Petition — Sutton v. Bloom

83 5124

‘. No. 83-

IN THE RECEIVED

SUPREME COURT OF THE UNITED STATES

JUL 2 5.1983

October Term, 1983

Oriice uw toe vetRK

SUPREME Cnet us.

MARK A. HOPKINSON,

Petitioner,

-v-.

STATE OF WYOMING,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT

OF THE STATE OF WYOMING

LEONARD D. MUNKER

P. O. Box 712

Cheyenne, Wyoming 82003

ATTORNEY OF RECORD FOR PETITIONER

QUESTIONS PRESENTED

1. Whether Petitioner's second sentencing jury

ineaita have been permitted to consider aggravating circun-

stances not found by the first sentencing jury; that is,

was the Petitioner in the second sentencing phase twice

put in jeopardy in violation of the Fifth and Fourteenth

Amendments to the United States Constitution.

2. Whether it is cruel and unusual punishment to

inflict the death penalty in the absence of an intent require-

ment when the alleged procurer's intent and culpability

is at most inferred from the acts of other unknown persons.

‘ TABLE OF CONTENTS

GCusetanes PESRSRCES <ecse Sdoweove sd Cbs bode cocessscoccecé

Citations tO OpimiGne BOAGW ccccecccccccccccccccbeseces

Pea, <2. 6a o bbe eaten eee oo 5d4t Gb cedobeothescbceorce

BOIGW cccccccccccccceseccscereecsecccccvessccsccces

Reasons for Granting the Writ ....ccccccesccesesesccees

I. This Court Should Grant Certiorari To

Determine Whether The Petitioner Has

Suffered Double Jeopardy Under The

Standards Articulated In Bullington

re SS peeceed SPEPPTPT TTT TTL

II. This Court Should Grant Certiorari To

Determine Whether The Reasoning Underlying

The Decision In Enmund v. Florida Requires

That The Petitioner's Intent And Culpability

Be Proven Through Competent Evidence And

Not Merely Inferred From The Acts Of Other

Unknown PerSONnS .....ssseeees TETELELTLELTTT Te

CHRRRUEOSSER 0c 6 Fé t heGaSO6Ot oes sews hebw Cesobeceobdcaeceoos

Appendix A: Opinion of the Wyoming Supreme Court,

May 27, 1983 ....... Seeccoccoecescéec

TABLE OF CASES

Page

Bullington v. Missouri, 451 U.S. 430,

101 $.Ct. 1952, 68 L-BA.24 270 (1961) -ccccccccces 7, 12, 13, i158

Enmund v. Florida, U.S. , 402 §.Ct.

3368, 73 TncB. 24 1140 (1982) wccccccccccccccccece 9, 10, 15, 18

Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972), reh.

denied 409 U.S. 902, 93 S.Ct. 89,

34 DL. BG.24 164. ccccccccece peerccccccccccccceceece 17, 18

Hopkinson v. State, 632 P.2d 79 (Wyo. 1981),

cert. denied 455 U.S. 922, 102 S.Ct.

1280, 71 L.BG.2€ 463 (1982) ..cccccccccccccccceces 3, 5, 8, 35,

16

Hopkinson v. State, 664 P.2d 43 (Wyo. 1983) .....-eeee. l, 4, Te Qe

10, ll, 12,

13, 14, 15,

16, 17, 18

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), reh. denied

444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d

> aT Te errTrcrrTT aT Ti? CTTE OE TU 8, ll

Knapp v. Cardwell, 667 F.2d 1253 (9th Cir. 1982),

U.S. App. PeENding...cccccccccvcssccesesssessseses 13

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.

1881, 44 L.EdG.2d 508 (1975) .cccccccccccccccvecece 9

Wyoming Statutes (1977):

SS Te Ee oO Ct ) RPT rrrerrreeirerrirrririersT 5

No. 83-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MARK A. HOPKINSON,

Petitioner,

~~

STATE OF WYOMING,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT

OF THE STATE OF WYOMING

Petitioner Mark A. Hopkinson respectfully prays that

a writ of certiorari issue to review the judgment of the

Supreme Court of Wyoming.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Wyoming affirming

the Petitioner's death sentence is annexed hereto as Appendix

A, which is the slip opinion. The official citation is Hopkin-

sin v. State, 664 P.2d 43 (Wyo. 1983).

JURISDICTION

The judgment of the Wyoming Supreme Court affirming

the Petitioner's death sentence was entered May 27, 1983,

and a stay was entered granting opportunity to seek certio-

rari in the Supreme Court of the United States. This Court's

jurisdiction is invoked pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth Amendment to the Constitu-

,

tion of the United States, which provides:

"(NJor shall any person be subject

for the same offense to be twice put

in jeopardy of life.”

In the Eighth Amendment to the Constitution of the United

States which provides:

"Excessive bail shall not be required,

nor excess fines imposed, nor cruel and

unusual punishments inflicted;"

and the Fourteenth Amendment to the Constitution of the

United States which provides in relevant part:

"Nor shall any state deprive any person

of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws."

STATEMENT OF THE CASE

The Petitioner, Mark A. Hopkinson, was convicted by

a jury in September, 1979, of four counts of first degree

murder and was sentenced to death on one of those counts,

for the murder of Jeff Green. The Judgment and Sentence

of death were automatically reviewed by the Wyoming Supreme

Court. The convictions for the four murders were affirmed

but the death sentence of Jeff Green was reversed and remanded

for a new trial on the penalty phase. This is reported in

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). The

second death penalty trial was held in Jackson, Wyoming,

from May 17, 1982, through May 27, 1982. The jury found five

aggravating circumstances and returned a verdict imposing

the death penalty for the murder of Jeff Green. The State's

case at the penalty trial relied upon circumstantial evidence

to show that the Petitioner, while in custody at the Federal

Correctional Institute at Lompoc, California, procured through

unknown assailants the torture-murder death of Jeff Green.

The State produced circumstantial evidence in an effort to

show that hired killers tortured Jeff Green on orders cf

the Petitioner. During the course of the trial, the Petitioner's

counsel objected to the submission of certain aggravating

circumstances for the reason that there was no supporting

evidence to show that the Petitioner knew of or intended the

aggravating circumstances surrounding Jeff Green's death.

() ath

The Petitioner maintained his innocence and did not testify

in either his first guilt trial or the second sentencing

hearing.

After the jury in the second sentencing proceeding

returned its findings and recommendations that the death

penalty be imposed upon the Petitioner, the case was auto-

matically appealed to the Wyoming Supreme Court. Fourteen

issues were presented to the court. In its opinion issued

May 27, 1983, the court upheld the imposition of the death

penalty upon the Petitioner, although the court did split

on the two issues presented to this Court for review, dealing

with the question of intent or culpability and a double

jeopardy issue. Hopkinson v. State, 664 P.2d 43 (Wyo. 1983).

Two sets of aggravating circumstances are involved

in the two issues presented to this Court in this Petition.

It was argued that the re-submission of two aggravating

circumstances constituted double jeopardy, those circumstances

being: (1) "The murder was committed for the purpose of

avoiding or preventing a lawful arrest,” and (2) "The murder

was committed for pecuniary gain.” The Wyoming Supreme Court

rejected this argument in Part VIII of its opinion, beginning

on page 68. The other argument was that the third instruc-

tion, “The murder was especially heinous, atrocious or cruel,"

© C)

was unsupported by the evidence as regards the issue of

the Petitioner's intent or culpability. The Wyoming

Supreme Court also rejected this argument in Part II of its

opinion, beginning at page 57.

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

In the Petitioner's first trial, the jury was

asked to consider all eight statutory aggravating circum-

stances in conjunction with each of the four murders of

which the Petitioner was convicted. See Wyo. Stat. §6-4-102(h)

(1977). The jury decided that four ef the aggravating circum-

stances were inapplicable to Jeff Green's death: the defen-

dant knowingly created a great risk of death to two or more

persons; the murder was committed for the purpose of avoiding

Or preventing a lawful arrest or effecting an escape from

custody; the murder was committed for pecuniary gain; the

murder was of a judicial officer, former judicial officer,

county attorney, or former county attorney during or because

of the exercise of his official duty. Hopkinson v. State,

supra at 167-168 [hereinafter cited as Hopkinson I]. Prior

to the second sentencing hearing, the State gave notice

that it intended to prove six of the eight statutory

aggraveting circumstances, omitting only those circumstances a

listed in Section 6-4-102(h) (iii) and (viii) of the 1977

Wyoming Statutes. The Pecitioner objected to the submission

’ 2

of five of the six circumstances to the jury, both because

the State misconstrued the applicability of certain circum-

stances and also because the resubmission of those circum-

stances deemed inapplicable at the first penalty hearing

violated the Petitioner's constitutional guarantee against

double jeopardy. The court permitted five of the circum-

stances to be submitted and the jury found all’ five circum-

stances to have been proven beyond a reasonable doubt.

In his second appeal to the Wyoming Supreme Court, the

Petitioner raised a double jeopardy issue, contending that

the re-submission to the jury in the second sentencing hearing

of those aggravating circumstances deemed inapplicable by

the first jury violated the Petitioner's constitutional

guarantees against double jeopardy. The Wyoming Supreme

Court rejected this argument:

The appellant claims that the submission

of aggravating circumstances found not to exist

in the first trial amounts to double jeopardy.

At the first trial, the jury found the following

statutory aggravating circumstances not applicable:

"S. The murder was committed

for the purpose of avoiding or preventing

a lawful arrest or effecting an escape from

custody.

"6. The murder was committed for

pecuniary gain.” 632 P.2d 168.

In the second trial the jury found such

circumstances to exist. The principal reason is

probably because the jury was inadequately in-

structed in the first trial, but we need not

guess any further or even at all.

i a

We reversed the death penalty in Hopkinson

v. State, supra, purely as a matter of law.

The evidence is clear that Green was murdered

to avoid the arrest of appellant for the Vehar

murders and that it was for pecuniary gain, both

of which reasons were apparent in the evidence

in the first trial, which evidence was also used

in the second trial. If properly instructed, the

jury could have come to no other .inding. We

would further point out that these were the

hypothoses of the prosecution upon which guilt

was based and are an inseparable part of the

total circumstances.

Hopkinson v. State, 664 P.2d 43, 69, 70-71 (Wyo. 1983)

{hereinafter cited as Hopkinson II].

Both juries in fact had the same evidence before them.

Yet in the penalty phase of the first case, the jury specifically

found the aforementioned aggravating circumstances to be

inapplicable. Although it is difficult to speculate as to

the jury's reasons for its findings, the fact is that the

coutested circumstances were deemed inapplicable to the Green

murder. Thus the question presented is whether the resubmission

of aggravating circumstances deemed inapplicable in an initial

penalty hearing constitutes double jeopardy under the analysis

set forth by this Court in Bullington v. Missouri, 451 U.S.

430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

€) @

The second issue presented to this Court deals with

the question of the Petitioner's intent as that intent relates

to the statutory aggravating circumstances presented to the

jury. In Hopkinson I, supra at 100, the Wyoming Supreme Court

held that the State of Wyoming had jurisdiction to try the

Petitioner as an accessory before the fact, even though the

Petitioner was not physically present in the state at the

time of the murder for which the death penalty was imposed.

The court then approved the giving of instructions concerning

three statutory aggravating circumstances: (1) the murder

was committed for the purpose of avoiding or preventing a

lawful arrest; (2) the murder was committed for pecuniary

gain; and (3) the murder was especially heinous, atrocious

or cruel. As noted above, two of these three circumstances

were deemed inapplicable by the jury in the first trial.

During the second sentencing hearing, and on appeal

to the Wyoming Supreme Court, counsel for the Petitioner

argued that there was insufficient evidence of intent or

culpability to support either the submission of the three

aforementioned circumstances to the jury or its finding of

their applicability, and that the issue was critical pre-

cisely because the Petitioner was not a principal. Counsel

relied on this Court's decisions in Jackson v. Virginia,

443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh.

denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126; Enmund

v. Florida, U.S. , 102 S.Ct. 3368, 73 L.Ed.2d 1140

(1982);

and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,

44 L.Ed.2d 508 (1975) to support this argument.

The Wyoming Supreme Court summarily rejected the Peti-

tioner's contentions:

The appellant as a part of this ninth

issue argues that the aggravating circumstance

first discussed was unconstitutionally applied

in that no evidence was presented to show that

appellant knew or intended that Green would be

tortured—that he was not a principal.

As in this court's first opinion, we take

the position that appellant is a principal.

682 P.2d at 97-100. Enmund v. Florida, supra,

cited by appellant is not in point as we have

previously discussed. There the United States

Supreme Court found that Enmund did not kill

or intend to kill, so his culpability is dif-

ferent from the robbers who killed. In the

case before us, the evidence is that the

murder of Green was planned by appellant, he

intended that it take place, he hired the killers

and intended that torture and lethal force be

utilized. The moral guilt and personal respon-

sibility of one who commands another to commit

murder justifies the death penalty. The evidence

is overwhelming that appellant ordered the tor-

ture of Jeff Green in order to discover what he

had told prosecutors, what his testimony to the

grand jury would be, and with the final shot

through the neck to silence him. The motive

to avoid arrest for the murders of the three

Vehars is present.

Hopkinson II, supra at 73-74.

The dissent disagreed with the majority's bald

assertion that sufficient evidence of the Petitioner's

intent or culpability existed to justify the submission

of the contested aggravating circumstances, particularly

the one dealing with the “heinous, atrocious or cruel"

nature of the homicide.

(T]he law requires that, in order for

this type of murder to warrant the submission

of this particular aggravating circumstance to

the sentencing authority for death-penalty

deciding purposes, there must be legally

acceptable evidence capable of establishing,

beyond a reasonable doubt (§6-4-102(e)), the

fact that the defendant ordered or parti-

cipated in the torturous aspects of the killing.

His is the culpability which must be measured.

Enmund v. Florida, U.S. , 102 S.Ct. 3368,

73 L.Ed.2d 1140 (1982), discussed infra. With-

out such evidence, the submission of the heinous,

atrocious or cruel aggravating circumstance to

the jury—especially in a fact situation where

the torture was so violently inhuman and the

evidence of which is so patently inflammatory—is

violative of the defendant's Eighth and Fourteenth

Amendments rights.

Hopkinson II, supra at 94 (Rose, J. dissenting).

Thus, the issue presented to this Court is whether

an element of intent is required before certain statutory

aggravating circumstances may be submitted to a jury.

-10-

REASONS FOR GRANTING THE WRIT

I

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE PETITIONER HAS SUFFERED

DOUBLE JEOPARDY UNDER THE STANDARDS ARTICULATED

IN BULLINGTON V. MISSOURI.

In presenting his case to the Wyoming Supreme Court,

the Petitioner argued that his constitutional protection

against double jeopardy had been violated in two ways:

first, by permitting the jury hic the second penalty phase

to consider all of the evidence relating to the deaths for

which the death penalty had not been imposed during the

first trial; and second, by the re-submission to the jury

of those statutory aggravating circumstances deemed in-

applicable in the initial penalty hearing. The Wyoming

Supreme Court ruled against the Petitioner on both facets

of the double jeopardy issue. Hopkinson II, supra at 68-71.

In this Petition for Writ of Certiorari, the Petitioner

does not put forth the argument that there is insufficient

evidence under the standard articulated in Jackson v. Virginia,

supra. Rather, the Petitioner focuses upon that aspect of

his argument made to the Wyoming Supreme Court, that the

resubmission to the jury in the second penalty phase of

aggravating circumstances deemed inapplicable by the jury

=te

during the initial trial violated principles of double

jeopardy under the standard articulated by this Court in

Bullington v. Missouri, supra.

During the second sentencing hearing, the Petitioner

objected on double jeopardy grounds to the introduction of

evidence concerning aggravating circumstances deemed in-

applicable at the first trial and to the resubmission to

the jury of those aggravating circumstances. The Petitioner

objected on the grounds that the first jury's findings on

these two aggravating circumstances had been previously

resolved in the Petitioner's favor, and were therefore res

judicata. Permitting evidence and jury instructions on

these two aggravating circumstances to be resubmitted to

the second jury constituted double jeopardy. The trial

court overruled the Petitioner's objections, and the

Wyoming Supreme Court affirmed the lower court's actions.

Hopkinson II, supra at 68-71. The court split on this issue,

however, cf. Hopkinson II, supra at 68-71 (majority opinion)

and id. at 111-121 (Rose, J. dissenting), and the court's

holding is clearly inconsistent with this Court's decision

in Bullington v. Missouri, supra.

In Bullington v. Missouri, supra, this Court addressed

the question of the double jeopardy clause as applied to

-12-

©

So

capital sentencing proceedings, and analyzed the nature

of the death penalty hearing. The Wyoming Supreme Court,

like*Missouri's, has indicated that the sentencing phase

in a death penalty case is like a trial. Furthermore,

the Wyoming and Missouri capital punishment statutes are

similar in all relevant respects. Under the analysis used

by this Court in Bullington v. Missouri, when such a capital

sentencing proceeding is involved, the double jeopardy

Clause forbids a re-trial on charges of which a defendant

has been implicitly acquitted in.a previous case.

In this case, the jury's findings in the first trial

that the murder was not committed for purposes of avoiding

a lawful arrest nor for pecuniary gain act as a bar to

the resubmission of those aggravating circumstances at a

subsequent penalty hearing, under the analysis used in

Bullington v. Missouri, supra. Yet the Wyoming Supreme Court

refused to follow Bullington, see Hopkinson II, supra at 70,

and instead relied on Knapp v. Cardwell, 667 F.2d 1253

(9th Cir. 1982), stating that there is no such thing as an

acquittal from an aggravating circumstance. Hopkinson II,

supra at 71. The dissent, on the other hand, found that

the resubmission of the two aggravating circumstances violated

the Petitioner's constitutional protection against double

-13-

jeopardy:

First, in the second death-penalty

trial, the following aggravating circumstances

‘were offered fox jury consideration, and the

following answers were returned:

"1. The murder was committed by a

person under sentence of imprisonment.

Yes X NO

“2. The defendant was previously con-

victed of another murder in the first

degree.

Yes X NO

"3. The murder was committed for the

purpose of avoiding or preventing a

lawful arrest.

Yes xX No

"4. The murder was committed for pe-

cuniary gain.

Yes xX No

"5S. The murder was especially heinous,

atrocious or cruel.

Yes xX No

In the first sentencing hearing, the jury

was permitted to consider aggravating circum-

stances Nos. 3 and 4 above, and that jury found

that they were not present. Both juries were,

of course, contemplating the same facts--namely,

those facts which resulted in a verdict of guilty

of murder in the first degree, in the first phase

of the bifurcated proceeding.

Id. at 92-93.

-}4=

The dissent went on to note, "This second submission

is to twice place the defendant in jeopardy in violation

of his Constitutional rights as guaranteed by the Fifth

Amendment...." Id. at 93. The dissent found this Court's

reasoning in Bullington v. Missouri, supra, to be determinative.

This Court should therefore review this issue to

determine the applicabili.y of the double jeopardy analysis

set forth in Bullington v. Missouri, supra.

II

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE REASONING UNDERLYING

THE DECISION IN ENMUND V. FLORIDA REQUIRES

THAT THE PETITIONER'S INTENT AND CULPABILITY

BE PROVEN THROUGH COMPETENT EVIDENCE AND

NOT MERELY INFERRED FROM THE ACTS OF OTHER

UNKNOWN PERSONS.

During the penalty phase of the first trial in

Petitioner's case, the jury found as an aggravating circum-

stance that the murder of Jeff Green was especially heinous,

atrocious or cruel. After the Wyoming Supreme Court issued

its opinion in Hopkinson I, supra, this Court decided the

case of Enmund v. Florida, supra, which case discussed at

length the necessary intent requirement in order to impose

and uphold a penalty of death. Based upon this Court's

reasoning in Enmund, counsel for the Petitioner during his

second sentencing hearing argued that the “heinous, atrocious

CO) =

or cruel" aggravating circumstance could not be submitted

to the jury absent of proof that the Petitioner intended

and ordered that Jeff Green's murder be preceded by torture.

This argument was based on two factors uncontested in either

trial: (1) the Petitioner was in custody at the Federal

Correctional Institute in Lompoc, California, at the time

of the murder; and (2) the actual murderers have never been

identified, located or charged.,

In Hopkinson I, supra at 100, the Wyoming Supreme Court

decided that Wyoming had jurisdiction to try the Petitioner

as an accessory before the fact since the underlying crime

occurred within the state. In Hopkinson II, supra at 74,

however, the court indicated that the Petitioner was a

principal. Regardless of how the Petitioner is characterized,

however, there was no evidence that he ordered the precise

course of conduct which culminated in Jeff Green's gruesome

death. Although this was argued to the Wyoming Supreme Court

in Hopkinson II, the court concluded that the "heinous,

atrocious or cruel” aggravating circumstance had been properly

submitted to and found by the jury. The court made a sweeping

statement that there was sufficient evidence of the Petitioner's

intent to order the torture-murder, without ever enumerating

what specific facts supported that conclusion.

-16-

C) (*

The dissent disagreed with the majority's conclusion

on this issue, and discussed at length the requirement, under

Enmund, that the question of the accused's intent or

culpability be satisfactorily resolved before individual

aggravating circumstances might be submitted to the jury.

The dissent noted that without such a requirement, the

"heinous, atrocious or cruel" aggravating circumstances

would be subject to arbitrary and capricious application

in direct violation of this Court's landmark decision in

Furman v. Georgia, 408 U.S. 238,.92 S.Ct. 2726, 33 L.Ed.2d

346 (1972), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d

164. Hopkinson II, supra at 94 (Rose, J. dissenting).

(T]he law requires that, in order for this

type of murder to warrant the submission of this

particular aggravating circumstance to the sentencing

authority for death-penalty deciding purposes, there

must be legally acceptable evidence capable of

establishing, beyond a reasonable doubt .. . the

fact that the defendant ordered or participated

in the torturous aspects of the killing. His

is the culpability which must be measured. .

Without such evidence, the submission of the

heinous, atrocious or cruel aggravating circum-

stance to the jury .. . is violative of the

defendant's Eighth and Fourteenth Amendment rights.

This is so because there is nothing in the words

of the controversial aggravating circumstance which

-- standing alone -- implies an inherent restraint

upon the arbitrary and capricious infliction of the

death sentence under the directive of Furman v.

Georgia . . . In fact, there is nothing in the

words "The murder was especially heinous, atrocious

or cruel" which would even imply that the defendant

o]7<

O 0

must be responsible for the torture which suggests

this type of killing.

Hopkinson II, supra at 94 (Rose, J. dissenting).

The point made by the dissent - which is the argument

presented to the lower courts and to this Court - is that

the intent/culpability requirement so meticulously outlined

in Enmund v. Florida, supra, must be part and parcel of the

"heinous, atrocious or cruel" aggravating circumstance -

there must be a requirement that the individual's own

culpability with regard to the ultimate nature of the murder

be evaluated. In effect, the "heinous, atrocious or cruel"

aggravating circumstances anticipates proof of intent as a

necessary element, both under Furman v. Georgia, supra,

and Enmund v. Florida, supra. The Petitioner requests

that this Court address this issue to determine whether

Enmund v. Florida and the Eighth and Fourteenth Amendments

require proof of intent in such a situation.

CONCLUSION

Petitioner's writ of certiorari should be granted.

R tfully = ¢

LEONARD D. MUNKER

P. O. Box 712

Cheyenne, Wyoming 82003

ATTORNEY OF RECORD FOR PETITIONER

=18-

RECEIVED

JUL 25.1983

Orrive ur tht CLERK

NO. 83 51 2 4 SUPREME CouRT. US

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MARK A. HOPKINSON,

Petitioner,

-y-

STATE OF WYOMING,

Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

COMES NOW the Petitioner, Mark A. Hopkinson, by and

through Leonard D. Munker, his state court-appointed attorney,

and a member of the Bar of the United States Supreme Court

and moves this Court pursuant to Rule 46 of the Rules of the

Supreme Court of the United States for permission to proceed

in forma pauperis in filing the attached Petition for Writ

of Certiorari.

The Petitioner, Mark A. Hopkinson, has previously

been determined to be indigent in the state courts of

Wyoming and is currently in custody at the Wyoming State

Penitentiary in Rawlins, Wyoming. An affidavit in support

of this motion is not attached, but will be provided for

purposes of this writ.

The Petitioner, Mark A. Hopkinson, therefore prays

that this motion be granted and an order entered allowing

the filing of the Petition for WA of Certiorari.

LEONARD D. MUNKER

P. O. Box 712

Cheyenne, Wyoming 82003

ATTORNEY OF RECORD FOR PETITIONER

CERTIFICATE OF SERVICE

A copy of this motion and the accompanying Petition for

Writ of Certiorari has been personally served on the Clerk of

the Wyoming Supreme Court, Rita White, at her office, Supreme

ee Building, Cheyenne, Wyoming, 82002, on this 22 day of

4 , 1983, in compliance with the opinion of the

Bat Pe Court which granted a stay pending timely

application for a writ of certiorari. Additionally, a copy

has been personally served on the Attorney General of the

State of Wyoming, A. G. McClintock, 123 Capitol Building,

Cheyenne, Wyoming, 82002, and a copy mailed to the Petitioner,

4

Mark A. Hopkinson, at the Wyoming te Penitentiary, Rawlins,

“LEONARD D. MUNKER

P. O. Box 712

Cheyenne, Wyoming 82003

ATTORNEY OF RECORD FOR PETITIONER

€) €)

IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 1983

May 27, 1983

MARK A. HOPKINSON, a/k/a

MARK ALLEN HOPKINSON,

Appellant

(Defendant),

Vv. No. 5733

THE STATE OF WYOMING,

Appellee

(Plaintiff).

me ee ee ee ee ee ee ee eet ee

Appeal from the District Court of Teton County, the Honorable

Robert B. Ranck, Judge.

Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl,

Appellate Counsel, Wyoming Public Defender Program, Cheyenne,

signed the brief on behalf of appellant. Mr. Munker appeared in

Oral argument.

Steven F. Freudenthal, Attorney General; Gerald A. Stack, Deputy

Attorney General; Bruce A. Salzburg, Senior Assistant Attorney

General; Allen C. Johnson, Senior Assistant Attorney General;

Mary B. Guthrie, Senior Assistant Attorney General; and Sharon A.

Lyman, Assistant Attorney General, signed the brief on behalf of

appellee. Edward P. Moriarity, Special Assistant Attorney

General, appeared in oral argument.

Before RAPER, THOMAS, and ROSE*, JJ., and SAWYER and McEWAN, DJJ.

RAPER, J., delivered the opinion of the court. ROSE, J., filed a

dissenting opinion.

NOTICE: This opinion is subject to formal revision

before pubFication in Pacific Reporter Second. Read-

ers are requested to notify the Clerk of the Supreme

Court, Supreme Court Building, Cheyenne, Wyoming

82002, of any typographical or other formal errors,

in order that corrections may be made before final

publication in the permanent volume.

*Chief Justice at time of oral argument.

Al

O O

RAPER, Justice.

In Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied

455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), this court

affirmed the convictions of the appellant for conspiracy and first

degree murder of four victims but reversed the death penalty sen-

tence and remanded the case to the district court for a new sen-

tencing trial by a jury to determine whether the appellant should

be sentenced to death or life imprisonment for the murder of Jeff

Green. The new trial on the death penalty issue only was held,

and as a result appellant was sentenced to death. In the appeal

now before us the issues, as formulated by the appellant, are:

"1. Whether the Wyoming death penalty pro-

visions are unconstitutional in that they

usurp the supervisory and rule-making power of

the Supreme Court and expand its jurisdiction

in violation of the Wyoming Constitution.

"2. Whether it is speculation to infer that

Mark Hopkinson intended or had knowledge of

the aggravating circumstances surrounding the

death of Jeff Green.

"3. Whether the admission into evidence of

non-statutory aggravating circumstances vio-

lated Appellant's rights to due process of

law.

"4. The proportionality argument - whether

Appellant was denied due process and equal

protection.

"5. Whether the death penalty provisions

violate Article 1, Section 15 of the Wyoming

Constitution.

"6. Whether there was any evidence of

waiver of the attorney/client privilege which

would allow an attorney to testify against a

former client in the penalty phase of a capi-

tal case.

"ae Whether reversal is required if an ag-

gravating circumstance used as a basis for im-.

nee the death penalty is found to be inval-

1 .

"8. The double jeopardy argument - whether

the consideration by the jury of evidence con-

cerning the Vehar deaths, and the submission

to the jury of those aggravating circumstances

deemed inapplicable in the first penalty hear-

pm,

f /

}

\

ing, violated Appellant's constitutional pro-

tection against double jeopardy.

"9. Whether Section 6-4-102(h)(vii) of the

1977 Wyoming Statutes is unconstitutional.

"10. Whether the trial court erred in re-

fusing Defendant's Proposed Instruction A and

in denying to the jury the opportunity to pass

on the issue of due process.

"11. Whether Appellant was afforded effec-

tive assistance of counsel.

"12. Whether the prosecution has used the

Uinta County grand jury improperly as an in-

vestigative tool.

"13. Whether Section 6-4-103 abrogated the

Plain error rule of appellate review.

"14. Whether a jury is properly involved in

resentencing ‘n a death penalty case.”

To those fourteen, we add three more issues required to be

answered by § 6-4-103(d) and (e), W.S.1977:

15. Was the sentence of death imposed under

the influence of passion, prejudice, or any

other arbitrary factor?

16. Does the evidence support the jury's

findings of aggravating circumstances

enumerated in § 6-4-102, W.S.1977 and a lack

of sufficient mitigating circumstances which

Outweigh the aggravating circumstances?

17. Was the sentence of death excessive or

disproportionate to the penalty imposed in

Similar cases, considering both the crime and

the defendant, to include a reference to those

similar cases taken into consideration? (This

is an approach different from that contem-

Plated by appellant's issue 4.)

We will affirm the death penalty imposed by the district

court.

NARRATIVE

A review of the facts surrounding the crimes of which ap-

pellant was convicted may be found in Hopkinson v. State, supra,

pp. 93-97. We will just restate them with some brevity at this

point.

As a result of litigation between appellant and his family

versus some of their neighbors over water rights and the Fort

Bridger Sewer and Water Board in Uinta County, appellant developed

a dislike for Vincent Vehar, an Evanston lawyer who represented

appellant's adversaries in those disputes. These disputes had

reached violent proportions. Appellant first tried, in 1976, to

hire for $600, Harold James Taylor to kill Vehar as he was leaving

his office, but Taylor backed out.

Appellant then turned to his friends Jeff Green and Mike

Hickey for ideas on how to get rid of Vehar. Hickey was a young

alcoholic whom the appellant knew had murdered a fifteen-year-old

girl, Kelly Wyckhuyse. The appellant had long discussions with

Green on how to get rid of Vehar.

During this planning period, appellant engaged Green to drive

to Arizona to plant a bomb in the automobile of one Mariscal by

way of a persuasive measure to force payment of money allegedly

owed by Mariscal to appellant. Green, while enroute to Arizona,

was caught speeding in Utah. When arrested on April 4, 1977, he

was driving appellant's Lincoln Continental Mark IV and the bomb

was discovered. Appellant and Hickey drove to Utah where they

bailed Green out of jail. Since Green was hot, appellant no

longer discussed with him plans to kill Vehar.

Thereafter appellant promised Hickey $2,000 plus expenses and

help in covering up Hickey's murder of a young girl by the name of

Wyckhuyse, to kill Vehar. After much scheming on the method, it

was decided that the best way was to toss a bomb through the base-

ment window of the Vehar residence in Evanston.

Appellant received notice in early August 1977, that his

deposition in the sewer board's lawsuit would be taken on August

9, 1977. On August 6, appellant ordered Hickey to blow up the

Vehar home that night; Hickey did. Vehar, his wife and one son

were killed by the explosion--another son was seriously injured.

Hickey and a Jamey Hysell, previous to the Vehar bombing, had

plotted together to kill the Wyckhuyse girl because she had impli-

cated Hysell on a marijuana charge. Hickey was to pick her up and

then Hysell was to meet them ir an isolated spot and together they

would kill her. After Hickey picked her up and drove to the ap-

pointed place, he told her their plan. However, Hysell did not

show up, and Hickey, having revealed their intentions, went ahead

and killed her by hitting her on the head with a rock. He cut out

her privates as proof of her death to show Hysell and buried the

rest of her body.

After the Vehar bombing, Hickey went to California. While

Hickey was gone, Hysell was picked up by police for questioning

x

about some larcenies. Hysell, by way of distraction from his own

crimes, informed on Hickey by disclosing the Wyckhuyse murder and

took authorities to the grave site, previously pointed out to him

by Hickey. The body was recovered. After questioning, Hickey was

charged with the girl's murder.

In order to rescue Hickey and avoid the conviction of the

Vehar murders, appellant, Jeff Green and Hickey concocted stories

which pointed to Hysell. Charges of the Wyckhuyse murder against

Hickey were dropped and Hysell was charged. During Hysell's

trial, Jeff Green broke down. He implicated appellant and Hickey

in the Vehar bombing, confessed that his testimony incriminating

Hysell was not the truth and that Hickey had murdered the

Wyckhuyse girl. Green's testimony led to dismissal of the charges

against Hysell and extensive media publicity. Appellant promised

Green's sister that he would get Jeff for that.

In March 1979, appellant and Hickey were tried in the United

States District Court on federal charges relating to transporta-

tion and possession of explosives arising out of Green's aborted

attempt to place a bomb in Mariscal's car. As an unindicted con-

Spirator, Jeff Green testified as to appellant's involvement.

Hickey was acquitted. Appellant was convicted and sentenced and

confined in a federal prison facility at Lompoc, California for

not only those offenses but also parole violation on the previous

federal drug violations. On appeal, that judgment and sentence

was affirmed after the first 1979 trial in the case now before us.

United States v. Hopkinson, 631 F.2d 665 (10th Cir. 1980), cert.

denied 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 620 (1981).

At Lompoc, appellant had unlimited access to a telephone from

which he made at least 114 calls over a period of 51 days between

April 8 and May 29, 1979. These calls were traced and, through

the testimony of the witnesses called, the State was able to es-

tablish a plan to murder Jeff Green. Appellant raised and paid to

hired killers, through a series of transactions, some $15,000. He

arranged by phone the procurement of a photo of Jeff Green cut

from a high school year book to identify Green for his murderers

whose identities to this date, if known, have not been revealed.

Some of the calls made on May 16, 17, 19, and 20 by appellant were

to mae: ee about Green's whereabouts. On the May 20th call, he

was advised that Green was dead, his mutilated body having been

found on that day. On May 21, $15,000 showed up in the account of

one of the witnesses, Kristi King. The next day a "Joe" inquired

of her whether $20,000 had showed up in her account. She refused

to have anything to do with it and protested to appellant. At ap-

pellant's request, she sent the money to appellant's brother,

Scott Hopkinson.

Hickey testified in the first trial of appellant as to appel-

lant's participation with him in the Vehar murders. In exchange

for Hickey's testimony relating to the Vehar murders, a plea bar-

gain was entered into whereby Hickey was granted complete immunity

from prosecution pertaining ‘to the Vehar murders and a plea of

~g=

second degree murder was accepted for the murder of the Wyckhuyse

girl. He was sentenced to a tecm of 20-21 years on the State of

Wyoming charge for killing Wyckhuyse, to run concurrently with a

sentence of 20 years Hickey had received on a federal charge. As

set out in Hopkinson v. State, supra, there are many more facts

Supporting the convictions of appellant. Additional facts will be

presentec during our discussion of the issues.

The new jury did not have the benefit of hearing the evidence

produced during the guilt phase. In order to appropriately deal

with the sentence phase, it was necessary that the new jury be

familiarized with most of the circumstances surrounding the vari-

ous murders, all of which bear a relationship to each other. That

was done through live testimony, introduction into evidence of

excerpts from the transcript of the first trial and exhibits.

I

Appellant's first issue is unique and asks: are the Wyo-

ming death penalty provisions unconstitutional in that they usurp

the supervisory and rule-making power of the supreme court and

expand its jurisdiction in violation of the Wyoming Constitution?

Significantly, this issue was not raised in the district court.

We will not ordinarily consider the unconstitutionality of a stat-

ute if the question is not raised in the trial court, Nickelson v.

People, Wyo., 607 P.2d 904 (1980); Knudson v. Hilzer, Wyo., 551

P.2d 680 (1976), or any constitutional question for that matter,

Nisonger v. State, Wyo., 581 P.2d 1094 (1978); Apodaca v. State,

Wyo., 571 P.2d 603 (1977), unless plain error is thereby present,

Edwards v. State, Wyo., 577 P.2d 1380 (1978). Not even all errors

of constitutional dimension justify reversal under the plain-error

doctrine which should only be applied where the error would seri-

ouSly affect the fairness, integrity, or public reputation of

judicial proceedings. Hays v. State, Wyo., 522 P.2d 1004 (1974);

Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 827, 17

L.Ed.2d 705, 24 A.L.R.3d 1065, reh. denied 386 U.S. 987, 87 S.Ct.

1283, 18 L.Ed.2d 241 (1967).

Only because this is a death penalty case do we explore the

question. This court is sensitive to its posture when it views

the carefully protected doctrine of separation of powers in the

democratic form of government which we enjoy and such as exists

nationally and in this state. Section 1, Art. 2, Wyoming Consti-

tution preserves that concept:

"The powers of the government of this state

are divided into three distinct departments:

The legislative, executive and judicial, and

no person or collection of persons charged

with the exercise of powers properly belonging

to one of these departments shall exercise any

powers properly belonging to either of the

© C)

others, except as in this constitution ex-

pressly directed or permitted."

This court has approved the proposition that the power to

determine what acts are crimes, and the punishment for prohibited

acts belongs to the legislative branch as an absolute, exclusive

and inherent power not shared with the courts. Sorenson v. State,

Wyo., 604 P.2d 1031 (1979). We have, on more than one other occa-

sion, held that punishment for crime is within the province of the

legislature. Stambaugh v. State, Wyo., 613 P.2d 1237 (1980);

Chavez v. State, Wyo., 604 P.2d 1341 (1979), cert. denied 446 U.S.

984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); Hicklin v. State,

Wyo., 535 P.2d 743, 79 A.L.R.3d 1050 (1975).

While a town ordinance was the subject matter of Town of

Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456 (1936), appeal dis-

missed 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854, reh. denied 300

U.S. 688, 57 S.Ct. 752, 81 L.Ed. 889 (1937), this court in citing

Lawton v. Steele, 152 U.S. 133, 143, 14 S.Ct. 499, 503, 38 L.Ed.

385 (1894), observed that the power of the legislature to declare

acts unlawful along with all the incidents of a criminal offense

is unlimited except insofar as it is restrained by constitutional

provisions and guarantees. Section 37, Art. 1, Wyoming Constitu-

tion declares that "(t]he State of Wyoming is an inseparable part

of the federal union, and the constitution of the United States is

the supreme law of the land."

In our previous opinion, we at length reviewed the ongoing

struggle that took place in the Supreme Court of the United States

to reach constitutionally acceptable "standards to guide and con-

trol the exercise of discretion by the sentencing authority in its

determination of the propriety of the application of the death

sentence, or the alternative of a term of life imprisonment."

Kennedy v. State, Wyo., 559 P.2d 1014 (1977), as quoted in Hopkin-

son v. State, supra at 152. The statutory scheme eventually adop-

ted by the Wyoming State Legislature and under which appellant was

sentenced was patterned after portions of the Georgia and Florida

Statutes which received approval in Gregg v. Georgia, 428 U.S.

153, 96 S.Ct. 2909, 96 S.Ct. 2971, 49 L.Ed.2d 859, reh. denied 429

U.S. 875, 97 S.Ct. 197, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976) and

Proffitt v. Plorida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913,

reh. denied 429 U.S. 875, 97 S.Ct. 197, 97 S.Ct. 198, 50 L.Ed.2d

158 (1976) respectively.1/ We approved the Wyoming system in

1/ The public defender, representing appellant in this appeal, has written

the Justices and District Judges sitting on this case asking us to consider

Proffitt v. Wainwright, 685 F.2d 1227 (llth Cir. 1982). We have considered it

as requested, but find nothing in it that will be of any assistance to appel-

lant, appellee, or to this court. That case represents one of the many proce-

dures utilized by defendants after final decisions imposing the death penalty

Hopkinson v. State, supra.

The point we make is that the Wyoming Legislature in provid-

ing for the death penalty as a sentence in the case of first de-

gree murder was “restrained by [federal] constitutional provisions

and guarantees." This necessitated incorporating into the death

penalty sentence constitutional restraints as a condition to its

availability. We do not consider that to be an encroachment upon

Our rule-making power, but only an incident to the police power of

the legislature to legislate a sentencing system.

We should briefly examine the history of rule making by this

court. Until 1947, it was apparently taken for granted that the

rules of procedure in the courts of this state would be and were

prescribed by the-legislature. There was a Code of Civil Proce-

dure, § 3-101 et seq., W.C.S.1945 and a Code of Criminal Proce-

dure, § 10-101, et seq., W.C.S.1945. In 1947 the legislature, by

ch. 53, Session Laws of Wyoming, 1947, passed an act authorizing

the Supreme Court of Wyoming to adopt rules governing practice and

procedure in all courts of this state.2/ These provisions are

of the state's highest court and the highest court in the land, the Supreme

Court of the United States, to delay and perhaps somewhere along the line find

a sympathetic ear. It is the familiar effort to frustrate final judicial de-

crees even after repeated careful judicial consideration.

The legislature of the state of Wyoming has made a good-faith effort to craft

legislation which conforms to the holdings of the United States Supreme Court

in its decisions in Proffitt and Gregg and other of its decisions dealing with

the death penalty. We have taken every care to meticulously conform to

Proffitt and Gregg and the other pertinent cases of that Court of last resort

in death cases. We accept its decisions as the standard. We rely on them and

shape our death penalty jurisprudence accordingly. Certainly there must be

somewhere some dependable solidity--some finality. Proffitt should be consid-

ered closed by the opinion and decision upon which we have placed confidence.

2/ Chapter 53, Session Laws of Wyoming 1947, provides:

"Section 1. The Supreme Court of Wyoming may from

time to time adopt, modify and repeal general rules and

forms governing pleading, practice and procedure, in

all courts of this State, for the purpose of promoting

the speedy and efficient determination of litigation

upon its merits.

“Application of Rules Adopted.

"Section 2. Such rules may govern:

o © :

now §§ 5-2-114 through 5-2-117, W.S.1977. This court, on Septem-

ber 23, 1947, did appoint the committee as provided by § 4 of the

Act to revise the rules and forms governing pleadings, practice

and procedure in the courts of this state to conform them to the

federal rules of procedure insofar as might be deemed practicable.

The committee drifted along practically inactive through depar-

tures and resignations until, on October 9, 1956, it was reacti-

vated with additional new members, including the author of this

opinion. Within the memory of some of those presently on this

court, there was opposition to giving up code practice and adopt-

ing the innovative procedures of the federal rules. Nevertheless,

on July 2, 1957, by order of this court, the Wyoming Rules of

"(a) the forms of process, writs, pleadings and mo-

tions and the subjects of parties, depositions, discov-

ery, trials, evidence, judgments, new trials, provi-

sional and final remedies and all other matters of

pleading, practice and procedure; and

"(b) any review of or other supervisory proceedings

from the judgment or decision of any court, board, of-

ficer, or commission when such review is authorized by

law.

"Such rules shall neither abridge, enlarge nor modify

the substantive rights of any person nor the jurisdic-

tion of any of the courts nor change the provisions of

any statute of limitations.

“Effective Date.

"Section 3. Upon the adoption of any rule or form the

Supreme Court shall enter it in its proceedings and

shall fix the date upon which such rule or form shall

become effective but such effective date shall be at

least sixty days after notice thereof has been pub-

lished by the Supreme Court in such publication as it

may designate. From and after the effective date of

any such rule or form all laws in conflict therewith

shall be of no further force or effect.

“Advisory Committee.

"Section 4. The Supreme Court shall appoint an Advis-

ory Committee to make recommendations from time to time

with respect to pleading, practice and procedure. Such

Committee shall hold hearings upon proposed rules in

such manner and upon such notice as the Supreme Court

prescribes and report to the Court from time to time

such recomemndations [sic] as it deems proper."

€) ‘~

Civil Procedure, patterned after the Federal Rules of Civil Proce-

dure, were adopted. Statutes in conflict listed by section number

were declared superseded by Rule 87, W.R.C.P.

Thereafter a subcommittee of the permanent rules committee

was appointed and on November 21, 1968, by order of this court,

the Wyoming Rules of Criminal Procedure, patterned after the

Federal Rules of Criminal Procedure, were adopted. Statutes in

conflict listed by section number were, by Rule 56, W.R.Cr.P.,

declared superseded. This court has never previously considered,

nor has it been inclined to decide, what would be no more than an

academic question as to whether it had the inherent right to adopt

rules of procedure without the blessing of the legislature.

It should be noted that § 2 of the 1947 Act, now § 5-2-115,

W.S.1977, provides that “"[sJuch rules shall neither abridge, en-

large nor modify the substantive rights of any person nor the jur-

isdiction of any of the courts nor change the provisions of any

Statute of limitations." This court has recognized that it is not

always easy to distinguish between procedure and substance in that

these terms are not mathematically exact. In State, ex rel.

Frederick v. District Court of Fifth Judicial District In and For

County of Big Horn, Wyo., 399 P.2d 583, 585, 12 A.L.R.3d 1 (1965),

this court recognized that substantive law includes those princi-

ples which fix and declare the primary rights of individuals as

respect their persons and property, and procedure provides the

method of enforcing those rights created by substantive law. We

hold that the system of determining whether the penalty for first

degree murder shall be death or life imprisonment is something

more than procedure and is substantive law circumscribing the per-

sonal rights of the accused as pronounced by the Supreme Court of

the United States by which the legislature is bound.

The appellant asserts that the legislature has in some way

encroached upon powers belonging to the Wyoming Supreme Court in

violation of § 1, Art. 2, Wyoming Constitution, supra, because of

the enactment of §§ 6-4-102(g) and 6-4-103, W.S.1977.3/ For

3/ Section 6-4-102(g), W.S.1977, provides:

"If the trial court is reversed on appeal because of

error only in the presentence hearing, the new trial

wh.ch may be ordered shall apply only to the issue of

punishment ."

Section 6-4-103, W.S.1977, provides:

"(Ca) The judgment of conviction and sentence of death

is subject to automatic review by the supreme court of

Wyoming within sixty (60) days after certification by

23 c

‘

several reasons we will hold that we do not construe the action of

the legislature as exercising any powers belonging to this court.

the sentencing court of the entire record, unless the

time is extended for an additional period not to exceed

thirty y (30) days “by the supreme court for § good cause

shown. Such review by the supreme court shall have

priority over all other cases.

"(b) Within ten (10) days after receiving the tran-

script, the clerk of the trial court shall transmit the

entire record and transcript to the supreme court of

Wyoming together with a notice prepared by the clerk

and a report prepared by the trial judge. The notice

shall set forth the title and docket number of the

case, the name of the defendant and the name and ad-

dress of his attorney, a statement of the judgment, the

offense and punishment prescribed. The report shall be

in the form of a standard questionnaire prepared and

supplied by the supreme court of Wyoming.

"(c) The supreme court of Wyoming shall consider the

punishment as well as any errors enumerated by way of

aypveal.

"(d) With regard to the sentence, the court shall

determine if:

"(i) The sentence of death was imposed under the

influence of passion, prejudice or any other arbi-

trary factor;

"(ii) The evidence supports the jury's or judge's

finding of an aggravating circumstance as enumerated

in W.S. 6-54.2 [§$ 6-4-102] and a lack of sufficient

mitigating circumstances which outweigh the aggra-

vating circumstances;

"(iii) The sentence of death is excessive or dis-

proportionate to the . penalty ~ imposed in ‘similar

cases, considerin ng both the crime and the defend-

ant,

"Ce) The court shall include in its decision »

reference to those similar cases which it took into

Ss ’ i . : ow ’

consideration. In addition to its authority regarding

correction of errors, the court, with regard cto review

of death sentences, may:

"(i) Affirm the sentence of death;

-1@«

With respect to the automatic appeal, we find from the record

that the appellant filed a timeiy notice of appeal (R.20) pursuant

to Rules 2.01 and 2.02, Wyoming Rules of Appellate Procedure 4/,

and did not depend upon the automatic appeal feature of

§ 6-4-103(a), supra fn.3. Nor do the provisions of § 6-4-103(e)

(i), (ii), and (iii), supra fn.3, vary from Rule 1.04, W.R.A.P.

which provides:

"A judgment rendered or final order made by

"(ii) Set the sentence aside and impose a sentence

of life imprisonment; or

"(iii) Set the sentence aside and remand the case

for resentencing by the trial judge based on the

record and argument of counsel." (Emphasis

added. )

4/ Rule 2.01, W.R.A.P., in pertinent part, provides:

"An appeal, civil or criminal, permitted by law from

a district court to the Supreme Court, shall be taken

by filing a notice of appeal with the clerk of the dis-

trict court within fifteen (15) days from entry of the

judgment or final order appealed from and concurrently

serving the same in accordance with the provisions of

Rule 5, W.R.C.P., wnless a different time is provided

by law * * *,

xkkekekkK &

"Concurrently with filing the notice of appeal, the

appellant shall order and either arrange for the pay-

ment of a transcript of the portions of the evidence

deemed necessary for the appeal or make application for

payment thereof as provided in Rule 10.6, W.R.A.P.; a

certificate of compliance therewith shall be filed in

the case or endorsed upon the notice of appeal. If an

appeal has not been docketed, the parties, with the

approval of the district court, may dismiss the appeal

by stipulation filed in that court, or that court may

dismiss the appeal upon motion and notice by the appel-

lant."

Rule 2.02, W.R.A.P., provides:

“The notice of appeal shall specify the parties tak-

ing the appeal; shall designate the judgment or final

order or part thereof appealed from; and shall name the

court to which the appeal is taken."

=%ta

e CO

‘

_

a district court may be reversed in whole or

in part, vacated or modified by the Supreme

Court Or errors appearing on the record."

(Emphasis added. )

And, of course, in the absence of error, we may always affirm. It

is nothing new to reverse and remand for further proceedings a

part of the final judgment of a district court where it is divisi-

ble, as here. Sorenson v. State, supra, 604 P.2d 1031; Martinez

v. State, 80 Wyo. 325, 342 P.2d 227 (1959).

When this court is presented with a constitutionally based

challenge to a statute, it presumes the statute constitutional.

Any doubt must be resolved in favor of constitutionality. Before

we strike it down we must find that it clearly violates some con-

Stitutional principle, state or federal. State v. Laude, Wyo.,

654 P.2d 1223 (1982); Thomson v. Wyoming In-Stream Flow Committee,

Wyo., 651 P.2d 778 (1982); Nickelson v. People, supra, 607 P.2d

904; Washakie County School District No. One v. Herschler, Wyo.,

606 P.2d 310, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d

28 (1980); Sanchez v. State, Wyo., 567 P.2d 270 (1977). The

Supreme Court of the United States has said that, even when a ser-

ious doubt of constitutionality is present, courts should “ascer-

tain whether a construction of the statute is fairly possible by

which the question may be avoided." Crowell v. Benson, 285 U.S.

22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932).

The most important reason for holding that §§ 6-4-102(g) and

6-4-103 are constitutional is that they are an important and

necessary part of the total sentencing structure. In that regard,

the opinion of Justices Stewart, Powell and Stevens in Gregg v.

Georgia, supra, 428 U.S. at 198, in announcing the judgment of the

Court said:

"As an important additional safeguard

against arbitrariness and caprice, the Georgia

statutory scheme provides for automatic appeal

of all death sentences to the State's Supreme

Court. That court is required by statute to

review each sentence of death and determine

whether it was imposed under the influence of

passion or prejudice, whether the evidence

Supports the jury's finding of a statutory

aggravating circumstance, and whether the sen-

tence is disproportionate compared to those

sentences imposed in similar cases.

§ 27-2537(c) (Supp.1975).

"In short, Georgia's new sentencing proce-

dures require as a prerequisite to the imposi-

tion of the death penalty, specific jury find-

ings as to the circumstances of the crime or

the character of the defendant. Moreover, to

guard further against a situation comparable

-12-

O

to that presented in Furman [408 U.S. 238, 92

S.Ct. 2726, 33 L.Ed.2d 346 (1972)}), the Su-

preme Court of Georgia compares each death

sentence with the sentences imposed on simi-

larly situated defendants to ensure that the

sentence of death in a particular case is not

disproportionate. On their face these proce-

dures seem to satisfy the concerns of Furman.

No longer should there be 'no meaningful basis

for distinguishing the few cases in which [the

death penalty] is imposed from the many cases

in which it is not." 408 U.S., at 313 (WHITE,

J., concurring).”

Again, 428 U.S. at page 204, the Court explained:

"Finally, the Georgia statute has an addi-

tional provision designed to assure that the

death penalty will not be imposed on a capri-

ciously selected group of convicted defend-

ants. The new sentencing procedures require

that the State Supreme Court review every

death sentence to determine whether it was

imposed under the influence of passion,

prejudice, or any other arbitrary factor,

whether the evidence supports the findings of

a statutory aggravating circumstance, and

‘{w]hether the sentence of death is excessive

or disproportionate to the penalty imposed in

similar cases, considering both the crime and

the defendant.' § 27-2537(c)(3) (Supp.

1975). * # #°S/

Then at page 206, the Court went on to say:

"The provision for appellate review in the

Georgia capital-sentencing system serves as a

check against the random or arbitrary imposi-

tion of the death penalty. In particular, the

proportionality review substantially elimin-

ates the possibility that a person will be

sentenced to die by the action of an aberrant

jury. If a time comes when juries generally

do not impose the death sentence in a certain

kind of murder case, the appellate review pro-

cedures assure that no defendant convicted

5/

Fn.56 of Gregg explains that the Georgia statute, § 27-2537(e)

(Supp.

1975) requires the supreme court to specify in its opinion the similar cases

which it took into consideration, just as required by § 6-4-103(d)(iii) and

(e), W.S.1977, fn.3, supra.

=136

a

S &

under such circumstances will suffer a sen-

tence of death."

Finally, at page 207, the Court said:

"* * * In addition, the review function of

the Supreme Court of Georgia affords addition-

al assurance that the concerns that prompted

our decision in Furman are not present to any

Significant degree in the Georgia procedure

applied here.”

The concurring opinion of Justice White, with whom Chief Jus-

tice Burger and Justice Rehnquist joined, also stressed the state

Supreme court review of the death penalty as "“[a]n important as-

pect of the new Georgia legislative scheme * * *," (Emphasis

added. )

In Proffitt v. Florida, supra, 428 U.S. 242, 96 S.Ct. 2960,

49 L.Ed.2d 913, the Court, in approving the Florida death penalty

statutes, called attention to the provision § 921.141(4),

F.S.A. 6/, by stating that this automatic review provision is

designed to assure that the death penalty will not be imposed on a

capriciously selected group of convicted defendants. While the

provision is not structured in the same fashion as that of

Georgia, it was held by the United States Supreme Court that the

manner in which the Florida Supreme Court reviews each death

sentence does ensure similar results in similar cases, citing

State v. Dixon, Fla., 283 So.2d 1, 10 (1973).

The certiorari petition in Proffitt asserted that such a

skimpy provision made the role of the state supreme court neces-

sarily subjective and unpredictable. The United States Supreme

Court responded to that by stating:

"*x * * While it may be true that that court

has not chosen to formulate a rigid objective

test as its standard of review for all cases,

it does not follow that the appellate review

6/ Section 921.141(4), F.S.A. (Supp.1982), provides:

"The judgment of conviction and sentence of death

shall be subject to automatic review by the Supreme

Court of Florida within sixty (60) days after certifi-

cation by the sentencing court of the entire record,

unless the time is exterded for an additional period

not to exceed thirty (30) days by the Supreme Court for

good cause shown. Such review by the Supreme Court

shall have priority over all other cases and shall be

heard in accordance with rules promulgated by the

Supreme Court."

of Qe

process is ineffective or arbitrary. In fact,

it is apparent that the Florida court has

undertaken responsibly to perform its function

of death sentence review with a maximum of

rationality and consistency. For example, it

has several times compared the circumstances

of a case under review with those of previous

cases in which it has assessed the imposition

of death sentences, See, e.g., Alford v.

State, 307 So.2d, at 445; Alvord v. State, 322

So.2d, at 540-541. By following this

procedure the Florida court has in effect

adopted the type of proportionality review

mandated by the Georgia statute. Cf. Gregg v.

Georgia, ante, at 204-206. And any suggestion

that the Florida court engages in only cursory

or rubber-stamp review of death penalty cases

is totally controverted by the fact that it

has vacated over one-third of the death sen-

tences that have come before it. * * *" Id.,

428 U.S. at 258-259.

We conclude and hold that the action of the Wyoming State

Legislature in specifying the nature of our review does not pur-

port to take away any of our powers or jurisdiction. The judicial

function of making the requisite determinations on review are left

to this court. It would be something else if the legislature en-

acted a statute whereby the legislature would review the trial

proceedings; it then would be exercising powers properly belonging

to the courts. We consider the challenged statutory sections to

be a proper exercise of legislative power to provide for the sen-

tencing of convicted first degree murderers. This does not mean

that under the Wyoming Rules of Criminal Procedure we could not

conduct the same review as that directed by the legislature. Tf

we disregarded the legislative directions, we would still be re-

quired to conduct a review within the standards set out in Gregg

and Proffitt, as did the Supreme Court of Florida.

We will not reconsider the holding in Hopkinson v. State,

Supra, with respect to the admissibility of hearsay evidence. We

exhaustively discussed the subject in its applicability to not

only the guilt but the penalty phase, 632 P.2d 79 at Part VIII,

pp. 127-137. There is no need for repetition; but, as a reminder,

§ 6-4-102(c), W.S.1977, pertaining to the sentencing hearing

provides:

"The judge or jury shall hear evidence as to

any matter that the court deems relevant to a

determination of the sentence, and shall in-

Clude matters relating to any of the aggravat-

ing or mitigating circumstances enumerated in

subsections (h) and (j) of this section. Any

evidence which the court deems to have proba-

tive value may be received regardless of its

s S

admissibility under the exclusionary rules of

evidence, provided the defendant is accorded a

fair opportunity to rebut any hearsay state-

ments, and provided further that only such

evidence in aggravation as the state has made

known to the defendant or his counsel prior to

his trial shall be admissible.”

We consider this part of the sentencing conditions within the pow-

er and authority of the legislature. We find by the record that

extensive notice of the evidence, whether hearsay or not, the

prosecution proposed to produce at the sentencing hearing was

given by the State to the appellant. We also find that for the

most part it was admissible under the exceptions to the hearsay

rule and not excluded by those rules, all as set out in our previ-

ous opinion.

As said in Gregg, 428 U.S. at 189-190:

"It is certainly not a novel proposition

that discretion in the area of sentencing be

exercised in an informed manner. We have long

recognized that '‘'[fJlor the determination of

sentences, justice generally requires * * *

that there be taken into account the circum-

Stances of the offense together with the char-

acter and propensities of the offender.'

Pennsylvania ex rel. Sullivan v. Ashe, 302

o.8. Si, SS. (¥9s7). See also Williams v.

Oklahoma, 358 U.S. 576, 585 (1959); Williams

v. New York, 337 U.S., at 247. Otherwise,

‘the system cannot function in a consistent

and a rational manner.' American Bar Associa-

tion Project on Standards for Criminal Jus-

tice, Sentencing Alternatives and Procedures

§ 4.1(a), Commentary, p.201 (App.Draft 1968).

See also President's Commission on Law En-

forcement and Administration of Justice, The

Challenge of Crime in a Free Society 144

(1967); ALI, Model Penal Code § 7.07, Comment

1, pp. 52-53 (Tent. Draft No. 2, 1954).

"The cited studies assumed that the trial

judge would be the sentencing authority. If

an experienced trial judge, who daily faces

the difficult task of imposing sentences, has

“ a vital need for accurate information about a

defendant and the crime he committed in order

to be able to impose a rational sentence in

the typical criminal case, then accurate sen-

tencing information is an indispensable pre-

requisite to a reasoned determination of whe-

ther a defendant shall live or die by a jury

=<) =

of people who may never before have made a

sentencing decision.

"Jury sentencing has been considered desir-

able in capital cases in order ‘to maintain a

link between contemporary community values and

the penal system--a link without which the de-

termination of punishment could hardly reflect

"the evolving standards of decency that mark

the progress of a maturing society."*" * * *"

(Footnotes omitted. )

It was essential that the jury have the information it received as

a part of its sentencing function under the conditions of the sen-

tencing structure which we hold was a proper legislative power.

II

As to his second issue presented, appellant asserts that

"* * * it is speculation to infer that Mark Hopkinson intended or

had knowledge of the aggravating circumstances surrounding the

death of Jeff Green." He argues that it is difficult to conceive

the sufficiency of evidence in substantial quantum to determine:

one, the murder was committed for the purpose of avoiding or pre-

venting a lawful arrest; two, the murder was committed for pecuni-

ary gain; and three, the murder was especially heinous, atrocious

or cruel, all as found by the jury.7/ These are three out of

the five aggravating circumstances the jury found to exist, The

jury was instructed that aggravating circumstances must be found

7/ Section 6-4-102, W.S.1977, in part reads:

"(e) The death penalty shall not be imposed wnless

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. 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.

x*ekekek &

"(h) Aggravating circumstances are limited to the

following:

"(i) The murder was committed by a person under

atF=

beyond a reasonable doubt. It

sentence of imprisonment;

"(ii) The defendant was previously convicted of

another murder in the first degree or a felony in-

volving the use or threat of violence to the per-

son;

"(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 commit-

ting or attempting to commit, any robbery, rape,

sexual assault, arson, burglary, kidnapping or air-

craft 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, atro-

cious 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. [Subsection (h)(viii) was amended 4/1/82.]"

The jury's verdict found the aggravating circumstances to be:

"We, the jury, empaneled and sworn in the above en-

titled case, do, upon our oaths, find as follows:

"PART I: AGGRAVATING CIRCUMSTANCES

tence of imprisonment, Yes X No

The murder was committed by a person under sen-

The defendant was previously convicted of another

murder in the first degree. Yes X No

=)

is observed that the trial judge

heeded the admonition of our opinion in the first appeal that any

statutory aggravating circumstance unsupported by evidence should

not be submitted for consideration by the jury, i.e.,

§ 6-4-102(h) (iii), (iv), and (viii), fn.7.

The claim of appellant under this issue is that the evidence

is insufficient under the standard set by Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied 444 U.S. 890,

100 S.ct. 195, 62 L.Ed.2d 126 (1979). The standard is there ar-

ticulated to be:

"After Winship [In re Winship, 397 U.S. 358,

90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)} the

critical inquiry on review of the sufficiency

of the evidence to support a criminal convic-

tion must be not simply to determine whether

the jury was properly instructed, but to de-

termine whether the record evidence could rea-

sonably support a finding of guilt beyond a

reasonable doubt. But this inquiry does not

require a court to ‘ask itself whether it be-

lieves that the evidence at the trial estab-

lished guilt beyond a _ reasonable doubt.'

Woodby v. INS, 385 U.S., at 282, 87 S.Ct., at

486 (emphasis added). Instead, the relevant

question is whether, after viewing the evi-

dence in the light most favorable to the pros-

ecution, any rational trier of fact could have

found the essential elements of the crime be-

yond a reasonable doubt. See Johnson v.

Louisiana, 406 U.S., at 362, 92 S.Ct., at

1624-1625. This familiar standard gives full

play to the responsibility of the trier of

fact fairly to resolve conflicts in the testi-

mony, to weigh the evidence, and to draw rea-

sonable inferences from basic facts to ulti-

mate facts. Once a defendant has been found

"3. The murder was committed for the purpose of avoid-

ing or preventing a lawful arrest. Yes X No

"4. The murder was committed for pecuniary gain.

Yes X No

"5. The murder was especially heinous, atrocious or

cruel. Yes X_ No

"(If you have answered all of the above 'no' sign the

Verdict and call the bailiff. If you have answered any

of the above ‘yes' go to Part II.) [Part II of the

verdict form covers mitigating circumstances which, in

this opinion, we will cover under Part XVI.]"

-19<

guilty of the crime charged, the factfinder's

role as weigher of the evidence is preserved

through a legal conclusion that upon judicial

review all of the evidence is to be considered

in the light most favorable to the prosecu-

tion. The criterion thus impinges upon ‘jury'

discretion only to the extent necessary to

Guarantee the fundamental protection of due

process of law." (Emphasis in original and

footnotes omitted.) 339 68. Ct. at 2788-

2789.8/

Applying that standard, then, to the three aggravating circum-

Stances, we find them more than supported by the evidence.

Preliminary to a short review of the evidence, we first must

dispose of any question about Enmund v. Florida, U.S. __,_102

S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In that case, the United

States Supreme Court held that under the circumstances there, the

imposition of the death penalty was inconsistent with the Eighth

and Fourteenth Amendments. In that case the aider and abettor to

a felony (robbery) did not himself kill, attempt to kill or intend

that a killing take place or that lethal force be employed in the

commission of a robbery. He was a lookout and driver of the geta-

way car several hundred yards from where the crime was committed

and where the killing was done by accomplices.

The case before us is considerably different from the Enmund

facts. In the appeal before us the evidence is that the first

degree murder of Green was planned by appellant, he intended that

the killing take place, he arranged for hired triggermen to do the

execution and intended that torture and lethal force be utilized.

From the beginning the underlying felony is premeditated murder.

The rule of Enmund, therefore, for our purposes, is that in order

to justify the death penalty for one who does not do the actual

killing, there must be present an intent that a killing will take

place or that lethal force will be employed. The jury found such

intent, and we cannot disagree.

Using the standard heretofore set out from Jackson, supra,

there was substantial evidence that the murder of Jeff Green was

for the purpose of avoiding or preventing a lawful arrest. The

8/ The Wyoming Supreme Court follows the same standard on review in deter-

mining whether there is substantial evidence to justify the jury's finding of

guilt. Richter v. State, Wyo., 642 P.2d 1269 (1982); Russell v. State, Wyo.,

583 P.2d 690 (1978). We apply this to both direct and circumstantial evidence.

This court adopted the rule of Holland v. United States, 348 U.S. 121, 75 S.Ct.

127, 99 L.Ed. 150 (1954), reh. denied 348 U.S. 932, 75 S.Ct. 334, 99 L.Ed. 731

(1955), referred to in fn.9 of Jackson, supra, 99 S.Ct. at 2788, in Blakely v.

State, Wyo., 542 P.2d 857, 861 (1975).

-20-

testimony of Green in the aborted Mariscal bombing case was re-

counted. In that episode Green was a key witness who provided

evidence of some of the circumstances connecting the appellant

with the dynamite used in the bombing of the Vehar home. The bomb

he was carrying when arrested in Utah had appellant's fingerprints

on it and Green had testified about it and disclosed to investiga-

tors where the bomb had come from. He had knowledge of appel-

lant's arrangement with Hickey whereby the later would toss a bomb

into the Vehar home and thus was able to and did materially assist

in untangling what was a long-time mystery as to the murderer or

murderers of the Vehars. He may have even been the one holding

the key to unlock the indispensable missing parts. There was evi-

dence of threats made by appellant on the life of Green. The

telephone activity by appellant to acquire a picture of Green,

along with keeping track of Green's activities, was in evidence,

all of which took place shortly before Green's scheduled appear-

ance before a grand jury investigating the Vehar murders. The

climax was, of course, the murder of Green and the condition of

his body evidencing a methodical manner in which it was accom-

plished, designed to elicit information of what Green knew, what

he would testify about to the grand jury, and culminating in a

gunshot wound into his head thereby silencing him from testifying.

This line of direct and circumstantial evidence established for

the jury beyond a reasonable doubt the aggravating circumstance of

murder to avoid or prevent a lawful arrest. A rational juror

could come to that conclusion when viewing the evidence in the

light most favorable to the prosecution.

There was substantial evidence present from the testimony of

Kristi King revealing the attempts to use her to transfer $15,000

actually placed into her possession from and to various people.

This would establish for the jury beyond a reasonable doubt within

the Jackson standards that the murder was committed for pecuniary

gain, appellant furnishing the funds to hired killers in exchange

for Green's torture and death.

The extensive evidence relating to the aggravating circum-

Stance that the murder was especially atrocious, heinous and

cruel, is of the most convincing nature. The evidence of threats

against Green and others, the evidence of the character and dispo-

sition of appellant to take care of persons with violence, weapons

and explosives, and his inquiry about the availability of welding

equipment, laid a foundation for the capability of appellant to

cause the horrible torture of Green which took place. The photo-

graphs of Green's body are expressive even beyond the words of the

testimony of the pathologist who detailed for the jury the various

brutal wounds inflicted before Green's being put to death.

The testimony was that there were some 140 burns on the body

of Green such as would be caused by cigarette burns and hot metal,

thus connecting the welder which could be used as a heating tool.

One of Green's eyes was burned out, there was an ugly burn behind

One of Green's ears, explained by the pathologist to be an espe-

Cially sensitive area. There were cuts on the throat and chest.

-21-

There were bruises on his body consistent with having been caused

by kicking with a boot or by striking with a baseball bat or ham-

mer. There were abrasions on Green's body probably caused by his

being bound by ropes and resulting from an agonizing struggle

during the torture.

This evidence explained this to have been consciousless or

pitiless far beyond the normal murder, Hopkinson v. State, supra,

which crime, of course by its nature, is possessed of some of the

elements of being heinous, atrocious and cruel. But this one was

"especially" so within the meaning of the statutory language. Any

rational juror could reach this conclusion beyond a reasonable

doubt when viewing the evidence in the light most favorable to the

prosecution.

II!

The appellant claims that the admission into evidence of

non-statutory aggravating circumstances violated appellant's

rights to due process of law. Section 6-4-102(h), W.S.1977,

supra, fn.7, provides that "[a]ggravating circumstances are limit-

ed to the following." The allegedly non-statutory aggravating

circumstances as conceived by appellant are contained in various

remarks made by the prosecutor in his opening statement that the

death penalty is justified on the basis of community survival and

that evidence woule be introduced to show appellant's “propensity

for violence.” The argument goes on to maintain that evidence was

introduced to demonstrate such propensity and that finally in

closing argument, the prosecutor reiterated the need for communi-

ty survival and appellant's propensity for violence.

This court observed in the first Hopkinson opinion that

§ 6-4-102(h), supra, fn.7, specifically limits the aggravating

circumstances to those listed. 632 P.2d at 157. It was also

there recognized that we must not compromise the weighing process

between permissible aggravating circumstances and mitigating cir-

cumstances. The scales must not be tipped by impermissible fac-

tors leaving us in a quandary as to what the jury would have done

had impermissible factors not been present. 632 P.2d at 170-172.

The appellant cites us to Brown v. State, Pla., 381 So.2d 690

(1980) .9/ We accept the proposition that improper aggravating

9/ Shepardizing discloses that certiorari was denied by the Supreme Court of

the United States on January 19, 1981, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d

847, with Justices Brennan and Marshall dissenting, adhering to their views

that the death penalty is cruel and unusual punishment prohibited by the Eighth

and Fourteenth Amendments. A writ of habeas corpus was denied Brown in Brown

v. Wainwright, Fla., 392 So.2d 1327 (1981). The death penalty stands.

-22-

circumstances cannot go into the calculus of the decision of the

sentencing authority. In Brown, it is interesting to see that the

Florida Supreme Court did not reverse the death sentence though an

improper aggravating circumstance was present. The court reasoned

that ample other statutory aggravating circumstances existed to

convince it that the weighing process was not endangered even in

the presence of a mitigating circumstance (age--23 years--of the

felon). The court further held that it must test for reasoned

judgment in the sentencing process, rather than “a mechanical

tabulation to arrive at a net sum." It is noted that the Florida

Statute, § 921.141(5), F.S.A. (Supp.1982), opens with: "Aggravat-

ing circumstances shall be limited to the following," only slight-

ly different than that of Wyoming's § 6-4-102(h), supra, fn.7.

The other case cited to us by appellant is Henry v. Wain-

wright, 661 F.2d 56 (5th Cir. 1981). There, on an application for

writ of habeas corpus, the situation was that the Florida trial

court in a death case had received evidence of a non-statutory

aggravating circumstance and instructed the jury, in pertinent

part:

"In considering aggravating circumstances,

you shall consider all factors which are ag-

gravating, including, but not limited to, the

following * * *,"

The Florida Supreme Court affirmed Henry's conviction and sen-

tenve.10/ The federal court disagreed with the Florida Supreme

Court and held that the jury instruction contravened Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied

409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972), constitutionally

directing that jury discretion in capital sentencing be suffi-

ciently guided so as to avoid arbitrary and selective imposition

of the death penalty. Failure of guidance increased the risk that

the death penalty would be imposed in an arbitrary and capricious

manner. 11/

10/ Henry v. State, Fla., 328 So.2d 430, cert. denied 429 U.S. 951, 97 S.Ct.

370, 50 L.Ed.2d 319, reh. denied 429 U.S. 1124, 97 S.Ct. 1164, 51 L.Ed.2d 576

(1976). That court also denied a motion to vacate the judgment and death

sentence. Henry v. State, Fla., 377 So.2d 692 (1979).

1l/ The status of the federal case of Wainwright v. Henry is most uncertain.

Certiorari was granted, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (June 14, 1982), the

judgment of the court of appeals was vacated and the case remanded for further

consideration in the light of Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71

L.Ed.2d 783 (1982). Om remand, the circuit court considered Engle, found it

made no difference and again vacated Florida's death sentence. Henry v.

Wainwright, 686 F.2d 311 (5th Cir. 1982). A petition for certiorari is now

23

However, the same instruction as that given in Henry was not

given in this case. The trial judge in the case before us

instructed the jury that the aggravating circumstances "in this

case are limited to the following.” (Emphasis added.) See fn.7

for the jury's verdict form. In that connection the trial judge

gave jury Instruction No. 7:

"If you do not find that one or more suffi-

cient aggravating circumstances exist as pre-

viously instructed, you should sign the ver-

dict recommending life imprisonment.

"If, on the other hand, you find one or more

of the sufficient aggravating circumstances

set forth in these instructions, then in order

to find that the death penalty is justified,

you must find that the aggravating circum-

Stances outweigh any mitigating circumstances

found to exist.

"In making this determination you must use

your reasoned judgment. You must weigh the

mitigating circumstances against the aggravat-

ing circumstances and in so doing to consider

the following:

"1, No numerical weight is assigned to

any of the mitigating or aggravating cir-

cumstances.

"2. The enumeration of the aggravating

and mitigating circumstances does not indi-

cate the weight to be given to any such

circumstance.

"3. One mitigating circumstance may be of

such a nature as to outweigh one or more

aggravating circumstance.

"4, One aggravating circumstance may be

of such a nature as to outweigh one or more

mitigating circumstance.”

The instructions forcefully and with clarity limited the jury to

only a consideration of the aggravating circumstances listed, and

there is no indication that they found any other aggravating cir-

pending in the Supreme Court of the United States, filed 11/17/82, No. 82-840,

51 L.W. 3421. We thus see the federal system in conflict with itself.

-24-

cumstance. The instructions clearly channeled the jury into only

a consideration of permissible aggravating circumstances.

The appellant's objection goes to the opening statement and

the closing argument of the prosecutor. The jury, through In-

Struction No. 1, was warned that any statement made by counsel in

its presence concerning the facts of the case must not be regarded

as evidence. When objections were made by appellant's counsel

during the course of the opening statement and argument of the

counsel, the jury was again reminded of this admonition. Further,

the jury was directed, through Instruction No. 2, that the case be

governed solely by the evidence in determining the questions be-

fore it.

There was much evidence of threats made by the appellant to

various persons against Green prior to his scheduled grand jury

appearance; there was evidence of the threats made by the appel-

lant against members of the sewer board; and there was evidence of

threats made by appellant against Vincent Vehar as a result of the

sewer board litigation. All of this evidence was part and parcel

of the total picture. All of it was introductory and relevant to

the eventual murder of Jeff Green to avoid or prevent appellant's

arrest, aS well as to the motive of appellant in engineering the

especially atrocious, hcinous and cruel aggravating circumstances.

As so emphatically exlained in Gregg and Proffitt, the jury must

be fully informed of all the pertinent facts in order to adequate-

ly exercise the trust of discretion placed upon it. The State

must have some leeway in giving the whole story to the jury. The

prosecution was only doing what it was authorized to do by

§ 6-4-102(c), W.S.1977:

"(c) The judge or jury shall hear evidence

as to any matter that the court deens relevant

to a determination of the sentence, and shall

include matters relating to any of the aggra-

vating or mitigating circumstances enumerated

in subsections (h) and (j) of this section.

Any evidence which the court deems to have

probative value may be received regardless of

its admissibility under the exclusionary rules

of evidence, provided the defendant is accord-

ed a fair opportunity to rebut any hearsay

Statements, and provided further that only

such evidence in aggravation as the state has

made known to the defendant or his counsel

prior to his trial shall be admissible.”

The Statute was meticulously followed in lengthy notice of the.

evidence in aggravation the State planned to and did pro-

=35=

duce. 12/

The community survival theme of argument was one used by the

prosecution in its closing argument during the penalty phase of

the first trial. See 632 P.2d at 160-166. This court explained

there and we repeat it here:

"Prosecutors cannot and should not be muz-

zled. It must be kept in mind that the prose-

cCuting attorney is a representative of the

State whose obligation is to govern impartial-

ly, whose aim is not that it win a case but

that justice be done. It is his mission that

guilt shall not escape or innocence suffer.

He is duty bound to prosecute with earnestness

and vigor. While he may strike hard blows, he

is not free to strike foul ones. Singer v.

United States, 1965, 380 U.S. 24, 85 S.Ct.

783, 791, 13 L.Ed.2d 630; Berger v. United

States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633,

79 L.Ed. 1314." 632 P.2d at 166.

No foul blows were struck.

IV

The appellant raises as an issue what he refers to as

"(t]he proportionality argument - whether Appellant was denied due

process and equal protection." He relates the not less than 20

nor more than 21 years sentence given Mike Hickey for the murder

of Kelly Wyckhuyse as a part of a plea bargain arrangement to the

death sentence given Hopkinson, (R.Vol.X pp.853-854) Appellant

concludes that the sentence of appellant should be measured

against that of Mike Hickey on equal protection and due process

grounds.

The agreement was that Hickey be given immunity from prosecu-

tion for his part in the bombing of the Vehar home and murder of

the Vehars and other crimes "* * * except the Kelly Wyckhuyse

murder for which no immunity of any kind is offered or granted;

and should said Michael J. Hickey wish to plead guilty to the

Kelly Wyckhuyse murder charge as principal or accessory, the Court

will accept a plea of second degree murder with a sentence of not

less than twenty (20) years nor more than twenty-one (21) years.”

12/ Rule 802, W.R.E., provides:

“Hearsay is not admissible except as provided by these

rules or by other rules adopted by the Supreme Court of

Wyoming. or by statute."

=26-

The agreement was signed by Hickey, Hickey's attorney, the

special prosecutor for Uinta County and the district judge. This

agreement was read into the record for the benefit of the jury at

the penalty hearing now before us. The record also discloses that

as a result of the plea bargain, five crimes were solved and

convictions obtained: the Wyckhuyse homicide, the three Vehar

homicides, and the conspiracy between Mark Hopkinson and Mike

Hickey to murder William Roitz, a member of the sewer board.

The appellant accuses the district judge of improper behnav-

ior for participating in the plea bargain which was struck, citing

what appears to be from the Approved Draft, 1968, ABA's Minimum

Standards for the Administration of Criminal Justice, Standards

Relating to Pleas of Guilty, § "3.3(a) The trial judge should not

participate in plea discussions." Counsel have apparently not

acquainted themselves with the provisions relating to Pleas of

Guilty, approved by the ABA House of Delegates, February 12, 1979,

ch. 14 (Little, Brown and Company 2nd ed. 1980). The stringent

provision cited has been deleted. Standard 14-3.3 now permits a

limited role for the trial judge. He may indicate what charge or

sentence concessions would be acceptable.

The final approved standard 14-1.8, in regard to considera-

tion of a plea of guilty in final disposition, provides that

"* * * [i]t is proper for the court to grant

charge and sentence concessions to defendants

who enter a plea of guilty or nolo contendere

when consistent with the protection of the

ublic * * * when there is substantial evi-

tents to establish that:

er: 2. 8 @

"(iv) the defendant has given or offered

cooperation when such cooperation has re-

sulted or may result in the successful

prosecution of other offenders engaged in

equally serious or more serious criminal

conduct." (Emphasis added.)

The comments to the standard, 14-1.8, supra, p. 14-49, point out

that consideration has been given to the contingency that those

defendants, as a class who plead guilty because of one of the con-

Siderations listed in 14-1.8(a)(i) through (iv), will receive more

favorable treatment than the class of defendants who stand trial

and are convicted, but "[b]ecause each of the foregoing considera-

tions is related to legitimate objectives of the criminal law,

this disparity in treatment is in no sense unfair or inconsistent

with the goal of uniformity in sentencing." The idea is that un-

der such circumstances the one who goes to trial receives exces-

Sive punishment,

=27=

We add two thoughts. It is not unconstitutional for the

State to extend a benefit to a defendant who pleads guilty and who

in turn extends a substantial benefit to the State. Brady v.

United States, 397 U.S. 742, 750-753, 90 S.Ct. 1463, 1470-1471, 25

L.Ed.2d 747 (1970).

The argument of appellant is not unlike one advanced by peti-

tioner Gregg that the state prosecutor has unfettered authority to

select those persons whom he wishes to prosecute or to plea bar-

gain with. The Court, 428 U.S. at 199, 96 S.Ct. at 2937, declared

that the existence of these discretionary stages is not determina-

tive, but the specific individual convicted of a capital offense

must be separately dealt with in the decision to impose the death

penalty; there is nothing unconstitutional about affording mercy

to an individual defendant. In other words, leniency in one case

does not invalidate the death penalty in others. Justice White in

his concurring opinion discussed this aspect, 428 U.S. at 224-226,

96 S.Ct. at 2948-2949, where he declined to interfere with the

manner in which Georgia chose to enforce its laws on the basis of

a charge of lack of faith in its system. Accomplices in crime

need not be sentenced alike; a sentence should be patterned to the

individual defendant. Beaulieu v. State, Wyo., 608 P.2d 275

(1980); Daellenbach v. State, Wyo., 562 P.2d 679 (1977).

The second closing determination dispositive of this issue is

that Mike Hickey was not a principal or aider and abettor or con-

Spirator with the appellant in the murdec of Jeff Green.

It should be pointed out that, at a later point, we will sep-

arately dispatch our statutory responsibility under § 6-4-103(d)

(iii) and (e), W.S.1977, to determine if the sentence of death is

disproportionate to the penalty imposed in similar cases and to

make reference to those cases we take into consideration.

V

We have at length dealt in Hopkinson v. State, supra at

149-157, with the constitutionality of Wyoming's death penalty

statutes under the Eighth Amendment to the United States Constitu-

tion and § 14, Art. 1, Wyoming Constitution, the latter containing

near identical language as that in the Eighth Amendment.13/ We

found and held them constitutional as to those provisions. Appel-

lant now claims their unconstitutionality under § 15, Art. 1, Wyo-

ming Constitution:

13/ We do not consider it of any materiality that in the Wyoming Constitu-

tion, § 14, Art. 1, the words "cruel" and “unusual” are separated by the word

“or whereas in the United States Constitution they are separated by the word

"and."" We held the death penalty to be neither cruel nor unusual.

-28-

"The penal code shall be framed on the hu-

Mane principles of reformation and preven-

tion."

By their silence, the majority in the previous opinion rejected

the stance of the dissent to the previous opinion of the majority,

Hopkinson v. State, supra, that § 15, Art. 1 in any way modifies

§ 14, Art. 1.

We have heretofore, in Part II of this opinion, pointed out

the heavy burden assumed by one who would seek to overcome the

presumption of constitutionality which a legislative enactment en-

joys. We have held that the death penalty is neither cruel nor

unusual under § 14, Art. 1. We have held that life may be taken

by due process of law under § 6, Art. 1, Wyoming Constitu-

tion 14/ and that due process of law contemplates the careful

adherence to the statutory procedure structured to avoid arbitrary

and capricious action by a jury as the sentencing authority in the

case of first degree murder. We consider that we are giving ef-

fect to § 15, Art. 1 and the penal code by including the death

penalty as framed on the humane principles of reformation and

prevention.

As pointed out in Gregg, 428 U.S. at 170-176, 96 S.Ct. at

2923-2926, cruel and unusual punishment as contemplated in the

constitutional sense proscribes torture and other barbarous

methods but “‘'is not fastened to the obsolete but may acquire

meaning as public opinion becomes enlightened by a humane jus-

tice.'" (Emphasis added.) The Court went on to say that the pun-

ishment may not involve the unnecessary and wanton infliction of

pain or be grossly out of proportion to the enormity of the crime.

"We may not require the legislature to select the least severe

penalty possible as long as the penalty selected is not cruelly

inhumane or disproportionate to crime involved. * * * [T]he con-

Stitutional test is intertwined with an assessment of contemporary

Standards and the legislative judgment weighs heavily in ascer-

taining such standards." (Emphasis added.)

All of the foregoing paragraph from Gregg represents our

views of §§ 14 and 15, Art. 1, of the Wyoming Constitution. We

would consider the death penalty inhumane if administered in the

same fashion as the murder of Jeff Green. They must be read

together. Neither prohibits the death penalty. Wyoming as a

State has never been without the death penalty except as noted in

the next paragraph. It carried forward the territorial capital

14/ Section 6, Art. 1, Wyoming Constitution provides: "No person shall be

deprived of life, liberty or property without due process of law."

-29-

crime of murder.15/ Section 1, ch. 35, Session Laws of Wyoming,

1890, First State Legislature. It was picked up in the Revised

Statutes of Wyoming, 1899. Section 1, ch. 87, Session Laws of

Wyoming 1915, authorized the jury to qualify their verdict by

adding "without capital punishment" in which event the sentence

was life imprisonment.

By § 1, ch. 136, Session Laws of Wyoming 1973, the legisla-

ture attempted to conform to Furman v. Georgia, supra, 408 U.S.

238, 92 S.Ct. 2726, 33 L.Ed.2d 346, but failed. This court held

the legislative effort unconstitutional on January 27, 1977.

Kennedy v. State, Wyo., 559 P.2d 1014 (1977). On February 28,

1977, the Governor approved § 1, ch. 122, Session Laws of Wyoming

1977, our current death penalty statutes under which appellant was

sentenced. Wyoming has only been without the death penalty for a

period of one month since statehood, This legislative interpreta-

tion of the constitution is entitled to great weight, though not

binding on this court. Coronado Oil Co. v. Grieves, Wyo., 603

P.2d 406 (1979); State ex rel. Irvine v. Brooks, 14 Wyo. 393, 418,

84 P. 488, 6 L.R.A. N.S. 750, 7 A & E Ann. Cas. 1108 (1906). The

legislature, representing the people of this state, has retained a

legitimate interest in the death penalty, and we defer to its wis-

dom in that regard in the absence of any express prohibition of

the death penalty.

VI

This issue raised by appellant involves the attorney-client

privilege. The county and prosecuting attorney in Wyoming, as a

public officer, is authorized to privately practice the civil law.

Appellant claims that when the county and prosecuting attorney

represents in his private practice a person who becomes a criminal

defendant, the prosecutor's lips are sealed forever as to any and

all relationships between them, whether or not it involved private

Or public business. We must keep the relationship as it appears

in context in this case and not in the broad sweeping terms advo-

———

15/ Section 13, ch. 73, Session Laws of the Territory of Wyoming 1890,

provided:

“Whoever purposely and with premeditated malice, or

in the perpetration of, or attempt to perpetrate any

rape, arson, robbery, or burglary, or by administering

poison or causing the same to be done, kills any human

being, is guilty of murder in the first degree and

shall suffer death."

Wyoming was admitted as a state on July 10, 1890, 26 United States Statutes at

Large, ch. 664, p. 222.

-30-

cated by the appellant. In order to do that, some detail of the

facts is essential.

James E. Phillips, the then county and prosecuting attorney,

became acquainted with appellant when employed by the latter in

the handling of three matters. One was a petition to the Fort

Bridger Sewer District for annexation of the trailer park for

sewer service, which appellant was constructing; another a divorce

case; and finally an appeal to the Wyoming Supreme Court in a

civil ditch case which was settled. Phillips was actually, in the

latter, representing appellant's parents. Two families, the

Sweats and Roitzes, complained to him as a county prosecutor about

a fight they had with appellant and which they wanted him to pros-

ecute. Appellant approached him about the same fight seeking to

have the Sweat and Roitz families prosecuted. The sheriff was

asked to investigate with the result that all prosecution was de-

“apes for what appeared to be an unmeritorious feud between fami-

ies.

Later, the sewer board sued appellant for fees for the sewer

hookup and appellant approached Phillips and requested that he

represent him in the case. Phillips read the complaint, a matter

of public record which was in evidence in this case, and outlined

its contents for the jury. One of the counts of the complaint

alleged that appellant had conducted a campaign to discredit and

frighten the sewer board with some suggested “Vegas connections"

to get the board to reduce its sewer hookup fees. Phillips re-

fused to privately represent appellant because of the implications

arising from the Sweat/Roitz complaints and because a conflict of

interest seemed apparent because of that, some festering criminal

aspects and the public status of the sewer board.

All of the foregoing events occurred before the Vehar mur-

ders. Upon that occurrence, a grand jury was convened to investi-

gate the occurrence. Phillips was the prosecutor presenting evi-

dence to that body. The same grand jury upon the basis of evi-

dence presented by Phillips as prosecutor returned an indictment

against Mike Hickey for the murder of Kelly Wyckhuyse. Appellant

approached Phillips several times thereafter demanding that he

dismiss the indictment against Hickey. During one of those occa-

sions, appellant stepped toward Mr. Phillips’ desk where he had a

picture of his wife and family, handled the photograph, and

indicated that it would be terrible if anything were to happen; it

was a nice looking family; it would be terrible if anything

happened to his wife, or his family, or with respect to his new

home which was being built. Phillips became concerned.16/

16/ Out of sequence, Phillips later testified he asked the sheriff for

security around his house on weekends and arranged to have his family out of

town as much as possible.

~31<

In his testimony, Phillips admitted that the threat had some

influence on his later decision to drop the charges against

Hickey, though Hickey's attorney had presented him with evidence,

including the testimony of Jeff Green (for which appellant had

arranged) that Jamey Hysell murdered the Wyckhuyse girl. In fact

the trial against Hysell was underway when Jeff Green broke down

and admitted that his testimony was a fabrication.

At this point in Phillips’ testimony, a transcript in evi-

dence of an in-chambers proceeding with Jeff Green was reviewed

for the jury. During the course of that in-chambers proceeding

Jeff Green indicated that he was under pressure by the appellant

and if he testified against appellant, appellant would go to any

lengths to get rid of him. Green stated that appellant had told

him of other persons, including an FBI agent, whom he had elimi-

nated. Jeff Green was emphatic that he believed appellant had

done those things and that was why he was afraid. Phillips as

prosecutor was present and observed Green make these statements.

Phillips testified from the trial transcript and his recol-

lection that during the course of the Hysell trial Jeff Green

implicated the appellant and Mike Hickey in the Vehar bombing.

Jeff Green's testimony at the Hysell trial was that appellant had

orchestrated Hickey's testimony and Green's testimony. Appellant

even testified in the Hysell trial that Hysell had approached him

to buy drugs and in order to establish his trustworthiness had

told him that he had killed Kelly Wyckhuyse.

On cross-examination, Phillips testified that on one occasion

he had filed a complaint against Green for bribery. Green had

offered to fix up his basement if Phillips would drop some charges

of burglary and receiving stolen property. On redirect, it was

developed that this charge was later dropped, along with some

Others, as part of a written plea bargain agreement, Exh. 604,

whereby Green agreed to testify in the Hysell trial and cooperate

in the Vehar investigation. Green's testimony in the Hysell trial

was read into evidence whereby he disclosed the details of

Hickey's narrative to him of just how Hickey killed the Wyckhuyse

girl and what he had done with the body. The appellant was pres-

ent during these revelations. It was after these disclosures that

appellant worked out all the details to shift the blame from

Hickey to Hysell.

Green testified the reason appellant wanted Hysell charged

was because Hysell had signed a statement that Green and appellant

had tried to pick up some dynamite from Hysell and appellant want-

ed Hysell dead because of that knowledge. Eventually Hickey pro-

duced some dynamite for the bomb that was to be used to blow up

the Mariscal car for appellant.

It seems apparent from the record that the evidence is that

appellant made no attorney-client disclosures to Phillips to which

Phillips testified. His testimony was entirely related to matters

arising after he had terminated his attorney-client relationship

-33-

with appellant and in the course of his duties as county prosecu-

tor. Much of his testimony involved the identification and read-

ing of documents and testimony arising out of the prosecution of

Jamey Hysell.

Rule 501, W.R.E., provides:

"Except as -otherwise required by constitu-

tion or statute or by these or other rules

promulgated by the Supreme Court of Wyoming,

the privilege of a witness, person, govern-

ment, state, or political subdivision thereof

shall be governed by the principles of the

common law as they may be interpreted by the

courts of the State of Wyoming in the light of

reason and experience."17/

The Supreme Court of Wyoming has adopted for the government of the

Wyoming State Bar the Code of Professional Responsibility of the

ABA. Canon 4 provides that "[a] lawyer should preserve the confi-

dences and secrets of a client."

This same question came up in a different context during the

first trial of this case. The prosecutor at that trial in his

Opening statement said that the evidence would show that Phillips

had been threatened by appellant and would reveal the pressures

brought to bear on Phillips by appellant. However, the trial

judge would not permit the evidence because it was his reasoning

that it fell within the attorney-client privilege. This court was

somewhat quizzical about the privilege going so far that a prose-

cutor must be the silent victim of threats against his family and

property.

We are now satisfied that an attorney is not forever within

the bondage of a former client. The occasion for the threat

against Phillips was not made to him in a matter in which he was

an attorney for the appellant. It was made to him on an occasion

when he was acting as an attorney for the State of Wyoming, and

appellant was aware of that because he was seeking the dismissal

of murder charges against Hickey. Even if by any conceivable way

it could be conjured up that an attorney-client relationship

existed between appellant and Phillips at the time of the threats

and demand for dismissal of the Hickey charges, there comes a time

when a necessary exception comes into play. We find an acceptable

ca in 2 Louisell and Mueller, Federal Evidence § 213, p. 578

978):

17/ The Wyoming Permanent Rules Committee note reveals: "This is the feder-

al rule modified to adapt it to state practice and to eliminate a reference to

the ‘Erie Doctrine.' Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938)."-

-33-

"* * * Society could hardly afford to pro-

tect the confidentiality of conversations with

counsel which look toward commissions of

crimes or frauds; to extend the privilege so

far would be to make it cost too much. Thus

an important exception is made, and one which

is encountered with increasing frequency in

practice.

"The exception comes into play when the cli-

ent knowingly seeks to further a criminal or

fraudulent endeavor through consultation with

counsel. It is the client's knowledge alone

which counts; the exception may apply, and the

privilege may be denied, regardless of the

attorney's understanding. In fact, since the

client holds the privilege, the attorney's

understanding or intent should be immaterial.

As proposed-but-rejected Rule 503(d)(1) would

have had it, the privilege would not apply

where ‘the services of the lawyer were sought

Or obtained to enable or aid anyone to commit

or plan to commit what the client knew or rea-

sonably should have known to be a crime or

fraud.'" (Footnotes omitted. )18/

All of the statements or communications which Phillips attributed

to appellant were made in the furtherance of criminal endeavor.

We hold appellant's position on this issue to be completely with-

Out merit.

VII

The appellant asserts that reversal is required if an ag-

gravating circumstance used as a basis for imposing the death pen-

alty is found to be invalid. He then peeerss° to cite Zant v.

Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), in

which the following sequence of events had occurred:

18/ The words of Rule 501, W.R.E., “in the light of reason and experience”

are not without meaning. See Trammel v. United States, 445 U.S. 40, 100 S.Ct.

906, 63 L.Ed.2d 186 (1980), divesting in part an accused of the privilege to

bar adverse spousal testimony in criminal cases. See in addition, Wyatt v.

United States, 362 U.S. 525, 528, 80 S.Ct. 901, 903, 4 L.Bd.2d 931 (1960),

where a spousal privilege exception was recognized for cases in which one

Spouse commits a crime against another. In Trammel, Mr. Justice Stewart in his

concurrence, fn.l, pointed out that "[ajny rule that impedes the discovery of

truth in a court of law impedes as well the doing of justice."

-3¢-

1. Stephens was convicted in a Georgia trial court of murder

for which the death penalty was authorized.

2. In the sentencing phase, the jury found there to be three

Statutory aggravating circumstances and imposed the death penalty.

The Georgia statute provides for the death penalty if one of the

listed aggravating circumstances is present.

3. The Georgia Supreme Court set aside one of the three ag-

gravating circumstances but affirmed the death penalty stating the

rule to be that the death sentence is not impaired because in

Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), it upheld the

death sentence where there was present only one aggravating cir-

cumstance. The Georgia Supreme Court had applied this rule in

Many death cases, Zant, supra fn.2, 102 S.Ct. at 1857, but had

never explained its rationale.

4. The federal fifth circuit reversed a federal district

court which had denied habeas corpus and set aside the death pen-

alty. The Supreme Court granted certiorari.

5. Under a state statute the Georgia Supreme Court will de-

cide questions of state law upon certification from the United

States Supreme Court. Accordingly, the Court did certify the fol-

lowing question: "What are the premises of state law that support

the conclusion that the death sentence in this case is not im-

paired by the invalidity of one of the statutory aggravating cir-

cumstances found by the jury?" 102 S.Ct. at 1859.

We do not know at the moment what response the Georgia

Supreme Court will make or what the United States Supreme Court's

decision will ultimately be in that case. Appellant merely here

raises a question, drops the issue, and moves on to a next issue

which he refers to as "the double jeopardy argument." We do not

know what that issue has to do with proof of aggravating circum-

Stances not listed, and we will say now that we do not find that

to be the case. All the facts presented are related to the statu-

tory aggravating circumstances as a fact thereof. This will be

dealt with in more detail though it has already partly crept in.

For this to be an issue which we must decide, we must hold

that one or more of the aggravating circumstances have no validity

in fact or in law. Our holding will eventually be that all

aggravating circumstances are sustainable in fact and in law.

VIII

By the eighth issue appellant argues that the consideration

by the jury of evidence concerning the Vehar deaths and the sub-

mission to the jury of those aggravating circumstances deemed

inapplicable in the first penalty hearing, violated appellant's

constitutional protection against double jeopardy. The Fifth

Amendment to the Constitution of the United States, amongst other

=35-

3 ©

-

proscriptions, provides "* * * nor shall any person be subject for

the same offense to be twice put in jeopardy of life or limb

* * *," Through the Fourteenth Amendment, it is applicable to the

States. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969). Section 11, Art. 1, Wyoming Constitution also

provides "* * * nor shall any person be twice put in jeopardy for

the same offense. * * *" These provisions have the same meaning

and are coextensive in application. Vigil v. State, Wyo., 563

P.2d 1344 (1977). In Vigil this court noted with approval, North

Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 89 S.Ct. 2089, 23

L.Ed.2d 656 (1969), wherein it was capsulized that three protec-

tions were afforded: "It protects against a second prosecution

for the same offense after acquittal. It protects against a

second prosecution for the same offense after conviction. And it

protects against multiple punishments for the same offense."

Appellant asks that since the State could not reprosecute

appellant for the Vehar deaths since he was found guilty of those

First degree homicides, and the convictions were affirmed, what

conceivable purpose is served by introducing all the evidence of

those homicides in the retrial of the sentencing phase. It is

appellant's position that it was only necessary to establish the

fact of convictions through introduction into evidence of the

judgment and sentence reflecting the convictions for the murder of

the three members of the Vehar family, which was done, in order to

establish the statutory aggravating circumstance that "(t]he

defendant was previously convicted of another murder in the first

degree * * *," Section 6-4-102(h)(ii), supra.

Were that to be done, the jury would not have the rest of the

Story. It cannot be emphasized enough that the murder of the poor

little Wyckhuyse girl, as an example, had something to do with the

mutilation murder of Jeff Green. The threats against the county

prosecutor were part of the script of the Wyckhuyse drama which

burst the bubble of mystery of who blew up the Vehar home, who was

behind that, and why. We can, and probably will more than we have

already done, put together all the parts of an intricate formula

justifying the death penalty beyond a reasonable doubt within

every restriction of a statutory scheme designed to minimize the

risk of wholly arbitrary and capricious action or action in a

freakish manner.

As explained in Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct.

at 2932-2933:

"It is certainly not a novel proposition

that discretion in the area of sentencing be

exercised in an informed manner. We have long

recognized that ‘'[fJor the determination of

sentences, justice generally requires * * *

that there be taken into account the circum-

Stances of the offense together with the char-

acter and propensities of the offender.' [Ci-

tations.] Otherwise, ‘the system cannot func-

~36<

tion in a consistent and a rational manner.'

[Citations.]38/" 19/ (Footnote omitted.)

A significant feature of this case, perhaps different than

will be seen in many instances, is that the crime of appellant for

which the death penalty is sought and all of the circumstances

leading up to it are part of a single bundle which lends itself to

a complete picture that lays bare the character, propensities, and

individual circumstances of the appellant as an offender.

The appellant claims that the submission of aggravating cir-

cumstances found not to exist in the first trial amounts to double

jeopardy. At the first trial, the jury found the following statu-

tory aggravating circumstances not applicable:

"5. The murder was committed for the pur-

pose of avoiding or preventing a lawful arrest

or effecting an escape from custody.

"6. The murder was committed for pecuniary

gain." 632 P.2d at 168.

In the second trial the jury found such circumstances to exist.

The principal reason is probably because the jury was inadequately

instructed in the first trial, but we need not guess any further

Or even at all.

In the first decision it was held that there could be a new

trial on the issue of punishment under the _ provisions of

§ 6-4-102(g), W.S.1977.20/ The explanation was that:

"The guarantee against double jeopardy, se-

cured by the Fifth Amendment to the Constitu-

tion of the United States and § 11, Article 1,

Wyoming Constitution, does not prohibit a re-

mand to the trial court for a redetermination

of sentence. United States v. DiFrancesco,

19/ Footnote 38 to Gregg provides: "Indeed, we hold elsewhere today that in

capital cases it is constitutionally required that the sentencing authority

have information sufficient to enable it to consider the character and

individual circumstances of a defendant prior to imposition of a death

sentence." Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978,

2991-2992, 49 L.Ed.2d 944 (1976).

20/ Section 6-4-102(g), W.S.1977, provides:

“If the trial court is reversed on appeal because of

error only in the presentence hearing, the new trial

which may be ordered shall apply only to the issue of

punishment ."

=37-

1980, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d

328. In death penalty cases the U.S. Supreme a

Court has authorized remanding for a resenten-

cing hearing where the death penalty was im-

posed originally but because of some defect in

the proceeding has been reversed on appeal.

Estelle v. Smith, 1981, 451 U.S. 454, 101

S.Ct. 1866, 68 L.Ed.2d 359, Only where a

judge or a jury refused to impose the death

penalty in the first instance is a state

barred from seeking it a second time.

Bullington v. Missouri, 1981, 451 U.S. 430,

101 S.Ct. 1852, 68 L.Ed.2d 270. There can be

no new penalty trial as to the Vehar murders

in that the jury failed to impose the death

penalty as to those crimes." 632 P.2d at 172,

fn. 46.

United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed.

300 (1896), pretty much settled the proposition that a defendant

who procures a conviction and judgment against him to be set aside

for an error of law, may be tried anew upon the same indictment

for the same offense for which he had been convicted. In United

States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448

(1964), it was said:

"While different theories have been advanced 2

to support the permissibility of retrial, of

greater importance than the conceptual ab-

stractions employed to explain the Ball prin-

ciple are the implications of that principle

for the sound administration of justice. Cor-

responding to the right of an accused to be

given a fair trial is the societal interest in

punishing one whose guilt is clear after he

has obtained such atrial. It would be a high

price indeed for society to pay were every

accused granted immunity from punishment be-

cause of any defect sufficient to constitute

reversible error in the proceedings leading to

conviction. From the standpoint of a defend-

ant, it is at least doubtful that appellate

courts would be as zealous as they now are in

protecting against the effects of impropri-

eties at the trial or pretrial stage if they

knew that reversal of a conviction would put

the accused irrevocably beyond the reach of

further prosecution. In reality, therefore,

the practice of retrial serves defendants'

rights as well as society's interest. The

underlying purpose of permitting retrial is as

much furthered by application of the rule to

this case as it has been in cases previously we

-38-

decided." 377 U.S. at 466, 84 S.Ct. at 1589.

As pointed out in United States v. DiFrancesco, 449 U.S. 117, 101

S.Ct. 426, 66 L.Ed.2d 328 (1980), there is an exception to the

allowance of a new trial. That is when a conviction is reversed

because of an insufficiency of evidence. Burks v. United States,

437 U.S. 1, 98 8.Ct. 2141, 87 L.84.24 1 (1978).

The Supreme Court of the United States in Bullington v.

Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981),

made a similar comparison to Burks v. United States, supra. The

Missouri jury had returned a verdict of life imprisonment. The

Supreme Court simply said that he could not, in the light of the

sentencing procedures which have the halimarks of a trial on guilt

Or innocence, be tried again with the risk of a sentence enhanced

to death, Bullington is inapplicable in our case because the

first jury did return the death sentence as to the Jeff Green mur-

der. Two juries have now found the appellant a suitable subject

for the death penalty.

We are unaware of any authority that, on retrial of a person

following reversal, there is any restriction on the evidence that

can be produced, or that a verdict of guilty cannot be found, or

that all the incidents of a new trial including statutorily re-

quired findings cannot be pursued in every respect as though upon

Original trial, less, of course, the errors found in the first

trial. At one time the Wyoming statutes defined a new trial as "a

re-examination, in the same court of an issue of fact, after a

verdict by a jury * * *," § 3-3401, W.C.S.1945, but was superseded

by the Wyoming Rules of Civil Procedure, Rule 87, W.R.C.P. That

is consistent with Black's Law Dictionary (5th ed. 1979). The

issues of fact on retrial are the same as those in the original

trial, including all the aggravating and mitigating circum-

Stances. There is no such thing as an "acquittal" from an aggra-

vating circumstance in the penalty phase. Knapp v. Cardwell, 667

F.2d 1253, 1263-1265 (9th Cir. 1982).

State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), cited

by the dissent here, is a peculiar case. There, only one aggra-

vating circumstance was submitted to the jury for consideration in

the sentencing phase. The court held that particular aggravating

circumstance to be improper (it was the underlying rape for felony

murder), but it held that the aggravating circumstance that "(t]he

Capital felony was especially heinous, atrocious, or cruel" should

have been the one submitted to the jury for consideration of the

death penalty, because that circumstance surrounding the murder

was just that. Other statutory aggravating circumstances were

also suggested as appropriate. The court then remanded the case

for a new sentencing hearing.

The dissent has taken from that case a discussion of double

jeopardy as to aggravating circumstances which was engaged in by

the court and completely unnecessary to its decision--as pure an

-39-

example of dicta as can be found. It may be advisory to the lower

courts of North Carolina, but it was expounded without citation of

any applicable authority and apparently expressed as its own view.

It is not ours.

We reversed the death penalty in Hopkinson v. State, supra,

purely as a matter of law. The evidence is clear that Green was

murdered to avoid the arrest of appellant for the Vehar murders

and that it was for pecuniary gain both of which reasons were ap-

parent in the evidence in the first trial, which evidence was also

used in the second trial. If properly instructed, the jury could

have come to no other finding. We would further point out that

these were the hypothoses of the prosecution upon which guilt was

based and are an inseparable part of the total circumstances.

Nor can we avoid the statutory direction, § 6-4-102(c),

W.S.1977, (quoted in Part III of this opinion but set out again as

a matter of convenience) that:

"The judge or jury shall hear evidence as to

any matter that the court deems relevant to a

determination of the sentence, and shall in-

clude matters relating to any of the aggra-

vating or mitigating circumstances enumerated

in subsections (h) and (j) of this section.

Any evidence which the court deems to have

probative value may be received regardless of

its admissibility under the exclusionsary

rules of evidence, provided the defendant is

accorded a fair opportunity to rebut any hear-

Say statements, and provided further that only

such evidence in aggravation as the state has

made known to the defendant or his counsel

prior to his trial shall be admissible."

This applies to both the original trial and the retrial of the

sentencing stage. Without the inclusion of these aggravating cir-

cumstances as factors to be considered, the second jury is de-

prived of the whole background necessary to its determination.

As can be expected, the only mention State v. Silhan has re-

ceived was in the dissent of Justice Marshall, joined by Justice

Brennan, in Jones v. Florida, __ U.S. __, 103 S.Ct. 189, 74

L.Ed.2d 153 (1982), when certiorari was appropriately denied on

the same issue in Jones v. State, Fla., 411 So.2d 165 (1982), 363

So.2d 1334.

We prefer to adhere to the more traditional and accepted view

expressed in State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981),

cert. denied 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863, appli-

cation to suspend effect of order denying cert. denied U.S.

, 102 S.Ct. 2294, 73 L.Bd.2d 1299. In Gilbert, at the first

trial, two aggravating circumstances were submitted to the senten-

cing jury, but they found only one of them to be the aggravating

circumstance. On retrial, the jury found both to be aggravating

-40-

circumstances. On appeal after the retrial, the court held that

not to be double jeopardy on retrial of the sentencing phase only.

Gilbert was followed in State v. Woomer, S.C., 284 S.E.2d 357

(1981) (appeal from retrial of the sentencing phase).

In a series of appeals in which the Supreme Court of Georgia

ultimately affirmed the death penalty, this issue was dealt with.

Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978); 242 Ga. 901,

252 S.E.2d 443 (1979); 246 Ga. 432, 271 S.E.2d 828 (1980). In

Davis, at 242 Ga. 901, 252 S.E.2d 443, the Georgia court affirmed

the death sentence reached at retrial in the sentencing phase

where an additional aggravating circumstance was found by the jury

which in the first trial the trial judge did not submit to the

jury because it was not supported by the evidence. Certiorari was

denied, __- U.S. ___, 103 S.Ct. 189, 74 L.Ed.2d 153. Justice

Marshall, joined by Justice Brennan, dissented citing State v.

Silhan, supra.21/ The majority of the Supreme Court at this

point apparently rejects State v. Silhan.

In any case, State v. Silhan, supra, has not found any favor

except in a dissenting posture.

Ix

Appellant again challenges § 6-4-102(h)(vii), W.S.1977, as

unconstitutional. That provision is: "(h) Aggravating circum-

Stances are limited to the following * * * (vii) The murder was

especially heinous, atrocious or cruel.” The entirety of

§ 6-4-102(h) is set out in fn.7, ante. In this court's previous

decision we attempted to comprehensively justify the constitution-

ality of Wyoming's death penalty statutes, as comporting primarily

with the standards laid out by the United States Supreme Court in

Furman, Gregg, and Proffitt, supra. 632 P.2d at 149-157. Our

statutes are principally from Georgia and Florida.

We held that the particular terms “especially heinous, atro-

cious or cruel," isolate one type of case in which the death pen-

21/ The double jeopardy issue was raised in Georgia in Godfrey v. Georgia,

248 Ga. 616, 284 S.E.2d 422 (1981). Im that case a conviction for murder and

the imposition of the death penalty had been affirmed by the Georgia Supreme

Court, 243 Ga. 302, 253 S.E.2d 710 (1979). As to the death sentence, the

United States Supreme Court reversed and remanded the case back to the Georgia

Supreme Court who in turn remanded the matter for retrial of the penalty phase

or the entry of a sentence of life imprisonment, 446 U.S. 420, 100 §.Ct. 1759,

64 L.Ed.2d 398, reh. denied 455 U.S. 1038, 102 S.Ct. 2286, 73 L.Ed.2d 1296

(1980), and 246 Ga. 359, 274 S.E.2d 339 (1980). The death penalty was again

imposed on two counts (one of which was reduced to life imprisonment on appeal)

and on appeal the double jeopardy issue as to aggravating circumstances was

raised unsuccessfully.

-41-

alty is applicable--a murder which is consciousless or pitiless,

which is unnecessarily tortuous to the victim and sets it off from

the usual or ordinary murder. One of the purposes was to make the

death penalty proportionate to the crime, The standards adopted

direct the sentencing authority to focus on the particularized

circumstances of the crime and the defendants.

Appellant relies on People vy. Superior Court of Santa Clara

County, 31 Cal.3d 797, 183 Cal.Rptr. 800, 647 P.2d 76 (1982),

which considered the phrase "heinous, atrocious, or cruel" as

unconstitutionally vague and violative of the due process clause.

The reasoning of the California court is sophistry--a play on

words,

The trial judge instructed the jury with respect to this ag-

Gravating circumstance:

"One of the aggravating circumstances set

forth in this case is that the Murder was es-

pecially heinous, atrocious or cruel. To as-

Sist you in your evaluation of this aggravat-

ing circumstance, heinous. means extremely

wicked or shockingly evil; atrocious means

Outrageously wicked and vile; cruel means

designed to inflict a high degree of pain with

utter indifference to, or even enjoyment of,

the suffering of others. What is intended to

be included in this circumstance are those

Capital crimes where the actual commission of

the murder was accompanied by such additional

acts as to set the crime apart from the normal

murder; that is, a consciousless or pityless

(sic] crime which is unnecessarily tortuous to

the victim,"

We have early in this opinion made brief mention of the

photographs of Jeff Green after the ugly, pitiless, consciousless,

torture death, that clearly reflect a consciousness materially

more depraved than that of any of the usual persons guilty of mur-

der. We now particularize the testimony of the pathologist who

best describes the abuse and mutilation of the body of Jeff Green

before death.

Dr. Stahl had done the pathology on over a thousand murder

victims in his career, including twenty-five to forty torture vic-

tims. He photographed the body of Jeff Green. As he testified,

Slides he had taken were projected for the benefit of the jury.

There were extensive burns over the face and eyes. On his right

upper forehead was a 3 x 2 centimeter bruise with some skin slip-

page around it, caused by a blow with a blunt instrument. On the

inner part of one elbow were third degree burns. Other burns were

identified as likely caused by a lighted cigarette. Other deeper

burns were explained to be compatible with those done with some

~42-

type of hot iron--a coat hanger, a soldering iron, a heated knife,

Or some object such as that.

On the left arm was a T-shaped third degree burn caused by a

heated metal object. A photo identified by the doctor showed

severe third degree burns in the webbing of the fingers. The top

of a knuckle joint also showed a hot-iron type burn.

The right armpit had a series of burns difficult to count,

which evidenced smear burns caused by the jerking and struggling

of the victim. On the left arm area were not only hot iron burns,

but also a rope burn, typically caused by rope tearing the skin

while the victim struggles. This particular rope burn was 24 cen-

timeters (2.54 centimeters per inch) long by 5 centimeters wide.

The left eye had multiple contact and close contact burns by

a very hot object causing a scleral hemmorhage, defined by the

doctor as meaning that the eye itself was touched with a hot ob-

ject, bled, and, had the victim lived, the damage would have been

irreversible. The right eyelid showed severe burns but the hot

iron did not touch the eyeball. There was also a series of con-

fluent third degree burns over the bridge of the nose and along

both sides of the nose, a most tender spot. The forehead had mul-

tiple burns, some of which went into the hair.

On the left side of Jeff Green's neck was a1 1/2 centimeter

bullet entry wound caused by a high-velocity, heavy caliber bullet

which passed through muscles, hit a vertebra, deflected upward

hitting another vertebra, severed the spinal cord, and exited on

the right cheek in the tall part of the jawbone.

The doctor explained the painfulness of burns, the most pain-

ful being those of the third degree which penetrate the skin into

a layer of nerves which carry pain impulses to the brain. Such

burns literally cook the flesh.

As nearly as he could, the pathologist counted approximately

140 burns on the body. There were five knife cuts, three on his

neck over the adams apple and two near one of his nipples.

In addition to the bruise on Jeff Green's forehead, there was

one 7 x 2 centimeter, located in the right armpit, compatible with

a kick by a boot, being struck by a baseball bat, or any type of

blackjack. There was also a 3 x 2 centimeter bruise over the left

top of his wrist and hand where joined, probably caused by the

Same means.

Each of the forearms had about 35 burns compatible with ciga-

rette burns. One arm had a T-shaped 6 x 3 centimeter third degree

burn. On the palm of one and is a1 1/2 x 1 centimeter third de-

gree burn. On one elbow was an oval 1 x 1 centimeter burn. The

ears were burned extensively and on the back side of the right

ear, a very sensitive part of the body, was a 7 x 2 centimeter

burn.

-43-

The doctor estimated that it would take several hours to in-

flict all the burns and other torture techniques employed. He had

never before had occasion to examine such an extensively tortured

pody. It was his further opinion that two men could not hold Jeff

Green, a six foot, seven inch man, weighing 190 pounds, so the

rope burns indicated he was tied to a table or chair or something

else to hold him down. It was his further opinion that the

progression of torture was from the least to most severe. He

based this opinion from experience in cases in which he was

involved and through confessions and testimony; this appeared to

be the pattern administered to extract information or to punish.

This must be the “especially heinous, atrocious or cruel"

murder that sets it off from the usual, the ordinary, the normal

sort of homicide in the typical murder case. If not, then we

cannot imagine what would be, The death ovenalty would be

proportionate to the severity of the crime.

The appellant as a part of this ninth issue argues that the

aggravating circumstance first discussed was unconstitutionally

applied in that no evidence was presented to show that appellant

knew or intended that Green would be tortured--that he was not a

principal. 22/

ee ee es -_--

22/ The trial judge instructed the jury in the new sentencing phase:

"INSTRUCTION NO. 3A

"A principal is a person involved in the commission of

a felony who directly and actively commits the act

constituting the offense.

"A person aids and abets the commission of a crime if

he knowingly and with criminal intent aids, counsels,

encourages, hires, commands or otherwise procures the

illegal act."

The applicable statute is § 6-1-114, W.S.1977:

"Every person who shall aid or abet in the commission

of any felony, or who shall counsel, encourage, hire,

command, or otherwise procure such felony to be

committed, shall be deemed an accessory before the

fact, and may be indicted, informed against, tried and

convicted in the same manner as if he were a principal,

and either before or after the principal offender is

convicted or indicted or informed against; and upon

such conviction he shall suffer the same punishment and

penalties as are prescribed by law for the punishment

of the principal."

-44-

As in this court's first opinion, we take the position that

appellant is a principal. 632 P.2d at 97-100. Enmund v. Florida,

Supra, cited by appellant is not in point as we have previously

discussed. There the United States Supreme Court found that

Enmund did not kill or intend to kill, so his culpability is dif-

ferent from the .obbers who killed. In the case before us, the

evidence is that the murder of Green was planned by appellant, he

intended that it take place, he hired the killers and intended

that torture and lethal force be utilized. The moral guilt and

personal responsibility of one who commands another to commit mur-

der justifies the death penalty. Tne evidence is overwhelming

that appellant ordered the torture of Jeff Green in order to dis-

cover what he had told prosecutors, what his testimony to the

grand jury would be, and with the final shot through the neck to

silence him. The motive to avoid arrest for the murders of the

three Vehars is present.

The circumstance that murder was committed "for the purpose

of * * * preventing a lawful arrest" has been recognized. In

Riley v. State, Fla., 366 So.2d 19 (1978), it was held that the

execution-type murder of a witness to avoid identification came

within the scope of a statute which is, in this regard, identical

to Wyoming's statute.

The circumstance that the murder was committed for pecuniary

gain has been upheld. In Antone v. State, Fla., 382 So.2d 1205,

cert. denied 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980),

the defendant was the mastermind who paid the money for the con-

tract murder of the victim. This was murder for pecuniary gain.

The defendant was something more than a mere accomplice and with-

out him the murder would not have come to fruition. There is no

one else shown to have his same interest.

It is apparent that the legislative intent was that the hired

killer concept be a serious enough circumstance that it justify

the death penalty and represents society's revulsion with those

who employ others for remuneration to do their killing, as well as

those who perform the act for hire. If not chargeable against the

one who initiates the arrangement, then the business will flourish

and the one really responsible will escape punishment. a. 38

inconceivable that it could be any other way.

Xx

in this issue appellant urges that the trial judge should

have given the following offered instruction:

In Hopkinson v. State, supra pp. 97-100, the role of an accessory prosecuted as

a@ principal was treated at some length.

~45-

"Article I, Section 6 of the Wyoming Consti-

tution provides:

""No person shall be deprived of life, lib-

erty or property without due process of law.'

"You, in deciding whether Mark Hopkinson is

to be deprived of his life, are the final de-

cision-makers. Before you make that decision,

however, you must determine that Mark Hopkin-

son's constitutionally-guaranteed right to due

process of law has been adequately protected

throughout the course of these proceed-

ings."

He argues that this instruction is necessary, given the jury's

role as final arbiters of the decision regarding the sentence to

be imposed, in that it is the oasic right underlying the entire

case and the jury must know that such deprivation of life cannot

occur if a defendant's due process rights have been denied. He

concedes that this is a question of law but advances the position

that, since the trial judge has no discretion, this question of

law must fall upon the jury.

This is a novel argument. It was said in Orcutt v. State of

Wyoming, 308 F.2d 61, 63 (10th Cir. 1962):

"It is well settled that ‘a criminal prose-

cution in the courts of a State, based upon a

law not in itself repugnant to the Federal

Constitution, and conducted according to the

settled course of judicial proceedings as es-

tablished by the law of the State, so long as

it includes notice, and a hearing, or an op-

portunity to be heard, before a court of com-

petent jurisdiction, according to established

modes of procedure, is “due process" in the

constitutional sense,' Frank v. Mangum, 237

U.S. 309, 326, 35 S.Ct. 582, 586, 59 L.Ed.

969. See also Alexander v. Daugherty, 10

Cir., 286 F.2d 645, cert. denied 366 U.S. 939,

81 S.Ct. 1666, 6 L.Ed.2d 849; Odell v.

Hudspeth, [189 F.2d 300, 301 (10 Cir. 1951),

cert. denied 342 U.S. 873, 72 S.Ct. 116, 96

L.Ed. 656). * * #°*

Matters of law have traditionally fallen for decision upon

the court, and matters of fact have traditionally fallen for deci-

sion upon juries. In this case the jury's domain in that regard

was delineated by the trial judge by jury instruction numbered

"1," which reads in pertinent part:

"The functions of the Court and jury are

a4g@

distinct, and each is supreme in its own do-

main.

"It is the exclusive province of the Court

to determine admissibility of all evidence,

permitting proper evidence to go to the jury

and excluding from the jury improper evidence,

to define the issues and to instruct you as to

the law applicable to the issues.

"On the other hand, it is the exclusive

province of the jury to weigh and consider all

evidence which is presented to it; to deter-

mine the credibility of all witnesses who tes-

tify before you, and from such evidence and

testimony, to determine the issues of fact in

this case."

Three overseers are created to guarantee due process in a

death penalty case. The legislature has detailed a considerable

number of safeguarding procedures in accordance with the direc-

tions of the ultimate authority on the death penalty--the Supreme

Court of the United States. The trial judge must follow those

steps plus basic constitutional rights as interpreted by court

decision and rules not outlined by the legislature. Then, this

court is obligated to not only dispose of the issues raised by the

appellant in accordance with guidelines of due process established

by the Supreme Court of the United States and the legislature of

the State of Wyoming in a death penalty case, but also make an

independent review, as provided by § 6-4-103, W.S.1977, set out in

fn.3, ante, under the canopy of a vast array of jurisprudence,

about which there is not always agreement even within the hierar-

chy of the judiciary and craftsmen in jurisprudence.

Courts are presumed to have some expertise in jurisprudence;

and to throw that off onto a jury would be to impose a burden upon

lay persons which would be unfair to the defendant, as well as the

State. The position of the appellant is not well taken.

XI

The appellant raises the question as to whether he was ade-

quately represented by counsel at his sentencing hearing--the one

now before us. At the outset we should point out that counsel who

represented appellant at the sentencing hearing is the same coun-

sel who now represents him as appellate counsel, Leonard D.

Munker. Mr. Munker is the State Public Defender having under his

Supervision all public defenders within the State of Wyoming. He

is a lawyer of vast public defender experience at the trial

level.23/ He is greatly respected by this court.

In the first trial appellant was represented by retained

counsel; however, during the early stages of the resentencing pro-

ceedings, the retained counsel sought and obtained authority to

withdraw from the representation of appellant due to the latter's

indigency. Mr. Munker selected from his state-wide staff an able

assistant to participate in the defense of appellant.

It is the posture of counsel, presented with some reluctance,

that (1) he and his assistant did not have sufficient time in

which to prepare; (2) they had serious disagreements concerning

trial strategy; (3) a general atmosphere of anxiety and fear per-

yvaded the trial; and (4) defense counsel in this second sentencing

phase did not have the benefit of cross-examining some of the wit-

nesses in that the transcript of their testimony was used, rather

than a live appearance.

23/ A brief biography furnished by Mr. Munker at our request reveals:

"D.0.B. July 2, 1933, Ogden, Utah. EDUCATION: Graduate of Reno Senior

High School, 1951, Attended the University of Nevada, 1952-54. Joined

the U.S. Navy, 1954-58. Designated Naval Aviator, 1955. Attended the

University of Kansas, 1958-60. Received a B.A. in History, 1960.

Recalled in the Navy during the Cuban Missile Crisis, 1961-62. University

of Kansas Law School, 1962-65. Admitted to the Kansas Bar, February 10,

1965, by examination. Admitted to the U.S. District Court for the Dis-

trict of Kansas, February 10, 1965. Admitted to the U.S. Court of

Appeals, April 6, 1967. Admitted to the Supreme Court of the United

States, December 13, 1976. Admitted to practice in Wyoming, March 21,

1979. LEGAL EXPERIENCE: Legal Editor, Shepard's Citations, 1965. Pri-

vate Practice in Wichita, Kansas, November, 1965 through March, 1967. Law

Clerk to The Honorable Frank G. Theis, March 1967 through September, 1969,

for the U.S. Dist. Ct. of KS. Private Practice in Wichita, Kansas,

1969-71. Chief Deputy in the Office of the Attorney General for the State

of Kansas, January, 1971 through April, 1971. Appointed Municipal Judge

for Wichita, Kansas, April, 1971 through April, 1973. Private Practice

during this period. Appointed as the Federal Public Defender for the Dis-

trict of Kansas, July, 1973 through December, 1981. Senior Staff, Office

of the Wyoming Attorney General, September, 1978 through January, 1979.

Appointed as the Wyoming State Public Defender, January of 1982 to pres-

ent. WORK EXPERIENCE: Extensive work in criminal litigation, both trials

and appeals in the District of Kansas; responsibilities included both ad-

ministrative and trial work before the United States District Court for

the District of Kansas in Wichita, Topeka, and Kansas City, Kansas, and

approximately 3500 cases were handled by this office. Appellate work for

both the Kansas Supreme Court, and the Wyoming Supreme Court and the Court

of Appeals for the 10th Circuit in approximately 85 to 100 cases. Nation-

al Chairman of the Federal Public and Community Public Defenders, 1980-82.

Committee member and lecturer in training Federal Public Defenders."

-48-

We appreciate the weight of responsibility resting on the

shoulders of defense counsel in representing one charged with a

capital crime--any crime for that matter--but more particularly

where the ultimate punishment is at stake. We are mindful of the

attorney-client relationship and the stresses that must exist when

differences arise in that relationship with respect to the tactics

to be employed in representation and the skills necessary in their

presentation in the best possible light for the client. We are

unable to detect in the transcript any serious rupture of the

attorney-client bond that must necessarily exist. However, note

the colloquy appearing at pages 962-976, Vol. XI of the record,

which we will discuss later.

In two recent decisions this court has had occasion to set

out the standard to be employed to test the adequacy of a criminal

defendant's assistance of counsel. It was said in Hoskovek v.

State, Wyo., 629 P.2d 1366, 1367 (1981):

"A criminal defendant is entitled to an ‘ef-

fective’ assistance of counsel. (Citations. ]

The standard which we have established to

determine whether or not the assistance of

counsel is effective is one of ‘reasonable-

ness.’ Is the assistance rendered by counsel

that which would reasonably be rendered by a

reasonably competent attorney under the facts

and circumstances of the case? i. 22 28, 2

is effective. If it is not, it is ineffec-

tive. ([Citations.] The burden rests upon ap-

pellant to establish the ineffectiveness of

counsel's assistance inasmuch as there is a

presumption that counsel is competent and that

he performed his duty. ([Citations.]"

Continuing on, it was further there laid out, 629 P.2d at 1368,

that:

"At page 1196 of Galbraith v. State [Wyo.,

503 P.2d 1192 (1972)], 503 P.2d, we quoted the

following from United States v. Rubin, 433

F.2d 442, 444 (5th Cir. 1970), cert. denied

401 U.S. 945, 91 S.Ct. 961, 28 L.Ed.2d 228:

"""Taking a hindsight view, many convict-

ed defendants may condemn their counsel as

ineffective. But the command of the con-

stitution is for a battle, not a victory,

as Judge Goldberg pointed out for us in

Odom v. United States, 5 Cir., 1967, 377

F.2d 853, 859. The standard was articu-

lated by Judge Wisdom in MacKenna v.

Ellis, 5 Cir., 1960, 280 F.2d 592, 599:

‘We interpret the right to counsel as the

-49-

right to effective counsel. We interpret

counsel to mean not errorless counsel, and

not counsel judged ineffective by hind-

sight, but counsel reasonably likely to

render and rendering reasonably effective

assistance.' We have never deviated from

these principles. * * *"'"

See also Spilman v. State, Wyo., 633 P.2d 183 (1981) to the same

effect. It was added there that:

"“* * * Thus, appellant must demonstrate the

unreasonableness of trial counsel's actions.

Seemingly, this would include a showing of

some injury which a reasonable attorney's con-

duct would have avoided. * * *" 633 P.2d at

185.

We consider now those areas in which counsel suggests he may

have been ineffective. With respect to point (1), insufficient

time to prepare, the public defender was, by court order, appoint-

ed on March 15, 1982, though he had been notified of the assign-

ment by telephone a week earlier. On March 18, 1982, counsel

moved for at least a sixty- day extension to review the file and

confer with the appellant. It was granted. (A number of pretrial

motions had already been taken care of prior to the appointment of

the public defender.) The trial was set for May 17, 1982. At the

request of appellant's counsel, on April 9, 1982, the trial judge

entered an order directing that appellant be transferred from the

Wyoming State Penitentiary to the county jail at Cheyenne, so that

he would be available for conferences with his attorney, whose

headquarters are in Cheyenne.

No continuances were thereafter sought. Without a motion for

continuance, it is difficult to claim inadequate time for prepara-

tion particularly in the absence of a showing of actual prejudice.

State v. Bretz, Mont., 605 P.2d 974, 985, cert. denied 444 U.S.

1104, 100 $.Ct. 1073, 62 L.Ed.2d 791 (1979). There is nothing in

the record which would indicate that, if requested, a continuance

would not have been granted, nor, if granted, that the defense of

appellant would have been any different than it was.

With respect to point (2), that there were conflicts between

appellant and his counsel which made his representation ineffec-

tive, it is not unusual that such differences arise. Attorneys

are often faced with the dilemma of satisfying a client and pro-

ceeding based upon professional judgment, which interests may not

be in harmony.

After the commencement of the appellant's case, an in-chain-

bers conference was held. (R.Vol.XI, pp.962-976) Appellant was

present. It opened with defense counsel advising the trial judge

that they were there because appellant had an objection to the

witnesses being called and an objection to witnesses not being

-50-

called. It was then explained by appellant's counsel that for

tactical reasons it would open up much of the original guilt if

witnesses desired by appellant were called which counsel consid-

ered disadvantageous because of the involvement of purchased per-

jured testimony. If that was done, then the State could come back

in rebuttal and make an even more devastating case than already

present. It was further considered that by calling the type of

witnesses counsel recommended--character witnesses, including

appellant's mother--the scales could be tipped against the death

penalty in that appellant did have some good qualities. It was

disclosed that appellant had been so informed, and that counsel in

their professional capacity had made those decisions.

Appellant then explained, in a lengthy, disjointed discourse,

that he wanted the "whole thing" opened up again, that somewhere

in the testimony there would be mitigating circumstances. He

wanted that so there would be someone backing up his story if he

took the stand and begged for his life. (Appellant did not testi-

fy in his own behalf.)

Counsel for defendant, in putting the foregoing before the

trial judge, explained that they were not asking him to do any-

thing or to make any ruling, nor did they want him to, but they

wanted it in the record. The prosecutor requested that the court

enter into the record the court's views as to the competency of

counsel because he could see the competency of counsel coming up

as an issue on appeal.

Appellant then said:

"ex * * IT think Mr. Munker and Mr. Skaggs are

probably the two best attorneys I have had

through my problems, but there's no way on

God's green earth that they can even read all

my transcripts in 60 days, let alone get a

concept of what went on here."24/

24/ At a later in-chambers conference, R.Vol.XI, pp.1009-1010, the trial

judge commented:

"Mr. Hopkinson also said this morning that these were

the two best lawyers he's ever had in this case, even

after he quarreled with them about who to call as wit-

nesses and who not to call. I find their judgment in

that regard to be extremely wise. They would be ex-

tremely unwise to call Hap Russell or Johnny Suesata,

or whatever that little fart's name was, that refused

to testify last time. He would be annihilated. And to

call him or Hap Russell after what I saw in the court-

room during the last trial, would indicate incompetency

of counsel, It would be stupid. And for counsel to

=§1-

Mr. Skaggs responded to this:

"I would like to say something on that.

There was no motion for continuance. Leonard

felt he was prepared. I read everything I had

from collateral sources and Mr. Van Sciver. I

had the jury investigation of the jury members

and whatnot. But Mr. Hopkinson did not want a

continuance. He did not want a continuance.

He wanted to go in there and get it over

with."

It is apparent that counsel for appellant were well aware of

the responsibilities encompassed by the lawyer-client relationship

and had advised appellant of their need for the control they must

have and that it would be exercised. The control and direction of

a case is well-expressed by Standard 4-5.2, ABA Standards for

Criminal Justice, The Defense Function (Little, Brown and Company

2nd ed. 1980):

"(a) Certain decisions relating to the con-

duct of the case are ultimately for the ac-

cused and others are ultimately for defense

counsel. The decisions which are to be made

by the accused after full consultation with

counsel are:

"(i) what plea to enter;

"(ii) whether to waive jury trial; and

"(iii) whether to testify in his or her

own behalf.

"(b) The decisions on what witnesses to

call, whether and how to conduct cross-exami-

nation, what jurors to accept or strike, what

trial motions should be made, and all other

Strategic and tactical decisions are the ex-

clusive province of the lawyer after consulta-

tion with the client.

"(c) If a disagreement on significant mat-

ters of tactics or strategy arises between the

lawyer a

This text is long and has been trimmed here. Open the source document for the complete record.