Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming

HOPKINSON, Mark A.

Petitioner-Appellant, SHILLINGER, Attorney and the

Duane Wyoming, the State

General

Respondents-Appellees.

No. 86-2571. Appeals, States Court

United

Tenth Circuit. 24, 1989.

Oct.

Rehearing Denied Dec.

1287 Sears, Denver, (Leonard appeal Hopkinson’s Daniel Colo. On J. death sentence Munker, Defender, D. Public and Norm for murder by of Green was vacated Defender, Newlon, Asst. Public State Wyoming Supreme Id. Court. A sec Wyo., Wyo., with him Cheyenne, sentencing proceeding ond was conducted briefs), petitioner-appellant. for Hopkinson again and was sentenced to Wyoming Supreme death. The af Court (Jo- Terry Armitage, Atty. L. Asst. Gen. State, Hopkinson v. firmed that Gen., sentence. Meyer, seph Atty. B. John Ren-W. denied, Gen., cert. neisen, (Wyo.), 664 P.2d 43 Deputy Atty. with him on the 464 U.S. briefs), Cheyenne, 908, 262, (1983) of Wyo., Wyo., State for 104 S.Ct. II). respondents-appellees. (Hopkinson subsequent After unsuc challenges Hopkin- cessful in state court1 HOLLOWAY, Judge, Chief Before sought son federal habeas relief with McKAY, LOGAN, SEYMOUR, and spect degree to his for convictions first MOORE, ANDERSON, TACHA, murder and his sentence of death. His BALDOCK, EBEL, BRORBY and petition summarily was by dismissed Judges. Circuit Hopkinson Shillinger, v. district court. F.Supp. (D.Wyo.1986). 645 374 EN ON REHEARING BANC A panel unanimously of this court af- ANDERSON, H. STEPHEN Circuit virtually firmed district court on all Judge. issues, and with affirmed one dissent on Hopkinson Wy Mark A. convicted in was the subject matter of this en banc review. oming State Court on four counts of first Hopkinson Shillinger, v. 866 1185 F.2d degree conspir counts of murder two (10th Cir.1989), 23, reh’g granted, March acy degree to commit first murder. The agreed 1989. The court thereafter con- first counts of three murder arose out sider en banc certain whether hiring Hickey his Michael to bomb Vincent prosecutor in the second Vehar, bombing Vehar’s home. That killed proceeding violated the rule out in set wife, sons; and one his Vehar’s another v. Mississippi, 320, 105 son injured was the blast but survived. 2633, and, so, 86 L.Ed.2d 231 procuring murder was fourth count for applied standard of review to be killing Hopkinson of Jeff Green. was violation, applying such a and whether imprisonment life sentenced to for each Hopkinson’s standard death sentence must murders, the Vehar to death for be vacated. The court also directed the State, Hopkinson murder of Green. See v. parties to address whether can be denied, cert. (Wyo.1981), 632 P.2d 455 79 this case. retroactively 922, 1280, 71 U.S. 102 S.Ct. — Lane, v. -, 109 S.Ct. I). Hopkinson (1982) (Hopkinson was also latter On the conspiracy convicted in the same trial of question we conclude Taylor with Harold James to commit the former, apply. Hop- On the we hold that degree conspir first murder of Vehar imposed acy Hickey kinson’s death sentence was not degree to commit the first unconstitutionally. William murder of Roitz. Wyoming Supreme stay

1. The Court for affirmed reduction sentence of execution Hopkinson’s State, (Wyo.), denial of motion for a new trial Hopkinson 704 P.2d 1323 State, Hopkinson (Wyo.), denied, 679 P.2d 1008 cert. cert. 88 denied, 469 83 L.Ed.2d V). (1985) (Hopkinson 564 denial L.Ed.2d (1984) III). (Hopkinson 157 The denial of his petition filed of his second in state court for petition post-conviction first in state Wyo corpus habeas affirmed writ of corpus relief and writ by Wyoming Supreme habeas was affirmed State, ming Supreme Hopkinson Court rel. State ex 1985) VI). (Wyo. (Hopkinson denial P.2d Court, Hopkinson County, v. District Teton request discovery grand jury testi of his denied, (Wyo.), P.2d cert. State, mony was affirmed in IV). (1985) (Hopkinson 1985) VII). (Wyo. (Hopkinson P.2d 406 upheld That court also the denial of his motions cases, they into one ing capital unless fall

I. Lane, 109 exceptions. Teague v. of two was decided Because Caldwell 1075; Penry Lynaugh, S.Ct. at years Hopkinson’s capital second two after 2944. S.Ct. at final, principles of nonre- sentence became therefore, question, initial is whether troactivity may apply to this collateral re — it erected “new rule” when Caldwell a Lane, U.S. -, Teague view. v. constitutionally imper declared is “[I]t (1989); 109 S.Ct. — a a de to rest death sentence on missible U.S. -, Penry v. Lynaugh, 109 S.Ct. has made a sentencer who termination 2934,106 (1989). However, 256 responsibility led to been believe prop must first the issue decide whether is determining appropriateness erly before us. death elsewhere.” defendant’s rests Cald 328-29, Mississippi, at well v. A. S.Ct. at 2639. no interposed state has defense Penry Court described nonretroactivity issue “new rules” as follows: raising grounds, preliminary ques thus a gen Teague, “As we indicated in ‘[i]n opinions tion waiver. See Justices a case a eral ... announces new rule respectively Brennan and Blackmun accom ground imposes a when breaks new dissenting remand in panying and Zant obligation on the States or the Fed new —Moore, U.S. -, 109 S.Ct. v. Lane, v. [Teague eral Government.’ (1989); Penry Lynaugh, L.Ed.2d 922 Or, put at it different S.Ct. 1070.] ‘[t]o J., (Stevens, concurring at 2963 and S.Ct. ly, a case announces a new rule if the dissenting part). We hold that the non- by precedent not result was dictated ex waived, retroactivity defense is not isting at the time the defendant’s convic should be considered. Ibid, (emphasis in tion became final.’ analysis retroactivity case Our Teague original). noted that is ad ‘[i]t by the upon is based and dictated “novel mittedly often difficult determine review of state threshold test federal a when a case announces new rule.’ convictions,” in Teag criminal announced recognized in Justice Harlan ‘the Ibid. Lane, Teague ue. 109 S.Ct. at evitable difficulties that will arise at (Brennan, J., dissenting). previ It was partic “to a tempting determine whether ously Arguably, to the available state. really a ular decision has announced defense of non- state could have raised the simply all rule at or whether has ‘new’ grounds, they retroactivity on other but applied a constitutional well-established largely would have irrelevant to the been govern principle to a case which is close analysis required Teague. Further ly analogous to those which have been more, retroactivity approach adopted in previously prior considered case ’ applied capital sen Teague was States, [Mackey law.” v. United tencing year. until of this context June 1181, 28 91 S.Ct. at Fi Penry Lynaugh, 2944. (1971)] (separate opinion of fundamentally, nally, more we sua Harlan, J.) (quoting Desist v. United issue this case sponte raised the because States, [89 very scope writ of habeas cor J., (1969) (Harlan, 22 L.Ed.2d 248] grant pus, power our therefore dissenting).” Lane, lief, implicated. Cf. at 2944. Lynaugh Penry order, the Pursuant to our ground” de- Applying the “breaks new fully question. parties briefed the scription matter of subject impulse general proposition, a the initial B. constitutional idea it is not novel role and should understand its rules cannot be Teague, Under new review, sentencing pro- capital includ- on collateral in cases ceeding. majority opinion defense counsel’s failure to raise an issue announcing not state that it new subsequent Supreme when a Court deci- out, points That rule. also sion principle articulates a constitutional us, supreme reminds that state that had recognized previous- not been routinely courts have considered it error ly. Consequently, the failure of counsel prosecutor for a to mislead a into to raise a constitutional reasonably issue thinking that the ultimate determination of unknown him satisfied the ‘cause’ death rests with others. Caldwell v. Mis Id. requirement. 104 S.Ct. at sissippi, 472 U.S. at 333-34, 2909.” Appellant’s 2641-42. Brief on Issue of Re- Id. added). (emphasis 596 Thus, reasons, troactivity Hopkinson at 7. Echoing the notion that Caldwell was point constitutional rule on the would not “new,” panel opinion dissent to the in ground impose break new and it would not this case comforted the trial and obligation Dug a new on the states. — prosecution regard alleged er- Adams, ger v. U.S. -, 3, n. 109 S.Ct. by saying: ror “In fairness to the court 3, 1211, (1989). n. 103 L.Ed.2d 435 counsel, sentencing proceeding was However, effectively reached a differ years three before Caldwell was decid- in ent conclusion our recent decision in Shillinger, v. ed-” 866 593, Dutton v. (10th 812 F.2d 596 J., (Logan, F.2d at dissenting). 1238 denied, Cir.) (en banc), cert. 836, 484 U.S. 116, (1987). 108 S.Ct. 98 L.Ed.2d 74 In We are in expressed not alone the view Dutton, Caldwell’s, Caldwell issue was raised for Dutton in novelty in proceed the first time a federal habeas application provided Amendment ing challenging imposed a death sentence cause for a defendant’s failure to raise the Although in state court. failure to raise in to Caldwell. prior issue state court proce the issue in state court constituted a Eleventh position Circuit took the same in default, dural we held that cause for Dugger, Adams v. 1493, 816 F.2d 1495- that Cald ground default existed on (11th Cir.1987), rev’d, Dugger v. 1501 well announced a new rule. Our language — Adams, -, 1211, U.S. 109 S.Ct. at Dutton does not in that suggest (1989) (Caldwell 103 pri- L.Ed.2d 435 claim by past precedent: dictated was or to Caldwell was “so novel as to have no proce- cause existed for “We believe existing in precedent.” reasonable basis counsel, dural default because trial Id. 1500), and its initial in that 1979, could not have the time of in trial Wainwright, Adams v. 804 F.2d prosecutor’s known that (11th Cir.1986), rev’d, Dug 1526, might ques- have raised constitutional Adams, v. (1989), ger 109 1211 S.Ct. at petitioner tions. The law relies on did upon which we relied in Dutton. not become established until the Cald- Supreme duly posi- noted our well decision in 1985. We cannot expect tion, along with those of the Eleventh and extraordinary trial counsel ‘to exercise Circuits,2 Fifth in its reversal of the Elev- vision object every aspect or to grounds. Dugger v. enth Circuit on other hope aspect that some proceeding Adams, 1214, It 109 S.Ct. at n. 3. declined might mask a latent constitutional pass directly argu- on the novel claim Isaac, 107, Engle claim.’ v. ment, defendant, Adams, holding that 113, 1564, 1558, 102 S.Ct. Ross, “plain- (1982). 1, 17, procedurally was barred because he In Reed v. ly objection and an (1984), 1 had the basis for an 104 S.Ct. 82 L.Ed.2d argument appeal that the instructions the Court ruled that cause exists for Blackburn, posi- type prior The Fifth Circuit Moore v. 774 of claim to Caldwell. But in 97, (5th 1985) (alternative holding), explained F.2d Cir. 98 and limited in tion has since been 1176, denied, 2904, Butler, (5th Cir.1989) cert. 90 Sawyer F.2d 1273 881 (1986), compe L.Ed.2d that "a 990 concluded (en banc). attorney aware tent should have been of" 1290 Dugger, Id. at 1215 detail Adams

violated state law.” 1498-1500, 1495, pointed and the dissent added). Caldwell, 347-52, U.S. at out Dutton way, perhaps, to reconcile One J., (Rehnquist, dissenting), S.Ct. at 2649-51 holding say here is with our jurisprudence of the Eighth Amendment purposes analysis rule for new Caldwell did prior to Supreme Court then,3 cause, at least as we saw Caldwell. compel visibly the outcome determining analysis a new rule for Ramos, contrary, To California nonretroactivity purposes, not identical. are U.S. open left While the Court has Donnelly DeChristoforo, (1983), Dugger cause, see precise definition Adams, it has stated that direction, opposite inclined petitioner can way one establish cause specifically and had addressed by showing that “a constitutional claim is Caldwell. distinguished underpin- legal so novel that its basis is reason- justification ning majority cited Ross, counsel.” Reed v. ably available to holding “Eighth for its heightened Amendment’s ‘need for reliabili- a new rule for ty in the that death determination is nonretroactivity purposes a is described as appropriate punishment specific in a not “dictated by precedent is result which 340, 472 case.’” at 105 U.S. existing at the time the defendant’s convic- v. North 2645, quoting Woodson S.Ct. at Teague Lane, v. tion final.” 109 became Carolina, 280, 305, 2978, 96 S.Ct. original). S.Ct. 1070 Com- at 2991, (1976) (plurality opin- 49 L.Ed.2d 944 definitions, there paring the two is far ion). generality may A command of that congruence ground more for than for dis- justify any Supreme result the Court wants argue might a tinction. One that “reason- particular in a not reach but ably legal less available basis” is demand- adequately compel describe a result ing by precedent” than a “dictated test for any specific matter. nonretroactivity purposes. But even so, holding a that a claim is so novel is Additionally, proscriptions state court of reasonably is no available there basis conduct similar to that involved Caldwell cause, must also it, establishing for thus to Cald- necessarily prior not did establish mean novel claim too to be well that such conduct Eighth violated Thus, by past we can- dictated precedent. Adams, Dugger v. Amendment. See 109 Dutton simply not our dicta as dismiss (“We agree respondent at 1216 with S.Ct. present question. irrelevant Appeals and the Court of availabil- ity a claim under law of of whether Caldwell of state does not Reexamination a ground persuade itself establish that claim was available broke new does not us to Constitution.”); expressed in under the United States a different view than that Dugger, v. explained Dutton. Adams As 816 F.2d at n. 6.4 Circuit 1499 —Reed, U.S. -, 1038, respect, 48. 3. v. 109 S.Ct. lale review. Id. at In that Harris (1989); Adams, Hugger omission, 103 308 v. 109 alleged L.Ed.2d error rather than commis- 1211; 1060, Lane, Teague v. S.Ct. sion, S.Ct. at 109 at Dugger to that v. similar asserted very may recent Court cases other Adams, Dugger Adams. v. 109 S.Ct. 1214. As analysis compelled a different in Dutton. have noted, previously have defense counsel did we objection interpose an on those state law necessary subsequently 4. It element of a object grounds. grounds Failure to on those challenged claim that the re- available Caldwell Wyoming cause Su- could have been objectionable were under marks or instructions later, preme apply procedural Court to bar Adams, Dugger See v. state law. Dugger providing a basis v. Adams thus under alleged argu- Hopkinson’s counsel oral 1217. foreclosing Hopkinson’s Caldwell claim in challenged violated the ment that the proceeding. See federal habeas id. How- way Wyoming constitution in the same that Trans, ever, Wyoming Supreme expressly the United States constitution. violated any procedural apply a bar 8, declined to on Argument the reference to of Oral ground respect Hopkinson’s appellate improper because it did review was claim, on the merits. appel- and addressed that claim of inform of limitations

1291 points primary con ment certain rules out that conduct and prohibiting category punish- in other cases certain sidered claims raising ment for class of defendant because of without the issue nonretroactivi Brown, Ly- v. Penry their status or offense. v. ty. 860 1545 See Parks F.2d naugh, Cir.1988) (en exception 109 granted cert. on (10th banc), S.Ct. at That — apply. -, does not grounds, other 109 S.Ct. U.S. (1989); Dutton 104 L.Ed.2d 402 exception The second relates rules Brown, Cir.) (en banc), (10th F.2d 593 812 require “proce which the observance of denied, cert. 98 ‘implicit concept dures that ... are ” Coleman (1987); 802 Lane, Teague liberty.’ ordered 109 denied, cert. (10th Cir.1986), F.2d 1227 1075, quoting Mackey v. United S.Ct. at 2491, 96 U.S. States, 401 U.S. at at 1180 S.Ct. However, (1987). cases were decided those Harlan, (separate opinion J.) (quoting event, prior any Teague, Cald and in no Connecticut, 319, 325, Palko v. well was found. Cases other violation (1937)). S.Ct. 82 L.Ed. 288 circuits, by Hopkinson, cited where relief Aiken, 211, 108 Yates v. granted, on has the basis been scope But the See, Teague. prior were also decided exception plu the second is limited (5th e.g., Thigpen, Wheat 793 F.2d 621 rality opinion in Teague pro “to those new denied, Cir.1986), cert. cedures without of an which likelihood (1987); Mann v. seriously accurate conviction diminish (11th Cir.1987), Dugger, F.2d Lane, ed.” 1076-77. S.Ct. at reh’g reh’g en granted, procedures plurality to which the banc, denied, cert. 844 F.2d 1446 procedures fers are bedrock which are — U.S. -, to “central an accurate determination of (1989); Wainwright, Adams v. Id. at 1077. Presum guilt.” innocence or acknowledge F.2d at While that we ably, exception applies accuracy to the timing placed previous a fortuity of habeas well, of the defendant’s sentence as and to elsewhere, petitioners, here and in a differ Eighth Teague Amendment violations. Hopkinson, than position ent nonretroactiv Lane, (Brennan, J., 109 S.Ct. at 1089 n. 5 Teague ity apply to itself. The does not dissenting). Teague applies to holding in new constitu Emphasizing the narrowness of the sec- Lane, Teague rules, at tional exception stated, be- ond “[w]e holding from an inter but the stems unlikely many compo- such lieve it pretation statutory scope habeas process yet basic to nents of due corpus, directly power our and affects with Id. at 1077. urged The emerge.” rule respect petitions to habeas before us. prerequisite must “the kind of absolute be hold, summary, our consistent with ‘implicit that is in to fundamental fairness ” opinion in Dutton v. that the rule Id. concept liberty.’ Its of ordered in falls the “new within rule” must “undermine the fundamental absence and, therefore, Teague, proscription can- fairness must underlie conviction [or proceeding in it not be unless seriously diminish likeli- sentence] exceptions per- one of falls within the two obtaining an accurate conviction hood of by Teague. mitted Id. sentence].” [or alone, capital hearings in Standing a rule C. appellate can reference to review no made, a full in or cannot made without exception The first be appellate process, or that punish- description criminal forbidding lates to rules State, opposite might Quite be true. law. Hopkinson v. P.2d at 47. Thus state procedural before to issue of bar is not us. case is confined Our conclusion in this question. availability claim in imply that the constitutional We do not intend to suggested never be of a constitutional claim can during issue occurred death sentence follow referenc- must curative instructions review, jury not amount to to the appellate prosecutor’s to do summation es ele- procedural bedrock Eighth Amendment to The remarks sentencing trial. second abstract, However, speaking in the ments. assigns in his en error which us, before not as the fact situation to brief, un- together portions with the banc procedure that a us strikes as bedrock brief, in that are as follows: derscored it, appellate not an must understand matter, they talked about "Another court, responsibility impos- for carries There is no such possibility of error. ing penalty. the death system The works thing perfection. as general terms describe the matter We can, but there are the best safe- uncertainty scope because process. guards built That’s due in. regard But we do Caldwell itself. Court, as Mr. Wyoming understanding core function in its said, the first trial. Munker reviewed sentencing hearing to capital be funda phase. guilt no They error found mentally accuracy of a death related Su- That went the United States misunderstanding sentence. A basic Court, preme it was cert. denied purpose of its dislocates Objection, Honor. your MR. SKAGGS: proceeding, implicating entire thus “ flatly [Supreme evidence of that and principal ‘the concern’ of There no Court] regarding penalty, death jurisprudence bring something I there is no can’t ‘procedure by imposes which the State of, he either. evidence can’t ” the death v. Missis sentence.’ Caldwell MR. MORIARITY: Well— sippi, 472 at U.S. Now, let me try THE COURT: han- Ramos, quoting California heard a state- dle it. has lot of heightened and “the closing arguments refer- ments reliability need the determination technically ence to matters there is which appropriate punishment death no evidence on. And I won’t talk about specific case.” Woodson North Car what, you. strictly up who said that’s olina, 96 S.Ct. at 2991. given everybody I have latitude But Because of its fundamental nature Cald going stop I’m not now. different, example, claim from well just jury will it out. arising Maryland, one under Booth v. sift you, MR. MORIARITY: Thank Your (1987), prosecutor introduced vic where testimony The of Honor. Mrs. Barbara evidence, impact tim its extension court, Oakley, the this I clerk of when — Gathers, U.S. -, Carolina South guilt phase gone if asked her the had Supreme the United States and Court religious the evidence of victim’s and where prior come back from them to this had improper. was deemed civic inclinations said, testimony, yes, she re- the record acknowledge Accordingly, while we that. the in this vealed That is facts scope constraints on the of Teague’s severe Supreme But Wyoming case. the review, we conclude that collateral Cald- because Court sent back error of exception fall within the second well claims penalty trial the death as it the on first Teague, regardless exception of how the pertained to the matter. Green Jeff defined, can may finally be be con- Wyoming Supreme Court will re- Fifth note that the Circuit sidered. We you view whatever take in this action Sawyer a different view. v. But- takes So, It’s an automatic review. the case. (en (5th Cir.1989) banc). ler, 881 F.2d 1273 error, the matter mistake matter of of be is not one us to concerned II. best, Judge has his here. Ranck done A. you duty to instruct on the law. We his you facts wit- given the from the prosecutor’s which have remarks as we can. You have to Hopkinson’s ness stand best placed constitutionality the can, your duty you positive legal I’m do as best issue concerns the standard But, by prosecutor’s you sure will. because some of review which the re- error, substance, possibility they say give marks must be don’t evaluated. penalty. Hopkinson’s him the death the That’s issue whether sen- death your law must pros- what the is. It’s nowhere in tence because vacated of the [Empha- instructions the Court. ecutor’s statement even there is no sub- from Transcript May sis 1982 stantial the possibility that affect- added.] XVI, proceedings, pp. ed Yol. decision. 1246-48.” Supplemental Reply Brief for Petitioner- Hopkinson argues following Rehearing Appellant on En Banc language in Supreme Caldwell the (emphasis in original). erected “no effect” standard of review for Caldwell violations:

Notwithstanding the fact that chal “In sought this mini- lenged prosecutor State statement did not responsibility mize the sense (although fully explain) misstate it did determining appropriateness law, Adams, Wyoming see Dugger Trans, death. say Because we cannot that this Argument S.Ct. at of Oral on sentencing had no on the Rehearing En Banc court effort effect decision, that decision not meet equally prosecu divided as to whether reliability standard of statement, context, tor’s taken in violated requires.” Amendment is, the rule That Caldwell. agree or not prosecu cannot whether Mississippi, U.S. at which, type tor’s statements were added). Since context, when taken to shift impossible reviewing would be for a “tend[ed] for the deci say court to that a remark which violates away jury.” sion from the Parks v. the rule in had no conceivable (10th Cir.1988) sentencing decision, effect on a however — (en banc), U.S. -, granted, insignificant, Hopkinson cert. acknowledges that practical as a matter the “no stan effect” opposing viewpoints per requiring essentials of the on dard amounts to a se rule Argument subject panel this are reversal. Trans. of Oral on Re set out in dissent, En hearing Banc at 19-22. unproductive and it peat enlarge upon arguments those persuaded We are not here equal because division of Court has erected a standard of review subject. court on subject so formidable to foreclose appellate beyond review bare determina- equal af- Our division has effect of falling tion that an remark uncorrected firming Hop- the district court’s denial of category the within Caldwell has ut- been petition kinson’s on the Caldwell issue. tered. While could end we our consideration point, the at this choose do case we not to opinion in does not state In to so. order make our views clear formulating that it is a standard of review. respect proper to test be equivocal fact on the In subject. It is in issues, because further paragraph preceding containing one analysis yield in a decision this sentencing the “no effect on the decision” proceed analysis as- with our on the employs language, the Court a fundamen- Caldwell-type sumption uncorreeted comments, “Such tal fairness standard: by were in prosecu- fact made uncorreeted, might left so affect funda- tor. pro- sentencing mental fairness of ceeding as to violate Amend- B. Mississippi, 472 U.S. ment." Caldwell v. added). 340, (emphasis Assuming prose at 105 S.Ct. at 2645 arguendo dissenting type concurring opinions evi- cutor’s statements were which The recognition dis- a “no effect” would the rule in dence no violate 1294 (1976) opin 2939, (plurality 49 L.Ed.2d 859 had been installed per se reversal standard (“substantial testing ion) O’Connor, risk” standard concur- by majority. Justice sentencing constitutionality of death concurring judg- ring part and Goode, 343, procedures); Wainwright “unacceptable risk.” Id. ment, uses 378, 383, 78, 86, 78 L.Ed.2d 104 S.Ct. J.) U.S. (O’Connor, The dis- 105 S.Ct. at 2647 (1983) process (“degree” to which the senting justices refer to “whether mitigating balancing aggravating proceedings as a statements rendered the by particular stat factors was “infected” 350, Id. fundamentally unfair.” whole Murray, utory provision); Turner v. J., (Rehnquist, dissent- 105 S.Ct. at 2650 33, 1683,1686, 90 L.Ed.2d 106 S.Ct. U.S. ing). (1986) (“constitutionally significant like language used “No effect” has been lihood,” “cre the circumstances or whether Supreme Court in two other cases with- McCleskey risk”); unacceptable ated an per se standard suggesting its use as a out 1756, 1783, Kemp, 481 U.S. 107 S.Ct. Skipper v. South Car- In of reversal. Brennan, (1987) (Justices 95 L.Ed.2d 262 olina, 1, 8, 1669, 1673, 106 S.Ct. Marshall, Blackmun and Stevens dissent (1986), “Nor 90 L.Ed.2d 1 the Court stated: (“substantial “significant ing) risk” and confidently can we conclude credible invoked); Franklin probability” standards good prison- petitioner evidence that was a J., (Stevens, Lynaugh, 108 S.Ct. at er would have had no effect upon the (“substantial standard); dissenting) risk” added). (emphasis deliberations.” Maryland, Mills However, by say- it followed that comment 1860, 1867, (1988) 100 L.Ed.2d 384 S.Ct. circumstances, ap- ing: “Under these possi (“substantial possibility,” and “[t]he likely that the exclusion reasonably pears bility petitioner’s jury its conducted bearing upon petitioner’s of evidence be- great enough certainly improperly task (and hence, likely jail upon his havior Id. resentencing.”). require prison) may have affect- future behavior added). (emphasis note also that We impose the death ed the decision Stephens, 862, 103 Zant v. standard, Thus, any under sentence. (1983), 77 L.Ed.2d 235 sufficiently of the evidence was exclusion rejected possible ef expressly a no prejudicial to constitute reversible error.” fect standard a case where added). concurring In Id. (emphasis her aggra instructed on both invalid and valid Lynaugh, opinion in Franklin v. circumstances, vating stating: “More im 2320, 2334, above, portantly, for the reasons discussed J., (O’Connor, concurring), (1988) Justice possible impact cannot fairly any Blackmun, O’Connor, joined Justice garded as a constitutional defect Skip- controlling standard in identified the Id. process.”

per “reasonably likely.” added) (footnote omit at 2749 Dugger, Hitchcock ted). have had occasion The two circuits which language used “no effect” the Court appropriate standard for a to address with and as an did so connection but con claim have reached different “Respondent error: alternative to harmless regarding appropriate stan clusions attempt argue that made no has Kemp, In Tucker v. dard. harmless, or that it had no effect error was banc), cert. de (11th Cir.1986) (en 1295-96 judge.” jury sentencing or the on the nied, 1359, 480 U.S. Court, opinions of the Other the Eleventh Circuit issues, approach in- dealing Eighth Amendment fairness de used a fundamental of Strick dissenting opinions, concurring prejudice prong cluding rived from the Washington, permit the land relied on standards which have (1984). It degree judgment of 80 L.Ed.2d exercise of some challenged incident to determine Gregg Georgia, appellate review. viewed “ probabil- ‘a reasonable 153, 188, 203, there was whether that, in of the which ity offending successfully the absence diminish the jury’s remarks, sentencing outcome would sense of its responsibility infect the entire latter, A process. been different’.... ‘reasonable deliberation In the only probability’ probability is a sufficient to mitigating of consideration evidence in the outcome.” undermine confidence is typically involved. But the latter more Kemp, F.2d at Tucker v. 1295-96 court, involves instructions from the Kemp, (quoting Tucker v. (as the influence jury of instructions on the (11th Cir.1985)(en banc)). In Saw- opposed counsel) arguably from Butler, (5th Cir.1989) yer F.2d presents a more serious situation. toMore (en banc), adopted the Fifth Circuit “no point, however, the focus in each in- so, however, in effect” test. It did upon reliability product stance is of the analytical one-step context of a framework of the In our deliberation. view the determining the of existence actual proper evaluating standard for the Cald- error: exists, well issue in if a this violation see, upon “As we shall the effect a death is possibility whether there a substantial sentence of error and the na- prosecutor’s statements, taken exists, inquiry of the whether it context, ture into sentencing affected the decision. including the record sources be exam- ined, parts very are entwined of its defi- III. is, reviewing nition. That what a court is Applying possibili the “substantial look for and it is to set about how ty” standard of we review have no difficul judging upon its effect criminal convic- ty holding question, that the remarks in part of tion the definition Caldwell assuming they within category fell argument error. Much of the here is remarks covered did not un ingredients prohibition.” over constitutionally sentencing affect the deci two-step approach5 1284. may

Id. at Our sion. governing the use of the standard cast into sentencing hearing in this case However, a different role. to the extent spanned ten-day period 1,270 and filled for evaluating the Fifth Circuit’s standard pages transcript. multiple addition to impact Caldwell-type remarks on the exhibits, including guilt those from the sentencing decision differs from that which phase trial, presented the state testi- here, adopt disagree. respectfully we mony by transcript from fifteen witnesses In our en banc decision Parks v. person, presented or in and the defense Brown, F.2d at eight. The facts of this case are set out at adopted the Maryland Mills v. “substantial length panel the deci- possibility” standard in v. Br- a California Wyoming Supreme sions of the Court. impact relating own6 issue on a sentencing jury the essentials of that heard cautioning against of an instruction evidence, testimony other as well as which sympathy. No standard should different guilt phase jury did not hear. doWe required here. replicate undertake to evidence course, Hopkinson’s vigorously can here. counsel distinctions be drawn be- at-

Of key credibility “Caldwell” and “Brown” issues. tacked the witnesses and tween former, arguments accuracy reliability key points of In the instructions shift our recent en decision in Parks v. ments that tend to 5. In banc Brown, two-step process we describe a for evalu- away jury. from the decision ating so, Caldwell issue: inquiry If is to evaluate the second two-step appropriate inquiry “A when ex on the effect of such statements to deter amining alleged Caldwell violations. See Dar- mine whether the statements rendered the Wainwright, 184 n. den sentencing decision unconstitutional." 2473 n. F.2d at Parks v. First, (1986). should the court determine challenged prosecutorial whether the 6. California type by are the of statements covered Cald words, they well. In other must be state However, as to the sentence to be the evidence Your decision state's evidence. mandatory. You are not mitigating imposed relating aggravating the to recommending to the merely a sentence overwhelmingly estab- in the case factors Judge. You decision-mak- are the an intimi- capacity to be Hopkinson’s lished final Hopkinson will ers as to whether Mark violent, dating, manipulative individual. prison or to sentenced to be procuring for the His full life death." family, murder the Vehar bombing of was be- the torture murder of Jeff Green added). A VI-H at 699 R.Vol. jury. fore the giv- copy was written of those instructions juror jury the room en to each to take into repeatedly was about its jury told for assistance their deliberations. role, duties, gravity of its and that the the IX-F R.Vol. at 1162. to be remarks of counsel were not con- legal jury separately or instruction found sidered as evidence In its decision the 35, 36, every aggravating one cir- R.Vol. IX-A of five case. posed 63, 65, 72-74, 81; jury proved, to the were R.Vol. IX-F at cumstances 1212-13, beyond doubt, 1202-04, 1207, a reasonable that none of 1237- statutory mitigating seven circumstances formally 1252. present, were and of the two additional jury members in no un- instructed circumstances, mitigating present one was they bore the full re- certain terms that separate, was On those one not.7 sponsibility and decision- were final findings jury strong recommended penalty: the death makers on death sentence. hastily should not act or without “You gravity pro- these regard due thorough After a review of the record we ballot, you you should ceedings. Before are that there no substantial convinced weigh, carefully sift and consider the possibility by prose- that the comment bring and all it and to unconstitutionally evidence bear the deci- cutor affected judgment upon sole your jury. issue the same con- best sion of We reach you apply at this time: which is submitted clusion we fundamental fairness is, challenged shall sen- standard. That com- Whether defendant imprisonment. sentencing pro- to life ments did not render the tenced to death or accomplice was found follows: 4. The defendant an 7.The person Findings committed and his murder another “THE CLERK: and recommenda- We, empaneled jury, participation act in the homicidal was rela- tion of sentence. do, above-entitled tively and sworn minor. No. oaths, upon as follows: our find The defendant acted under extreme du- 5. Aggravating Part I: Circumstances. or under the substantial domination of ress person by a 1. The murder was committed person. No. another imprisonment. Yes. under sentence of capacity appre- 6. The of the defendant to previously was convicted 2. The defendant conduct, criminality of ciate the his or degree. in the first Yes. pur- another murder requirements his conform law, conduct The murder was committed 3. substantially impaired. was No. pose preventing avoiding a lawful arrest. age at the 7. The of the defendant time of Yes. the crime. No. pecuni- was committed for 4. The murder Any mitigating 8. other circumstances. ary gain. Yes. may of Jeff not have 9. torture Green heinous, especially was 5. The murder Hopkinson. ordered Mark No. been or cruel. Yes. atrocious Hopkinson helped 10. Actions of Mark Mitigating Part II: Circumstances. prison guard. the life Yes. save significant history has no The defendant That Part III. Recommendation. sufficient activity. prior No. criminal mitigating do not exist to out- circumstances was committed while the 2. The murder weigh aggravating circumstances found the influence of extreme defendant under defen- exist and the recommends No. or emotional disturbance. mental participant in was a the de- dant be sentenced death." 3. The victim or consented act. fendant’s conduct IX-F 1264-65. R.Vol. No. ceeding fundamentally agree I also that Cald- majority death sentence with the well error falls within the on this case. exception unfair the facts of second Teague Penry. percep- position tion of its justice in the criminal IV. system, discretionary power when it has CONCLUSION put death, a defendant central to the arguments reliability We have considered all the sentence —hence it ais procedure in Hopkin- “implicit concept of counsel. Because hold that of or- Teague, imposed liberty.” death dered son’s sentence was not un- 109 S.Ct. at 1075. majority’s analysis constitutionally, on this we affirm district issue is better Sawyer majority than that of the corpus court’s denial of the of habeas writ which contrary. found to the on issue. 881 F.2d at 1292-94. AFFIRMED.

We equally are divided on the issue LOGAN, Judge, Circuit with whom whether there is error in the case Judge Judges persuaded Chief HOLLOWAY at bar. I prose- remain that the SEYMOUR, join, McKAY and part cutor’s remarks in the rebuttal of his dissenting: closing argument immediately before the case was submitted constituted agree opinion I majority with the that we Caldwell error. I can add my little to the contemplation “new” rule within analysis my in panel opinion, dissent — Lane, U.S. -, Shillinger, Penry (1989), 103 L.Ed.2d 334 (10th Cir.1989), repeat and do not — -, Lynaugh, S.Ct. it here. add, I 106 L.Ed.2d 256 would be I majority cause differ with I majority the Where differ from the is on contemplated by Cald standard review standard of that apply review we must 320, 341, Mississippi, well v. Caldwell error. 105 to The Supreme Court Caldwell, “[bjecause (1985), in S.Ct. that concluded we can- Caldwell’s, “greatly heightened say not [prosecutor’s into this effort im- proper of misleading had no argument,” argument] lerance on the sen- effect Butler, Sawyer (5th decision, tencing F.2d that decision does not Cir.1989) (en banc), clearly reliability which makes it meet standard Eighth requires.” a new rule. Amendment (emphasis added). 105 S.Ct. at 2646 Donnelly DeChristoforo, says majority essentially here Supreme mean Court did not what it said in years been settled for over had law ten Caldwell, and did intend to create such decided. Donnelly before tough majority standard of review. The process require held that due equates per a “no effect” standard with a alleged reversal a conviction based on se reversal then rule and discusses a num- improper prosecutor remarks of the unless analagous ber of it considers cases the remarks constituted fundamental un- Supreme which the Court used different Thus, if Cald- fairness to the defendant. words to review describe the standards well significantly similar those situations. (even of an standard the context I challenge), agree Amendment it would be diffi- do not say inadvertently was not “no effect” cult dictated used the words by Donnelly precedent. something Cases dictated or intended different than the espouse high “new” indicated precedent cannot rules un- standard of review those Teague. Thus, majority at 1070. words. The writer of der dissenting standard to a denial of Cald- of review articulated Blackburn, “new,” Teag- certiorari in Moore v. well that makes it under the (1986) 2904, 90 ue analysis. (5th Cir.1985)), defen- the entire of the (denying cert. to 774 F.2d 97 feel that burden the stated that under court’s recent Cald life was on them.... dant’s petitioner’s the sentence could well decision case, In comments were ... this the stand unless the “had no effect not error stage tri- guilt-innocence the made at sentencing on the decision.” 476 U.S. at they al, reducing that greatly the chance J., (Marshall, 106 S.Ct. at 2904 dis sentencing.... any had effect all on senting). itself The dissenters in Caldwell types certain only is relevant Caldwell fully effect” stan were aware that a “no jury that mislead the of comment—those being majority in the dard was articulated sentencing process as to its role opinion. Rehnquist, writing Justice for the less way jury that allows the to feel dissenters, objected to two facets of the responsible than it for the sen- should (1) opinion: majority’s majority the conclu tencing In none of decision. this misleading the effect of the sions about the comments could have had the context, statements, prosecutor’s taken in effect thinking that misleading jury into (2) imposition “no effect” sentencing it had a reduced role in the (what exaggera test the dissent as the saw prejudice). likelihood process.” tion of the of actual objection, speaking second n. 477 U.S. at 183 n. at 2472 the majority’s dissent criticized failure added). (emphasis apply the “fundamental fairness” test of judges All fourteen of the active Donnelly. The dissent further clarified its Court, agree Supreme Fifth Circuit that the stating, disagreement majority with the Caldwell, adopt ef- intended to a “no “[although Eighth Amendment In the on en Sawyer fect” test. quires processes designed pre certain rehearing, extensively that ana- banc arbitrary imposition capital pun vent the why high lyzes Caldwell sets out such a ishment, every pro not that it does follow standard, strays optimum ceeding Supreme that from the when Court consid- ipso constitutionally unreliable.” the fundamental suf- ers fairness standard facto Caldwell, 350-51, protect rights ficient to defendant’s (Rehnquist, J., dissenting).1 analysis situations. other After that Sawyer court concludes: Supreme de-

I Court’s recent believe Wainwright, cision Darden “The state cannot resist the conclusion (1986), 91 L.Ed.2d improperly jury’s diminished a effect” recognized and reinforced the “no responsibility sentencing sense of in its error in standard argument role with the that a phase capital murder sentencing of a responsibility diminished none- such Darden, prosecutor’s involved trial. which proceedings did not theless render the during phase, distin- guilt comments fundamentally unfair. guished stating: appli- are not principles “The if the instructs that State [Caldwell ] this case. involved cable to minimize ‘to sense of seeks prosecutor during the by a comments determining appro- the effect sentencing phase of trial to say of death’ cannot priateness and ‘we to life or death decision as effort no effect on the had final, automatically was it would decision,’ ‘that decision Court, then be reviewed State reliability made to not meet the and that the not be standard should mitigating majority suggests evidence in in the admission of 1. The in the case at bar rors Carolina, sentencing proceeding by stating, although Skipper death v. South opinion: paragraph of "Nor can we uses crucial confidently adopt language evidence that conclude that credible the "no effect” it also does good prisoner language petitioner would have had that as a including It does use other standard. jury's any Id. at on the deliberations.” "under standard.” But I believe no effect added). adopts er- S.Ct. at 1673 a "no effect” standard of review for requires.’ myself If I there is Amendment ask whether a “sub- possibility” prosecutor’s stantial Cald- sum, reject prof- jury’s well remarks affected the In decision to State’s] [the fered do so definition Caldwell. We sentence I say death must diminishing noting after that its core is they probably did not affect the no— responsibility jury by of the misdes- if myself decision. But I ask whether I am cribing under after its role state law and beyond my so convinced a reasonable doubt suggestion rejecting the its ele- is not the say answer same. I cannot showings ments include of fundamental prosecutor’s remarks confidence had no effect on the unfairness, objection contemporaneous jury’s sentencing deci- participation.” or trial court Therefore, Hopkin- sion. I would hold (quoting F.2d at Sawyer, 881 imposed son’s death sentence was in viola- Caldwell, 472 U.S. at 105 S.Ct. at tion of the Amendment and must be 2646). vacated. possibility” test the ma- “substantial jority adopts case too instant smacks preponderanee-of-the-evidence.2

much of my panel

While I said in dissent to the ap- “no effect” test

proaches reversal, did per se rule of I per

mean that se rule. it is reversal

Rather the seems to akin to a test beyond-a-reasonable-doubt standard. ALLEN, In re J.D. Debtor. require the Court did not SPEARS, Trustee, Kenneth L. petitioner prove in- prejudice; actual Plaintiff-Appellant, deed, pro- appellate the limitations of the against jurors cess polling and the rules preclude proof. would effectively any such BANK, MICHIGAN NATIONAL Rather, evaluated, in context Defendant-Appellee. prosecutor’s argument No. 88-1908. jury, court’s instructions to the the inher- tendency improper ent “to remarks Appeals, States Court of United minimize the sense of Tenth Circuit. determining appropriateness death.” 472 2646. Nov. 1989.

When that said that can be violations only reviewing

overlooked can they

conclude with confidence that had “no id., decision,” sentencing

effect on the it

meant, believe, judges I that reviewing they

should ask themselves if con- are doubt, beyond

vinced reasonable consider-

ing context, admonitions of the trial

judge circumstances, and other

improper did sen- not affect the

tencing decision. taken remarks, seems to issue of me that mine whether Additionally, prosecutor’s context, the likelihood of remarks actu- would tend to with a prosecutor’s provide misleading having When affected the decision is of its role. viewed ally perception largely light, subsumed initial determination in this becomes apparent many objections (including whether Caldwell error has, occurred. no effect standard fact, dissent) are A close evaluation of the those of better prosecu- actually entirety finding argument objections tor's instruc- statements analyzed presence judge Caldwell error at all. tions of the trial are to deter- necessary

Case Details

Case Name: Mark A. Hopkinson v. Duane Shillinger, and the Attorney General of the State of Wyoming

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 1, 1989

Citation: 888 F.2d 1286

Docket Number: 86-2571

Court Abbreviation: 10th Cir.