 (La. 1983), cert. denied 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 847 (1984). The Louisiana Supreme Court uses the same standard and holds that "in cases where the death penalty is imposed, this Court reviews assignments of error not briefed as a matter of policy." Kirkpatrick, 443 So.2d at 553 . The Supreme Court of Ohio phrases their approach similarly:
Our analysis begins by addressing the propositions of law advanced by appellant. Because of the gravity of the sentence that has been imposed on appellant, we have reviewed the record with care for any errors that may not have been brought to our attention. In addition, we have considered any pertinent legal arguments which were not briefed or argued by the parties.
State v. Williams, 38 Ohio St.3d 346 , 528 N.E.2d 910, 914 , reh'g denied 39 Ohio St.3d 717 , 534 N.E.2d 93 , cert. denied 489 U.S. 1040 , 109 S.Ct. 1176 , 103 L.Ed.2d 238 , reh'g denied 493 U.S. 948 , 110 S.Ct. 355 , 107 L.Ed.2d 343 (1989) (emphasis added). In similar summation, see State v. Bey, 112 N.J. 45 , 548 A.2d 846 (1988). For a broad perspective, see Ledewitz, Procedural Default in Death Penalty Cases: Fundamental Miscarriage of Justice and Actual Innocence, 24 Crim.L.Bull. 379 (1988). [4]
The New Mexico Supreme Court recently stated in State v. Henderson, 109 N.M. 655 , 789 P.2d 603, 607 (1990):
"[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." Caldwell v. Mississippi, 472 U.S. 320, 329 , 105 S.Ct. 2633, 2639 , 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. [992] at 998-99, 103 S.Ct. [3446] at 3452 [ 77 L.Ed.2d 1171 (1983)]).
The foundational Wyoming judicial legacy is not inapposite. Indeed, traditional Wyoming jurisprudence found greater value in affirming a death sentence only with caution than in devotion to procedural technicalities. In State v. Morris, 41 Wyo. 128, 146-47 , 283 P. 406, 411 (1929) (emphasis added), Justice Riner indicated:
But the familiar rule heretofore announced by this court in Parker v. State, 24 Wyo. 491 , 161 P. 552 [(1916)]; Cirej v. State, 24 Wyo. 507 , 161 P. 556 [(1916)]; and Ohama v. State, 24 Wyo. 513 , 161 P. 558 , [(1916)], touching the failure to save exceptions to prejudicial rulings and instructions in capital cases, should, we think, govern here. Under that rule, which we believe to be a wholly salutary one, it is our duty to consider and determine the effect of [the contended error] attacked by appellant in his brief, as before indicated.
The editor in 5 ABA Remand Nos. 3-4, Review of Capital Cases: Should Death Make a Difference?, at 1 (1990) stated:
"What is this mystery that men call death?" The question broached by poet Jerome Bell is much on the minds of appellate judges these days. In state and federal circuits where the death penalty exists, judges are finding that capital cases impose extraordinary demands upon their time, their emotions and their intellectual resources.
*103 In the abstract, capital cases are like other forms of litigation. They require appellate courts to apply legal principles to facts found at the trial level. Yet these cases, where life hangs in the balance, are akin to the "great" cases described by Justice Holmes, where "immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Northern Securities Co. v. United States, 193 U.S. 197, 400-01 [ 24 S.Ct. 436, 468 , 48 L.Ed. 679 ] (1904).[ [5] ]
The significance occurs here not in contended omissions by very competent trial counsel, but in failure of appellate counsel on first appeal to present issues clearly developed in the trial. Harris v. Reed, 489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989); Evitts v. Lucey, 469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 , reh'g denied 470 U.S. 1065 , 105 S.Ct. 1783 , 84 L.Ed.2d 841 (1985); Comment, Harris v. Reed: A New Look at Federal Habeas Jurisdiction Over State Petitioners, 58 Fordham L.Rev. 493 (1989).
The finality of capital punishment mandates that states insure reasonable, rational and fair procedures when imposing it, State v. Bolder, 635 S.W.2d 673 (Mo. 1982), cert. denied 459 U.S. 1137 , 103 S.Ct. 770 , 74 L.Ed.2d 983 (1983) (citing Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 , reh'g denied 429 U.S. 875 , 97 S.Ct. 198 , 50 L.Ed.2d 158 (1976)), and adequate assistance of counsel constitutes the first constitutional requirement. Wyo. Const. art. 1, § 6, due process of law; Wyo. Const. art. 1, § 10, right of accused to defend. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299 (1983) and Comment, The Ohio Supreme Court's Move Toward Quality Control of Court-Appointed Counsel for Indigent Defendants Charged With Capital Offense Crimes, 21 Akron L.Rev. 503 (1988).
C. Constitutional Right Forfeiture By Procedural Default
Although my disagreement is well stated therein, constitutional forfeiture by procedural default as defined in Cutbirth, 751 P.2d 1257 cannot be morally or constitutionally ignored here. See also Murray v. State, 776 P.2d 206 (Wyo. 1989); Kallas v. State, 776 P.2d 198 (Wyo. 1989); and Amin v. State, 774 P.2d 597 (Wyo. 1989). Within the strictures of Harris, 109 S.Ct. 1038 , this court is required to address constitutional ineffectiveness of appellate counsel. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , reh'g denied 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984) for illustration of the failure of the attorneys responsible to brief and present obvious claims of trial error on initial appeal. Any application of the Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 , reh'g denied 434 U.S. 880 , 98 S.Ct. 241 , 54 L.Ed.2d 163 (1977) cause and prejudice factors as presently denominated in Cutbirth will not be ignored within the trial issues which are hereinafter substantively discussed in detail.
On one issue, for example, where the attorney general admitted error in oral argument, it would not have been unreasonable for the importance and pervasiveness of the subject to have been recognized by Engberg's law school and public defender representation considering the singular exposure it had at trial. Furthermore, by reversal and remand, we should not only here but as we did in Jones v. State, 777 P.2d 54 (Wyo. 1989) recognize prejudice. The egregiousness of the Jones problem for this case was highlighted by parading Engberg's wife, previously identified in opening statement by the prosecutor to have turned in her husband in the Nevada police complaint, to then appear openly at the guilt phase of the trial and refuse to testify before the jury. In Jones, 777 P.2d at 60 , we said:
*104 Under the circumstances of this case the invoking of the Fifth Amendment in the jury's presence by Keeler and Haefner, who the jury at least suspected to be alleged co-conspirators with appellants in the attempted murder, was too strongly prejudicial to be overcome by a cautionary instruction. We cannot consider this error harmless. The jury could easily have inferred, and the only purpose this testimony could have served was to demonstrate, that the witnesses were invoking the Fifth Amendment because they were guilty of the underlying conspiracy. The probability that the jury could reasonably infer an admission of guilt through a transfer process to appellants is highly prejudicial. Because of the extreme probability of transference, the calling of Keeler and Haefner added critical weight to the prosecution's case by creating the quintessential inference of guilt not clearly elicited through other testimony at trial.
For Engberg in trial perspective, the participation by his wife in the "flight to Las Vegas" accentuated the suggestion persuasively created by open presentation and non-testimony at trial that she would have only confirmed guilt if her testimony had been permitted. Of no less importance, the very serious death penalty phase trial defect questions will be avoided by retrial under the present statute.
IV.
INEFFECTIVENESS OF COUNSEL
To the extent that within this present society denominated by greed, characterized by cruelty and energized by extremism, leaving little to be actually shocking, a current article, Berger, The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases, XVIII N.Y.U.Rev.L. & Soc. Change 245, 249-54 (1990-91) (quoting Minority Report of Stephen B. Bright, Toward a More Just and Effective System of Review in State Death Penalty Cases: Recommendations and Report of the ABA Task Force on Death Penalty Habeas Corpus app., at A-38 (1989) and Powell v. Alabama, 287 U.S. 45, 69 , 53 S.Ct. 55, 64 , 77 L.Ed. 158 (1932)) (emphasis in original and footnotes omitted), is profoundly shocking in two illustrative segments:
Some attorneys (undoubtedly those in House [v. Balkcom, 725 F.2d 608 (11th Cir.), cert. denied 469 U.S. 870 , 105 S.Ct. 218 , 83 L.Ed.2d 148 (1984)] and Mitchell [v. Kemp, 762 F.2d 886 (11th Cir. 1985), cert. denied 483 U.S. 1026 , 107 S.Ct. 3248 , 97 L.Ed.2d 774 (1987)]) are simply incompetent. Approximately 90% of capital defendants are poor, and the poor all too frequently are represented by the incompetent o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1386258. Public record. Not legal advice.