no Brady violation where witness who could have been impeached ■with hypnosis evidence was only one of several eyewitness
How later courts described this case
- no Brady violation where witness who could have been impeached ■with hypnosis evidence was only one of several eyewitness
- same result under the Due Process Clauses of both the state and federal constitutions
- “recent research seems to demonstrate that the process [of eyewitness identification] is more complex than earlier assumed, and some of the research findings are contrary to intuitive perceptions”
- adopting Justice Rose’s position
Written by the judges who cited it.
The 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
V. GUILT PHASE ISSUES rH
A. Errors Contended «O T — I H
B. The Refusal by the Trial Court to Allow Engberg the Right to Call his Wife as a Witness
C. What the Record and Totality of Procedures Established
D. Use of Secondary Evidence From an “Unavailable Witness”
E. Prejudice in Witness Presentation in Open Court
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 OO <N i — I
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 CO
H. Additional Guilt Phase Issues Raised by Engberg lO
VI. DEATH PENALTY ISSUE CO 1C
A. The Death Penalty in “Modern” America
B. Felony Murder as a Predicate for Capital Punishment IO
C. Present Wyoming Statute ⅞©
D. Weighing and Burden of Persuasion Conflicts Now Ameliorated by Present Law CO rH
E. Other Death Penalty Issues CO rH
VII. CONCLUSION CD CO t-H