# Engberg v. Meyer > Wyoming Supreme Court · October 17, 1991 · 820 P.2d 70 URL: https://www.frixlaw.com/law-library/cases/9613626 ## 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:** Concurring in part by MacY - **Judges:** Brown, Ret, Thomas, Cardine, Urbigkit, MacY - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9613626 ## Opinion text 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