# Petition — Sutton v. Bloom

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 464 U.S. 1073

## Text

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 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

Appellant's pro se motion fails in all respects.

Regarding (3), there is nothing in the record to disclose
that a general atmosphere of anxiety and fear pervaded the trial.
Tempers flared in the heat of contest but that occurred in cham-
bers, outside the presence of the jury. There is no doubt that
anxiety was felt by the trial judge and counsel because of their
heavy responsibilities. Appellant, as the subject, could be
expected to have anxiety. One instance of a threatening phone
call by an unknown person to the wife of a witness who had testi-
fied in the former trial was entered into the record, in chambers
and outside the presence of the jury. She received two phone
calls in the morning and no one responded when she answered. In
the afternoon there was another call from a man who said, "Is your
husband going to testify?” She responded, "Who is this?" The
man's voice then told her, "You had better keep him home." She
hung up the phone. The record was made to protect the witness.
The call could not be tied to appellant. (R.Vol.XI, pp.999-1000)

(4) In regard to counsel not having the benefit of cross-ex-
amining witnesses whose testimony from the previous trial was read
into the record, it appears they were at liberty to subpoena and
could have done so. (R.Vol.IX, p.604) Record references in ap-
pellant's brief indicate that this issue pertains to the testimony
of Kristi King (handling of $15,000 payment) (R.Vol.IX, pp.597-
640) and Jennifer Larchick (to obtain a picture of Jeff Green, a
welder, and inquiries as to Green's whereabouts) (R.Vol.X, pp.703-
751). The cross-examination of each witness, as well as direct
testimony, was read. Appellant had been confronted by these wit-
nesses in the first trial in the light of the circumstances here.
Grable v. State, Wyo., 649 P.2d 663, 673 (1982), citing California
v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). We
are unable to determine how this demonstrates ineffective assist-
ance of counsel. Appellant does not point that out. Whether to
subpoena as a witness for cress-examination was a tactical choice
and in all likelihood would have reopened testimony demolishing to
appellant. These two witnesses provided circumstances linking
appellant to the hiring of killers, furnishing a picture of Jeff
Green, discussing the availchility of a welder, which was a cir-
cumstance explaining the heating of hot irons to torture Jeff
Green, and keeping track of Green's whereabouts for assurance that
he had been destroyed.

XII

We now concern ourselves with appellant's claim that the
prosecution had used the Uinta County grand jury improperly as an
investigative tool in a continuing investigation of the Mark

—y=

Hopkinson matter and that certain witnesses were there examined
prior to the second penalty phase. The reasons given are that:

"1, Judge Troughton, a witness in the first
trial, is now a district court judge for the
Third Judicial District, and thus the conven-
ing authority in Uinta County.

"2. The special prosecutors, had not been
properly appointed so as to enable them to ap-
pear before the Uinta County Grand Jury.

"3. There never has been a proper showing
that the grand jury was properly convened or
whether and when its term expires."

We find nothing in the record to support the proposition that
Judge Troughton convened the grand jury, though he may have.
There are two district judges having jurisdiction in and serving
Uinta County; either could have convened that body. Other than
the bare allegations and innuendos of appellant, there is nothing
in the record nor any offers of proof which would indicate any
impropriety relating to the convening of the Uinta County grand
jury. The role of a judge regarding a grand jury, other than con-
vening, instructing on their duties, and receiving the indictments
or no true bills, is slight. Section 7-5-1011, et seq., W.S.1977.

With respect to the appointment of special prosecutors, a
resolution of the Board of County Commissioners taking that action
appears.26/ Even if material or relevant, there is no basis in

26/ The resolution of the Board of County Commissioners appointing the spe-
cial prosecutors, adopted May 18, 1982, reads:

"WHEREAS, on December 1, 1978, the law firm of
Spence, Moriarity and Schuster was appointed by Dis-
trict Court Judge C. Stuart Brown to act as special
prosecutors in the matter of the State of Wyoming vs.
Mark Allan [Allen] Hopkinson; and

“WHEREAS, the law firm of Spence, Moriarity and
Schuster has acted in that capacity ever since that ap-
pointment and have gained special and unique knowledge
about that matter; and

“WHEREAS, the Wyoming Supreme Court ordered a retrial
of the death penalty phase of the State of Wyoming vs.
Mark Allan [Allen] Hopkinson which requires the special
and unique knowledge obtained by the firm of Spence,
Moriarity and Schuster making it necessary for their
continued employment .

fact for the allegation.

Section 7-5-206, W.S.1977, Cum.Supp.1982, gives broad powers
of investigation through the grand jury:

"The district attorney, or the deputy or
assistant district attorney, shall be allowed
at all times to appear before the grand jury
for the purpose of giving information relative
to any matter cognizable by them, or giving
them advice upon any legal matter when they
may require it; and he may be permitted to
interrogate witnesses before them when they or
he shall deem it necessary; but no such attor-
ney, nor any other person shall be permitted
to be present during the expression of their
views or the giving of their votes on any mat-
ter before them.”

The grand jury is an ancient and honored institution which
originally stood between the people and the crown to prevent op-
pressive prosecution through the power of the crown and the right
to have one's peers determine who should be brought to trial.
United States v. Olmstead, 7 F.2d 756 (D.C.W.D.Wash. 1925). When
this country was formed, it became an informing and accusing tri-
bunal, designed not only as a means of protecting citizens against
unfounded prosecutions but to bring to trial persons accused of
public offenses upon just grounds. Ex Parte Bain, 121 U.S. 1,
10-12, 7 S.Ct. 781, 786-787, 30 L.Ed. 849 (1887); Maley v.
District Court of Woodbury County, 221 Iowa 732, 266 N.W. 815
(1936) (overruled on unrelated grounds, 2 N.W.2d 741, 744).

"NOW, THEREFORE, BE IT RESOLVED by the Board of Coun-
ty Commissioners of Uinta County, Wyoming, that:

"1, The law firm of Spence, Moriarity and Schuster
is hereby appointed and employed to act as special
prosecutors on behalf of Uinta County in the matter of
the ([S]tate of Wyoming vs. Mark Allan [Allen]
Hopkinson.

"2. That Uinta County does hereby reaffirm the orig-
inal appointment by District Court Judge C. Stuart
Brown of the law firm of Spence, Moriarity and Schuster
by and through one of its partners, Edward Moriarity,
to act as special prosecutor in all matters involving
the case of the State of Wyoming vs. Mark Allen
Hopkinson."

The investigative power of the grand jury must necessarily be
broad if its public responsibility is to be adequately discharged.
Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.
397 (1956). The role of the grand jury is an important instrument
of effective law enforcement and necessarily includes investiga-
tory functions which can be triggered by all manner of means.
Branzburg v. Hayes, 408 U.S. 665, 700-701, 92 S.Ct. 2646, 2666-
2667, 33 L.Ed.2d 626 (1972).

For many witnesses the grand jury room engenders an atmos-
phere conducive to truth telling. Being brought before neighbors
and fellow citizens and placed under a solemn oath to tell the
truth seems to obligate many witnesses to do just that where they
may not have done so in less solemn surroundings. United States
v. Washington, 431 U.S. 181, 188-189, 97 S.Ct. 1814, 1819, 52
L.Ed.2d 238 (1977).27/ The prosecutor has a no more effective
tool than the grand jury for the witness unwilling to discuss what
he knows with an investigator, without the power of subpoena and
the oath. The secrecy of the proceeding is a relief for reluctant
witnesses, many of whom provide only leads.

We hold that a continuing grand jury investigation even after
investigation of an indictment is proper. We consider it the
right of the prosecuting attorney to “interrogate witnesses before
them when they or he shall deem it necessary," § 7-5-206, supra.
The oath of the foreman and jurors, §§ 7-5-203 and 7-5-204,
W.S.1977 28/ implies as_ much. The charge by the judge,

27/ For more on the function of the grand jury, see 1 Hastings Const. Law
Quarterly 63, Grand Juries, Grand Jurors and the Constitution (1974); 14 Idaho
L.Rev. 545, The American Bar Association's Grand Jury Principles: A Critique
from a Federal Criminal Justice Perspective (1978); 10 Am. Crim. L.Rev. 671, A
Symposium: The Grand Jury (1972).

28/ Section 7-5-203, W.S.1977, provides:

“When the foreman shall be appointed, an oath or af-
firmation shall be administered to him in the following
words: "You, as foreman of this grand inquest, do
solemnly swear (or affirm) that you will diligently
inquire and true presentment make all of such matters
and things as shall be given you in charge, or other-
wise come to your knowledge touching the present ser-
vice. The counsel of the state, your own and your fel-
lows you shall keep secret, unless called on in a court
of justice to make disclosures. You shall present no
person through malice, hatred or ill will, nor shall
you leave any person unpresented through fear, favor or
affection, or for any reward or hope thereof; but in
all your presentments you shall present the truth, the

§ 7-5-205, W.S.1977 29/, along with the prevailing jurisprudence
pertaining to the grand jury function, goes far to authorize
continuing investigations. An investigation does not end until
the State rests at the end of all the evidence. The State has
every right to interrogate witnesses on subjects relevant to a
continuing grand jury investigation even when the evidence re-
ceived may also relate to a pending indictment. United States v.
Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied 421 U.S. 910,
95 S.Ct. 1562, 43 L.Ed.2d 775 (1975). We gather from the record
that grand jury investigation is still underway as to those who
carried out appellant's orders to torture and kill.

XIII

In this question to the court, appellant claims that
§ 6-4-103, supra fn.3, abrogates the plain error rule of appellate
review. Rule 7.05, W.R.A.P., declares that "([p)Jlain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." Rule 49(b),
W.R.Cr.P., is the same.

For there to be plain error, there must be: (1) a clear
record of what happened at the hearing; (2) a clear and
unequivocable rule of law shown to exist; and (3) the facts of the
case must clearly and obviously transgress the rule of law. Once
this three-part test is satisfied, it still must be shown

whole truth and nothing but the truth, according to the
best of your skill and understanding.'"

Section 7-5-204, W.S.1977, provides:

“Thereupon the following oath (or affirmation) shall
be administered to the other grand jurors: 'The same
oath which A.B., your foreman, hath now taken before
you on his part, you and each of you shall well and
truly observe and keep on your respective parts.'"

29/ Section 7-5-205, W.S.1977, provides:

"The grand jury after being sworn, shall be charged
as to their duty by the judge, who shall call their at-
tention particularly to the obligation of secrecy which
their oaths impose, and to such offenses as he is by
law required to specially charge. After the charge of
the court, the grand jury shall retire with the officer
appointed to attend to them, and shall proceed to in-
quire of, and present all offenses whatever committed
within the limits of the county in and for which they
were impaneled and sworn or affirmed."

that a substantial right of the accused has been adversely
affected. These criteria apply even when a constitutional ques-
tion is involved. Mason v. State, Wyo., 631 P.2d 1051 (1981);
Bradley v. State, Wyo., 635 P.2d 1161 (1981).

Not having in this opinion found error which could be denomi-
nated plain, or any other sort of error, we need not consider this
issue, though we consider it a part of our review function in a
death case to find plain error if it exists.

XIV

The appellant claims that a jury is not properly involved
in resentencing in a death penalty case. Section 6-4-103(e),
W.S.1977, provides that upon review, this court "may":

"(i) Affirm the sentence of death;

"(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 coun-

sel."

Section 6-4-102(a), W.S.1977, provides that upon conviction for
murder in the first degree a sentencing hearing to determine life
imprisonment or death shall be conducted by the judge alone if:

"(i) The defendant was convicted by a judge
sitting without a jury;

"(ii) The defendant has pled guilty; or

"(iii) The defendant waives a jury with
respect to the sentence."

None of these conditions exist.

We consider that when this court in the first appeal remanded
to the trial court for a new resentencing trial, we were restoring
the case to the status described in § 6-4-102(a). There was a
conviction, and now there must be a sentencing trial. There could
be no resentencing trial before the same jury that tried the guilt
issue. Section 6-4-102(b) provides for a new sentencing trial
“with a new jury impaneled for that purpose." It would not be
very sensible to hold the first jury until the disposition of all
appeals, so there was cause to dismiss the first jury.

We find nowhere in the record that the appellant ever exer-
cised his right to waive a jury in the resentencing phase. A

~§3

IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 1983

MARK A. HOPKINSON, a/k/a
MARK ALLEN HOPKINSON,

aan 5a

)
)
2
Appellant ) = hy b
(Defendant), oe hN one
— ys
v. No. 5733 & + z
THE STATE OF WYOMING, ca &
Ss
Appellee ) ‘as
(Plaintiff). ) ;

ORDER DENYING APPELLANT'S PRO SE MOTION
FOR CONSIDERATION OF PLAIN ERROR

For the reasons stated in Part XI of the court's opinion
of this date, it is

ORDERED that appellant's Motion of Proof, For Consideration
In Showing Palin [sic] Error Existed, Which Was Not Properly Shown
In Briefs Or Argument be, and is, denied.

May 27, 1983.

By the Court*

F. RAPER
Justice

*RAPER, THOMAS, and ROSE**, JJ., SAWYER and MCEWAN, DJJ.

**Chief Justice at time of oral argument.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1638%3A1. Public record. Not legal advice.