*1 Appellees will remain convinced probably Nevertheless, they should be paid. failed

they proof; to meet their burden

perhaps, because of the state of confused

affairs, they never Regardless, could. will not find a one has

court contract where proved

not been to exist. entry

Reversed and remanded for of an

order consistent opinion. with this HOPKINSON, A.

Mark Allen a/k/a Mark

Hopkinson, (Defendant), Appellant Wyoming, Appellee STATE

(Plaintiff).

No. 5733. of Wyoming.

May $18,000 pay agreed pay paying her more than he her then is twice same years Appellant twelve before. land. answered that the first con- say although The second contract what If does not rela- tract effect modified. was still mother, tionship so, it bears to amend he the first. Does it that is does owe his now so, appellant estate, getting If land. If it first? less both contracts? under entirely contract, independent of the first

45

47 *4 Munker,

Leonard D. State Public Defend- Hackl, er (argued), Sylvia Lee Appel- Counsel, late Wyoming Public Defender Program, Cheyenne, appellant. for P. Moriarity, Sp. Edward Asst. Atty. Gen., argued, appellee; Steven F. Freu- denthal, Gen., Atty. Stack, Gerald A. Depu- Gen., ty Atty. Bruce A. Salzburg, Allen C. Johnson, Guthrie, Mary B. Asst. At- Senior Gen., tys. Lyman, Sharon A. Atty. Asst. Gen., on brief. *5 RAPER, *,

Before THOMAS and ROSE JJ., McEWAN, and SAWYER and District Judges.

RAPER, Justice. State,

In Hopkinson Wyo., P.2d (1981), cert. denied 455 L.Ed.2d this court af appellant firmed the convictions of the for conspiracy degree and first murder of four victims but reversed the death penalty sen tence and remanded the case to the district court for a sentencing by jury new trial appellant determine whether the should be imprisonment sentenced to death or life for of murder Jeff Green. new trial on held, penalty the death issue appellant result was sentenced to death. appeal now before us the issues, as formulated appellant, are: “1. Wyoming penal- Whether the death . ty provisions are unconstitutional they usurp supervisory and rule-mak- ing power Court and ex- pand jurisdiction its in violation of the Wyoming Constitution.

“2. infer speculation Whether Hopkinson Mark intended or had knowledge aggravating circum- * argument. Chief Justice at time of oral of death Jeff 15. Was surrounding imposed

stances the sentence of death passion, under the influence of prejudice, Green. other factor? arbitrary “3. the admission into evidence Whether aggravating support 16. Does the evidence non-statutory jury’s circum- findings aggravating circumstances Appellant’s rights stances violated to due 6-4-102, law. enumerated in and a process W.S.1977 mitigating lack sufficient circumstanc- “4. proportionality argument— which outweigh es cir- Appellant whether was denied due proc- cumstances? and equal protection. ess Was the sentence death excessive “5. Whether penalty provi- death disproportionate penalty im- sions violate Article Section 15 of the cases, posed considering similar both Wyoming Constitution. defendant, crime to include a “6. Whether there was any evidence of reference to those similar cases taken into waiver the attorney/client privilege (This approach consideration? is an dif- which attorney testify would allow an contemplated appel- ferent from against penalty a former client 4.) lant’s issue phase capital of a case. will penalty imposed We affirm the death “7. required Whether reversal if an by the district court. aggravating circumstance used as a basis imposing is found to be invalid. NARRATIVE argument— “8. The jeopardy double surrounding A review of facts whether the consideration crimes was convicted deaths, concerning evidence the Vehar Hopkinson supra, be found in and the submission of those pp. just 93-97. We will restate them inap- circumstances deemed brevity point. some plicable hearing, first penalty vio- litigation appel- As a result of between Appellant’s protec- lated constitutional *6 family lant and his versus some their against jeopardy. tion double neighbors over water rights and the Fort 6-4-102(h)(vii) “9. Whether Section and Bridger Sewer Water Board in Uinta 1977 Wyoming is unconstitu- Statutes County, appellant developed a dislike for tional. Vehar, Vincent lawyer Evanston who “10. Whether the trial court erred in represented appellant’s adversaries in those refusing Proposed Defendant’s Instruc- disputes. disputes These had reached vio- A tion denying and tried, proportions. Appellant lent first on opportunity pass the issue due 1976, $600, to hire Taylor Harold James process. office, to kill Vehar he leaving was his “11. was afforded Appellant Whether Taylor but backed out.

effective assistance counsel. Appellant then turned to his friends Jeff “12. Whether has used prosecution and Hickey Green Mike for ideas on how to jury improperly Uinta County grand get Hickey rid Vehar. was young a as an investigative tool. appellant alcoholic whom the knew had “13. abrogat- Whether 6-4-103 Section a fifteen-year-old girl, Kelly murdered plain ed the re- appellate error rule of Wyckhuyse. appellant long had discus- view. get sions Green on how to rid of “14. Whether a involved properly Vehar.

in resentencing in case.” a death During planning period, appellant en- To fourteen, gaged those we more Green plant add three to drive to Arizona to issues required to be answered 6-4- bomb in the automobile one Mariscal 103(d) (e), and way persuasive pay- W.S.1977: of a force measure to Hickey owed Mariscal In order to rescue and avoid the money allegedly ment of Green, to Ari- while enroute appellant. murders, appellant, conviction of the Vehar zona, in Utah. When caught speeding was Hickey Jeff and Green concocted stories driving April arrested on he was pointed Hysell. Charges IV Lincoln Mark appellant’s Continental murder Wyckhuyse against Hickey were Appellant and the was discovered. bomb dropped Hysell charged. During and was they Hickey and to Utah where drove trial, Hysell’s Jeff broke down. Green He jail. Green was bailed Green out of Since implicated appellant Hickey and in the Ve- with him hot, longer no discussed appellant har bombing, confessed that his testimony plans to kill Vehar. incriminating Hysell the truth and appellant promised Hickey Thereafter Hickey had Wyckhuyse murdered the $2,000 plus expenses help covering girl. testimony Green’s led to dismissal of up Hickey’s young girl by murder of a charges against Hysell and extensive Wyckhuyse, name of to kill Vehar. After media publicity. Appellant promised method, it was scheming much on the decid- get Green’s sister that he would Jeff for way ed that the best was to toss bomb that. through the basement window of the Vehar In March appellant Hickey residence in Evanston. were tried in the United States District Appellant early August received notice in charges relating Court on federal to trans deposition that his in the sewer portation possession explosives aris August board’s lawsuit would be taken on attempt place out of Green’s aborted August ordered On a bomb in Mariscal’s car. As an unindicted up to blow the Vehar home that Hickey Vehar, conspirator, appel Jeff Green testified as to night; Hickey did. his wife and one explosion son were killed Hickey acquitted. lant’s involvement. —another injured. son was seriously Appellant was convicted and sentenced and prison facility confined a federal at Lom- Hickey Jamey Hysell, previous and a poc, California for not those offenses bombing, plotted together the Vehar had parole previous but also violation on the Wyckhuyse girl kill the because she had drug appeal, federal violations. On marijuana charge. implicated Hysell Hickey pick up Hysell was to her and then and sentence was affirmed after judgment spot was to meet them in an isolated trial in the case now before first 1979 together they Hickey would kill her. After Hopkinson, us. 631 F.2d United States picked up appointed her and drove to the (10th Cir.1980), cert. denied 450 U.S. However, place, plan. he told her their L.Ed.2d Hysell up, Hickey, having did not show had unlimited ac- Lompoc, appellant At intentions, revealed their went ahead and *7 from which he made at telephone cess to a killed her her on the head with a by hitting period days least 114 calls over a of 51 privates proof rock. He cut out her as of 29, April 8 and 1979. These May between Hysell her death to show and buried the and, through traced the testimo- calls were body. rest of her called, the was ny of the witnesses bombing, Hickey After the Vehar went to plan to establish a to murder Jeff able Hickey gone, Hysell California. While was Appellant paid raised and to hired Green. picked up by police questioning was for killers, transactions, a series of through Hysell, by way about some larcenies. of $15,000. arranged by phone He some crimes, distraction from his own informed procurement photo of a of Jeff Green cut Hickey by disclosing the Wyckhuyse high year identify from a school book to grave murder and took authorities to the whose identities to for his murderers Green site, pointed out to him Hick- previously date, known, revealed. this if have not been ey. body ques- The was recovered. After 16, 17, 19, May of the calls made on Some tioning, Hickey charged girl’s was with the inquire about by appellant murder. and 20 were 20th May ordinarily consider the unconstitutionality Green’s whereabouts. On dead, a call, Green was of if the question statute is not raised in he advised court, People, been found on the trial body having Wyo., his Nickelson v. mutilated 21, $15,000 (1980); Hilzer, P.2d v. May up showed 607 904 Knudson day. On witnesses, Wyo., (1976), 551 P.2d 680 or any constitu- the account of one Kristi matter, question for day inquired Nisonger of tional v. King. The next “Joe” her State, (1978); Apodaca 581 $20,000 Wyo., had 1094 up whether showed in her P.2d v. 603 Wyo., refused to have P.2d unless anything account. She present, error is Edwards plain thereby it and protested appellant. do with At State, Wyo., (1978). 577 P.2d 1380 appellant’s request, money she sent the Not brother, even all errors of constitutional appellant’s Hopkinson. dimension Scott justify plain-error reversal under doc- Hickey testified in appel- the first trial of trine which should be applied where lant as to appellant’s participation him with seriously the error would affect the fair- in the Vehar murders. for exchange ness, integrity, public reputation judi- Hickey’s relating testimony to the Vehar proceedings. State, Wyo., cial Hays murders, a plea bargain was into entered (1974); Chapman P.2d v. State Cali- whereby im- Hickey granted complete 824, fornia, 386 U.S. munity prosecution from pertaining L.Ed.2d A.L.R.3d reh. denied Vehar plea degree murders and a of second 386 U.S. L.Ed.2d 241 was accepted murder for the murder of the Wyckhuyse girl. He was to a sentenced Only term of 20-21 because is death case years Wyo- on the State of explore we ming charge killing question. for do This court is Wyckhuyse, to run posture its when concurrently sensitive to it views the years with sentence of 20 carefully protected doctrine of Hickey separation had received on charge. a federal powers govern- in the democratic form of Hopkinson State, supra, As set out in ment which we enjoy there are more such exists many supporting facts nationally and in this state. convictions of Additional facts Section Art. appellant. presented Wyoming preserves will Constitution be during our discussion concept: the issues. “The powers government of this new jury did have benefit state are divided into three de- distinct hearing the produced during evidence partments: legislative, executive and guilt phase. In order appropriately deal judicial, person and no or collection of with phase, necessary sentence it was persons charged pow- with the exercise

that the new familiarized most properly belonging ers to one of these of the circumstances surrounding the vari- departments any powers shall exercise murders, ous all of which bear a relation- others, properly belonging to either of the ship to each other. That was through done except as this constitution expressly live testimony, introduction into evidence permitted.” directed or from excerpts transcript first trial and exhibits. approved This court has proposi power that the what tion to determine acts

I crimes, punishment prohib are and the *8 Appellant’s belongs legislative first issue unique ited acts branch as Wyoming and asks: are the absolute, penalty power death exclusive and inherent provisions unconstitutional in with they not shared the courts. v. Sorenson State, usurp supervisory and pow Wyo., (1979). 604 P.2d 1031 rule-making We er the supreme have, occasion, and court its on more than other expand one held jurisdiction in violation punishment of the for crime is within the Wyoming Constitution? this Significantly, legislature. Stambaugh issue was of the v. province State, (1980); raised in the district 1237 Wyo., court. We will not 613 P.2d Chavez

51 cert, State, (1979), Georgia 604 P.2d 1341 Wyo., v. Florida statutes which received 984, 2967, denied 446 100 64 approval Gregg 153, U.S. S.Ct. v. Georgia, 428 U.S. State, (1980); 841 Hicklin v. Wyo., 227, L.Ed.2d 2909, 2971, 428 96 U.S. S.Ct. 96 49 S.Ct. 743, 535 P.2d 79 1050 A.L.R.3d 859, 904, L.Ed.2d 49 L.Ed.2d reh. denied 429 875, 197, 198, U.S. 97 97 S.Ct. S.Ct. subject While a town was the ordinance (1976) Florida, L.Ed.2d and Proffitt v. Bunger, matter of Town of Green River v. 242, 2960, 913, 428 U.S. 49 L.Ed.2d 52, (1936), Wyo. appeal 58 P.2d 456 dis 875, 197, reh. denied 429 U.S. S.Ct. 638, 510, missed 300 81 L.Ed. U.S. S.Ct. 198, (1976) 50 L.Ed.2d 158 respective- S.Ct. reh. denied ly.1 approved We the Wyoming system in (1937), citing 81 L.Ed. 889 this court State, Hopkinson supra. Steele, 133, 143, 14 Lawton 152 U.S. 499, 503, (1894), 38 L.Ed. 385 observed that point we make is that the Wyo of the power legislature declare acts ming Legislature providing for the death along unlawful with all the of a incidents penalty as a sentence in the case of first except criminal offense is unlimited insofar degree murder was by “restrained [federal] provi as it is restrained constitutional provisions guarantees.” constitutional guarantees. sions and Art. Section This incorporating necessitated into the Wyoming Constitution declares “[t]he death penalty sentence constitutional re Wyoming inseparable is an part State availability. straints as a condition to its union, the federal and the constitution of We do not consider that to be an encroach supreme the United is the law of the States upon rule-making power, ment our but only land.” police power an incident to the legis In our previous opinion, length we at legislate lature to sentencing system. ongoing struggle reviewed the took We should examine briefly history place in Supreme Court of the United rule making by this court. Until constitutionally acceptable States to reach apparently taken for granted that the guide “standards to and control the exercise procedure rules of in the courts of this state of discretion sentencing authority in prescribed by legis- would be and were its determination of the of the propriety lature. There was a Code of Civil Proce- sentence, application of the death or the dure, 3-101 et seq., W.C.S.1945 and a § alternative of imprisonment.” a term of life Procedure, 10-101, State, Code of Criminal et Kennedy Wyo., 559 P.2d 1014 seq., legislature, W.C.S.1945. 1947 the quoted in Hopkinson v. by ch. Laws of supra Wyoming, at 152. The Session statutory scheme even- tually adopted by Wyoming passed authorizing Supreme an act Leg- Wyoming adopt governing islature and under which was sen- Court of rules patterned tenced was portions after practice procedure in all courts of this defender, public representing appellant legislature Wyoming 1. The of the state has appeal, good-faith legislation has written the Justices and Dis- made a effort to craft Judges sitting asking holdings trict on this case us to which conforms to the of the United Wainwright, Supreme consider Proffitt v. (11th Cir.1982). 685 F.2d 1227 States in its decisions in Prof- Gregg dealing We have considered it as re- fítt and and other of its decisions quested, any nothing every penalty. but find in it that will be of We have taken appellant, appellee, meticulously assistance to or to this care to conform to Proffitt and represents many Gregg pertinent court. That case procedures one of the other cases of that accept utilized defendants after final Court of last resort death cases. We imposing rely decisions the death its decisions as the standard. We on them highest highest penalty jurisprudence shape state’s court and the court in ac- and cordingly. our death land, Certainly Court of the United there must be somewhere States, delay solidity finality. perhaps along dependable Prof- somewhere some —some sympathetic opinion the line find a ear. It is the famil- fitt should be considered closed judicial upon placed iar effort to frustrate final decrees even and decision which we have confi- repeated judicial after careful consideration. dence. *9 considered, provisions previously state.2 These are now 5-2- court This has never §§ decide, court, through 5-2-117, This has it been inclined to what W.S.1977. nor 23,1947, September appoint ques- on did the com- be than an would no more academic provided right mittee 4 of the Act to tion as to whether had the inherent by § as plead- adopt procedure of without governing revise the rules and forms rules blessing legislature. ings, practice procedure and the courts of of the this to conform them to federal state of It should be noted that the 1947 procedure might rules of insofar as be Act, 5-2-115, W.S.1977, provides now § practicable. deemed The committee drifted shall abridge, rules neither en- “[s]uch along practically through depar- inactive rights nor of large modify substantive until, resignations tures and on October person jurisdiction any nor the of any 1956, it was new reactivated additional change nor of provisions any courts members, opin- including the author of this statute of limitations.” This court has rec- memory ion. Within the of some of those easy ognized always it is distin- on court, this there was presently opposition between guish procedure and substance in giving up adopting code and practice mathematically these are not terms procedures innovative of the federal rules. State, ex exact. rel. v. Dis- Frederick Nevertheless, 2, 1957, July by order of Court of Fifth Judicial District In trict and court, this Pro- Wyoming Rules of Civil Horn, County Big Wyo., For of 399 P.2d cedure, the Federal Rules patterned after A.L.R.3d this court Procedure, of adopted. Civil were Statutes recognized that substantive law includes in conflict listed were by section number which fix principles those and declare the superseded Rule by declared W.R.C.P. rights of primary respect individuals perma- persons procedure

Thereafter a subcommittee of the property, their and and appointed nent rules committee was and on provides enforcing the method of those 21, 1968, court, November order of created We rights by this substantive law. hold Procedure, the Wyoming system Rules of Criminal that the whether determining of patterned after degree the Federal Rules of Crimi- shall first murder be Procedure, nal adopted. imprisonment were or life is something Statutes were, conflict listed by procedure section number more than and is law substantive 56, W.R.Cr.P., superseded. circumscribing personal rights Rule declared Chapter Wyoming 2. Session Laws of “Effective Date. provides: Upon any adoption “Section 3. of rule Supreme or form the Court shall enter it in Wyo- Supreme “Section 1. The Court of proceedings upon its and shall fix the date ming modify adopt, from to time time or form such rule shall become effec- general repeal governing and rules and forms tive but such effective date shall at least pleading, practice procedure, all sixty days pub- after notice thereof has been purpose pro- of of courts for the Supreme publica- lished such Court in moting speedy and efficient determina- may designate. tion as it From and after the litigation upon tion of its merits. any “Application Adopted. effective date of such rule or form all of Rules may govern: laws in therewith be of fur- conflict shall no “Section “(a) Such rules writs, process, pleadings the forms ther force or effect. subjects dep- “Advisory parties, and motions and the Committee. (cid:127) ositions, evidence, trials, judg- discovery, Supreme ap- “Section 4. The shall Court ments, trials, provisional Advisory new point reme- and final Committee to make rec- prac- pleading, dies and all other matters from ommendations time to time with re- procedure; tice and spect pleading, practice procedure. “(b) any supervisory pro- review of or other hearings upon Such shall Committee hold ceedings judgment from the or decision upon proposed in such rules manner court, any board, officer, or commission prescribes such notice as the when such review is authorized law. report to the Court time to time from enlarge abridge, “Such rules shall neither nor such recomemndations as it deems [sic] modify rights any person the substantive proper.” jurisdiction any nor the of the courts nor change provisions statute limi- tations. *10 appeal, to the automatic we respect With by Supreme the pronounced accused the by appellant which the record that the States find from of the United Court (R. 20) is bound. legislature timely appeal pursu- notice of filed a 2.02, Rules Wyoming ant to Rules 2.01 and legislature the asserts appellant The Procedure4, and did de- Appellate of upon powers way encroached has in some appeal feature of upon the automatic pend Wyoming Supreme belonging to the the 103(a), supra pro- fn. 3. Nor do § Wyoming Consti- of Art. in violation § 6-4— 6-4-103(e)(i), (ii), (iii), and su- visions of the enactment tution, because of supra, 6-4-103, 1.04, W.R.A.P. vary and W.S.1977.3 fn. from Rule 4-102(g) pra §§ 6— will hold that we do we several reasons For provides: legislature as action of the not construe the or final order judgment “A rendered to this belonging any powers exercising made by court. W.S.1977, “(e) in 6-4-102(g), provides: court shall include its decision The 3. Section which it took to those similar cases reference into appeal be- court is reversed “If the trial to its authori- addition consideration. only presentence hear- of error cause ing, errors, court, ty regarding the correction shall be ordered the new trial which sentences, regard punishment.” of death apply with to review to the issue of W.S.1977, 4-103, provides: may: Section 6— death; “(a) judgment “(i) conviction and sen- The the sentence of Affirm subject impose review “(ii) to automatic tence of death is by and Set the sentence aside Wyoming within supreme the court of imprisonment; or sentence of life by (60) days sixty the sen- certiñcation after “(iii) the and remand Set the sentence aside record, tencing unless of the entire court judge resentencing by based the trial case for period not for an additional time is extended to exceed court for the other cases. “(b) argument counsel.” on the record (Emphasis days by supreme thirty (30) added.) by good review cause shown. Such priority all supreme over W.R.A.P., part, pro- shall have 2.01, pertinent court in 4. Rule vides: receiving (10) days after Within ten criminal, by permitted appeal, civil or “An transcript, shall of the trial court the clerk district court law from a transcript to record and transmit the entire the a notice prepared Court, by filing a notice of be taken shall together Wyoming supreme with of by court appeal court of the district with the clerk report prepared and a the clerk entry (15) days of the from within fifteen judge. The notice shall the trial appealed judgment from or final order of the the number forth the title and docket set concurrently serving the same accordance case, defendant and name of the W.R.C.P., provisions un- of Rule with attorney, a state- of his name and address ment of the ishment the form of ** provided law *. a different time less pun- judgment, the offense * * * * * * report prescribed. shall be ap- filing “Concurrently notice of with prepar- questionnaire a standard ar- peal, range and either shall order supreme supplied court of ed and transcript payment of a for the Wyoming. necessary portions deemed of the evidence Wyoming supreme shall “(c) of as court pay- application appeal any make for the or punishment er- well as consider the 10.6, provided W.R. in Rule by way appeal. thereof as ment rors enumerated compliance sentence, A.P.; therewith “(d) regard court a certificate With upon endorsed case or filed in the if: shall be the notice shall determine appeal imposed appeal. has not un- If an “(i) of death was The sentence approval prejudice docketed, passion, parties, der the influence been factor; appeal court, may arbitrary dismiss the other district court, supports jury’s “(ii) or that court by stipulation may The evidence filed that judge’s finding upon circum- appeal of an motion dismiss the 6-4- W.S. 6-54.2 [§ appellant.” stance as enumerated notice mitigating cir- W.R.A.P., 2.02, and a lack of sufficient provides: 102] Rule outweigh the par- specify cumstances which circumstances; appeal shall notice of “The designate appeal; taking the shall or ties “(iii) excessive or of death is ap- The sentence part thereof judgment or final order imposed disproportionate to the from; the court pealed name and shall cases, considering both the crime similar appeal is taken.” which the the defendant. *11 a district court be in of death reversed whole tence and determine whether it or in part, vacated or the imposed modified under the pas- influence of for Supreme appearing Court errors on prejudice, sion or whether the evidence the (Emphasis added.) record.” supports jury’s finding statutory the of a circumstance, and whether And, course, error, in the we absence of the sentence is disproportionate compared may always nothing affirm. It is new to those imposed to sentences in similar reverse and remand for proceedings further 2537(c)(Supp.1975). cases. § a part of a district judgment the final 27— short, divisible, Georgia's court where it is “In new sentencing pro- as here. Soren State, 1031; son require prerequisite v. 604 Martinez cedures as a the supra, P.2d to 325, (1959). imposition penalty, specific 80 342 P.2d 227 the death Wyo. jury findings the to circumstances presented When this court is with the crime or the character of the defend- constitutionally a to challenge based a stat Moreover, guard against ant. to further ute, it the presumes statute constitutional. a comparable presented situation that Any doubt must be resolved favor of in 238, in Furman 408 92 Georgia, U.S. [v. Before it constitutionality. we strike down 2726, (1972)], 33 L.Ed.2d 346 S.Ct. the we must find that it clearly violates some Georgia Court of Supreme compares each principle, constitutional state or federal. death sentence the sentences im- Laude, Wyo., (1982); State v. 654 P.2d 1223 on posed similarly situated defendants Thomson v. Wyoming In-Stream Flow Com ensure that the sentence of death in mittee, Wyo., (1982); 651 P.2d 778 Nickel particular case not disproportionate. is 904; son v. People, supra, 607 P.2d Washak their procedures face On these seem ie County District No. v. Her School One satisfy the concerns of Furman. No schler, Wyo., 606 P.2d cert. denied 449 longer should be ‘no meaningful there 824, 101 (1980); U.S. 66 28 S.Ct. L.Ed.2d for the in distinguishing basis few cases State, Wyo., (1977). Sanchez v. 567 P.2d 270 which penalty] imposed death [the The Supreme Court United States the in many from cases which it is not.’ that, has said even when a doubt of serious U.S., at 313 at S.Ct. [92 2764] present, constitutionality courts should J., (WHITE, concurring).” “ascertain whether a construction fairly possible by ques statute is Again, 428 page U.S. at at Benson, tion may be avoided.” Crowell v. 2939, the Court explained: 22, 62, 285, 296, U.S. 76 L.Ed. “Finally, the Georgia statute has an addi- (1932). provision designed tional assure that important holding imposed most will reason for 6-4-102(g) capriciously group consti 6-4-103 are selected convicted §§ tutional they sentencing is that are an defendants. The new important proce- sentencing necessary part require total struc Supreme dures State regard, ture. In opinion of Jus review every Court death sentence to de- Stewart, Gregg tices Powell and Stevens was imposed termine whether under Georgia, supra, at 96 S.Ct. prejudice, the influence passion, announcing judgment factor, arbitrary other whether the evi- at Uourt said: findings of supports statutory dence circumstance,

“As an important safeguard additional ‘[w]hether against the sentence of death is excessive caprice, arbitrariness or dis- Georgia statutory penalty imposed provides proportionate scheme for cases, appeal considering automatic of all death similar both the sentences crime Supreme 27-2537(c)(3) State’s Court. That court is and the defendant.’ § * * *”5 required by statute to each (Supp.1975). review sen- Gregg explains Georgia supreme specify opinion Fn. 56 of court its statute, 27-2537(e) consideration, (Supp.1975) requires similar cases which it into took the Florida reviews each at Court page Then death sentence does ensure similar results say: went on to cases, Dixon, Fla., citing in similar review provision appellate “The 283 So.2d serves system Georgia capital-sentencing arbi- the random or against as a check petition The certiorari Proffitt assert- penalty. of the death trary imposition skimpy provision ed that such a made the review particular, proportionality supreme necessarily role of the state court substantially possibility eliminates subjective unpredictable. The United *12 by that a will be sentenced to die person Supreme responded by Court to that States If a time jury. the action of an aberrant stating: not im- juries generally comes when do “ * * * While it be true that that kind the sentence in a certain pose rigid court has not chosen to formulate a case, pro- review appellate of murder the objective test as its standard of review convict- cedures assure that no defendant cases, for all it does follow that the will suffer a ed under such circumstances appellate process review is ineffective or sentence of death.” fact, arbitrary. apparent In it is that the at the page at S.Ct. Finally, responsibly Florida court has undertaken Court said: perform its function of death sentence “ * * * addition, the review function rationality review with a maximum of Supreme Georgia Court of affords consistency. example, For it has sev- additional assurance that the concerns eral times compared circumstances our in Furman prompted that decision previ- a case under review with those of degree present any significant are not ous cases in which it has assessed the applied here.” Georgia procedure See, imposition e.g., of death sentences. 445; State, [433], White, Alford v. 307 So.2d at of Justice concurring opinion [533], Alvord v. 322 So.2d at 540- Burger with whom Chief Justice and Jus- By following procedure this Rehnquist joined, tice also stressed the state adopted Florida court has effect supreme penalty court review of the death review mandated type proportionality aspect of the new Geor- important as “[a]n * * by Georgia Gregg statute. Cf. gia (Emphasis scheme *.” legislative U.S.], at Georgia, ante 204-206 added.) [428 [96 any suggestion at And S.Ct. 2939-41]. Florida, supra, In Proffitt v. 428 U.S. engages the Florida court that Court, 49 L.Ed.2d cursory rubber-stamp review of death approving penalty the Florida death stat- by is controverted penalty totally cases utes, provision called attention to the the fact that it has vacated over one-third F.S.A.6, 921.141(4), by stating that that have come of the death sentences provision designed automatic review ” * * * Id., it. 428 U.S. at 258- before assure that the death will not be at 2969. group on a selected imposed capriciously and hold that the action of provision convicted defendants. While the We conclude Legislature specify- Wyoming is not structured in the same fashion as that pur- does not Georgia, by ing it was held the United the nature of our review States Supreme port powers the manner in which to take of our away Court record, (e), just required by 4—103(d)(iii) unless the time is as court of the entire § 6— W.S.1977, 3, supra. period fn. not to ex- extended for an additional thirty (30) days by Supreme ceed Court 921.141(4), (Supp.1982), pro- by 6. Section F.S.A. good cause shown. Such review vides: priority Supreme have over all Court shall shall be heard in accordance judgment other cases and “The of conviction and sentence of by Supreme promulgated subject with rules death shall be to automatic review sixty of Florida within Court.” (60) days sentencing after certification jurisdiction. judicial proposed function of mak- at the produce sentencing hear- ing given requisite appellant. determinations review the State to the for the part are left It would be We also find that most it was to this court. some- exceptions thing else if enacted a admissible under the to the hear- legislature stat- say rules, rule and those all ute not excluded whereby legislature would review previous opinion. set out in our the trial then proceedings; would be ex- ercising powers properly belonging to the 189-190, As said in at Gregg, the challenged courts. We consider statuto- 2932: ry sections to be a proper legis- exercise of “It not a certainly proposition novel power sentencing lative for the provide sentencing in the area of discretion degree of convicted first murders. This be exercised in informed We manner. does not mean that under the Wyoming long recognized have the deter- ‘[f]or Rules of Criminal Procedure we could not sentences, justice mination generally * * * conduct the as that same review directed by requires there be taken into legislature. disregarded leg- If we account the circumstances of the offense directions, islative we would still be re- together with the character and propensi- *13 quired to conduct a review within the stan- ties ex Pennsylvania of the offender.’ Proffitt, Ashe, dards Gregg 51, set out in and as did rel. Sullivan v. 55 U.S. [58 the Court of Florida. S.Ct. 82 L.Ed. also See 43] Oklahoma, Williams v. 358 U.S. We holding will not reconsider the in (1959); L.Ed.2d [79 516] Hopkinson State, supra, with respect to York, [241], Williams v. New at hearsay the admissibility of evidence. We 93 L.Ed. [69 subject the exhaustively ap discussed its Otherwise, (1949)]. system ‘the cannot only to plicability guilt but function in a consistent a rational VIII, penalty phase, 632 P.2d 79 at Part pp. manner.’ Bar American Association repetition; 127-137. There is no need for Project Criminal Jus- Standards but, remainder, 6-4-102(c), as a W.S. § tice, Sentencing Alternatives and Proce- 1977, pertaining sentencing hearing 4.1(a), Commentary, p. dures 201 (App. § provides: 1968). Draft also President's See Com- judge “The or shall hear jury evidence as mission on Law Enforcement and Admin- to matter any that court deems rele- Justice, istration of Challenge of sentence, vant to a determination of the ALI, Society (1967); Crime in a Free and shall include matters relating 7.07, Model pp. Penal Code Comment of the or aggravating mitigating circum- (Tent. 2, 1954). 52-53 No. Draft (h) stances enumerated subsections “The cited studies assumed that the trial (j) Any of this section. evidence which judge sentencing authority. would be the probative court deems to have value daily If an trial experienced judge, who may be received regardless of its admissi- faces task imposing the difficult of sen- bility under the exclusionary rules of evi- tences, need for has a vital accurate in- dence, provided the defendant is accorded a defendant formation about and the a fair opportunity to rebut any hearsay crime in order he committed to be able statements, provided further that impose a sentence in typical rational such aggravation evidence as the case, sentencing criminal then accurate state has made known the defendant indispensable information is an prerequi- or his prior counsel his trial shall be site to of a reasoned determination admissible.” whether a defendant shall live or die aby who jury people We consider this never before part sentencing sentencing have made a power conditions decision. authority within the legislature. We find the record has been “Jury sentencing considered de- evidence, that extensive notice sirable cases in capital order ‘to main- not, whether hearsay prosecution tain a link contemporary between com- one, turn to munity penal system values and the determine: the murder was —a which link without the determination committed for purpose avoiding could “the punishment hardly reflect arrest; preventing two, a lawful the mur- mark evolving decency standards of that der was committed for pecuniary gain; and ’ progress maturing society.” of a three, heinous, the murder especially ” * * * (Footnotes omitted.) cruel, atrocious or all as jury.7 found It was essential have the These are three out of the five aggravating part information it received as a its circumstances the jury found to exist. The sentencing the conditions of function under aggravating was instructed that cir- sentencing structure we hold was beyond cumstances must be found a reason- a proper legislative power. able doubt. It is observed that the trial judge opinion heeded the admonition of our II appeal any statutory aggra- in the first As to his presented, appel- second issue vating unsupported circumstance evi- “ * * * speculation lant asserts that it is dence should not submitted for consider- infer that Mark intended or had Hopkinson i.e., 4—102(h)(iii),(iv), jury, ation § 6— knowledge circumstanc- (viii), fn. 7. es the death of Jeff Green.” surrounding The claim of under this issue is argues He it is difficult conceive quan- sufficiency of evidence in substantial the evidence is insufficient under the 6-4-102, W.S.1977, heinous, part “(vii) especially 7. Section reads: The murder was cruel; atrocious or “(e) imposed The death shall not be officer, “(viii) judicial The murder of a for- (1) unless at least one officer, judicial attorney, mer district former (h) circumstances set forth in subsection *14 attorney county prose- or jury, district former and this section is found. The if its verdict attorney, death, cuting during designate or because of the is a recommendation of shall duty. writing signed by exercise of his official (h)(viii) [Subsection the foremen of the aggravating the circumstance or circum- was amended 4/1/82.]” beyond jury’s stances which it found a reasonable verdict found the cir- nonjury judge doubt. In cases the shall cumstances to be: cannot, designation. “We, make If jury, empaneled such the the and sworn in the time, agree pun- oaths, within a case, do, reasonable on the upon above entitled our find imposed, judge ishment be im- shall as follows: pose a life sentence. “PART I: AGGRAVATINGCIRCUMSTANC- ES “(h) Aggravating person circumstances are limited “1. The murder was committed a following: imprisonment. to the under sentence of “(i) person No_ The murder Yes X committed imprisonment; under previously sentence of “2. The defendant was convicted “(ii) previously The defendant was convicted degree. of another murder in the first degree of another murder in the first or a No_ Yes X felony involving the use or threat of violence pur- “3. The murder was committed for the person; pose avoiding preventing lawful ar- or “(iii) knowingly The defendant created a rest. great (2) per- risk of to two more death or No_ XYes sons; pecuni- “4. The murder was committed for “(iv) The murder was committed while ary gain. engaged, defendant was plice, or was an accom- No_ XYes of, attempt an the commission or heinous, especially “5. The murder was commit, flight committing or or at- after atrocious or cruel. commit, tempting any robbery, rape, sexu- No_ Yes X assault, arson, burglary, kidnapping al or air- “(If you have answered all of the above ‘no’ piracy throwing, placing craft or the unlawful you sign the bailiff. If the Verdict and call discharging or of a destructive device or ‘yes’ go have of the above answered bomb; II.) Part the verdict form covers II of [Part “(v) pur- The murder was committed for the which, opin- mitigating in this circumstances pose avoiding preventing a lawful arrest ion, Part we will cover under XVI.]” effecting escape custody; from “(vi) pecuni- The murder was committed for ary gain; 58 standard, then,

standard set Jackson v. 443 Virginia, Applying that to the three 307, 2781, 99 U.S. S.Ct. 61 L.Ed.2d reh. circumstances, we find them denied 444 100 62 U.S. S.Ct. supported by more than the evidence. (1979). L.Ed.2d is 126 standard there Preliminary to a short review evi- articulated to be: dence, dispose we first of any question must Winship “After re Winship, U.S. [In Florida, -, about Enmund v. -U.S. (1970)] S.Ct. L.Ed.2d 368 S.Ct. 73 L.Ed.2d 1140 In inquiry critical review of suffi ease, the United States ciency of the evidence to a crimi support there, that under held the circumstances nal conviction must be not to de simply imposition was incon- termine properly whether the jury was sistent with the Eighth Fourteenth instructed, but determine whether Amendments. In that case the aider record support evidence could reasonably (robbery) to a felony abettor did not himself a finding guilt beyond a reasonable kill, attempt killing to kill or intend that a doubt. But this inquiry require does not place take or that lethal force be employed a court to itself ‘ask whether it believes robbery. in the commission of a He was the evidence at the trial established lookout driver of sev- getaway car guilt beyond a reasonable doubt.’ Wood yards eral hundred from where the crime INS, [276], by v. 385 U.S. at was committed where the killing [483], at (emphasis L.Ed.2d [17 362] by accomplices. done Instead, added). question relevant whether, after viewing the evidence in The case us is considerably before light prosecu most favorable to the from the Enmund different facts. tion, any rational trier have of fact could before appeal us the evidence is found the essential elements of the crime degree first planned murder of Green was beyond a reasonable doubt. Johnson See by appellant, killing he intended that Louisiana, [356], place, arranged take he trigger- hired [1620], at 1624-1625 L.Ed.2d [32 men to do the execution intended that This familiar full gives standard 152]. torture and lethal force utilized. From play to the trier of responsibility beginning underlying felony pre fairly fact to resolve the testi conflicts in Enmund, The rule meditated murder. evidence, mony, weigh and to draw therefore, *15 purposes, for our is that in order reasonable inferences from basic facts to justify to for one who ultimate facts. Once a has defendant killing, not do the does actual there must be been found guilty charged, crime present an intent a killing will take role weigher factfinder’s place or that lethal force will be employed. evidence is preserved through legal a con intent, The found such and we cannot judicial clusion upon ail of review disagree. to evidence is considered Using the standard heretofore set light most favorable to the prosecution. Jackson, out from supra, there was The substan criterion thus impinges upon ‘jury’ tial evidence that the murder of Jeff discretion Green necessary extent guarantee purpose avoiding was for the prevent protection fundamental of of. due process of law.” lawful of (Emphasis origi a arrest. testimony nal omitted.) and footnotes 99 S.Ct. at Green the aborted Mariscal bombing case 2788-2789.8 episode was recounted. In that Green was Wyoming Supreme States, adopted 8. The follows the the rule of Holland United determining same (1954), standard on review in wheth- 99 L.Ed. justify er there is substantial evidence to reh. denied 348 U.S. 99 L.Ed. jury’s State, finding guilt. Wyo., Jackson, of Richter v. in fn. referred to 9 of State, State, (1982); Wyo., supra, Blakely 642 P.2d 1269 Russell v. 99 S.Ct. at (1978). apply Wyo., P.2d 690 We both 542 P.2d direct and circumstantial evidence. This court provided who of is of the key a witness evidence most convincing nature. The evi- connecting some of the circumstances dence of threats against others, Green and with the appellant dynamite used in the the evidence of the character and disposi- bombing of Vehar home. The bomb he tion appellant to take care of persons carrying when arrested in had Utah violence, with weapons and explosives, and appellant’s fingerprints on it and Green had his inquiry about the availability of welding testified it investiga- about disclosed equipment, laid a foundation for capa- where tors the bomb had come from. He bility to cause the horrible had knowledge appellant’s arrangement torture of place. Green which took the latter Hickey whereby would toss photographs of body expressive Green’s are a bomb into the Vehar home and thus was beyond even the words of the testimony of able materially to and did assist in untan- the pathologist who detailed for gling long-time what was a mystery as the various brutal wounds inflicted before the murderer or murderers of the Vehars. being put Green’s to death. He have even holding been the one The testimony was that there were some key to unlock the indispensable missing 140 burns on the body Green such as parts. There was evidence of made threats would be by cigarette caused burns and hot appellant on the life of Green. The metal, thus connecting the welder which telephone activity by appellant acquire a could be heating used as a tool. One of picture Green, along with track keeping out, eyes Green’s was burned there was an activities, evidence, of Green’s was in all of ugly ears, burn behind one of Green’s ex- which place took before shortly Green’s plained by pathologist to be an especial- scheduled appearance grand jury before sensitive ly area. There were cuts on the investigating the Vehar murders. The cli- throat and chest. There were bruises on his was, course, max the murder of Green body having consistent with been caused condition of his body evidencing a kicking by striking with a boot or with a methodical manner in which was accom- baseball bat or hammer. There were plished, abra- designed to elicit information of knew, what sions on Green’s body probably Green what he caused testify would being about to the his grand jury, by ropes resulting bound from culminating gunshot wound into thereby agonizing struggle his head si- during the torture. lencing him from testifying. This line of This evidence explained this to have been direct and circumstantial evidence estab- pitiless consciousless or far beyond the nor- lished for the jury beyond reasonable murder, Hopkinson supra, mal doubt the circumstance crime, nature, of course its murder to prevent avoid or a lawful arrest. possessed of some of the elements being A juror rational could come to that conclu- heinous, atrocious and cruel. But this one sion when viewing light the evidence in the “especially” so within the meaning of most prosecution. favorable to the statutory language. Any juror rational *16 There was substantial present evidence could reach beyond this conclusion reason- from the of Kristi testimony King revealing viewing able doubt when the evidence in attempts $15,000 to use her to transfer light prosecution. most favorable to the actually placed into her possession from and to various people. This would establish for Ill a reasonable beyond doubt within

the Jackson standards that the murder was appellant The claims that the ad pecuniary gain, appellant committed for non-statutory ag mission into evidence of furnishing the funds to hired killers ex- gravating appel violated circumstances change for Green’s torture and death. lant’s of law. rights process to due Section W.S.1977, 7, 6-4-102(h), supra, provides

The extensive fn. relating evidence to the aggravating circumstance that that circumstances are limit “[a]ggravating the murder atrocious, cruel, was especially following.” allegedly heinous and The non- ed 60

statutory circumstances endangered even in presence of a miti- appellant are gating (age conceived contained in var- circumstance years —23 —of made the prosecutor felon). ious remarks in his The court further held that it must that the opening statement death is test penalty judgment for reasoned in the sentenc- justified on the basis of community ing process, survival rather “a than mechanical tab- and that evidence would be introduced ulation to arrive at a net sum.” It is noted appellant’s statute, show “propensity 921.141(5), for violence.” the Florida § argument goes The on to maintain that (Supp.1982), opens F.S.A. with: “Aggravat- was evidence introduced to demonstrate circumstances shall be limited to the such propensity and that finally closing following,” only slightly different than that argument, prosecutor 6-4-102(h), reiterated the Wyoming’s supra, fn. 7. § need for community appel- survival and The by appellant other case cited to us lant’s propensity for violence. Henry (5th v. Wainwright, 661 F.2d 56 Cir.

This court Hopkin 1981). There, observed in the first application on the for writ of son opinion 7, 6-4-102(h), supra, fn. corpus, habeas the situation was that specifically limits the aggravating circum trial Florida court in a death case re- had stances to those listed. 632 It P.2d 157. ceived evidence of non-statutory aggra- recognized also there vating that we must not circumstance and instructed the compromise the weighing process between jury, pertinent part: permissible aggravating circumstances and “In considering aggravating circumstanc- mitigating circumstances. The scales must es, you shall consider all factors which are not be tipped by impermissible factors leav aggravating, including, but not limited * * ing us in a quandary as to what the jury to, the following would have done had impermissible factors The Supreme Florida Court affirmed Hen- present. been 632 P.2d at 170-172. ry’s conviction and sentence.10 The federal cites us to Brown v. disagreed court Supreme the Florida Fla., (1980).9 381 So.2d 690 We accept the Court and held that the jury instruction proposition improper aggravating cir- contravened Furman Georgia, v. 408 U.S. go cumstances cannot 238, 2726, into the 346, calculus of S.Ct. L.Ed.2d reh. the decision of sentencing authority. denied 409 U.S. S.Ct. 34 L.Ed.2d Brown, interesting to see that (1972), constitutionally directing that Supreme Florida Court did not reverse discretion capital sentencing be suf- death though sentence an improper aggra- ficiently guided so as to avoid arbitrary and vating circumstance present. imposition selective of the death penalty. court ample reasoned that other statutory guidance Failure of increased the risk that aggravating circumstances existed to con- the death penalty would be imposed in an vince it that the weighing process arbitrary was not capricious manner.11 Shepardizing Henry State, Fla., discloses that certiorari was de- sentence. 377 So.2d 692 . nied (1979) Court of the United States 19, 1981, January 449 U.S. 66 L.Ed.2d with Justices Brennan and Wainwright 11.The status of the federal case of dissenting, adhering Marshall to their views Henry is most uncertain. Certiorari was penalty the death is cruel and unusual - granted, -, punishment prohibited by Eighth and Four- judgment L.Ed.2d 1326 of the court corpus teenth Amendments. A writ of habeas appeals was vacated and the case remanded Wainwright, was denied Brown Brown v. light Engle for further consideration in the Fla., (1981). 392 So.2d 1327 The Isaac, 456 U.S. L.Ed.2d stands. remand, *17 On the circuit court con- Engle, sidered found made no difference and Henry Fla., 328 So.2d cert. again Henry vacated Florida’s death sentence. denied 429 U.S. 319, 97 S.Ct. 50 L.Ed.2d Wainwright, (5th Cir.1982). 686 F.2d 311 A reh. denied 429 U.S. 51 L.Ed.2d 576 That court also denied judgment a motion to vacate the and death However, the same instruction as that of prosecutor. ment the jury, through The given was not in given Henry this case. in Instruction was any No. warned that the judge in case in- The trial before us statement in presence made counsel its that the jury aggravating the cir- structed concerning the facts of the case must not be case “in this are cumstances limited to the regarded as objections evidence. When (Emphasis added.) following.” fn. See appellant’s made by during were counsel verdict jury’s for the form. In that connec- the opening course statement and judge gave trial jury tion the Instruction counsel, argument of the was jury No. 7: again reminded this Fur- admonition. do not find you “If that one ther, directed, or more was In- jury through aggravating sufficient circumstances ex- struction No. that the ease be governed instructed, previously ist as you should solely by determining the evidence in sign the verdict recommending life im- questions it. before prisonment. There was much evidence of threats “If, hand, on the other you or find one appellant made to various persons more sufficient aggravating cir- against Green prior grand to his scheduled instructions, cumstances set forth in these appearance; jury there was evidence of then in order find to that the death pen- threats made the appellant against justified, alty you is must find that the board; sewer members and there aggravating circumstances outweigh any was evidence of threats by appellant made mitigating circumstances found to exist. against Vehar Vincent result of the making “In you determination must litigation. sewer board All this evidence use your judgment. reasoned You must part parcel picture. and of the total weigh the mitigating circumstances All of it was to introductory relevant against the aggravating circumstances the eventual murder of Jeff Green to avoid so doing following: and in to consider the arrest, prevent appellant’s or as well as to “1. No numerical is weight assigned engineering the motive of any mitigating to or atrocious, especially ag- heinous cruel circumstances. As gravating emphati- circumstances. so The aggravat- “2. enumeration of the Proffitt, cally explained Gregg mitigating circumstances does fully of all jury perti- must be informed weight given not indicate the be to adequately nent facts in order to exercise any such circumstance. placed upon the trust of discretion it. The “3. One mitigating may circumstance leeway must have some giving outweigh of such a nature as to one story jury. prosecution whole to the or more aggravating circumstance. only what it doing was authorized do “4. One circumstance 102(c),W.S.1977: § 6-4— bemay outweigh of such a nature as to “(c) The judge jury shall hear evidence one or mitigating more circumstance.” any as to matter that the court deems clarity forcefully instructions and with relevant to a determination of sen- limited the only a consideration tence, relating and shall include matters listed, the aggravating circumstances any aggravating mitigating there is no they any found indication that circumstances enumerated subsections other aggravating circumstance. The in- (h) and (j) Any of this section. evidence structions clearly into channeled probative which the court deems have aggra- permissible consideration of regardless value be received of its vating circumstances. admissibility under the rules exclusionary The appellant’s objection goes evidence, provided the defendant opening closing argu- opportunity statement and the accorded fair rebut

petition 11/17/82, 82-840, pending for certiorari thus now No. 51 L.W. 3421. We States, system United filed see the federal in conflict with itself. *18 “ * * * statements, further

hearsay provided and of the Vehars and other crimes ex- aggravation as cept Kelly such for Wyckhuyse evidence in murder to the defend- immunity the state has made known which no offered or any kind is shall granted; or his his trial and J. prior Hickey ant counsel to should said Michael plead wish guilty Kelly Wyck- be admissible.” to huyse murder or charge principal as acces- followed in meticulously The statute was sory, the Court will accept a of second plea in aggrava- notice lengthy of the evidence murder degree with a sentence not less produce.12 did to and planned tion twenty (20) years than nor than more twen- argu- theme of community The survival (21) ty-one years.” The agreement was in its by prosecution ment was one used signed by Hickey, attorney, Hickey’s closing argument during penalty phase special prosecutor County for Uinta and the first trial. at of the See 632 P.2d 160-166. judge. was agreement district This read explained repeat court there and we it This into the record for the benefit of the here: penalty hearing now us. The before “Prosecutors cannot should not be also discloses record that as a result muzzled. It must be in mind that kept bargain, plea five crimes solved and were prosecuting representa- attorney is Wyckhuyse convictions obtained: homi- obligation is to tive State whose homicides, cide, three Vehar and the is govern impartially, whose aim not that between Mark conspiracy Hopkinson win justice a case but that be done. It Hickey Roitz, Mike to murder William his not guilt escape mission that shall of the sewer member board. duty or innocence suffer. He bound appellant judge The accuses the district prosecute vigor. earnestness improper participating behavior for blows, may While he strike he is hard not struck, bargain plea citing which was Singer United free to strike foul ones. appears Approved what to be from the States, U.S. Draft, ABA’s Minimum for Standards 630; Berger v. United 13 L.Ed.2d Justice, the Administration of Criminal States, Relating of Guilty, Standards to Pleas 633, 79 L.Ed. 1314.” 632 P.2d at 166. “3.3(a) judge partici- The trial should not No foul blows were struck. pate plea ap- discussions.” have Counsel acquainted IV parently themselves with provisions relating Guilty, Pleas The appellant as an issue raises approved by Delegates, the ABA House of he refers to as proportionality what “[t]he February 12,1979, (Little, ch. 14 Brown and argument Appellant denied —whether Company 1980). stringent pro- 2nd ed. process equal protection.” due He re vision cited has been deleted. Standard the not less than more lates 20 nor than 21 for permits 14-3.3 now a limited role years given Hickey sentence Mike for the judge. charge trial He indicate what part murder of as a Kelly Wyckhuyse of a or sentence concessions accepta- would be plea bargain the death arrangement sen ble. given (R.Vol. pp. tence X 853- Hopkinson.

854) Appellant the sentence concludes that approved 14-1.8, The final standard against should be measured regard plea guilty of a consideration protection that of Mike Hickey on equal disposition, provides final “ * * * process due grounds. is proper for the court [i]t agreement Hickey given grant charge and sentence concessions immunity prosecution part from his plea guilty defendants who enter a or bombing nolo contendere when with the of the Vehar and murder consistent home 802, W.R.E., provides: Wyoming 12. Rule Court of statute.” “Hearsay except provid- is not admissible adopted ed these rules rules other

63 * * * protection public when of there penalty date death in others. Justice is evidence to concurring substantial establish that: White in opinion his discussed # * * * * * 224-226, aspect, this 428 U.S. at 96 S.Ct. at 2948-2949, where he declined to interfere “(iv) the has given defendant or of- with the manner in Georgia to chose when cooperation coopera- fered such enforce its laws the basis of a of charge tion has resulted or result in the of lack faith in its system. Accomplices in prosecution successful of other offend- alike; crime need not be sentenced a sen- engaged equally ers in serious or more patterned tence should be to the individual serious criminal conduct.” (Emphasis State, defendant. Beaulieu v. Wyo., 608 added.) (1980); State, P.2d Daellenbach v. to standard, 14-1.8, The comments su- (1977). Wyo., P.2d 679 14-49, pra, p. point out that consideration closing The second determination disposi- given has been to the contingency that tive of this issue is that Hickey Mike defendants, those as a who plead class not principal aider and con- abettor or because of guilty one of the considerations spirator appellant with the in the murder 14-1.8(a)(i) listed in through (iv), will re- Jeff Green. ceive more favorable than treatment class of defendants who stand pointed that, trial and are It should be out at a later convicted, “[bjeeause but each point, separately fore- we dispatch will our statu- going legitimate considerations is related to tory responsibility 4—103(d)(iii) under § 6— objectives law, disparity (e), W.S.1977, of the criminal this to if determine the sen- treatment is no sense unfair or incon- disproportionate tence death is to the goal uniformity sistent with the in sen- penalty imposed similar eases to tencing.” The idea is that such under cir- make reference to those we cases take into goes cumstances the one who to trial re- consideration. punishment.

ceives excessive V We add two It thoughts. is not unconsti- length Hopkinson We have at dealt in tutional the State to extend a benefit to State, 149-157, supra at pleads defendant who with constitu- guilty and who in tionality Wyoming’s penalty turn death extends a substantial stat- benefit States, Eighth utes under the Brady State. United Amendment U.S. 742, 750-753, 1463, 1470-1471, 14, 1, 25 United States Constitution and Art. § Constitution, L.Ed.2d 747 Wyoming the latter contain- language near identical as that in the argument not unlike Eighth Amendment.13 We found and held by petitioner one advanced Gregg that the provisions. them as to those constitutional state prosecutor has unfettered authority Appellant now claims their unconstitution- persons select those whom he wishes ality Wyoming under Art. Constitu- § prosecute plea bargain or to with. The tion: Court, at penal “The code be framed on the shall declared that the existence of these discre- principles humane of reformation and determinative, tionary stages is not but the prevention.” specific convicted a capital individual separately silence, offense must be By dealt in the majority previ- their in the to impose penalty; opinion rejected decision the death there ous the stance of the dis- nothing affording unconstitutional about previous majority, sent opinion mercy an individual defendant. In other Hopkinson supra, Art. § words, leniency in one case way does invali- modifies Art. § any materiality they separated by 13. We do not consider it of Constitution “and.” We held the death are the word Constitution, Wyoming in the Art. be neither separated by words “cruel” and “unusual” are cruel nor unusual. the word “or” whereas the United States heretofore, We have in Part II mane if administered same fashion out the opinion, pointed heavy burden the murder of Green. They Jeff must assumed by prohibits one who would seek to over together. read Neither *20 constitutionality come the of presumption never penalty. Wyoming as a state has enjoys. which a legislative enactment We except been death as penalty without penalty held that is have the death neither paragraph. noted in the It next carried 14, cruel nor unusual under Art. 1. We § capital forward the of territorial crime may have 1, held that life taken due 35, ch. Laws murder.15 Section Session 6, 1, process of Wyoming law under Art. 1890, § Wyoming, Legislature. First State Constitution14 and that due process of law It in the picked up Revised Statutes contemplates the careful adherence to the 1, 87, Wyoming, 1899. Section ch. Session statutory procedure structured to ar avoid 1915, Laws of Wyoming authorized the bitrary and capricious action a as qualify by adding their verdict “without in sentencing authority the case of first in capital punishment” which event the sen- degree murder. consider that We we are imprisonment. tence was life 15, giving effect to Art. 1 penal and the § 136, 1, By Wyo- ch.' Session Laws of § code including penalty as 1973, ming legislature attempted con- framed on the principles humane of refor Georgia, form to supra, Furman 408 U.S. mation prevention. 238, 2726, 346, but L.Ed.2d pointed Gregg, As out legislative failed. This court held the effort 170-176, 2923-2926, 96 S.Ct. at cruel and 27, on January unconstitutional 1977. Ken- punishment contemplated unusual as in the nedy Wyo., (1977). 559 P.2d 1014 constitutional proscribes sense torture and 28, 1977, February ap- On the Governor “ other barbarous methods but ‘is not fas- 122, 1, proved Wyo- ch. Session Laws of tened to may acquire the obsolete but 1977, ming our current death stat- penalty meaning public as becomes opinion enlight- utes under which was sentenced. ” justice.’ ened a (Emphasis humane been Wyoming has without the death added.) The on to say Court went that the penalty period for a of one since month punishment involve may not the unneces- legislative statehood. interpretation This sary and wanton of pain infliction or be great is constitution entitled to grossly out of proportion enormity of weight, though binding not on this court. the crime. require “We not legis- Grieves, Wyo., Coronado Oil Co. 603 P.2d lature to least penalty select severe (1979); Brooks, ex rel. Irvine v. possible long as as selected is 418, 393, 488, 14 Wyo. 84 P. 6 L.R.A.N.S. cruelly or disproportionate inhumane 750, 7 A E Ann.Cas. & * ** crime involved. constitutional [T]he legislature, representing people test is intertwined assessment of state, legitimate has retained interest contemporary legislative standards and the the death and we defer wis- penalty, to its judgment weighs heavily ascertaining dom in that regard any absence of (Emphasis added.) such standards.” express prohibition penalty. the death All of foregoing paragraph from VI Gregg represents our views of 14 and §§ 15, Wyoming Art. This by appellant Constitution. issue raised involves We would death penalty attorney-client consider the inhu- privilege. county arson, Wyoming perpetrate any rape, robbery, 14. Section Art. or Constitution life, provides: person deprived burglary, by administering poison “No shall be or or liberty property process done, causing any or without due to be the same kills human law.” degree being, guilty of murder in the first and shall death.” suffer 15. Section Session Laws July 10, ch. of the Ter- Wyoming as a was admitted state on ritory provided: Wyoming Large, States Statutes at ch. United premeditated p. purposely “Whoever and with malice, of, perpetration attempt inor Wyoming, pub- pellant implications as a because of the prosecuting attorney arising officer, complaints from the privately prac- Sweat/Roitz and be- lic authorized cause a conflict apparent the civil law. claims of interest seemed Appellant tice that, because of attorney festering some county when the criminal prosecuting aspects public and the status of the person sewer represents private practice his defendant, board. becomes a who criminal forever as to prosecutor’s lips are sealed All of the foregoing events occurred be- them, and all between relationships fore the Vehar Upon murders. that occur- public private whether or not it involved rence, grand jury was convened to investi- relationship We keep business. must gate the Phillips occurrence. was the pros- *21 it in case and not in appears context in this ecutor presenting evidence to that body. broad advocated sweeping terms upon The same grand jury the basis of that, appellant. some detail order to do presented evidence by Phillips prosecutor as

of the facts is essential. against returned an Mike indictment Hick- ey for the of Kelly Wyckhuyse. murder Phillips, James E. the then county and Appellant approached Phillips several times prosecuting attorney, acquainted became that demanding thereafter he dismiss the appellant when employed with latter against Hickey. During indictment one of handling of three matters. One was occasions, appellant stepped those toward petition Bridger to the Fort Dis- Sewer he Phillips’ picture Mr. desk where had a park trict for annexation of the trailer for wife family, photo- his and handled the service, sewer which was con- appellant case; it would graph, indicated that be terri- structing; another a divorce and fi- anything happen; ble if it were was a an nally appeal Wyoming Supreme looking nice would be family; terrible if in a civil which Court ditch case was settled. wife, anything his latter, happened to his fami- Phillips was actually, repre- ly, or with his respect to new home which senting appellant’s families, parents. Two being Phillips was built. became con- Roitzes, complained Sweats and to him cerned.16 county prosecutor as a a fight they about with appellant they

had and which wanted Phillips In his testimony, admitted that prosecute. him to Appellant approached the threat had some influence on his later him about the fight seeking same to have charges drop against Hickey, decision to the Sweat and prosecuted. Roitz families though Hickey’s attorney presented had investigate The sheriff was with asked to evidence, including him with the testimony the result that all was declined prosecution (for appellant Jeff Green which had ar- appeared for what an to be unmeritorious ranged) Hysell that Jamey murdered the between feud families. girl. Wyckhuyse against In fact trial Hysell underway was when Jeff Green Later, appellant the sewer board sued for broke down and admitted his testimo- hookup appellant for fees the sewer ny was a fabrication. requested that he approached Phillips and Phillips him in the case. read the represent Phillips’ At point testimony, this a matter of record which complaint, public transcript in evidence an in-chambers case, and outlined its was evidence with Green proceeding Jeff was reviewed for the the counts jury. contents One the jury. During the course of that appellant complaint alleged had proceeding in-chambers Jeff Green indi- to discredit campaign conducted pressure cated that he was under by the with frighten sug- appellant the sewer board some against and if he appel- testified gested “Vegas get lant, connections” to appellant go any lengths would hookup board to reduce its sewer fees. rid get appellant of him. Green stated that Phillips privately represent ap- persons, including refused to had told him of other sequence, Phillips arranged family Out of later testified he weekends and to have his security possible. asked the sheriff for around out his house of town as as much Jeff apparent had eliminated. It seems from the record agent,

FBI whom he appel- believed that he emphatic appellant Green was that the evidence made no and that things lant had done those attorney-client Phillips disclosures to Phillips prosecutor why he was afraid. testified. His Phillips testimony was Green make these and observed present to matters after he entirely arising related statements. attorney-client terminated his relation had ship appellant and in the course of his from the trial Phillips transcript testified prosecutor. Much of his county duties as during recollection the course and his testimony involved the identification implicated trial Jeff Green Hysell reading testimony arising documents and Hickey Mike the Vehar appellant Hysell. prosecution Jamey out of testimony Jeff Green’s bombing. Hysell trial was that had orches- 501, W.R.E., provides: Rule Hickey’s testimony trated and Green’s testi- “Except required by as otherwise consti- even mony. Appellant Hy- testified in the tution or statute or these or other Hysell approached sell trial that had him to promulgated by rules and in buy drugs order to establish his witness, Wyoming, of a privilege trustworthiness had told him that he had state, government, person, political Kelly Wyckhuyse. killed *22 governed by thereof shall be subdivision cross-examination, Phillips On testified principles they of the common law as that on one occasion he had filed com- interpreted by be the courts of the plaint against bribery. Green for Green Wyoming light in the of reason State up had offered to fix his basement if Phil- experience.”17 lips drop charges burglary would some Wyoming The adopt- has redirect, and receiving property. stolen On the government Wyoming ed for developed charge it was that this was later Bar the Respon- Code of Professional others, dropped, part with some along provides ABA. sibility of the Canon 4 agreement, a written Exh. plea bargain lawyer preserve should the confidences “[a] whereby testify Hy- in the agreed Green and secrets of a client.” sell trial and in the Vehar investi- cooperate question up This came in a same different gation. testimony Hysell Green’s during context first trial of this case. trial was he whereby read into evidence prosecutor The at that trial in his opening Hickey’s disclosed the details of narrative to statement said that the evidence would just Wyck- him of how killed the Hickey Phillips show that had been threatened huyse girl and he had done with the what appellant pressures and would reveal body. during The appellant present was brought Phillips to bear on by appellant. these revelations. It after these disclo- was However, the judge permit trial would not appellant sures that all the worked out de- reasoning the evidence because it was his tails to shift Hickey the blame from attorney-client privi- it fell within the Hysell. lege. quizzical This court was somewhat Green appellant testified the reason privilege going about so far that a Hysell charged wanted Hysell was because prosecutor must be the victim silent signed had a statement that Green against threats his family property. appellant had pick dyna- tried to up some mite from Hysell and appellant Hy- attorney wanted We are now satisfied that an sell dead because of knowledge. bondage Even- not forever within the of a former tually Hickey produced for dynamite against some client. The occasion for the threat the bomb that was to up Phillips be used to blow was not made to him in a matter in the Mariscal car for appellant. attorney appellant. which he was an for the Wyoming 17. The Permanent Rules reference to the ‘Erie Doctrine.’ Erie R.R. v. Committee Tompkins, note reveals: “This is the federal rule modified 304 U.S. 82 L.Ed. adapt practice (1938).” it to state and to eliminate It was when he made to him on occasion VII acting attorney as an for the State appellant asserts reversal is re- of that Wyoming, and was aware quired if an aggravating circumstance used seeking because he was the dismissal as a basis for the death imposing penalty is Even if charges Hickey. murder against found to be proceeds invalid. He then conjured up any conceivable it could way cite Zant Stephens, 456 U.S. relationship that an existed attorney-client 1856, 72 L.Ed.2d 222 in which Phillips between at the time appellant and the following sequence of events oc- had for dismissal of the threats and demand there comes a Hickey charges, time curred: when a necessary play. comes into exception 1. Stephens was convicted in a Georgia We acceptable find an doctrine in 2 Louisell trial court of murder for which the death Mueller, p. Federal Evidence penalty authorized. (1978): “ * * * Society hardly could sentencing phase, afford to the jury

protect the confidentiality of conversa- found there statutory aggravat- to be three tions with counsel which look toward imposed circumstances and the death frauds; commissions of crimes or to ex- penalty. Georgia provides statute privilege tend the so far would be to penalty if one of the aggra- listed make it impor- cost too much. Thus an vating present. circumstances is made, exception tant and one which is 3. The Georgia Supreme Court set aside increasing frequency encountered with one practice. of the three aggravating circumstances but affirmed the death exception stating “The into play comes when the knowingly client to further a seeks crimi- rule be that the death sentence is not nal or through fraudulent endeavor con- impaired because in Arnold 236 Ga. *23 sultation with It counsel. is the client’s 534, (1976), upheld S.E.2d 386 counts; knowledge alone which the ex- present death sentence where there was ception may privilege apply, only aggravating one circumstance. The denied, be regardless attorney’s Georgia Supreme applied had Court fact, understanding. In since the client cases, Zant, in many supra rule death fn. holds privilege, attorney’s under- explained never S.Ct. but had standing or intent should be immaterial. its rationale. As proposed-but-rejeeted 503(d)(1) Rule it, privilege would have had would 4. The federal fifth circuit reversed a apply where ‘the services of the law- federal district court which had denied ha- yer sought were obtained enable or corpus penalty. beas and set aside aid anyone plan to commit or to commit Supreme certiorari. granted what the client knew or reasonably the Georgia Under a state statute should have known crime or ” Supreme questions Court will decide (Footnotes omitted).18 fraud.’ law from the upon state certification Unit- All of the statements communications Supreme Accordingly, ed States Court. which Phillips appellant were attributed following question: Court did certify the made in the furtherance of criminal endeav- “What are the state law that premises position or. We appellant’s hold on this issue support to be without merit. completely the conclusion that the death sen- 501, W.R.E., (1960), light spousal privilege exception 18. The words of Rule “in the where a experience” spouse recognized of reason and meaning. are not without in which one for cases States, Trammel, against See Trammel v. United commits a crime another. concurrence, (1980), 63 L.Ed.2d 186 Mr. S.Ct. Justice Stewart in his fn. divesting part privilege pointed impedes “[a]ny an accused out that that rule testimony spousal discovery impedes bar adverse in criminal of truth in a court of law addition, Wyatt States, cases. doing justice.” See in v. United well the 525, 528, 901, 903, 362 U.S. 80 S.Ct. L.Ed.2d impaired tence Pearce, in this case is not lina v. 395 U.S.

invalidity statutory aggravat- of one of the 23 L.Ed.2d 656 where- found jury?” circumstances 102 in it capsulized protections three at 1859. were protects against afforded: “It prosecution second for the same offense We do not know at the moment what after acquittal. protects against It response Georgia Supreme Court will prosecution second for the same offense make or what the United States after protects conviction. And it against Court’s decision will ultimately be in that multiple punishments the same of- Appellant case. merely ques- here raises a fense.” tion, issue, drops the and moves on to a next issue which he refers to as “the double Appellant asks that since the could jeopardy argument.” We do not know not reprosecute appellant for the Vehar what issue has proof to do with deaths since he was found guilty those listed, homicides, degree circumstances not first and the convictions affirmed, we will say now that we do not were what purpose find conceivable be the case. served presented introducing All the facts are all the evidence of related to the those homicides in statutory aggravating the retrial of the sen- cir- tencing phase. It is appellant’s position cumstances as a fact thereof. This will be it was necessary dealt with in to establish the though more detail it has fact of already through convictions introduction partly crept in. into evidence of the judgment and sentence For this to be an issue which we reflecting the convictions for the murder of decide, must we must hold that one or more the three members of the family, Vehar of the aggravating circumstances have no done, which was in order to establish the validity in fact or in holding law. Our will statutory aggravating circumstance that eventually be that all aggravating circum previously defendant was convicted “[t]he stances are sustainable in fact law. * of another murder in degree the first 4—102(h)(ii),supra. Section 6— VIII done, Were that to be the jury would not By eighth issue argues that have the story. rest of the It cannot be consideration the jury of evidence emphasized enough that the murder of the concerning the Vehar deaths and the sub- poor little Wyckhuyse girl, as an example, mission those had something to do with the mutilation circumstances inapplicable deemed *24 murder of Jeff against Green. The threats penalty first hearing, appellant’s violated the county prosecutor were part of the constitutional protection against double script of the Wyckhuyse drama which burst The jeopardy. Fifth Amendment the bubble mystery of of up who blew the States, Constitution of the United amongst “ home, * * * Vehar that, who was behind other proscriptions, provides nor can, why. We and probably will more than shall any person subject be for the same done, already we have put together all the offense to be twice in put jeopardy of life * * parts of an intricate formula justifying the or limb Through *.” the Fourteenth penalty beyond death a reasonable doubt Amendment, applicable it is to the states. every within restriction of a statutory 784, Benton v. Maryland, 395 89 U.S. S.Ct. designed scheme to minimize the risk of 2056, 23 (1969). 11, L.Ed.2d 707 Section wholly arbitrary capricious action or 1, Art. Wyoming provides Constitution also “ * * * action in a freakish manner. person nor shall any put be twice in ” * * * As explained Gregg Georgia, in v. jeopardy 428 for the same offense. 189, at U.S. 96 S.Ct. at 2932-2933: provisions These have the same meaning and are application. coextensive in Vigil v. “It is certainly proposition not a novel State, Wyo., 563 P.2d 1344 In Vigil that discretion in the sentencing area of this court noted with approval, North Caro- be exercised an informed manner. We

69 recognized have deter long that does prohibit not a to remand the trial ‘[f]or sentences, generally justice mination of court for a redetermination of sentence. * * * taken into requires that there be DiFrancesco, 1980, United v. States 449 of the offense account the circumstances 117, 426, U.S. 101 66 S.Ct. L.Ed.2d 328. propensi together with the character penalty In death cases the U.S. Other ties offender.’ [Citations.] Court has authorized remanding a for wise, ‘the cannot function a system resentencing hearing where the death manner.’ consistent and a rational [Cita penalty imposed originally was be- but 38”19 (Footnote omitted.) tions.] cause of some proceeding defect has been case, appeal. reversed on significant feature of this Estelle v. A perhaps Smith, 1981, 454, many will be seen in different than instanc- U.S. S.Ct. es, appellant crime of for 359. Only is that the L.Ed.2d where a judge a sought penalty jury and all death refused to impose penalty death to leading up part circumstances it are of a first is a instance state barred from bundle which lends single itself a com- seeking it Bullington second time. plete lays character, bare picture Missouri, 451 U.S. propensities, and individual circumstances 1852, 68 L.Ed.2d 270. There can be no appellant of an offender. penalty new trial toas the Vehar mur- ders in the jury failed impose claims that the submission as to those crimes.” 632 of aggravating circumstances found not to at P.2d fn. 46. exist in the first trial amounts double jeopardy. trial, At jury the first found Ball, United States U.S. following statutory circum- (1896), 41 L.Ed. 300 pretty much stances not applicable: settled the proposition that defendant “5. The murder was committed for the procures who a conviction judgment purpose avoiding preventing of a law- against him to be aside set for an error effecting ful arrest or an escape from law, may be tried anew upon same custody. indictment same offense for which “6. The murder pe- was committed for he had been In convicted. United States cuniary gain.” 632 P.2d Tateo, the second trial found such L.Ed.2d 448 it was said: principal circumstances to exist. The rea- “While different theories have been ad- son is probably because the inade- support vanced permissibility trial, quately instructed in the first but we retrial, greater importance than the need guess any further or even at all. conceptual employed abstractions to ex- In the first decision it held there plain principle the Ball are the implica- punish- could be new trial on the issue principle tions for the sound ad- provisions ment under 6-4-102(g), justice. Corresponding ministration W.S.1977.20 explanation was that: right given accused a fair guarantee

“The trial is against jeopardy, punishing double the societal interest *25 guilt secured the Fifth Amendment one whose is clear after he has Constitution high of the United obtained such trial. It be States would 11, 1, Constitution, § Article Wyoming price society indeed for were pay every “Indeed, Gregg provides: W.S.1977, Footnote 4-102(g), provides: 38 to we 20. Section 6— today capital hold elsewhere that in cases it is appeal “If the trial court is reversed be- constitutionally required sentencing that only presentence cause of error in the hear- authority have sufficient enable information ing, the new trial which be ordered shall it to consider the character and individual cir- apply only punishment.” to the issue of prior imposition cumstances of a defendant of a death sentence.” Woodson v. North Caro- lina, 280, 303-305, 2978, 428 U.S. 2991-2992, 49 L.Ed.2d 944

70 granted immunity punish- less, course,

accused from the errors in found the first ment any because of defect sufficient to Wyoming trial. At one time the statutes proceed- re-examination, constitute reversible error new trial as “a defined.a ings conviction. leading fact, From the the same court of an issue of after a * * defendant, standpoint 3-3401, of a it jury is at least verdict W.C.S. appellate 1945, doubtful courts would be but superseded by Wyoming was they Procedure, 87, as zealous as now are in protecting Rules of Civil Rule W.R.C.P. effects of against improprieties at the That consistent with Black’s Law Diction pretrial trial or stage (5th if they ary 1979). knew that ed. The issues of fact on reversal of a conviction would put retrial are the same as those in original accused irrevocably beyond trial, the reach of including aggravating all the and mit prosecution. further In reality, igating there- circumstances. There is no such fore, practice of retrial thing “acquittal” serves defend- as an an aggravat from rights ants’ as well as society’s interest. circumstance in the penalty phase. The underlying purpose of permitting Cardwell, re- Knapp v. 667 F.2d 1263- trial is as much by application furthered (9th Cir.1982). 1265 of the rule to this case as it has been Silhan, State v. 275 N.C. S.E.2d cases previously decided.” 377 U.S. (1981), here, cited the dissent is a 466, 84 S.Ct. at 1589. There, peculiar case. one As pointed out in United States v. DiFran circumstance was submitted to the for cesco, U.S. S.Ct. 66 consideration in the sentencing phase. The (1980), L.Ed.2d 328 there is an exception to particular court held that aggravating cir- the allowance of a new trial. That is when (it cumstance improper to be was the un- a conviction is reversed because of an insuf derlying rape felony murder), but ficiency of evidence. Burks v. United held circumstance States, U.S. 57 L.Ed.2d capital felony especially hei- “[t]he 1 (1978). nous, atrocious, or cruel” should have been the one submitted to the jury for considera- Supreme Court of the United States tion of the death penalty, because that cir- in Bullington Missouri, surrounding cumstance just murder was 68 L.Ed.2d 270 made a that. Other statutory aggravating circum- similar comparison to Burks v. United stances were suggested also as appropriate. States, supra. The Missouri had re- The court then remanded the case for a new turned a verdict of imprisonment. life sentencing hearing. simply said he could not, light sentencing proce- The dissent has taken from that case a dures which have the hallmarks of a trial on discussion of double jeopardy aggra- as to innocence, guilt again be tried with the vating circumstances which engaged risk of a sentence enhanced death. Bull- by the court and completely unnecessary to ington inapplicable in our case because pure its decision —as example as dicta the first return the death jury did sentence can be found. It may advisory be juries to the Jeff Green murder. Two Carolina, lower courts of North but it was appellant have now found the a suitable expounded without citation of any applica- subject for the penalty. ble authority and apparently expressed as its own view. It is not ours.

We any are unaware of authority that, person on retrial of a following rever We reversed the death penalty Hopkin sal, there is restriction on the evidence son v. supra, purely as a matter of that can produced, or that a verdict of law. The evidence is clear that Green was found, guilty cannot be or that all the inci murdered to avoid the arrest of *26 dents of a new trial including statutorily for the Vehar murders and that it was for required findings cannot be pursued gain in ev pecuniary both of which reasons were ery respect though trial, as upon original apparent trial, in the evidence in the first

71 prefer the second We used in to adhere to the which evidence was also more instructed, jury could If properly trial. traditional and view accepted expressed in We would finding. have come to no other Gilbert, 53, v. 277 State 283 179 S.C. S.E.2d hypo- were the these point further out that (1981), 984, cert. denied 456 102 U.S. S.Ct. guilt which upon prosecution theses of the 2258, 863, 72 L.Ed.2d to application suspend inseparable part of and are an was based - denying effect of order cert. denied the total circumstances. U.S. -, 2294, 102 73 L.Ed.2d S.Ct. 1299. the statutory Gilbert, trial, Nor can we avoid di In at the first two aggravat W.S.1977, rection, 6-4-102(c), (quoted in ing circumstances were submitted opinion again III of this but set out Part sentencing jury, they only but found one of convenience) that: a matter the aggravating them to be circumstance. evidence as judge jury “The shall hear retrial, the to be jury aggra On found both any matter that the court deems rele- vating appeal circumstances. after the On sentence, vant to a determination of retrial, the court held that not to be double relating any and shall include matters jeopardy sentencing phase on retrial of the circum- aggravating mitigating v. only. Gilbert was followed State (h) and stances enumerated in subsections Woomer, 170, (1981) 277 284 357 S.C. S.E.2d which (j) Any of this section. evidence (appeal sentencing from retrial of to have value probative the court deems phase). regardless received of its admissi- may be appeals In a series of in which the Su- of evi- exclusionary under the rules bility dence, preme Georgia ultimately affirmed the defendant is accorded Court provided any hearsay fair opportunity rebut was dealt with. penalty, the death this issue statements, provided further 763, v. 240 243 12 Davis Ga. S.E.2d aggravation evidence in as the only such 901, (1978); (1979); 242 252 443 Ga. S.E.2d state has made known to the defendant 432, (1980). 246 271 828 In Da- Ga. S.E.2d prior or his counsel to his trial shall be vis, 901, 443, the at 242 Ga. 252 S.E.2d admissible.” sentence Georgia court affirmed applies original This to both the trial and sentencing phase at retrial in the reached sentencing stage. the retrial of the With- aggravating where an circum- additional cir- out the inclusion of these jury found stance was considered, factors to cumstances as judge the trial did not submit first trial deprived second of the whole back- supported because it was not to its determination. ground necessary - denied, the evidence. Certiorari expected, As can be mention 189, -, 74 153. 103 L.Ed.2d U.S. S.Ct. received was in the v. Silhan has State Brennan, Marshall, joined by Justice Justice Marshall, joined by Jus- dissent of Justice Silhan, supra.21 citing dissented v. State Florida, Brennan, in tice Jones at this majority Court -, 189, (1982), 103 74 L.Ed.2d 153 S.Ct. rejects v. Silhan. point apparently State on appropriately when certiorari was denied case, Silhan, supra, has any State, Fla., 411 the same issue Jones v. except dissenting favor in a McClure, not found (1982), McClure v. 363 So.2d posture. So.2d penalty entry jeopardy phase was raised in or the of a sentence of life

21. The double issue imprisonment, Godfrey Georgia, Georgia 446 U.S. 248 Ga. (1981). 455 U.S. L.Ed.2d reh. denied S.E.2d 422 In that case a conviction for penalty imposition and 246 Ga. of the death 73 L.Ed.2d 1296 murder and the (1980). Georgia Supreme The death S.E.2d had been affirmed (one Court, again imposed two counts As on 243 Ga. 253 S.E.2d sentence, imprisonment to life to the death the United States Su- which was reduced appeal) appeal jeopardy preme is- and on the double Court reversed and remanded the case Georgia Supreme was raised back who in sue as to circumstances unsuccessfully. turn remanded the matter for retrial of the *27 IX sion of the accompanied murder was by such additional acts as to set the crime 6-4- Appellant again challenges § murder; apart is, normal from the a W.S.1977, as 102(h)(vii), unconstitutional. pityless consciousless or crime which “(h) Aggravating That circum provision [sic] is: * * * unnecessarily is tortuous the the victim.” stances limited to following are (vii) heinous, murder especially The have in this early opinion We made brief entirety atrocious or cruel.” The 6-4- photographs mention the of Jeff Green 102(h) set out is in fn. ante. In this consciousless, pitiless, after the ugly, tor- previous court’s decision we attempted to death, a clearly ture reflect conscious- comprehensively justify constitutionali materially depraved ness more than that of ty statutes, of Wyoming’s persons guilty of the usual of murder. comporting with primarily the standards particularize testimony now We of the by laid out United States best pathologist who describes abuse Furman, Proffitt, Court in Gregg, and su Jeff body and mutilation of Green pra. 632 P.2d at 149-157. Our statutes are death. before from principally Georgia and Florida. pathology Dr. had done the on over Stahl held particular We terms career, a thousand murder victims in his cruel,” heinous, “especially atrocious or iso including twenty-five forty torture vic- late type one case which the death photographed body tims. He of Jeff applicable penalty is murder which —a testified, As he he Green. slides had taken pitiless, consciousless or which is unneces projected were benefit of the jury. sarily tortuous to the victim and sets off There were extensive burns over face from ordinary the usual or One murder. eyes. right upper On his forehead was the purposes was to make the death penalty X 2 a 3 centimeter bruise with some skin proportionate to the crime. The standards it, slippage by around caused blowa with a adopted sentencing authority direct the part blunt On the instrument. inner of one particularized focus on the circumstances of degree elbow were third burns. Other crime the defendants. were burns identified as caused likely by a Appellant People Superior relies on lighted cigarette. Other deeper burns were Court of County, Santa Clara 31 Cal.3d explained compatible to be with those done 183 Cal.Rptr. 647 P.2d 76 some type hanger, with of hot iron —a coat phrase “heinous, atrocious, considered the iron, knife, a soldering a heated or some or cruel” as unconstitutionally vague object such as that. violative of the process due clause.- The T-shaped On left arm was a third reasoning sophis- court California degree burn caused heated metal ob- try play words. —a ject. photo A identified the doctor The with judge trial instructed the degree showed severe third burns respect to this aggravating circumstance: webbing fingers. top of a “One of the aggravating circumstances joint knuckle also showed type a hot-iron set forth in this is that the murder case burn. heinous, was especially atrocious or cruel. right armpit had a series of burns you To assist evaluation of this your count, difficult which evidenced smear aggravating circumstance, means heinous evil; jerking struggling burns caused extremely wicked shockingly the left area victim. On arm were atrocious means outrageously wicked vile; burns, also rope hot iron but cruel designed means to inflict burn, high degree typically tearing caused pain rope utter indiffer- to, of, struggles. par- ence or even skin while the victim This the suffer- enjoyment (2.54 rope of others. ticular burn was 24 centimeters What is intended inch) included those per long by circumstance are centimeters 5 centimeters capital crimes where actual commis- wide. *28 contact and multiple had Each the forearms had eye

The left about 35 burns very object a hot by compatible cigarette burns with burns. close contact One arm hemmorhage, by defined had causing T-shaped a scleral a 6X3 centimeter third de- meaning eye gree itself burn. palm the doctor as On the of one hand is a object, bled, and, with a hot X 1 degree was touched 1½ centimeter third bum. On lived, damage victim would one elbow had the was an oval 1X1 centimeter irreversible. The right eyelid have been The burn. ears were burned extensively burns showed severe but the hot iron did ear, and on the back the right very side of a eyeball. not touch the There was also a part sensitive of the X body, was a 7 of confluent degree series third burns over centimeter burn. of the bridge along nose and both sides The doctor estimated that it would take nose, a most tender The fore- spot. hours to inflict all several the bums and burns, head had some of which multiple techniques other torture employed. He had went into the hair. never before had occasion to examine such

On the left neck side Jeff Green’s extensively body. tortured It was his a 1½ centimeter bullet wound caused entry opinion further that two men could not hold high-velocity, heavy a caliber bullet Green, foot, man, Jeff a six seven inch muscles, passed through which hit a verte- weighing pounds, rope so the burns bra, ver- upward hitting deflected another indicated he was tied to a table or chair or tebra, cord, spinal severed the and exited on something else to hold him down. It was right part jaw- cheek in the tall opinion progression his further that the bone. torture was from the least to most severe. opinion He based this from experience explained painfulness The doctor through cases in which he was involved and burns, painful being the most those of the testimony; appeared confessions and the skin into a degree penetrate third which pattern administered to extract in- be impulses layer carry pain nerves punish. formation or to literally the brain. burns cook the Such flesh. heinous, the “especially This must be cruel” murder that sets it off atrocious or could,

As as he nearly pathologist usual, ordinary, from the the normal counted 140 burns on the approximately ease. typical sort of homicide in the murder cuts, body. There were five knife three on not, imagine If then we cannot what would his neck over the adams and two near apple propor- be. The death would be nipples. one of his severity of the crime. tionate In addition to the bruise on Jeff Green’s centimeter, forehead, appellant part as a of this there was one 7X2 cir compatible argues with ninth issue that the right armpit, located boot, a kick a baseball first discussed was unconstitu being struck cumstance bat, or no evidence was any type blackjack. tionally applied There was in that appellant X knew or presented also a 3 2 centimeter bruise over the left to show joined, his would be tortured— top prob- wrist hand were intended that Green principal.22 the same means. was not a ably caused that he 6-1-114, applicable judge instructed the statute is W.S. 22. The trial sentencing phase: new 1977: “Every person who shall aid or abet in the NO. 3A “INSTRUCTION felony, coun- or who shall commission principal person “A is a involved in the com- hire, command, sel, encourage, or otherwise actively felony directly mission of a who committed, felony procure to be shall be such constituting commits the act the offense. accessory fact, and deemed an may before the person “A the commission of aids and abets indicted, against, tried and informed knowingly with criminal crime if he manner as if he were convicted in the same hires, aids, counsels, encourages, intent com- prin- principal, before or after the and either illegal procures the act.” mands or otherwise cipal indicted or in- offender is convicted or vulsion we take opinion, employ As in this court’s first those who others for position principal. is a remuneration to do their as well as killing, Florida, those who perform 632 P.2d at the act for hire. If 97-100. Enmund point chargeable against supra, by appellant cited is not in the one who initiates the arrangement, we have There previously discussed. then the business will flourish *29 that really responsible escape United found the one will Supreme States kill, so his punishment. Enmund did not kill or intend It is inconceivable that it the robbers way. is different from could be other culpability us, the evi- who killed. In the before case X dence is of Green that the murder that it planned he intended by appellant, urges In this issue appellant that trial killers and intended place, take he hired the judge given following should have of- force be utilized. that torture and lethal fered instruction: responsibility guilt personal The moral I, “Article Wyoming Section 6 of the of one who commands another commit provides: Constitution “ justifies penalty. murder life, person deprived ‘No shall be overwhelming appellant evidence is or- liberty process without due property dered the torture of Jeff Green order to law.’ prosecutors, discover what he had told what “You, deciding Hopkin- whether Mark be, grand his to the would testimony life, son deprived of his are the final through and with the shot the neck to final you decision-makers. Before make him. The silence motive to avoid arrest for decision, however, you must deter- the murders of the present. three Vehars is mine Hopkinson’s that Mark constitution- The circumstance that murder was com- ally-guaranteed right process to due * * * purpose preventing mitted “for the adequately protected law has been recognized. lawful arrest” has been In throughout proceed- the course of these State, Fla., Riley (1978), it 366 So.2d ings.” execution-type was held that the murder of argues He necessary, that this instruction is a witness to avoid identification came with- given jury’s role as final arbiters is, in the scope of a statute which in this decision regarding the sentence be im- regard, Wyoming’s identical to statute. posed, right underly- is the basic circumstance that the murder was the entire case and the must know committed for pecuniary gain up deprivation has been that such of life cannot occur if State, Fla., held. In process rights Antone v. a defendant’s due have been So.2d cert. denied 449 question U.S. 101 S.Ct. denied. He concedes that this is a 287, 66 that, L.Ed.2d 141 law position the defendant but advances the since discretion, was the mastermind paid money judge who the trial has no this ques- for the contract murder of the tion of law must fall upon jury. victim. This was murder for pecuniary gain. The de argument. This is a novel It was said something fendant was more than a mere Wyoming, 308 F.2d Orcutt accomplice and without him the murder Cir.1962): (10th would not have come to fruition. There is prose- “It is well settled that ‘a criminal no one else shown to have his same interest. State, in the courts of a based cution

It apparent the legislative repugnant intent a law not in itself upon Constitution, was that the concept hired killer be a seri- and conducted ac- Federal enough ous justify judicial circumstance that it course of cording to settled death penalty represents society’s re- the law of proceedings as established 97-100, against; upon State, Hopkinson supra pp. formed such he conviction punishment penal- accessory prosecuted principal shall suffer the same role as a of an prescribed by punish- length.

ties as are law for the was treated at some principal.” ment of the notice, long so as it includes dures in accordance with the directions of hearing, opportunity and a or an to be the ultimate authority penal- on the death heard, competent juris before a court of ty Supreme Court of the United —the diction, according to established modes of judge The trial States. must follow those is “due in the consti procedure, process” steps plus rights basic constitutional in- Mangum, tutional sense.’ Frank v. 237 terpreted by court decision and rules not 309, 326, 582, 586, 59 L.Ed. U.S. legislature. Then, outlined Daugherty, also Alexander v. See obligated court is to not dispose of the Cir., 286 F.2d cert. denied 366 U.S. issues raised accordance 849; 6 L.Ed.2d Odell v. guidelines process of due established (10 Hudspeth, F.2d Cir. [189 Court of the United States 1951), cert. denied 342 legislature and the Wyo- State of ” * * * 116, 96 L.Ed. 656]. *30 case, in a ming penalty but also make review, independent provided by Matters of law have traditionally 6-^F-103, W.S.1977, 3, ante, set out in fn. court, fallen for decision upon and mat canopy juris- under the of a vast array ters of fact traditionally have fallen for which prudence, always about there is not upon juries. jury’s decision In this case the agreement even within hierarchy of the regard domain in that was delineated by judiciary jurisprudence. and craftsmen in judge the trial instruction num by jury “1,” pertinent part: bered which reads in presumed exper- Courts are to have some jury “The functions of the Court and are tise jurisprudence; in and to throw that off distinct, supreme and each is in its own a jury impose onto a would be to burden domain. upon lay persons which would be unfair to province defendant, “It is the exclusive of the Court as well as the State. The evidence, admissibility to determine of all position appellant is not well taken. permitting proper go evidence to improp- from the excluding jury XI evidence, er to define the issues and to appellant question raises the as to you applicable instruct as to the law adequately represented by whether he was the issues. hearing one sentencing counsel at his —the hand, “On the other it is the exclusive now us. At the outset we should before province weigh and con- point represented ap- out that counsel who it; sider all which presented evidence is is the pellant sentencing hearing credibility to determine the of all wit- him as represents same counsel who now testify you, nesses who before and from counsel, Munker. Mr. appellate Leonard D. testimony, such evidence and to deter- having Munker is the Public Defender State mine the fact issues of this case.” supervision public under his all defenders He Wyoming. within the

Three overseers are created to public experience process lawyer due in a death of vast defender guarantee greatly respected trial He is legislature case. The has detailed a con at the level.23 safeguarding proce- by siderable number of this court. 10, 1965, ruary by biography

23. A brief furnished Mr. Munker Admitted to examination. request at our reveals: the District of the U.S. District Court for Kansas, February 2, 1933, Admitted to the July Ogden, 1965. “D.O.B. Utah. EDU- Appeals, April 1967. Admit- High U.S. Court of CATION: Graduate of Reno Senior School, University of the United ted to the 1951. Attended the of Ne- vada, States, Navy, 1976. Admitted to the U.S. 1954- December 1952-54. Joined Aviator, Wyoming, Designated practice 1979. LE- March 58. Naval 1955. At- Editor, Kansas, Shepard’s University Legal tended the 1958-60. EXPERIENCE: GAL Wichita, Citations, History, Practice in Received a B.A. in 1960. Recalled 1965. Private March, Kansas, November, Crisis, through Navy during Missile Cuban School, University Frank Law to The Honorable G. 1961-62. of Kansas Law Clerk Bar, Theis, through September, 1962-65. Admitted to the Kansas Feb- March represent- In the first trial appellant In two recent decisions this court has had counsel; however, ed retained during occasion to set out standard to be em- early stages resentencing pro- ployed to test adequacy criminal sought counsel ceedings, retained defendant’s assistance of counsel. It was obtained withdraw authority to from the said Hoskovek v. Wyo., 629 P.2d representation of due the lat- (1981): indigency. ter’s Mr. Munker selected from “A criminal defendant is entitled to an his state-wide staff an able assistant ‘effective’ assistance of counsel. [Cita- participate the defense of appellant. The standard we have es- tions.] It posture counsel, tablished to determine whether or not the presented reluctance, (1) with some he assistance of counsel is effective is one of and his assistant did not have sufficient ‘reasonableness.’ Is the assistance ren- time in (2) which to prepare; they had dered counsel that which would rea- disagreements serious concerning trial sonably a reasonably rendered com- (3) strategy; general atmosphere anxi petent attorney under the facts and cir- ety trial; fear pervaded (4) is, cumstances of the case? If it is defense counsel in sentencing this second not, effective. If it is it is ineffective. phase did have the benefit of cross-ex upon appel- The burden rests [Citations.] some of amining the witnesses in that lant establish the ineffectiveness of transcript of used, their testimony was counsel’s assistance inasmuch as there is a *31 rather than a live appearance. presumption that counsel competent We appreciate weight responsibili- duty. that he performed his [Cita- resting ty on the shoulders of defense coun- tions.]” sel in representing charged capi- one with on, Continuing out, it was further there laid any tal for crime that matter —but crime — 629 P.2d at that: more particularly where the pun- ultimate page “At 1196 Galbraith v. State ishment is at We stake. are mindful of the [Wyo., (1972) P.2d, 503 1192 ], P.2d 503 we attorney-client relationship and the stresses following quoted from United States that must exist when arise differences in Rubin, (5th Cir.1970), 433 F.2d 444 that relationship respect to the tactics cert. denied 401 91 U.S. employed representation and the L.Ed.2d 228: necessary presentation skills in their “ ‘ view, hindsight possible light “Taking many best We con for client. are unable to victed any detect in the seri- defendants condemn their transcript ous rupture attorney-client counsel bond that as ineffective. But com must necessarily However, battle, exist. mand of the note the constitution is for appearing pages 962-976, colloquy Judge Goldberg Vol. not a victory, point record, XI of the which we States, will discuss ed out in Odom v. for us United later. Cir., 1967, 377 F.2d 859. The Kansas; for appeals Dist. Ct. KS. Private Practice District of re- Wichita, Kansas, Deputy sponsibilities 1969-71. Chief included both administrative Attorney in the Office of for General and trial work before the United States Dis- Kansas, January, through April, trict for the District of Kansas in Wich- Appointed Municipal Judge ita, Kansas, 1971. for Wichi- Topeka, City, and Kansas ta, Kansas, April, through April, 1973. approximately 3500 cases were handled during Appoint- period. Private Practice Appellate this office. work for both the Kan- ed as the Court, Federal Public Defender for the Wyoming sas and the Su- Kansas, July, through District De- preme Appeals Court and the Court of for the

cember, Staff, 1981. Senior Office approximately 10th Circuit 85 to 100 Wyoming General, Attorney September, 1978 cases. National Chairman of the Federal through January, Appointed as Defenders, Community Public and Public Wyoming Defender, January State Public member 1980-82. Committee and lecturer present. 1982 to EXPERIENCE: Ex- WORK training Public Federal Defenders.” litigation, work tensive in criminal both trials nor, Judge Wis- if granted, standard was articulated appel- defense of Ellis, Cir., lant would dom in MacKenna v. have been different than it was. interpret 280 F.2d 599: ‘We to effec-

right right to counsel as the With respect point (2), that there were interpret tive counsel. We counsel conflicts between and his counsel counsel, mean not errorless representation ineffective, made his by hindsight, counsel judged ineffective it is not unusual that such differences arise. likely but counsel to render reasonably Attorneys are often with the faced dilemma effective as- rendering reasonably of satisfying a client and proceeding based sistance.’ We have never deviated upon professional judgment, which interests * * *. from these principles. may not be in harmony. Spilman Wyo., also 633 P.2d See After the appel- commencement of the (1981) It was to the same effect. added case, lant’s an in-chambers conference was there that: XI, (R.Vol. 962-976) held. pp. Appellant “ * * * Thus, appellant must demonstrate was present. opened It with defense coun- the unreasonableness of trial counsel’s ac- advising sel the trial judge they were Seemingly, tions. this would include a objection there because appellant had showing injury of some which a reasona- being objection the witnesses called and an ble avoid- attorney’s conduct would have being to witnesses not It called. was then ” * * * ed. 633 P.2d at 185. explained by appellant’s counsel that tactical open up reasons would much of We consider now those areas in which if original guilt witnesses desired counsel he have been ineffec- suggests may appellant were called which counsel con- respect point tive. With insufficient was, disadvantageous sidered because of the in- prepare, public time to defender 15, 1982, purchased perjured volvement of order, testimony. appointed court on March done, If that was then State could come assign- though he had been notified back in rebuttal and make an even more by telephone ment a week earlier. On devastating already present. case than It 18,1982, for at least a March counsel moved *32 further by calling considered that the file extension to review and sixty-day type of witnesses counsel recommended— granted. It was appellant. confer with the witnesses, including appellant’s character (A pretrial already motions had number tipped against mother —the scales could be prior appointment been taken care appellant the death in that did have defender.) The trial was set public good qualities. some It was disclosed that request appel- 1982. At the May for informed, had been so and that appellant counsel, the trial April on lant’s capacity in their had professional counsel directing that appel- entered an order judge made those decisions. Wyoming transferred from the lant be county jail at Penitentiary to the State Appellant explained, lengthy, then in a he would be available for Cheyenne, so that discourse, that he wanted the disjointed whose head- attorney, conferences with his that some- thing” opened up again, “whole quarters Cheyenne. are in would be miti- testimony where in the there He wanted that so gating circumstances. sought. were thereafter No continuances backing up his there would be someone continuance, it is dif Without a motion for begged stand and for story if he took the prepara time for inadequate ficult to claim testify in his did not (Appellant his life. of a show particularly tion in the absence behalf.) own Bretz, actual prejudice. defendant, Mont., putting cert. denied 444 605 P.2d Counsel for judge, explained 62 L.Ed.2d 791 before the trial foregoing any- asking record him to do nothing they There is that were they nor did that, any ruling, or to make requested, thing if which would indicate it in the to, they wanted want him but granted, would not have been continuance prosecutor that the rection of a case requested record. The is well-expressed Stan- 4-5.2, court’s views dard ABA court enter into the record the Standards Criminal because Justice, he competency (Little, as to the of counsel The Defense Function counsel coming could Brown competency Company 1980): see the and 2nd ed. up appeal. on as an issue “(a) relating decisions Certain to the con- ultimately duct of case are for the then said: Appellant “ * * * ultimately accused and others are for de- think Mr. Munker and Mr. I fense counsel. The decisions which are to probably the two best Skaggs are attor- be made the accused after full consul- neys through my problems, I have had counsel tation with are: way green but there’s no on God’s earth enter; “(i) plea what can my even read they transcripts all days, concept trial; let alone get “(ii) what jury whether waive and

went on here.”24 “(iii) testify whether his or her own behalf. Mr. Skaggs responded to this: “(b) The “I like decisions on what witnesses to say something would on that. call, whether and how to conduct There was no motion cross- for continuance. examination, jurors accept Leonard felt he was I what prepared. read strike, made, I had everything from collateral sources what trial motions should be and Mr. Van Sciver. I had the in- strategic all other and tactical deci- vestigation of the members province sions are exclusive of the whatnot. But Mr. Hopkinson did not lawyer with after consultation the client. want a continuance. He did not want a “(c) disagreement significant If a go continuance. He wanted there strategy tactics matters of arises be- get over it with.” client, lawyer tween the and the the law- yer make a should record of the It is circum- apparent appellant that counsel for stances, reasons, lawyer’s were advice and well aware of the responsibilities en- compassed by the and the conclusion reached. The lawyer-client relationship record and had made in pro- advised their need for a manner which should they control must have tects the of the confidentiality lawyer- would be exercised. The control and relationship.”25 di- client R.Vol.XI, Decision-making 24. At a later in-chambers “Allocation of Power conference. 1009-1010, pp. judge history trial commented: “As established criminal justice Hopkinson morning process rights “Mr. also said and the vested in an Constitution, lawyers these were the two best he’s ever accused under the certain basic case, quarreled had belong in this even he after decisions have come to to the client them about who to call province as witnesses who while lawyer. fall within others judgment not to call. I find their requirement that the defendant *33 regard extremely They be to wise. would be personally guilty plea enter a and that it be extremely Hap unwise to call Russell or voluntary implica and informed the carries Johnny Suesata, or that little whatever fart’s tion that it the defendant who must make was, testify name that refused to last time. Similarly, the choice.1 the decision whether He be would annihilated. And to call him or jury to waive trial a has been considered as Hap Russell after what I saw court- belonging-to respect the defendant.2 With to during trial, room incompetency the last would indicate the decision whether the defendant should stupid. of would be counsel. It testify, lawyer give the ‘should his client the acquiesce And for counsel to to the defend- experience, benefit of his advice and but the just ant’s desire to call would com- them ultimate decision must be made the de pound injury. know, I’m, you going that And fendant, and the defendant alone.’3 In mak however, defendant, to tell the and the rec- each these decisions—whether to ord, going but I’m to in front of him tell it plead trial, guilty, jury whether to waive during I about how fell about his this counsel testify whether to accused should have —the trial.” the full and careful advice of counsel. Al important though It is a counsel should that as matter convenience not demand the perceives appearing that the follow comment to the rule defendant what counsel course, pages through the 4-67 4-68 with citations be in- desirable counsel free to en corporated opinion: persuasion urge gage into this in fair and to the client

79 lawyer, proffered professional advice. must rest follow with the but that does not to Ultimately, however, lawyer completely ig- because of the funda mean that the should decisions, making lawyer so mental nature these three nore the client them. fate, accused cooperative crucial to accused’s should seek to a rela- maintain must make the tionship decisions. stages maintaining at all while responsibility significant a “Some other fall into decisions ultimate choice and for the gray cated, zone. has indi strategic and tactical in the case. decisions example, petition that on a for important “It is also a trial for the corpus habeas the federal courts should hold lawyer fully ac- defense to consult with the petitioner to have waived constitutional any cused about lesser offenses the included only petition right if it is established that willing trial court be to submit to the deliberately bypassed er procedure. the available state Indeed, jury. is so im- because decision emphasized The court that portant as well as so similar to the defend- only would if defendant waiver be found charges ant’s decision about the to which to has stated made choice.4 The Court also plead, the defendant should be the one be would bound defendant decide whether to seek submission to the attorney’s strategy choice of trial deliberate jury of included For in- lesser offenses. forego objection an available on constitu stance, prosecution, in a murder the defend- grounds.5 tional ant, attorney, rather defense should than the “Strategy and Tactics asked determine whether the court should be however, may general, that the “In said to submit to the included of- lesser strategy power of in matters of decision trial manslaughter.” fense of lawyer.6 The law and tactics rests with the through quoted 1 Footnotes 11 of the above yer must be allowed to determine which wit provide: material should on behalf of the def nesses be called "1 Alabama, 238, Boykin See v. U.S. 89 395 Similarly, lawyer endant.7 must be al 1709, (1969); L.Ed.2d 274 Machibro S.Ct. 23 object lowed decide whether States, 487, da v. United 368 U.S. 82 S.Ct. evidence,8 how a admission whether and 510, (1962); 7 v. Unit L.Ed.2d 473 Kercheval cross-examined,9 witness should be States, 220, 582, 47 71 L.Ed. ed 274 U.S. S.Ct. stipulate to certain Cases whether facts.10 (1927). 1009 that have convictions for failure reversed “2 276, States, 281 U.S. See Patton v. United witnesses, counsel to call certain cross-exam 258, 298, 253, (1930). 50 S.Ct. 74 L.Ed.2d 854 evidence, like, ine, object to have “3 Levy, on Trial of Some Comments ground decided counsel been not on the 203, Case, City N.Y. 10 Rec.Assn.B. Criminal have should heeded the client’s wishes Paulsen, (1955), accord, Steinberg A 213 & matters, such but on a determination on Prob with Defense Counsel Conversation these actions in these cases were of counsel Defense, 25, lems of a Criminal 7 Prac.Law. rather, but, strategic or tactical decisions (May 1961). 37 ineptitude, inexperience, lack of revealed preparation, “4 438-439, 391, Noia, Fay v. 83 372 U.S. unfamiliarity legal basic 822, 848, (1963). 837 S.Ct. “5 9 L.Ed.2d principles amounting to ineffective assistance 443, Henry Mssissippi, 379 451- v. U.S. of counsel.11 569, (1965); 13 408 85 S.Ct. L.Ed.2d accused, including “Many rights an Cir.1968), Wilson, (9th Curry 110 405 F.2d ce rights, are constitutional such that denied, 25 rt. sig experts comprehend trained nificance, their full can (1970). L.Ed.2d “6 explanation but the Henry Mississippi, 379 U.S. See sophisticated most client be futile. would (1965); Nelson v. 13 L.Ed.2d strategic Numerous decisions tactical Cir.1965), California, (9th rt. 346 F.2d must be made in the course of a criminal ce denied, 15 L.Ed.2d 382 U.S. trial, many of are made in circum extended, any, if stances do not allow “7 (4th Peyton, 352 Vess v. F.2d 325 Cir. experienced See Every advocate consultation. 1965). try disconcerting experience can recall the ing “8 States, 303 F.2d See Hester v. United to conduct the examination of a witness Rideaux, Cir.1962); People (10th 537, judge’s 61 Cal.2d opposing arguments or follow charge or the *34 (1964). Cal.Rptr. ‘plucks 393 39 391 P.2d while the client at the attor “9 States, O’Malley ney’s offering gratuitous suggestions. United 285 F.2d See v. sleeve’ decisions, involving (6th 1961). especially Cir. those 733 Some “10 Woods, sequence People and in Ill.2d which witnesses to call what See argument N.E.2d what be said and should “11 (5th Georgia, 554 sufficiently Bell F.2d jury, anticipated See be so can Cauthron, 1977); 540 F.2d 938 ordinarily Pinnell v. consult with the client Cir. counsel can concerning (8th 1976); rel. Rosner United States ex decisions Cir. them. Because these Correction, Commr., Dept. skill, experience require training, of and of N.Y. advocate, F.Supp. (S.D.N.Y.1976).” power them of on decision seen, appellant for metic- counsel can be As At the in-chambers conference to ulously appropriate followed the standard refer, we present there was judge, the trial in case control not charged and should subpoenaed Ford appear Bussart — —who ground. incompetency with on had been Jeff Green’s attorney, defense counsel, prosecutor. and the State Defense We add to part opinion this of consid- opened purpose counsel meeting of the appellant’s and of disposition pro eration se by stating he had with him a and a Proof, tape “Motion of For Consideration In transcript recording Existed, which he related Showing Palin Error Which [sic] had picked up been from appellant’s room Not In Briefs Ar- Properly Was Shown Or City by mother, Salt Lake appellant’s pur- the motion is a gument.” Attached to had been turned over her appellant’s ported transcript of conversations between brother, who it to gave appellant’s attor- attorney, Green and as well some Jeff his neys in the first trial in this From case. colloquy. It was other unidentified filed there, it appellant’s was delivered to counsel 3, 1983, this February with court on after in this case placed by safekeep- and him in briefs, regular filing time following for ing until this occasion. Defense arguments, counsel subsequent oral to this explained its contents to show fear Green’s taking under appeal court advisement. of Hysell, not appellant, negotia- and the give it untimely, While we nevertheless our tions Green wanted his attorneys engage attention. in with the county attorney over prosecu- motion appellant’s pro alleges The se tions pending against or threatened Green. judge taped telephone the trial “denied a evidence, subject conversation into and the prosecutor’s response with regard to As we will taped matter conversation.” the tape was that there was proper no chain develop in part, neither recorder evidence, and there difficulty would be tape transcript nor a its content was laying foundation because it surrepti- had evidence, though, during offered into tiously been made in way some by appellant trial, sentencing it was discussed in cham- or at his instance as well as being only one appears bers. That discussion verbatim at of some nine tapes. such It apparently had Vol. IV of the tran- pages through long been of by known all counsel and script (Vol. X of the proceedings record investigators, for both prosecution offered, appeal). Since it was not defense. prosecutor in this case ad- district court had no occasion rule on its vised its use the State had been contem- admissibility. plated case, in the first but no foundation argument It that the could be laid. conversations, evidence, taped if would appears It that Ford Bussart not did testimony have discredited the of James know the conversation with was be- Green Phillips, county prosecuting attorney, though recorded he learned later of it which we have heretofore considered in pointed parts out that those show- Part VI of this would have shown opinion; ing his telephone conversation Green it was Jeff Green’s counsel Phillips place Cheyenne had taken while he was in testify against wanted Jamey who Green to as a Legislature. member of the State He Hysell appellant; damage would part also observed that of the conversation testimony of Jeff in evidence Green was missing, probably because one side showing Hickey covering were Green and tape ran out and had to be turned over. other; each show the “stu- and would He knew nothing any con- other pidty [sic], [sic], and the incompentance tape versations on which he was not * * * in, Phillips why Phillips mess a party. testifying, lying, personel reason for [sic]

involvement, trying pass and that he was After all points various of view were incompentance the ‘Buck’ for his own expressed everyone [sic].” at the con- chambers similar of the tape Other relevance is ar- ference, judge present trial advised all *35 gued by appellant. positions to work out their him advise further morning Nothing presence at 8:30. of the jury. the next received two She tape recording appears anywhere phone about calls in the morning and no one re- not called in the record. Ford Bussart was when she sponded answered. In the after- to No other witness identified or testify. noon there was another call from a man its introduction into any laid foundation for said, your who “Is going husband to testi- the tape transcript evidence. Neither nor a fy?” responded, She “Who is this?” The or appear was offered even as identi- ever her, man’s voice then told “You had better fied exhibits. keep hung him home.” She up phone. The record was made to protect the witness. that We conclude defense aban- counsel The call could not be appellant. tied to thoughts all use of the not tape, doned 999-1000) (R.Vol.XI, pp. because foundational but problems strategic also because of consid- and tactical (4) regard to having counsel not their erations under control and direction of cross-examining benefit of witnesses whose which we explored the case have earlier testimony previous from the trial was read Defense the deci- part. this counsel made record, appears they into the were at pursue not to further. sion the matter liberty subpoena and could have done so. We cannot consider which is not material (R.Vol.IX, 604) p. Record references in ap- State, Wyo., of the record. Burns v. part brief indicate pellant’s per- that this issue (1978). go 574 P.2d 422 We cannot outside testimony King (han- tains to the of Kristi State, Wyo., the record. Valerio v. 429 P.2d $15,000 dling payment) (R.Vol.IX, pp. (1967). 597-640) (to a and Jennifer Larchick obtain Green, welder, a inquir- of Jeff picture plain error, has respect With court whereabouts) (R.Vol.X, pp. ies as Green’s recently reiterated the test to determine 703-751). The cross-examination of each whether it exists: “ * * * witness, testimony, well as as direct First, as the record must be clear had Appellant read. been confronted alleged to the incident which is as error. light witnesses first trial in the these Second, error party claiming that the State, of the circumstances here. Grable plain error must demon- amounted (1982), citing P.2d Cali- Wyo., 649 unequivocal that a clear rule strate Green, fornia v. Finally, party that of law violated. (1970). We are unable to 26 L.Ed.2d that a has prove right must substantial ineffec- how this demonstrates determine he has denied him and as a result been ” * * * Appellant of counsel. does tive assistance materially prejudiced. been as subpoena out. Whether to point Bradley v. 635 P.2d Wyo., was a tacti- witness for cross-examination a have and in all likelihood would cal choice pro se motion fails in all re- Appellant’s demolishing appel- testimony reopened spects. circum- provided These two witnesses lant. nothing in the Regarding there is linking appellant hiring to the stances general atmosphere disclose that a record to Green, killers, furnishing picture of Jeff fear trial. pervaded anxiety welder, of a discussing availability of contest but Tempers flared the heat explaining a circumstance which was chambers, pres- occurred outside Green, hot irons to torture Jeff heating of jury. There is no doubt ence whereabouts keeping track Green’s judge and was felt the trial anxiety destroyed. he had been for assurance responsibil- heavy because their counsel subject, as could be Appellant, ities. XII have instance expected anxiety. One appel- unknown We now concern ourselves threatening phone call an had used prosecution wife who had lant’s claim that of a witness person County grand jury improperly was entered in the former trial the Uinta testified investí- continuing tool in record, investigative and outside into the chambers *36 gation of if Hopkinson appears.26 the Mark matter and Even material or rele- action vant, allega- that certain examined there is fact witnesses were there no basis in for the prior to the second The penalty phase. tion.

reasons given are that: W.S.1977, 7-5-206, Cum.Supp. Section “1. Judge Troughton, a in the witness 1982, gives of powers investigation broad trial, judge first now a district is court through grand the jury: District, and the Third Judicial thus attorney, district or “The the or deputy authority County. convening Uinta attorney, assistant district al- shall be prosecutors, special “2. The had not appear lowed at all to times before appointed been properly so as enable grand jury for the of in- purpose giving them appear before the County Uinta any cogniza- formation relative to matter Jury. Grand them, them giving ble advice upon “3. There never has been a show- proper any legal they may matter when require ing grand properly was it; and may he be permitted interro- convened its term or whether and when witnesses them gate they before when expires.” necessary; he shall deem it but no such nothing

We attorney, person find the record to nor any other shall support Trough- proposition Judge permitted present during to be the ex- ton grand though convened the he jury, pression of their or the of giving views judges have. There are two any district their votes on matter before them.” having jurisdiction in serving and Uinta grand jury is an ancient and honored County; either could have convened that institution which stood originally between body. Other than bare and allegations prevent and the people oppres crown nothing innuendos of there appellant, is prosecution through power sive of the any the record proof nor offers of which and right crown to have one’s peers relating would impropriety indicate who brought determine should be to trial. County grand convening of Uinta Olmstead, (D.C. United States 7 F.2d 756 jury. The of a judge regarding role W.D.Wash.1925). When this country grand than jury, convening, other instruct formed, it became informing and accus duties, ing on their and indict receiving the tribunal, designed as a means bills, ments or slight. no true Section against of protecting citizens unfounded 7-5-101, et seq., W.S.1977. prosecutions bring but to to trial persons

With of respect appointment public upon just accused offenses special Bain, prosecutors, 1, 10-12, of the Ex grounds. resolution Parte 121 taking 786-787, Board of County (1887); Commissioners L.Ed. 849 County Spence, Moriarity making resolution Board of Com- and Schuster appointing special prosecutors, necessary missioners employment. for their continued adopted May “NOW, THEREFORE, reads: BE IT RESOLVED County “WHEREAS, the Board of Commissioners of Uinta December the law County, Wyoming, Spence, Moriarity firm that: and Schuster Spence, Moriarity appointed by Judge “1. The law firm Court Stuart and District C. hereby employed special prosecutors appointed Brown to act as Schuster special prosecutors Wyoming act as matter of the State of vs. Mark on behalf Hopkinson; County Allan Uinta the matter [Allen] [S]tate “WHEREAS, Spence, Wyoming Hopkinson. the law firm of Moriar- vs. Mark Allan [Allen] ity capacity hereby County and Schuster has acted in that That “2. Uinta does reaffirm appointment gained ever original appointment by since that and have District special unique knowledge about Judge of the law C. Stuart Brown firm matter; and Moriarity Spence, and Schuster “WHEREAS, Wyoming Supreme Court through partners, one Edward of its Moriari- penalty phase ordered a retrial special ty, prosecutor to act as in all matters Wyoming of the State of vs. Mark Allan involving Wyoming the State of case of Hopkinson requires special [Allen] Hopkinson.” Mark Allen vs. unique knowledge obtained the firm *37 proceeding of the is a secrecy oath. The Woodbury Coun- Maley v. District Court (over- witnesses, 732, (1936) many 815 reluctant Iowa 266 N.W. relief for ty, 221 741, 2 N.W.2d grounds, on unrelated ruled leads. provide only whom 744). continuing We hold that power of investigative investigation even after investi grand jury if its necessarily be broad jury must

grand We con gation proper. of an indictment is dis adequately is to be public responsibility right prosecuting sider it the attor States, 350 v. United charged. Costello witnesses before them ney “interrogate to 406, (1956). 359, 100 L.Ed. 397 76 U.S. necessary,” he shall deem it they when or important is an grand jury The role of the 7-5-206, of the foreman supra. The oath § law enforcement instrument of effective 7-5-204, jurors, 7-5-203 and W.S. and §§ investigatory func includes necessarily and implies charge by as much. The 197728 all manner triggered by which can be tions W.S.197729, 7-5-205, along with judge, § Hayes, 408 U.S. Branzburg of means. pertaining to prevailing jurisprudence 2666-2667, 33 665, 700-701, 92 S.Ct. function, goes far to autho grand jury (1972). L.Ed.2d An investi continuing investigations. rize jury room grand witnesses the many For rests at not end until the State gation does to atmosphere conducive engenders all the evidence. The State has the end of neigh brought before telling. Being truth on sub right interrogate witnesses every under a placed fellow citizens and bors and continuing grand jury to a jects relevant the truth seems obli solemn oath to tell when the evidence re investigation even where just to do gate many witnesses pending relate to a indict ceived also so in less solemn may not have done they Braasch, 505 F.2d ment. United States v. Wash surroundings. United States (7th Cir.1974), cert. denied U.S. 181, 188-189, 97 ington, (1975). We 43 L.Ed.2d 775 (1977).27 prosecu 52 L.Ed.2d grand jury the record that gather from tool than tor has a no more effective underway still as to those investigation is unwilling for the witness grand jury appellant’s out orders to tor who carried investigator, what he knows with an discuss subpoena and the ture and kill. power without truth, nothing jury, grand but the ac- whole truth and function of the

27. For more on the Hastings Quarterly your cording skill and under- Const.Law Grand to the best of see Juries, ” standing.’ and the Constitution Grand Jurors (1974); W.S.1977, Bar 7-5-204, The American provides: Idaho L.Rev. Section Jury Principles: A Association’s Cri- (or Grand following “Thereupon oath affirma- Perspec- tique from a Justice Federal Criminal grand tion) other to the shall be administered 671, Sympo- (1978); A tive 10 Am.Crim.L.Rev. A.B., your jurors: which ‘The same oath Jury sium: The Grand foreman, you on his hath now taken before truly you you part, well and and each of shall W.S.1977, 7-5-203, provides: 28. Section ” your respective parts.’ keep on observe and appointed, an shall be “When the foreman be administered to oath or affirmation shall W.S.1977, 7-5-205, provides: 29.Section ‘You, following as foreman him in the words: sworn, being grand jury shall “The after (or solemnly grand inquest, do swear of this affirm) duty by judge, charged who as to their inquire you diligently will particularly to the shall call their attention presentment all of such matters true make secrecy obligation their oaths im- you charge, which given things or as shall be touching your knowledge pose, as he is law to such offenses otherwise come to state, charge. present required specially After The counsel of service. you keep your your court, grand shall charge own and fellows shall secret, justice unless called on in court appointed to attend to retire with the officer them, per- present no of, You shall make disclosures. inquire proceed and shall will, malice, through ill nor hatred or son present whatever committed all offenses unpresented you any person leave shall county in and for limits of the within the affection, fear, through or for favor or impaneled they sworn or were thereof; your hope in all but reward affirmed.” truth, presentments you present shall “(ii) XIII The defendant pled guilty; has court, question “(iii) to the The defendant waives 6-4-103, supra fn. abro- claims respect sentence.” plain error appellate rule re- gates these conditions None of exist. 7.05, W.R.A.P., Rule view. declares that that when We consider this court errors or affecting defects “[p]lain substan- court appeal first remanded to the trial rights may be although they tial noticed trial, resentencing restoring a new we were *38 brought not were to the attention to the status 6-4— the case described in § 49(b), Rule W.R.Cr.P., court.” is the same. 102(a). conviction, There a and now error, sentencing there to be there be a trial. There plain there must For (1) be: a clear hap must record what resentencing could no trial before the hearing; at the pened (2) a clear and un- jury guilt same that tried the issue. Sec- exist; rule of equivocable law shown to 6-4-102(b) provides tion for a new sentenc- facts of (3) the the case clearly must jury “with a new for ing impaneled trial obviously transgress the rule of law. Once It sensi- purpose.” very that would not be three-part satisfied, this test is it still must disposi- jury ble to hold first until the right be shown that a substantial appeals, tion of so there was cause to all has been adversely accused affected. These jury. first dismiss the apply criteria even when a constitutional State, is involved. question Wyo., Mason v. find nowhere in that We the record State, (1981); Bradley 1051 631 P.2d right ever appellant exercised his (1981). 635 P.2d 1161 Wyo., A jury resentencing phase. waive a clear reading of statutes makes it that having in this found error opinion Not sentencing jury trial must be before a any which could be or plain, denominated unless waived. error, sort of other we need consider issue, though part we it a this consider gather Gregg We from that trial of function in case to find our review a death sentencing phase jury is the before a error if it plain exists. because methodologies most desirable of all objec significant is “a and reliable jury XIV because contemporary tive index values is not jury The claims that a directly involved. The it is so [Citations.] involved in properly resentencing in a death said that impor Court has ‘one of the most W.S.1977, 6-4-103(e), case. Section any jury tant functions can in perform upon review, that this court provides * * * a making selection life im [between “may": and death for a con prisonment defendant death; Affirm the “(i) sentence of capital victed in a is to a link maintain case] “(ii) impose Set sentence aside and community contemporary between values ” * * * imprisonment; of life sentence system.’ at penal 428 U.S. the sentence “(iii) Set aside remand Then, again, 96 at 2929. case for resentencing by the trial important is men Gregg, consideration judge argument based on the record and tioned, 428 96 2933. In U.S. S.Ct. at of counsel.” out, however, pointed that it Proffitt 6-4-102(a), W.S.1977, provides Section suggested been sentenc jury has never upon conviction murder in first de- and that constitutionally required sentencing life gree hearing to determine advantages judge some sen there are or death conducted imprisonment shall be experience of his tencing because judge alone if: by the 252, 96 We field. 428 U.S. at S.Ct. at 2966. legislative “(i) Wyoming The defendant view the choice in was convicted jury judge sitting right without a be that to a trial jury; inviolate,30 Wyoming shall remain unless None of this is anywhere shown in the the defendant shall waive it or one of the record. Our examination shows the trial to 6-4-102(a), other conditions set out have been carried on in an extremely low exist, de- supra, finally but we hesitate to key. This court cannot any consider matter actually upon cide as to the other conditions until which the record is silent. Mountain proper confronted with the issue in a case. Fuel Supply Emerson, Company v. Wyo., sentencing phase in appears It (1978); P.2d Johnson v. comparable State, be- capital Wyo., cases has become (1977); P.2d implication many State, cause of constitutional Wyo., Moss v. 492 P.2d (1972); guilt phase. versus innocence respects Elmer v. Wyo., 375, 376, 466 P.2d A constitutional question might serious cert. denied 400 were arise if we to direct a trial without a L.Ed.2d 82 appellant’s in the absence of the con- was specifically instructed that any sent. death sentence is unlike perform it was to duty its uninfluenced punishment. other We are saved that risk “passion prejudice against for or *39 by statutory what we consider to be a clear litigants case, by public in this or opin- sentencing phase requires direction that the public feeling.” (Instruction 1, ion or No. trial when the by jury guilt unless waived V, p. 687) R.Vol. The jury sequestered was phase by jury. jury was tried We hold a during the entire trial. theOn standard retrial penalty phase trial on the of the was questionnaire required to completed proper in this case. by returned to"this court judge trial cases, is, one of the questions “[w]as

XV there any jury evidence that the was influ- by enced passion, prejudice, any or other by In addition to the issues raised arbitrary imposing factor when sentence?” we have the in our appellant, obligation The answer of the trial judge, the blank review of the death sentence to determine provided, was We thus have an “[No].” imposed whether the sentence of death was additional source of information. In the influence or passion, prejudice, under the any showing contrary, absence of we any other factor. 6-4- arbitrary Section safeguard have this of the view of the 103(d)(i), supra appellant fn. 3. The in con presiding judge which we must assume is complained nection with his eleventh issue There slightest correct. was not the hint of general anxiety of a and fear atmosphere pressure presence outside or the in the by prosecution’s created theatrics dur distracting courtroom of and influential ele- ing of the case. It presentation was Maxwell, in Sheppard ments such as added that: “ * * * 333, 1507, 16 L.Ed.2d 600 U.S. S.Ct. The courtroom was turned into Texas, 532, (1966); Estes v. U.S. presence armed camp by 14 L.Ed.2d reh. denied 382 bodyguard exaggerated security and an (1965); 15 L.Ed.2d 118 force, and wearing bullet-proof Louisiana, Rideau v. 373 U.S. prosecution vests members of the * * * 10 L.Ed.2d 663 Nevertheless, team. the theatrics throughout of a circus were note that the voir dire of the present jury We hearing; there is that counsel process appear little doubt the selection does not in the must, therefore, was faced with an atmo- We assume that unfavorable record. sphere purposes appellant for a ease that was satisfied that a fair and trying media, impartial jury attracted the attention of the sat on the case. We further community entire state and the where it notice that all witnesses were excluded juror No misconduct was tried.” from the courtroom. ” * * * 1, Wyoming Art. in criminal cases. 30. Section Constitution main inviolate provides: right jury “The of trial shall re- No_ Yes X jury irregularity appears anywhere the record. murder was pe- “4. The committed for cuniary gain. p.m.

The went out at 5:20 on 26, 1982, at Wednesday, May and returned No_ Yes X 1982; p.m. Thursday, May 9:00 thus heinous, especially “5. The murder not and returned the verdict was considered atrocious or cruel. haste; reported. no deadlock was No_ Yes X under a head- separate We will consider fully supported aggra- these evidence adequacy support evidence to factors. vating circumstances as well as question, There is no as found where there for the consider basis that “1. The murder was committed jury, findings there were no imprison- under sentence of person mitigating outweighed factors which No_.” X ment. Yes factors. It is within the evi- was, murder, time of in a at the Green’s passion jury’s dence and the verdict California, Lompoc, penitentiary federal revealed. If prejudice are sometimes evidence, charges violation and re- parole then there is federal supported by lating transportation possession possibility passion prejudice; but here, will be seen explosives. that does not exist

from the review of the evidence. no question There is further but were no television cameras was previously defendant convicted “[t]he There photography taking other place degree. of another murder in the first Yes *40 showing pretrial courtroom. There is no of No_.” previous X The “murder” was way affecting in the outcome publicity any murders, Vincent, actually Beverly, three of the trial. Nebraska Press Ass’n v. by blowing up and John Vehar their resi- Stuart, 427 U.S. they sleeping. Appellant dence while were L.Ed.2d 683 We are unable to con in guilt convicted the first trial in the was clude the defendant did not receive a phase of this case. impartial jury. fair trial before an There in which the nothing setting was about the aggravating All are circumstances inherently trial was conducted that was the evi sufficiency measured as to of susceptible any or of inference prejudicial according dence a reasonable doubt beyond any arbitrary of other passion, prejudice, Virginia, to the standard set Jackson v. factor. supra, whether, question L.Ed.2d 560. The after XVI viewing light the evidence in the most fa W.S.1977, 4—103(d)(ii), we must By § prosecution, any vorable to the rational tri 6— supports determine if evidence “[t]he er of fact could have found the essential judge’s finding of an

jury’s or a reasonable doubt. We beyond elements in 6-54.2 circumstance as enumerated W.S. standard, that, no hold within this there is a lack of sufficient miti- [§ 102] aggra reasonable doubt that all five of the 6-4— outweigh gating circumstances proven. were vating circumstances We have al- aggravating circumstances.” II favorably respect mitigating considered in Part of to the cir ready With of the evidence opinion sufficiency jury, to exist by, cumstances not found of five regard. to sustain three clear in that the evidence is most ver- circumstances found in its in the same These can best be summarized dict, fn. 7 ante: closing did in his prosecutor manner as the each of the miti argument, where he took

“3. The murder was committed for the which the district circumstances avoiding preventing gating of a law- purpose into his Instruction incorporated had judge ful arrest. matter, one No. 531 went one through each it was not argued present, nor they present. to show were not does the record disclose the presence of such circumstance. significant “1. The defendant has no prior ap- history activity.” of criminal “3. The victim was participant a uncontradicted, significant pellant had an conduct, defendant’s or consented prior of While history activity. criminal act.” It is inconceivable that man the law appellant scrapes had minor with as would consent torture on inflicted while in youth guns high some victim, Green, Jeff nor would the victim —stole on placed probation school and was participate murder, in his own as here. —his major conviction was first in the United “4. The defendant was an accomplice District Court for the District States of a murder committed another person and where, Hampshire following upon New trial participation his in the homicidal act guilty, he plea guilty was found of relatively minor.” The role of appellant 286,984 possession grams marijuana major. mastermind, He was the mani- with intent distribute and conspir- with pulator, arranger, and director of the smuggle that acy marijuana amount of torture-murder Jeff Green. ar- He which, 14,1973, from Mexico for May on he ranged actual for the killers and pay- their two received concurrent five-year sen- him, ment. Without torture-murder tences, which were later modified. After Jeff Green would never have come about. confinement, some serving time in he was so, He had the motive to do Jeff While on paroled. parole charged he was knowledgeable Green was triple Ve- found guilty in the United States appellant’s har murder and involvement Court Wyoming District of six criminal planning directing of those homi- interstate counts: commerce of a destruc- cides. device; tive two possession counts of of a “5. The defendant acted under extreme conviction;

firearm after felony making duress or under substantial domination firearm; receiving, concealing storing person.” another was not explosives; conspiring, confederating, and under the him- anyone domination but agreeing against commit an offense benefit, it for self. He did his own He United States. was sentenced March attempt to avoid indictment for the murder 16, 1979, to serve five ten-year concurrent *41 of the Vehars. sentences and one concurrent sen- five-year then, such

tence for violations. He was of capacity “6. The of the defendant course, con- convicted four murders criminality of his appreciate conduct with this case. nected conduct to the requirements to conform his substantially impaired.” “2. The murder of law was committed while was There the defendant was under is no whatsoever in the record to the influence of evidence circumstance, mental or support mitigating extreme emotional disturbance.” any such appellant put The in no evidence on this appellant nor has the ever contended practice Wyoming, accomplice In trial in the State in a of “4. The defendant was an prior jury just person to the instructions are read his murder committed participation another 5, arguments. closing as to in the homicidal act rela- Instruction No. was circumstances, mitigating tively was: minor. du- “5. The acted under extreme defendant ress or under the substantial domination ‘mitigat- other “The circumstances are called person. another ing They circumstances.’ are as follows: appre- capacity “6. of the defendant to The history significant The “1. defendant has no criminality or to ciate the of his conduct prior activity. criminal requirements of conform his conduct to the murder “2. The was committed while the substantially impaired. law was of ex- defendant under the influence age of the defendant at the time “7. The treme mental or emotional disturbance. the crime. participant victim in “3. The was a the de- Any circumstances to be “8. other deemed conduct, fendant’s the act. or consented to mitigating.” right he lacked the mental to know We capacity disagree can find no reason to with from wrong. jury in its ultimate verdict that suffi- cient circumstances do not exist mitigating age “7. The of the defendant at outweigh circumstances Appellant time of the crime.” was an found to exist and its recommendation that adult, born in October 1949. He knew what be sentenced to death. he planned was about and what he did. form, From the verdict we see that

jury handwriting in noted as a mitigating XVII circumstance number torture of “[t]he Finally, part as a of the examina Jeff Green not have been ordered application tion of the record Hopkinson,” Mark but then that it indicated prescribed by Gregg, proportionality test mitigating was not a circumstance Texas, Proffitt and Jurek v. U.S. checking the answer blank “No.” This reh. S.Ct. 49 L.Ed.2d denied go mitigating would circumstance number 4 as to role appellant’s accom- provisions L.Ed.2d 158 under the plice. The evidence does support any W.S.1977, 4—103(d)(iii) (e), conclusion ap- but that the torture was at we must § 6— “ * * * * * * pellant’s direction. determine if sentence of [t]he disproportionate death is excessive or circumstance, mitigating As final cases, penalty imposed similar consider handwriting noted in that “9. Actions ing both the crime and defendant.” Hopkinson helped Mark save the life of a doing so we must “include in its deci prison [our] The checked the blank guard.” sion a reference to those similar cases which “Yes,” that it was a indicating plus mitigat- took consideration.” appellant’s circumstance in favor. The into [we] details of are that prison guard this event statute, this passage Since the there was standing dangerous watch on a death have no been other similar cases prisoner starting row while the latter was state. The last sentence imposed by guard apparently shower. The became Wyoming a court of and carried out was in and, it, inattentive he knew the pris- before Pixley Wyo., P.2d 662 oner had a knife —a spoon sharp- homemade (1965). Pixley prosecuted for murder piece ened down —at his throat and a 6-54, degree in the first under W.S.1957. heavy gauge wire poking Ap- into his side. unless the jury qual- was death pellant attacking told the prisoner, “You adding ified their verdict “without capi- got haven’t a chance of escaping out of punishment.” complexities tal None of the here.” prisoner thereupon locked the surrounding reaching of the death sen- guard appellant’s Appellant, cell. at the then present. tence existed as are now guard’s direction, threw a towel over the statute, appearing While not then watching camera the area in order to at- legislature this court declared that the had tract the attention of the shift commander. *42 jury particu- left it to decision whether in a Ten or guards up. Appel- twelve showed “horrible, cruel, lar case a heinous” crime lant prisoner give told the other to him the deserving penalty. was the extreme weapons, Appellant which he did. turned While all the details of the offense do not guard. guard’s them over to the It was the opinion saved his life. in scant information appear opinion, the the the defendant appearing disclosed Apparently jury the could see this as raped girls and murdered two of tender a mitigating pos- circumstance could the circumstances of the years. Comparing sibly outweigh the compelling ag- several that, case before us to we would consider gravating important circumstances. It “heinous, them atrocious or cruel.” equally jury the introduced this element into Brown, Wyo. 151 P.2d the balancing and thus carried out process (1944), the was sentenced to judicial the man- defendant controlling legislative regard. seventy-year-old dates in that of a death for the murder head, point from a parking Casper. They her on the accom- lot at by striking woman choked, force, on were rape. body by a Her was found held down and driv- panied by a was not grave dog. Again, the of a this en to the vicinity bridge crossing of a a of the by proscriptions case controlled deep canyon near what is known as Alcova rule. modern Amy Lake. was bridge thrown off landing with such force on a rock far below Georgia, supra, Following Furman v. the cervical spinal axis was driven 346, the L.Ed.2d through the skull into the brain. She enacted a death legislature Wyoming then into the stream washed and found in which it considered to be statute penalty next day. feet of water Rebecca of that case. within the directions Section raped by both defendants and then also 6-54, W.S.1957, (§ ch. Cum.Supp.1975 She, bridge. however, thrown off 1973).32 It Wyoming Laws of Session canyon struck the side of the which broke was held unconstitutional and the death water, fall, in up her ended and was Kennedy in Wyo., set aside able, in of a broken spite pelvis hip, The case published 559 P.2d pull part way up canyon herself wall report any specific does not relate case, where was found the next by day. in that but she details murder court, attempt the facts little was killed and an made girl reference to the files of Rebecca, girl prevent kill the older detection of Amy, age are revealed. 18, sisters, provisions at knife- the defendants. Under age kidnapped were 6-54, W.S.1957, Cum.Supp.1975, burglary previously where the defendant had 32. Section burglary; provided: of a been convicted “(vii) any perpetrated person in Murder “(a) purposely premedi- Whoever and with kidnapping; the course of a malice, of, perpetration tated or or “(viii) hijacking Murder in the course of the arson, attempt perpetrate any rape, rob- train, bus, airplane, boat or of a commercial bery, by administering burglary, poison or or vehicle; other commercial done, any causing or to be kills the same “(ix) by Murder committed a defendant being, guilty human degree. of murder in the first identity or to conceal the fact of conceal his crime, suppress of a or to the commission evidence; “(b) Upon in the conviction of murder first mandatory degree, of death in the a sentence “(x) persons Murder of two or more in one provided by imposed if manner law shall be series of related events. the offense involves the the trier fact finds “(c) para- In courses of conduct described following course of conduct: above, (iv), (v) (vi) graphs the determina- officer, “(i) any peace Murder of corrections by prior made tion of conviction shall be acting employee or in the line of fireman has returned its verdict of after duty; conviction. profit “(ii) re- A murder committed “(d) judgment of conviction and sen- being any by a defendant after ward of kind subject of death shall be to automatic tence employment by person, or the hired by Wyoming. supreme murder; court of review to commit inducement of another priority Such review shall have over all other “(iii) unlawful and murder Intentional cases, any explosive; and shall be heard in accordance with or detonation malicious use supreme promulgated person court. “(iv) rules who Murder committed “(e) Upon first conviction of murder previously of murder been convicted had degree, degree; if the offense does not involve first or second in subsection “(v) while course of conduct as described committed a defendant Murder section, (b) imprisonment; person shall life of this convicted under the sentence “(vi) perpetration imprisonment for life. in the be sentenced to Murder committed prosecu- rape “(f) perpetrate all attempt where the All offenses committed and of or providing for previously law been convicted of tions commenced under the had defendant rape; degree prior perpetration to the effec- first murder force committed murder *43 punishable attempt perpetrate tive date of this act shall remain arson where of or act, by prosecuted provided previously and be been convicted defendant had arson; perpetration in full act remains and to that extent that committed murder effect; robbery not affect perpetrate and this act shall attempt where force and any of or a accrued, penalties in- rights previously liabilities been convicted the defendant had prior proceedings begun ef- robbery; curred murder committed in the of a perpetration attempt perpetrate act.” fective date of this of or 90 law, degree murder then-existing first was willing to and did return a verdict of kidnapping

committed in the of a course penalty. the death conceal degree identity, and first murder to The decisions from the courts of other of a crime to conceal the fact of commission states, from whence came legislation or to evidence were considered “a suppress consideration, under are very persuasive justifying pen- course of conduct” the death when applying statutes which are identical alty. jury The recommended the death or very similar to those enacted our own appeal, the facts and circum- penalty. On legislature. Woodward v. Haney, Wyo., 564 murder were stances of the not contested— (1977). However, P.2d 844 comparing this constitutionality only pen- death case to cases in Florida Georgia —states alty. torture-killing, The in the case now with statutes upon which ours is modeled— us, before was at least as horrendous as the we find that the sentence here is not exces- of Amy, murder terrible as that was. sive. The Florida cases which have been case, first degree Another murder tried approvingly by cited the Supreme Court under the same law as that under which the include: “ * * * Kennedy case was prosecuted, was Cloman State, Hallman v. 305 180 So.2d State, Wyo., v. 574 (1978), P.2d 410 in which (1974) (victim’s throat slit with broken the jury recommended the penalty death bottle); State, Spinkellink v. 313 So.2d degree for first murder. The report case (1975) (‘career 666 criminal’ shot sleeping relates the details of the murder. The two State, traveling companion); Gardner v. defendants entered the home of the Witts. (1975) (brutal 313 675 beating So.2d They outside, complained of the bitter cold murder); State, Alvord v. 322 So.2d 533 down, their car had broken they had (1975) (three women by strangula- killed walked several miles. Mr. They persuaded tion, State, one raped); Douglas v. 328 Witt to take Cheyenne, them into some (1976) 18 (depraved murder); So.2d Hen- twelve miles away. picked Mr. Witt State, ry (1976) (torture v. 328 430 So.2d friend, Davis, go Mr. on the ill-fat- along State, murder); Dobbert v. 328 433 So.2d journey. ed Their were after bodies found (1976) (torture and killing of two chil- an extensive search. ” body Each bore as * * * dren). Florida, Proffitt v. supra, wounds, many as a dozen stab several 255, 2968, 428 96 at U.S. S.Ct. fn. 12. body in each were testified Georgia The cases cited approvingly in God examining to cause pathologist as sufficient 420, 432, frey Georgia, v. 446 U.S. 100 S.Ct. death they lungs, in that were of ac- both 1759, 1766, 398, 64 L.Ed.2d reh. denied 455 companied severe hem- intra-pulmonary 1038, 2286, 102 73 L.Ed.2d 1296 orrhage. 14, State, fn. include: Thomas v. jury aggra- the Cloman case found 393, 1, Ga. S.E.2d reh. denied 438 U.S. vating any person conduct of murder of (1977) 57 L.Ed.2d 1151 perpetrated in kidnapping the course of a (victim was decoyed gun and robbed at and murder of in one persons two or more then point, struck on the head with a ham series of related This court sus- events. mer, shot with pistol, jabbed with the tained the verdict premeditated guilty shovel, cutting point of a and buried alive (there murder felo- questions were other pleading life); while Stanley his v. ny murder), again but the death set aside State, 240 Ga. cert. S.E.2d penalty, as imposed, cit- unconstitutionally denied 439 U.S. 58 L.Ed.2d ing Kennedy State, supra. (1977) (Thomas’ accomplice preceding State, It Kennedy case); difficult compare Dix 238 Ga. 232 S.E.2d Cloman (1977) because the (defendant’s former wife was de if the mandatory liberately methodically circumstanc- tortured be es were present, so was out strangled discretion cut and carved as well as of the picture. killed); Birt being cases can be com- before 236 Ga. pared (1976) (defendant as to circumstances in which a hired S.E.2d *44 6-4-103(d)(i), burglarize house of victims who were Section We to W.S.1977. find no reason all strangulation and to reverse the by repeated penalty tortured death McCorquo conclusion, lighters); any burned with score. cigarette after thor- oughly record, examining dale v. 233 Ga. S.E.2d the we have de- 910, 96 termined cert. denied 428 U.S. that the received a fair reh. denied 429 U.S. trial on penalty phase 49 L.Ed.2d the in every respect. (1976) 873, 97 50 L.Ed.2d judge Affirmed with directions to the were (seventeen-year-old genitals victim’s pronouncing the district court the sentence cut, then raped burned and she was and of death to fix a new date therefor and for grabbed and defendant strangled, finally of all taking necessary steps in connec- her head and twisted it in order to break pursuant provisions tion therewith to the neck). her seq., 7-13-901 et We provide, W.S.1977. § We thus conclude when com however, stayed execution shall be the murder in this case to the paring mur pending opportunity timely seek cer- penalty ders in other cases where the death tiorari to the Court of the United has been is not excessive or imposed, States. to the disproportionate penalty imposed cases, considering ROSE, Justice, similar both the crime dissenting.

and the defendant. This was not the ordi sentencing hearing,1 In his second Mark murder. nary Hopkinson was sentenced to death under statutes,

We find no circumstances in the record Wyoming’s capital-punishment which indicate that sentence of controversial of which are pertinent parts “[t]he 6-4-102, imposed Many under the influence of passion, contained in W.S.1977.2 arbitrary or other factor.” of the errors that were committed in the prejudice any State, Wyo., opinion Hopkinson any aggravating mitigating 1. See our as to or circum- stances, (h) (j) 632 P.2d 79 defined in and as subsections section, proceed provided by or as W.S.1977, 6-4-102, provides in 2. Section rele- paragraph (ii) of this subsection: part: vant evidence, “(i) hearing jury After all hearing “Presentence for murder in the first and render a recommenda- shall deliberate degree; aggravating mitigating circum- judge, upon based tion following: sentence stances. phase in which the fore the to a vating mitigating impaneled Any “(b) include ant’s of its probative ined shown state accorded a fair hearsay statements, rules of counsel propriate arguments “(d) “(c) any shall determination of the evidence In all other Upon has made known to the defendant guilt subsections admissibility discharges matter matters prior provided evidence, jury judge [after conviction] such instructions, value for that conclusion of the evidence or, proceeding] to his trial shall be admissible. which the court which determined the defend- judge presides that the court evidence in judge if the relating cases opportunity jury (h) purpose. circumstances under the be received shall judge shall jury, including [excepting sentence, aggravation (j) any be conducted give provided further hear evidence the defendant sentencing with a deems relevant of this section. deems to over the of the exclusionary instructions good only rebut regardless enumerat- and shall new aggra- or his cause those hear- have guilt jury be- ap- as judge this section is found. The whether the defendant should to death or life reasonable is a recommendation of circumstances set forth in subsection stances which it doubt. unless at least one this section which gravating circumstances found to stances sentence. “(e) subsection “(B) mends “(C) “(A) “(f) writing signed imposed, Unless aggravating circumstances or circum- The death Whether sufficient Based Whether ^[*] shall not the death sentence exist * * * circumstances exist as set (h) time, ^[*] as set upon one of this If the imprisonment. jury trying agree sentence the defendant found judge sf: outweigh (1) forth the foremen (1) these section; or on the death, shall beyond exist; ! n shall more sufficient mitigating in subsection jury, if its verdict in its cannot, not be considerations, shall punishment impose n ; be a reasonable case recom- verdict, the sentenced designate within a imposed forth in circum- ^[*] (h) of a life (j) jury ag- *45 First, sentencing first have been proceeding made in the trial, second death-penalty again.3 the following aggravating circumstances consideration, were offered jury and the contentions, Among his various other following answers were returned: Hopkinson agree, I argues, and his “1. The by sentence to death should be reversed murder was this committed person following court for the reasons: under imprisonment. sentence of The admission into evidence of nonstatu- No_ Yes JL tory aggravating circumstances or aggra- “2. The defendant was previously con- vating supported circumstances not victed of another murder in the first de- the evidence appellant’s rights violated gree. law, due process of thus rendering 6-4- § No_ Yes X 102(h)(vii), W.S.1977 unconstitutional as “3. The murder was committed for the applied; purpose avoiding or preventing a law- The submission to ag- of those ful arrest. gravating inappli- circumstances deemed No_ Yes X cable in the first penalty hearing violated “4. The murder was pe- committed for appellant’s protection constitutional cuniary gain. against double jeopardy; No_ Yes X The death-penalty provisions of the stat- “5. The heinous, murder was especially utes of the state of Wyoming violate Art. atrocious or cruel. 15 of the Wyoming Constitution. No_” Yes X It is essential to the my consideration of dissenting position in appeal this these In the first sentencing hearing, the jury factors be remembered: permitted to consider aggravating cir- “(vii) death but heinous, shall sentence the defendant especially to life The murder was imprisonment provided by cruel; law. Where a atrocious or made, “(viii) judicial officer, recommendation of death is the court The murder aof for- judicial officer, shall sentence attorney, the defendant to death. mer district former “(g) appeal If attorney the trial court county prose- is reversed on district cuting or former presentence because attorney, during of error or because of the hearing, duty. new trial which be ordered exercise of his official [1982 Cum. apply only punishment. shall Supp.] to the issue of “(h) Aggravating “(j) Mitigating circumstances are limited circumstances shall be the following: following: “(i) person The murder “(i) was committed significant history The defendant has no imprisonment; under prior activity; sentence of of “(ii) criminal “(ii) previously The defendant was convicted The murder was committed while the degree of another murder in the first or a defendant was under the influence of ex- felony involving the use or disturbance; threat violence treme mental or emotional person; “(iii) participant The victim was a in the de- “(iii) knowingly The defendant created a act; fendant’s conduct or consented to the great (2) per- risk of death to two or more “(iv) accomplice The defendant was an in a sons; person murder committed another and his “(iv) The murder while was committed participation in the homicidal act was rela- engaged, defendant was plice, an accom- or was minor; tively of, attempt in the commission or an “(v) The defendant acted under extreme du-

commit, flight committing or after or at- ress or under the substantial domination of tempting commit, robbery, rape, sexu- person; another assault, arson, burglary, kidnapping al or air- “(vi) capacity appre- of the defendant to piracy throwing, placing craft or the unlawful criminality ciate the of his conduct or to discharging or bomb; of a device or destructive requirements conform his conduct to the substantially impaired; law was “(v) pur- The murder was committed for the “(vii) age of the defendant at the time of pose avoiding preventing a lawful arrest the crime.” effecting escape custody; from “(vi) pecuni- my Hopkinson supra The murder was committed for 3. See dissent ary gain; 1,n. 632 P.2d at 173-216. above, and that ported by cumstances Nos. 3 and 4 evidence. I would hold present. appeal they found were the trial court has done the were, juries course, contemplating Both same thing thus has committed the *46 facts which same error. namely, same those facts — of verdict of murder in guilty resulted in a We said in majority opinion Hop phase in of the degree, the first the first State, Wyo., kinson v. 632 P.2d 171-172 proceeding. bifurcated (1981): all sentencing proceeding, the second “When we do not know whether re- in 6- mitigating circumstances described § weighing sult of the process would have (vi) 4-102(j)(i), (ii), (iii), (iv), (v), (vii), and been had the impermissible ag- different offered supra jury’s n. were for the con- gravating present factor not been and sideration, nega- each of which received a stake, where a man’s life is at we must However, response. reply tive in to the return the case the trial for a court court’s invitation to list new sentencing trial.” “[a]ny mitigating other circumstances. Third, at sentencing the second trial two

(Here any in other writing set forth miti- the aggravating circumstances had gating may circumstances find to you jury been submitted to the first found exist in this case. If there is insufficient nonexistent in the first sentencing hearing room, provided additional be paper will again jury, were submitted to the based you.) for were, facts, upon the same Yes_ No_” sentencing hearing, second to have found (Emphasis added.), present. sentencing pro- In the first been whether, ceeding, the was asked in its jury its jury answered in one of members’ judgment, the Green murder was commit- handwriting, as follows: prevent- for purpose avoiding ted “8. The torture of Jeff not Green effecting a lawful arrest or an unlawful Hopkinson have been ordered Mark escape custody from the mur- whether Yes_ XNo gain. To pecuniary der committed helped “9. Actions of Mark Hopkinson jury re- inquiries of these the first each prison save of a guard the life sponded aggravating that two circum- these No_” Yes X applicable the Green stances were not Therefore, interpretation no matter what hearing, sentencing murder. In the second we place upon “Mitigating Circumstance” fact given a different the same (see # 8 n. 20 infra), above found and the same two situation mitigating against one other circumstance jury re- to consider and this circumstances obliged aggra- which it was balance aggra- twice-submitted sponded these vating circumstances found it also to the applicable were vating circumstances be present.4 is to murder. This second submission Green Second, jeopardy defendant place first we appeal remanded twice rights5 as for a new his Constitutional sentencing the reason hearing for violation that the court Fifth Amendment aggra- trial had added to the guaranteed 11 of the and Art. vating-mitigating aggra- Constitution balancing process Federal vating Wyoming circumstances which were Constitution.6 unsup- Ohio, 586, 604, proffers less than 4.In basis for a sentence Lockett v. as a 2954, 2964, (1978), L.Ed.2d Chief Justice death.” Burger, writing plurality, for the said: Silhan, 275 S.E.2d See State v. N.C. 5. Eighth conclude and Four- “[W]e discussed infra. require teenth Amendments that the sentenc- * * * precluded considering, er not from States The Fifth Amendment to the United factor, mitigating any aspect as a of a defend- provides pertinent part: Constitution ant’s character of record cir- cumstances the offense the defendant evidence, the submission AN IMPERMIS- fra. Without such THE OF SUBMISSION aggravat- heinous-atrocious-or-cruel AGGRAVATING SIBLE jury especially ing circumstance CIRCUMSTANCE — the torture was so a fact situation where heinous, atro- especially “The murder was inhuman and the evidence violently 6-4-102(h)(vii), W.S. cious or cruel.” § viola- patently inflammatory which is so —is 1977. “ Eighth * * * and Four- tive of the defendant’s conjecture upon pile We must This is so be- rights. teenth Amendments of life or conjecture the decision posit nothing cause there is in the words Peo guesses.” upon pyramid circumstance controversial Cal.Rptr. Terry, ple Cal.2d *47 an inherent -standing implies which— alone — 381, 392, 605, 617, cert. denied 390 P.2d upon arbitrary capricious restraint 132, 68 866, 13 L.Ed.2d 379 85 S.Ct. U.S. infliction of the sentence under the (1964). Georgia, directive of Furman v. 408 U.S. it, support evidence to Providing there is 2726, 346, 238, reh. 92 S.Ct. 33 L.Ed.2d circumstances that aggravating one of 902, 89, 34 L.Ed.2d denied 409 U.S. 93 S.Ct. capi consider in a sentencing jury may (1972) Gregg Georgia, 163 v. 428 U.S. law is: Wyoming case under punishment tal 859, 153, 2909, 96 49 L.Ed.2d reh. heinous, especially atro murder was “[t]he 875, 197, 50 L.Ed.2d denied 429 97 S.Ct. U.S. 6-4-102(h)(vii), cruel.” cious or Section (1976). Georgia, v. Godfrey See There is no doubt whatever that W.S.1977. 1759, 420, L.Ed.2d 398 100 S.Ct. we con the murder with which are here fact, nothing there is (1980).7 In in this cerned can and must be described heinous, especially words “The murder was However, that, requires the law fashion. imply or cruel” which would even atrocious type order for this of murder to warrant responsible that the defendant must be for particular aggravat the submission of this suggests type the torture which this of kill- sentencing authori ing circumstance to ing. deciding purposes, ty death-penalty for I Hopkinson appeal, In the first said evidence legally acceptable there must be concurring opinion that I my separate capable establishing, beyond reasonable particular statutory (§ 6-4-102(e)), hope the fact that the de would that doubt again given would not be over participated in the tor circumstance fendant ordered sentencing-jury consideration.8 In that killing. His is the aspects turous measured. En I commented that this culpability opinion, which must be applied as Florida, - U.S. -, circumstance was overbroad v. mund against giving again.9 discussed in- I warned 73 L.Ed.2d “ * * * vile, wantonly any person subject “outrageously or hor- for murder as nor shall inhuman,” put jeopardy be held be twice rible or not all murders the same offense to * * violating category fall in this without of life or limb applicable sentencing This to the states was criticized in amendment standardless Godfrey supra. through Georgia, Amendment. Benton v. the Fourteenth Furman. 787, 794, Maryland, v. 89 S.Ct. 397 U.S. (§ Wyoming 6-4— under statute 8. While L.Ed.2d charged 102(d)(0) with recommend- Wyoming Article 11 of the Constitution § judge (e.g., ing “render a provides: a sentence to the judge”), the “recom- to the person compelled testify recommendation “No shall be upon judge binding case, of death is against mendation” nor himself in criminal 6-4-102(f), provided: where it is under any person put jeopardy shall be twice made, jury disagree, or if the same offense. If a recommendation of death is “Where a verdict, judgment or if the be arrested after a shall sentence the defendant the court law, judgment be error in reversed for death.” been in accused shall not be deemed to have State, supra, Hopkinson my dissent jeopardy.” 176, I 632 P.2d at said: “ * * * though ordinary agree person I 7.Even sensibili- would “[a] heinous, every ‘especially fairly cruel’ atrocious or ties” could characterize almost aggravat- heinous-atrocious-or-cruel P.2d At 664 vating circumstances. injected circumstance was into the bal- the court says: tender though aggravating there is insufficient evidence to support the sider a nonstatutory aggravating factor. of Green. As I said in the concurring part sion—in the circumstances of this case— 7, specifically limits 632 P.2d at 174: was in any way associated with the torture ancing process cient evidence to establish beyond a reason- able constitutes reversible tinues to be my opinion that If I am correct U.S. 89, 34 L.Ed.2d 163. He said: (1972), requirements a manner preme 428 U.S. (1976), spoke application of the statutory standards in “Mr. Justice my opinion 428 U.S. at finding of an aggravating relevant stance. tence Court is to determine whether the sen- “ was sufficient tence imposed was consistent with the there is no evidence and thus insuffi- doubt ‘In 238, reh. denied 409 U.S. Court of considering on jury (§ 6-4-102(e)) the heinous-atrocious-or-cruel 92 which would circumstance, appeal, statutes — * * * in Hopkinson White, again, S.Ct. of Furman v. had been evidence to in my assumption that Georgia ’ the Georgia Supreme 2726, any error, however, obligation in Gregg Georgia, 96 S.Ct. at 2948.” i.e., (Emphasis permitted comport given that Hopkinson 33 L.Ed.2d 346 to oversee the it whether for the reason 49 L.Ed.2d 859 902, Georgia, the submis- support is then as and it con- death sen- of the Su- with the circum- added.) to con- supra, there 408 denied 454 court said: rent Zant, L.Ed.2d penalty and as to both of which there is tional even no uncertainty. stances was later held to be unconstitu- when aggravating *48 the sentencing authority.” which the death impermissible factors not been present. This conclusion is supported by the cur improper aggravating circumstances can- “The Constitution because it was imposed missible “ 632 P.2d at 170-172. cumstances and mitigating circumstances. ess between must cumstances to those listed. 632 P.2d at The scales must not be tipped by imper- son 157. It was also there recognized that we “This court observed in the * * * to what the permit law on the 631 F.2d ^[*] go opinion question presented not one into the calculus of the decision of We accept factors itself would be compromise iff U.S. penalty jury the though capital permissible circumstances, subject. leaving ^[*] § 6— was invalid under the there were two other aggravating would have done had punishment (5th the weighing proc- iH02(h), ^[*] impose quandary us in a legally * * * proposition aggravating cir- Cir.1980), first Stephens ^[*] is whether either the death sufficient supra, fn. case, Hopkin- circum- ^[*] cert. cir- This impermissible.10 “It impossible reviewing is— is for a court to statute — satisfactorily determine the verdict Submission of an Improper Aggravating decisively this case was not affected Circumstance Requires Reversal an statutory aggravat- unconstitutional majority court, in this appeal, ing jury circumstance. The had the au- concede that an improper cir- aggravating thority to return a life sentence even if it may injected cumstance not be into the statutory aggravating found circumstanc- balancing process with authorized aggra- possible jurors es. It is that even if the aggravating sentencing authority, circumstances should not have mitted to future given jury applied

been to the because when given matter would first be careful considera- i.e., as construed —it tion.” evidence — vague and overbroad. I would remand for hope 6-4-102(h), W.S.1977, supra this additional reason with the that be- See n. 2. aggravating fore this circumstance is sub- cerning cir- aggravating underlying felony

believed that other constituted established, they jury cumstances were would error. harmless Had not con- penalty not the death have recommended underlying felony ag- as an sidered circumstance, but for the decision that the offense was it gravating may well have having committed one a substantial remaining aggravating decided con- history of serious assaultive criminal sufficiently circumstances were not sub- victions, ground. presence invalid imposition stantial to call for of the death circum- unconstitutionally vague at 568. penalty.” S.E.2d made possible stance also State, Ala.Cr.App., also Bufford v. See prior to consider several convictions of (1980), 1174-1185 reh. So.2d denied petitioner which would otherwise have been before it. The instruction Similarly, the Florida Court has the invalid circumstance have direct- that where said one circum- ed the attention convic- jury’s to those invalidated, stance tions. It cannot be determined “ * * * regardless of the existence of oth- degree certainty required capital er authorized factors we cases evidence of those convic- guard against any must ag- unauthorized tions, instruction, together with the did gravating going equation factor into the not make a critical difference might tip of the weigh- scales jury’s impose penal- decision the death * * process in favor of death *. ty- ****** jury’s “We hold discretion here channeled, sufficiently was not see God the weighing proc “Would the result of frey Georgia, by both the judge ess have 64 L.Ed.2d 398 that the impermissible different ag been had the process in which the gravating present? factor not been We *49 this imposed ‘rationally case was not cannot know. we cannot know Since Carolina, reviewable.’ Woodson v. North stake, since a man’s life at is we are 303, 428 at 96 at U.S. S.Ct. 2990. See also compelled to case to return this the trial Florida, 349, Gardner 97 v. 430 S.Ct. U.S. for a new sentencing court trial at which * * * 1197, 51 L.Ed.2d 393. Petitioner’s death [improper] factor shall not be sentence therefore cannot stand.” State, v. considered. See Miller 332 So.2d (Fla.1976); State, 65 v. Messer 330 Supreme North Carolina Court has So.2d (Fla.1976). 137 This result is acknowledged also dictated impropriety af because, satisfy in order firming aggra -fequire- a death sentence after one vating Georgia, of Furman circumstance submitted to sen- ments 408 U.S. 238, 2726, 92 Cherry, (1972), tencer is invalidated. 298 S.Ct. L.Ed.2d 346 State v. 33 86, (1979), N.C. 551 sentencing authority’s 257 cert. denied S.E.2d discretion must 941, 2165, 446 U.S. 64 L.Ed.2d 796 ‘guided be by requiring channeled court there specific held examination of factors that argue sentencing hearing of a convict defendant in favor of or against imposition of the ed of felony improper murder the jury had penalty, eliminating thus total arbi ly permitted been underly to consider the capriciousness trariness and in its imposi an felony aggravating circumstance. (Emphasis tion.’ supplied.) Proffitt v. Holding required error resentenc- Florida, 258, 242, 2960, 428 96 U.S. S.Ct. ing, the court noted: Elledge State, 49 L.Ed.2d 913.” Fla., denied, 346 say “We are unable to that under the So.2d reh. - U.S. -, 74 particular circumstances this ease the 103 L.Ed.2d 984 S.Ct. trial issue con- judge’s (1977).11 submission of the 11. The indicated one but all Florida Court has where not circumstanc- that it would follow this rule reversal found below were invalid and where no es “ * * * * * * Fla., also Menendez v. So.2d See The verdict specify did not (1979): ground upon which it rested. As there purposes were set forth in the three therefore, is, properly “There one only statute, jury and the were instructed that found and one aggravating circumstance might their verdict given with respect mitigating circumstance. trial Since them, to any one of con- independently judge considering has error in committed sidered, impossible is say under range of permissible matters outside the which clause of the statute the conviction statute, legal standards set any obtained. If one of these claus- impossible because it is for us to evaluate es, which the state court has held to be the trial weight given by judge separable, invalid, it cannot be deter- proper those factors which were to con- upon mined record that the in imposing penalty, sider the death we * * was not convicted under that clause. can vacate the sentence of death and necessary conclusion from the man- [T]he remand the case for resentencing.” ner in which the case jury was sent to the the situation in which Properly analyzed, that, any if of the clauses in question is appellate court invalidates one but not Constitution, invalid under the Federal all of the circumstances found the conviction cannot be upheld.” 283 (or court) a trial death-sentencing jury 367-368, U.S. at precisely analogous to the situation in In support of the impropriety of submit- appellate which the court finds that gen- ting unauthorized aggravating circumstanc- eral verdict of has been guilty returned es sentencing error which —the against a criminal defendant by in- brought on Hopkinson reversal in the first upon structed alternative theories of convic- appeal and which should have the same tion, one but not all of which permitted result point Henry here —I v. Wain- guilt upon to rest an unconstitutional wright, (5th Cir.1981), 661 F.2d 56 where ground. California, Stromberg Under the Fifth Circuit had under consideration L.Ed.2d the question which asks capital whether the A.L.R. 1484 and its progeny, such Eighth defendant’s and Fourteenth Amend- a conviction must be reversed. Strom- rights ments had been violated where the berg, the defendant had been tried under a trial statutory court had balanced and non- statute and jury making instructions it a statutory aggravating circumstances with criminal publicly offense display red mitigating weighing circumstances while flag purposes. three enumerated sentencing life-or-death decision. The *50 The Supreme Court held that the descrip- court held that the insertion of nonstatuto- tion of one of purposes ry aggravating the enumerated circumstances into the for- violated the mula in the deprivation First Amendment. Even resulted of the de- though rights. there were fendant’s constitutional The author grounds alternative unquestioned Wainwright opinion wrote: constitutionality upon which “ * * * jurors might have their general based task is not restricted to an ‘[0]ur verdict, the Court refused to let verdict effort impelled divine what motives stand: Rather, death penalt[y]. we deal [this] mitigating Elledge prohibition against mandatory penalties circumstances were found. death State, supra, (dic- Carolina, e.g., v. 346 So.2d at 1002-1003 Woodson [see v. North 428 U.S. tum). theory appears (1976); The here to be that 96 S.Ct. 49 L.Ed.2d 944 [Har- statutory requires, Louisiana, Florida ry] scheme rather than Roberts v. 431 U.S. merely permitting, Ohio, the death (1977); sentence wherev- 52 637 L.Ed.2d Lockett v. found, aggravating er circumstances are supra] explored here), need not be because the mitigating unless at least one circumstance is jurisdiction country law of no other Id.; State, Douglas Fla.,

found. see also 373 mandatory upon makes a death sentence (1979). aspect So.2d 896 This of Florida finding aggravating circumstances and no presently (and law is irrelevant therefore its mitigating circumstances. consistency dubious with the constitutional

98 justice that system 6-4-102(h)(vii)

with a of law and of § circumstance when there was support discretion of no evidence it. to the uncontrolled leaves Elledge judge (who In does the sentenc- juries and judges determination ing statute) accepted under Florida into committing these defendants whether balancing process aggravat- a statutory Fur imprisoned.’ shall die or crimes ing circumstance which is the same as our 238, 253, Georgia, man 4—102(h)(iii),12when there was no evi- 2726, 2734, (Douglas, 6— L.Ed.2d support it. dence to That is—there was no concurring). the ar Guarding against J. supporting evidence in the sense bitrary imposition discriminatory judge took into account the defendant’s death become sim penalty must not commission of a crime which had been a guessing game by a review ply played after perpetrated the one for which he was court which it tries to discern The being Supreme tried. Court Florida the improper nonstatutory ag whether this identified consideration of unau- gravating factors decisive in exerted a factor by sentencing authority thorized on fluence the sentence determination. constituting injection of a nonstatu- guarantee against cruel unusual tory aggravating circumstance. court punishment demands more. said: short, appellant’s “In argument “Admission of Gaffney evidence of the case seeks this of a approval prac- court’s proscribed murder our decision in tice violates the if not the spirit, State, (Fla. Provence So.2d [v. letter, Florida, Proffitt v. 428 U.S. 1976)], charge because the had result L.Ed.2d 913 ed in a conviction at the the trial time of the Supreme Proffitt held Florida’s Court was, therefore, in the instant case. It penalty death statute constitutional its nonstatutory aggravating factor. But provide face inasmuch as it appeared was the error harmless because of the specific detailed guidance objection lack of and the existence judge sentencing stage. at the substantial additional cir We are bound to disapprove trial (Empha cumstances? We believe not.” ignoring imposed court’s the limitations added.) sis 346 So.2d at 1002. increasing the statute itself and rather supra, As Supreme noted the Florida decreasing than the death the risk that Court on to in Elledge went hold that once penalty arbitrary will be imposed in an unauthorized aggravating circumstance capricious through manner intro- placed weighing process case duction of cir- nonstatutory aggravating must be reversed because a court cannot of Flor- cumstances. The know effect the improper what factor had is, ida to rule on properly, the tribunal impose on the decision to the death sen- Here, state’s statutory requirement. Elledge tence. supra, 346 So.2d at however, the statute the limitations of make the constitutional. Ignoring implicates those thus limitations It Heinousness, is Defendant’s Atrocious- the constitution. Cruelty 6-4-102(h)(vii), ness or That § “Because the trial committed state court *51 W.S.1977 Governs admitting constitutional evidence error in It Hopkinson is to be remembered that of and permitting jury consideration was guilty found murder procuring the circumstances, nonstatutory aggravating upon Green based evi- circumstantial Henry’s death be vacated." sentence must only. sentencing pro- dence In the second (Emphasis added.) 661 F.2d 59-60. ceeding, the trial judge gave especially- Elledge State, supra, remarkably aggravating heinous-atrocious-and-cruel similar to the case at wherein sen- bar' together following circumstance with the tencing jury permitted instruction, was consider our which reads: knowingly great 12. “The persons.” defendant a created risk to two of death or more NO. 10 case, Hopkinson 153-154, first “INSTRUCTION P.2d at majority said: aggravating of the circumstances “One “ * * * requires statute [T]he set forth in this case is murder find the have ‘especially murder to been heinous, atrocious or especially cruel. heinous, or atrocious cruel.’ Webster’s evaluation you your To assist of this Third Dictionary New International circumstance, heinous means aggravating ‘hatefully defines heinous or shocking- evil; wicked or extremely shockingly ly evil.’ term ‘especially Thus the hei- means outrageously atrocious wicked and just nous’ is more than or hatefully vile; designed cruel means to inflict a murder, shockingly evil. The to be so high degree pain with utter indiffer- classified, must demonstrate that the con- to, of, ence or even enjoyment the suffer- sciencelessness defendant is not ing of others. What is intended to be only outrage also a dangerous but included this circumstance are those unrestrainable to society. Only threat capital crimes where the actual commis- when this is can prop- found the murder accompanied sion murder erly categorized be as especially heinous. additional to set such acts as the crime very Since few can regarded murders be murder; from is, the normal apart a manner, term imper- this is NOT or crime pityless consciousless which is added.) vague.” (Emphasis missible and to the unnecessarily tortuous victim.” adopted majority then definition * * * Hopkinson’s of Green murdering by or- of the “especially terms atrocious or dering him killed evidence of the without cruel” following with the recitation: in the actual participation defendant’s tor- especially “As to the terms atrocious or “especial- ture makes the submission cruel, adopt we the definition of these heinous, ly aggravating atrocious or cruel” jurisdiction terms established in from sentencing jury imper- circumstance to the whence legislature the state borrowed because jury’s missible consideration of See, Haney, them. Woodward v. Wyo. emotional highly ag- and inflammable In 564 P.2d 844. this case the stat- gravating factor is in those acceptable ute was from Florida’s. derived Its inter- proven circumstances where it been has be- terms pretation of these was discussed yond reasonable doubt13 the defend- Stewart, Justices Powell and Stevens in participated ant special and unusual Proffitt as follows: “ ‘ * * * of murder type which can described as a particular, petitioner * * * “conscienceless or crime pitiless which is eighth statutory ag- attacks the unnecessarily torturous victim.” circumstances, gravating which autho- State, Proffitt v. Hopkinson supra; Flori- if imposed rize the death to be da, supra.14 It is kind of only this evidence heinous, “especially the crime is atro- * * * which, heinous, when the “especially atro- cious, cruel,” 921.141(5)(h), or §§ * * * or cious cruel” circumstance is provi- These (Supp.1976-1977). given sentencing authority, saves the they sions must be considered as have being “impermissible statute from Supreme been construed Court (Hopkinson supra). vague” In the of Florida. Fla., 1, 9, 6-4-102(e) provides: Section 283 So.2d cert. denied 416 U.S.

13. 94 S.Ct. 40 L.Ed.2d where jury, “The if its verdict is recommendation * * * statutory provision death, was said that the is directed designate writing shall only at circumstance circumstances “ * * * beyond which it found a reasonable doubt.” pitiless the conscienceless crime (Emphasis added.) unnecessarily torturous to the vic which is tim.” Florida, supra, Supreme In Proffitt v. State, Fla., See also Alford v. 307 So.2d upon relied the decisions 445 reh. denied 429 U.S. *52 Court of Florida which had addressed the State, Fla., (1975); Halliwell v. 323 L.Ed.2d 155 meaning of in the words contained the identical 557, So.2d 561 Dixon, circumstance State v. 100

“ murder, that while for recognized ‘That court has but rather validity capital punishment killings all are atro- for Enmund’s own arguable “that * * * conduct. The focus cious, culpa- must be his [S]till, we believe that * * * bility, for we insist on ‘individual- something ‘espe- intended Legislature cially’ [Fla.], 322 So.2d it authorized the death consequence, degree murder.” heinous, eighth the court has indicated atrocious or statutory provision is [908], at 910. As a Tedder penalty cruel when v. for first State Ohio 57 L.Ed.2d tence,’ quirement ized consideration as a constitutional re- ^{[*] [*] [*]} Ops.3d 1) Lockett v. 973, 26 imposing (1978) (footnote omitted) 98 S.Ct. 2954 Ohio, 438 U.S. the death sen- [2965], 586, 605, 9 at directed “the conscienceless or In Godfrey Georgia, supra, v. 446 at U.S. pitiless crime which is unnecessarily 428, 1765, 100 at S.Ct. Court said: 1764 — torturous to the victim.” v. Dix- 238, Georgia, “In Furman v. 408 92 U.S. on [Fla.], [1], 283 at 9. So.2d See also 2726, 346, 33 L.Ed.2d the Court held S.Ct. 433, [Fla.], Alford v. State 307 So.2d penalty of death not be (1975); [Fla.], 445 v. State Halliwell imposed sentencing procedures under ” (Emphasis So.2d at 561.’ [323 557] that create a substantial risk that added.) 632 P.2d at 154. punishment will be inflicted in an arbi- trary capricious manner. v. Gregg Clearly, the majority Hopkin- first Georgia, supra, reaffirmed holding: that, son appeal considering held whether “ discretion is afforded a sen- ‘[W]here aggravation heinous-atrocious-or-cruel tencing body on grave a matter so given consideration, should be over the determination of whether a human there must be evidence which addresses it- life should or spared, be taken self to the “consciencelessness of the de- suitably discretion must be directed fendant.” and limited so as to minimize the risk heinous, The purpose “especially wholly arbitrary capricious ac- atrocious or cruel” circum- 189, S.Ct., tion.’ 428 at 96 at 2932 stance is not to seek out the disproportion- STEWART, POWELL, (opinion of murder, ality penalty death as a but STEVENS, JJ.). is intended to focus upon conduct of the capital must, “A sentencing scheme defendant to see if his will culpability war- short, provide ‘meaningful basis for dis- rant the death sentence.15 tinguishing the few cases in which [the The United States Court in En penalty] imposed many from the cases Florida, 3377, mund v. supra, 102 at S.Ct. 73 188, Id., S.Ct., in which it is not.’ at 96 at 1152, L.Ed.2d at said: 2932, Georgia, supra, quoting Furman v. “ ** * question before U.S., 313, S.Ct., us is not the 2763 at at disproportionality J., of death as a penalty (WHITE, concurring). “ * * * respect O’Connor, concurring Eddings,

15. fundamental for hu ‘[T]he Justice su- manity underlying Eighth pra, Amendment wrote: requires ‘qualitative- . .. consideration of the character “Because death are sentences of sentences, ly and record prison individual offender and the different’ from Woodson particular 280, 305, Carolina, circumstances of the constitutionally indispensable part offense as a v. North 428 U.S. 96 S.Ct. 2978, 2991, (1976) (opinion L.Ed.2d process inflicting Stewart, Stevens, of death.’ JJ.), this Powell and Id., Louisiana, (Harry) at 304. See Roberts gone extraordinary has measures to en- 431 U.S. 52 L.Ed.2d prisoner sure that to be sentenced exe- Louisiana, (1977); (Stanislaus) Roberts guarantee, process cuted is that will afforded 428 U.S. 49 L.Ed.2d 974 humanly possible, as much as is Powell, (1976).” writing Mr. Justice for the whim, pas- imposed sentence out of was not Oklahoma, Eddings Court in 455 U.S. sion, prejudice, or mistake.” 455 U.S. at L.Ed.2d 1 117-118, 102 S.Ct. at quoting plurality opinion from the in Wood Carolina, supra, son v. North 428 U.S. 96 S.Ct. at 2991.

101 Georgia, wishes to supra, “This that if a where outrage means no acts of a con- punishment authorize it has torture capital were associated the with murder. ap- and responsibility stitutional to tailor case, In this the association the of acts of avoids the ply its law in a manner that torture with defendant Hopkinson is a vital capricious and infliction arbitrary and indispensable predicate giving responsi- death Part of a penalty. State’s the heinous, “especially atrocious or cruel” define the bility regard in this is to circumstance, it and is the fail- the sen- be may crimes for which death ure on part the of the State to make this ‘standardless way tence in a that obviates connection —as condoned by the trial court Gregg v. Geor- [sentencing] discretion.’ and this majority court’s opinion which —of 2936, 47, S.Ct., at 196, 96 gia, supra, at n. I complain which, and I say, constitutes Florida, 428 n. 47. also Proffitt See reversible error. Assuming no associating 913; L.Ed.2d U.S. evidence, reversible error is the necessary Texas, Jurek v. U.S. previous effect under our Hopkinson deci- 2950, 49 L.Ed.2d 929. It must channel sion where it was said in majority opin- the the sentencer’s discretion ‘clear and ion: objective provide that ‘specific standards’ “When it sentencing jury] made its [the guidance,’ and detailed ‘make findings circumstances, of aggravating it reviewable rationally process the for im- required then was to balance them posing a sentence of As death.’ against mitigating the circumstances and Gregg, made clear in penalty make a recommendation of sentence to ‘system vague could have standards so judge. 6-4-102(d)(i). the Section Since fail they adequately would chan- its findings under the court’s instructions sentencing patterns nel the decision ‘previous convictions’ as instructed juries pattern result that a the judge supported by the trial was not arbitrary capricious sentencing like evidence, the it was an finding erroneous found unconstitutional Furman not have should been considered in U.S., n. could occur.’ process. We, therefore, balancing are S.Ct., at 2935.” unable to conclude that in the absence of As I will undertake to demonstrate in finding the improper aggravating dissent, this the failure to associate circumstance the have would found Hopkinson with heinous-atrocious-and- out- circumstances cruel upon characteristics attend weighed the mitigating circumstances killing giving of Jeff Green that causes the returned sentence of death. When statutory aggravating this circumstance we do not whether know the result to have the depriving effect sentenc- been weighing process would have differ- for process meaningful of a basis distin- impermissible aggravating ent had from guishing many this case others present factor not where been prescribed. where the death is not stake, man’s life is at we must return the say way, by underwriting To it another case to the trial court for a new sentenc- 4—102(h)(vii) aggra- submission of § 6— Elledge State, Fla.1977, ing trial. circumstance, absent evi- vating supporting We with the rea- agree So.2d torture, dence participated that he soning of the Florida court that: deprive the defendant of courts “ ‘ * * * because, This result is dictated right sentencing jury his to have the focus satisfy the requirements order to upon his rather than the conduct of conduct Georgia, Furman v. unknown have been killers who well 33 L.Ed.2d 346 the sole authors of Jeff torture.16 Green’s Thus, authority’s must sentencing statute as unconstitu- discretion construed is tional Godfrey “guided requiring as it and channeled was held to be in person per- upon 16. Just here it should murder Green are to be recalled of Jeff persons day son who inflicted the torture and the unknown. *54 prior physical that ar- ed to serious abuse factors specific examination of abuse imposition of sexual against death. Serious in favor of or gue [Citation.] eliminating to- physi- be found to constitute serious thus penalty, the death in capriciousness cal abuse. tal arbitrariness [Citation.] Florida, 428 Proffitt imposition.” its was not killed in- “Rosemary S. Jackson 2960, 2969, 49 242, 258, 96 S.Ct. U.S. nor was the victim of a stantaneously she ” * * * add- (Emphasis 913.’ L.Ed.2d gave appellant domestic murder. the She 171-172. ed.) 632 P.2d at no reason whatsoever to assault her and threatening. ap- was in no manner state supported by other holding This in man- attempted every fled and pellant circum- aggravating courts where supreme Godfrey v. ner to hide his crime. See question in here such as the one stances Miss Jackson was ab- Georgia, supra. considered. have been sexually prior assaulted ducted and Culberth, La., 390 In State v. So.2d was outra- Therefore the murder death. (1980), discussing applicability the vile, or inhu- wantonly or horrible geously heinous, the circumstance distinguishable in that this murder is man cruel, Court of atrocious or murders in which the ordinary from Louisiana noted: appropriate. is not penalty [Cita- support “Neither does the record case, we Under the facts of tion.] was committed finding that the offense type of the the murder was find heinous, atrocious or cruel especially in an society universally condemned civilized it was not intended Obviously, manner. inhuman, vile, as wantonly horrible or category, in this that all murders fall depravity of mind of de- it involved murder, it can be said that though even and torture to the victim as set fendant heinous, itself, and cruel is a atrocious added.) (Emphasis above.” forth concept crime. We have stated that aggravating cir- Although Georgia include necessarily of heinousness must like our exactly is not worded inflic- cumstance pitiless ‘some idea of torture or the statutory provision, my opin- it is pain corollary on the victim.’ unnecessary tion of stands for the 815], quotation ion that the above English, supra So.2d [367 discussing applicability is nec- principle a construction that in Such [La.1979]. circumstance, from attack essary protect Georgia aggravating statute and overbreadth with the defend- grounds vagueness the court was concerned guidelines for provide adequate aspects and to participation ant’s in those sentencing process. involved in the those or outra- that made it a torturous crime Florida, Proffitt v. vile, U.S. inhu- wantonly horrible or geously or 49 L.Ed.2d 913 In this case the Geor- opinion, man murder. In another the defendant did not torture or abuse following ob- Supreme Court made gia victim before her death. The wounds the. servations: kill, were inflicted to maim to not to mandated, have reviewed the sen- “As we pain.” added.) (Emphasis ’inflict case, in this and this court finds tence Godfrey and material difference between Justus Ga. 276 S.E.2d distinguish the case under review which 242, 245, 1093, 102 reh. denied Godfrey from the murder in this murder discussing 70 L.Ed.2d 633 for ‘ordinary and from other murders’ circumstance the offense appropri- the death is not wantonly was outrageously murder vile, in ate. horrible and inhuman in that torture, depravity

volved of mind and an evidence this case shows that “The aggravated battery, Georgia Supreme Godfrey, the victim was not killed unlike the following made observations: he was not a member of instantaneously; “ family, nor was he threat- appellant’s as the term is used ‘Torture’ This manner. subject- ening statute occurs when victim is blooded, cannot, therefore, execution planned was a cold be considered especial- ly type perpetrated purpose cruel murder within the intent of A.R.S. victim, who was known to robbing 13-454(E)(6). With that large have a amount of cash. “In determining whether a murder has view, purpose perpetrator severely been committed in especially heinous disrobed the victim partially beat and or depraved manner, we must necessarily *55 he his seeking kept money. to find where consider the killer’s state mind at the original opin- As was out in the pointed time of the offense. This state of mind ion, pieces’ was all to the victim ‘cut and may be shown his behavior at or near poured gasoline was over him before he time of offense. Thus we have was shot. When the appellant returned found those additional factors which from the killing, he had blood on his make especially murder heinous or de- there clothing, yard was blood praved only where the killer not shot to where the prior victim had been beaten death the victim of robbery but also being put pickup in the back of a truck one, shot two innocent bystanders, killing and taken actual execution site. all for no discernable reason. [Citation.] Thereafter, the victim’s truck with his we Knapp killing characterized body in it burned in was order hide the bystander Blazak [State v.] [114 crime. 199, Ariz. (1977)], ‘particu- 560 P.2d 54 supports finding “The evidence beyond larly unnecessary and conscienceless.’ a reasonable doubt of serious physical “We have also acts considered done im- prior abuse to death. As we [Citation.] mediately killing after the actual to de- held in original opinion, our the jury’s termine the murderer’s mental state at finding 27-2534.1(b)(7), Ann. Code the time the killing. We have found torture when subject- occurs the victim is an especially depraved heinous or manner ed to before physical serious abuse death. of commission where the defendant mur- A defendant who tortures a [Citation.] ‘barrage dered two victims in a of vio- victim subjects aggra- the victim to an lence,’ continuing to shoot abuse his vated before battery killing victim can victims after even he had killed them. be found to have a depraved mind.” [Citation.]” (Emphasis State, added.) Hardy in this case record does disclose 235, 319, 320-321, Ga. 275 S.E.2d reh. n required Hopkinson such evidence of denied 455 [102 participation in torture Green and L.Ed.2d 474] thus the criminal act for which Hop- A quote I find applicable appears responsible kinson can held murder. be Lugan, in State v. 124 Ariz. 604 P.2d “shockingly evil” Absent such attendant There, 636 (1979). in discussing the successfully “espe- acts as will insulate the aggravating circumstance that crime be heinous, aggravat- cially atrocious or cruel” heinous, especially depraved, cruel or against ing-circumstance submission Supreme "as', Arizona Court stated: vagueness con- charge impermissible “For a to be killing especially cruel, templated Hopkinson this court perpetrator senselessly supra, must and the standardless-sentenc- sadistical- ly great pain Georgia, inflict Furman v. ing concept supra, his victim. An example exceptional L.Ed.2d cruelty can be 408 U.S. found in v. Knapp Ariz. where the United States [114 562 P.2d (1977)], held that the of death not be supra, where de- fendant set fire imposed sentencing procedures room which his under daughters two punish- infant create a asleep were substantial risk that caused them be burnt arbitrary to death. We ment will be inflicted in an manner, find nothing capricious record to the trial court erred in establish the victim pain, permitting suffered and the circumstance commission of the go offense this case to the jury. rationally suggested

It cannot be that the it was not necessary for them to be able— unimpressed highly stood emo- with credible evidence —to Hop- associate tional of torture that repulsive evidence kinson with the torture. This be a would case, into in this nor logical admitted evidence conclusion because it is clear to all not, can it it did out of argued the “MURDER” could and must be vent its re- impermissible assumption, heinous, fact described as atrocious and cruel upon Hopkinson. vulsion the defendant but whether or not Hopkinson ordered this invited, sentencing In- killing form of is quite thing. another struction No. to infer that Hopkinson sure, jury demonstrably To be reacted though ordered the torture even there was instruction, the statements of counsel support no evidence to this fact. In In- discussed infra and the exhibits which visu- struction No. 10 the court defined the ally jury, described the tortúre because the meaning “heinous,”17 of the words “atro- recoil, out of its own volunteered a “Miti- cious” *56 and “cruel”19 but failed to instruct gating Circumstance” which read: that, before the jury could find that “The torture of Jeff Green not have by conduct described those definitions could by Hopkinson been ordered Mark be assigned to its consideration in contem- Yes_ No_X_”20 plating mitigating-aggravating circum- example sentencing An of standardless process stance human life or death —where procedure hardly vividly could be more fan- teeters so precipitously in the balance —such tasized than the situation which is present- conduct must be found a beyond reasonable appeal ed this where the sentencing jury doubt to be fact conduct of permitted to hear about the shockingly caveat, defendant. Absent this the jury evil being and heinous torture of a human left, standard, without instruction or in circumstances in which the evidence fails speculate upon question which asks to connect the conduct of the defendant whether having found that Hopkin- not — pitiless with the conscienceless and acts of son had ordered the murder —it even need accompany torture which the murder. The worry Hopkinson about whether was re- sponsible United States Court said in for Green’s torture. Gard- jury Florida, 349, 358, ner v. might well have reached the conclusion that 1197, 1204, since guilt it had found in the murder L.Ed.2d 393 it phase “ * * * proceeding bifurcated and since the importance is of vital to the de- submitted aggravating only circumstance community fendant and to the that any wanted jury to answer the question: be, impose decision to the death sentence heinous, Was the especially be, murder atro- and appear to based on reason rather cious or cruel? than caprice or emotion.” extremely shockingly 17. wicked or The torture of Jeff “[M]eans Green was not ordered evil.” Hopkinson. Mark say: In other words —does the statement outrageously 18. wicked and vile.” “[M]eans proposition No to the that the murder of Jeff Hopkinson, Green was not ordered Mark designed high degree to inflict a “[M]eans say or does it to, pain enjoy- with utter indifference or even jury negatively We—the to a state- —react of, suffering ment of others.” says ment which the murder of Jeff Green Hopkinson? was not ordered Mark purposes discussing particular 20. For this might quite This not be so troublesome were it proposition, placing interpreta- I am the State’s obligation jury given not the to find a upon jury expression tion this but there are present beyond circumstance to be quite things upon a few that cast doubt this 6-4-I02(e), supra a reasonable doubt. Section place, jury translation. In the first wrote presume n. 2. I that a natural concommitant of heading “Mitigating this statement under the proposition ought is that the courts to be might glossed Circumstances.” This over verdict, beyond able to tell from the a reasona- easily more were it not for the fact that the doubt, ble what it is the decided. language literally of the statement —read —and taking negative the double into account— means: Hop- associating the conduct “He will Without then testify they held his Green, out, hands kinson with the of Jeff a blunt torture instrument or bat, to hear the even foot permitted they smashed his sentencing jury was left hand. And they cigarettes then opening in his state- took attorney say State’s in one they hand burned cigarette ment: burns, in the other 37. And when that heinous, especially atro- “The murder was work, they iron, didn’t got hot perhaps case, evidence in this cious or cruel. The a welding iron or some other hot iron or in the opening, once say I’ll up, even knife heated and they started you I about the and when talk to testimo- burning up his Deep apparent arms. Stahl, show you beyond any of Dr. will ny apparent burns. Not but sure burns. is one the most doubt heinous When that wasn’t enough they then that ever occurred in the murders state of burning ears, started behind his which he guideline That is the Wyoming. that will explain will a very, very part sensitive permit you view facts this case.” end, of his body. Burnt the back attorney also said to State’s ears, inside of his and when that wasn’t statement: opening successful, burning started along the heinous, “The evidence this case on the hairline Jeff Green. And when that atrocious and cruel nature of this murder successful, they wasn’t started then * * * very pretty. nose, around his and on his they face and did they “What do to Jeff Green? Dr. burned T’s in his face for They traitor. *57 Stahl, Laramie, a forensic pathologist, up along burned his nose and across the Wyoming, does a amount of tremendous top of eyes eyelids. his and his And matters, work with the state crime lab on finally desperation, in they burned the a bit ordinary, very little out of the eye of right out of Jeff Green. head qualified impressed man. You will be Then they hit him with some of type him. He was called in to blunt instrument in autopsy do here the head and of rendered him you, long Jeff Green and he will tell and unconscious. For how it’s one They brought no knows. him to the opinion, his that was Jeff Green tortured interchange by Bridger, Fort walked him for purpose getting information him, out into the sand and shot and killed out of him. He can do that because that so would shut his mouth and so it having his other been involved in torture warning would be a to all of the other murders, qualifica- and of his because people testify who were scheduled to in tions, and also because of the tracks. He grand jury proceeding investigating murder, will that in explain you to mur- was supposed the Vehar murders that to just derers leave tracks on bodies like elk days. in start two testify leave tracks in snow. He will respectfully on “I submit behalf to opinion in his Jeff Green was tied prove Wyoming the evidence will State or out hung strung chair in some up only aggravating one circumstance rope way, the fact there’s evidenced doubt, beyond a reasonable but all five. burns where under both of his arms actu- case, if ever and And there’s been ladies ally the meat was torn in because justifies penal- gentlemen, that pain through went torture that man ty, you.” this is it. Thank get order to from him. the information He will to testify argument, that a knife held attor- closing In his State’s Jeff separate ney Green’s throat in three said:

places, and slit they made marks little aggravating “The last circumstance his throat attempt to intimidate applicable in this the State contends is They him giving into them especially information. is that hei- case murder was Now, object nous, atrocious, then held the I sharp knife or to his or cruel. when it heart and made about I’ll talk about another slice across his talk Dr. testi- you heart. once. But all saw Stahl’s manipulates testimony chases or of his Dr. Stahl question. no and there is mony hei- Perjured testimony most own. on the other it is far the has said that it doubt, said by far —he side to say nous —he didn’t raise reasonable to come heinous, situation atrocious most was the into a with a such as courtroom in. involved had ever been that he yourself utmost faith and who has the evidence gentlemen, being “Ladies human every confidence in reasonable beyond proves this case credit, not gives recognizing them equal every one each and doubt the existence among us who have there are those circumstances. aggravating these whatsoever, will go no who out scruples you, instructed And, has as the Court manipulate any and hire and buy recognize which I burden deem type testimony they necessary meeting, only for apologies make no and I that, to do But their own benefit. one cir- to prove us requires had to that, Hopkinson do know Mark in this case The evidence cumstance. investiga- told the what Jeff had Green all.” them proves so, to have tors. he had him tor- And argument, get the conclusion tured that information. Toward said about attorney this the State’s “Then, know, have him he could had you heinous, ag- atrocious cruel” “especially killed, in the No dumped body his desert. circumstance: gravating to make problem. But he had a state- last circumstance “Then the body ment tortured of Jeff with the heinous, atrocious, cru- with the dealt grand jury Green. He knew that in which this occurred. el manner murder 21st, May 1979. If going to convene like to even talk or think about I don’t really missing, Jeff Green was didn’t Dr. go through. Jeff had what Green say Hopkinson. Mark He had enough for becoming fast one of the most is Stahl people of that make a statement He works pathologists noted area. attempt to intimidate valley. He had DCI. He able to recon- put them further. He had them struct how torture administered. So, fear. he had Jeff Green marched instance, particular you recall his tes- *58 just at pullout down the en- behind that there were timony three different— had him Valley trance of the shot four different actually, modes of torture in an area that was relatively open sight They utilized. The knife. held it to his frequented body that his would be so throat, throat, splices three on his the two discovered, so it was a statement to all splices over his heart. cigarette The potential other witnesses. Don’t mess painful which is but relatively pain minor Hopkinson. around with Mark to what else he compared subjected was is, Bridg- problem people “The Then, to. And his hands and arms. decent, honorable people. er are Valley successful, when that wasn’t a hot iron of had killing stop. They had to they burned, where some sort actually enough. Hopkinson’s Even Mark friends then burned his arms and around' his face Hickey Even Mike had enough. had had literally burned they until one of the eyes enough. grand came before They head. And Dr. out of his Stahl’s testimo- the statement with Jeff jury. And torture ny is that was administered much for any was too body Green’s purpose obtaining for the information came they handle. And in and them to punishment. They don’t do that Mark Hopkin- truth. And they told the Hopkinson get away to Mark with it. Hopkinson and Mark son was indicted “What information did Mr. Hopkinson Jackson, to trial here brought was then Jennifer, want? He asked who was Jeff Hopkinson Mark And Wyoming. talking Hopkin- to? What said? Mr. reasonable doubt. beyond a convicted dealing that, son’s mode with if he facts, “Now, gone as I’ve over them finds out authorities have evi- these him he the letter from against immediately pur- you- Incidentally, dence — affidavit, just which is as good any foundation for the capability other sworn testimony, Samples of V.A. to cause the horrible torture of Green Lompoc Penitentiary, proved from place. which took The photographs of Mr. Hopkinson was there at the time of body Green’s expressive are even beyond * ** the murder of Jeff Green. testimony words of the pathol- ****** ogist who detailed for the the vari- ous brutal wounds inflicted before “He had been of the Vehar convicted being put Green’s to death. shutting murders. He was the mouth of “The testimony was that there were some Jeff Green. Jeff Green knew it. And burns body Green such as murder for hire. And if there is any by cigarette would be caused burns and heinous, other murder that was more any metal, hot thus connecting welder cruel, atrocious I don’t know of any. which could be used aas heating tool. clearly justifies This case penal- the death One of eyes out, Green’s was burned ty.”

there was an ugly burn behind one of Majority’s Handling ears, the Issue Green’s explained pathologist especially to be an sensitive area. There Having observed that all aggravating cir- were cuts on the throat and chest. There cumstances must be proved beyond a rea- body were bruises on his consistent with doubt, sonable and that “ * * * having been caused by kicking with a judge trial heeded the admo- or by striking boot awith baseball bat or opinion nition of our in the first appeal hammer. There were abrasions on statutory aggravating circum- body Green’s probably caused his be- stance unsupported by evidence should by ropes bound resulting from an not be submitted for consideration agonizing struggle during the torture. i.e., jury, 4—102(h)(iii),(iv), (viii) 6— explained “This evidence this to have 7,” fn. 664 P.2d at 57. been or pitiless beyond consciousless far (a statement with which I agree), cannot murder, Hopkinson the normal majority opinion in the ease bar then crime, supra, which of course its na- goes on to capsulize the evidence ture, possessed of some of the elements considered sufficient to warrant the submis- heinous, being atrocious and cruel. questioned sion of the aggravating circum- ‘especially’ But this one was so within the stance as follows: meaning statutory language. Any “The relating extensive evidence juror rational could reach this conclusion aggravating circumstance that the mur- beyond a reasonable doubt when viewing atrocious, especially der was heinous and light the evidence in the most favorable *59 cruel, is the convincing most nature. to prosecution." the (Emphasis added.) The evidence of against threats Green 664 P.2d 59. at others, the evidence of the character Further, the court makes this conclusory and disposition to take care statement: persons violence, weapons and explosives, standard,[21] inquiry then, his about the “Applying that availability of welding equipment, laid a aggravating circumstances,[22] three we (Emphasis added.) The standard to to referred is be found doubt. See Johnson v. Virginia, Louisiana, U.S., S.Ct., Jackson v. 99 443 U.S. at 1624- (1979), 61 L.Ed.2d 560 reh. denied 444 U.S. 1625.” 62 L.Ed.2d 126 where the aggravating says: 22. The to circumstances which the court “ majority * * * here refer are those the defendant whether, question [T]he relevant is supported by evidence; contends are not the viewing light after the evidence in the most they are: prosecution, favorable to the ANY rational purpose 1. Murder was committed for the trier of fact could have found the essential avoiding preventing a lawful arrest. beyond elements of the crime a reasonable was incarcerated at Appellant than “While supported

find them more California, he several (Emphasis Lompoc, and bracketed ma made calls evidence.” added.) Generally, P.2d at 58. Bridger Valley. terial to calls was: the location of subject of those Then, citing any without to facts rec- Green; to whom Jeff Green was Jeff ord, says: the court speaking that Green was speaking; “ * * * arranged for [H]e [defendant] Vehar mur- special prosecutors on the triggermen to do the execution and hired case; grand jury investigat- der * * * utiiized.” intended that torture convene; case about to ing the Vehar was (Emphasis added.) 664 P.2d at 58. going to be witness. that Green call, Appellant spoke Ran- On one such The majority go on to observe: to know dy Appellant wanted Reinholtz. “The evidence fully supported these ag- any dynamite whether had boxes Green gravating factors.” P.2d at had any Reinholtz’ father and whether * ** others, to, among especially (referring welding equipment. heinous, cruel cir- aggravating atrocious or thereafter, body was “Shortly Green’s cumstances). have which could been found with burns And, finally: iron, a type of a hot coat caused ‘some are “All circumstances meas- iron, knife, soldering a heated hanger, a * * * sufficiency evidence ured as to the Later, object as that.’ some such according to doubt beyond reasonable being were described as consist- burns Virginia, standard set Jackson with ‘a blow torch used to heat ent [a] * * * ** * * supra, knife whether, question is L.Ed.2d 560. extensively con- “Doctor testified Stahl light viewing after the evidence in cerning how the torture opinion his to the prosecution, most favorable of the torture. was inflicted and order found the rational trier of fact could have torture of this His conclusion beyond a reasonable essential elements punish perhaps ‘to sort utilized that, stan- doubt. We hold within this * * * extract information.’ dard, that all there is no reasonable doubt opinion “From facts and the of Dr. these five of the circumstances Stahl, in the is substantial evidence there proven.” were 664 P.2d at 86. Ap- support conclusion record to majority opinion Not does the the torture of Green in pellant did order testimony facts of record point other what had told the order discover Green “espe- support giving that would what he would be special prosecutors, and cially heinous, instruc- atrocious or cruel” grand concerning able to tell tion, Wyoming but the appellee State Vehar Appellant’s role murders. any supportive unable to evidence ei- find “Therefore, Appellant’s suggestion that ther. regarding Ap- presented no evidence was following represen- The State makes knowledge intent is without pellant’s in its tation brief: merit.” mitigating “The listed as a circum- opinion, prosecuting my considered stance, in addition to those listed *60 are attorney, and this court not the State statute, may ‘The torture of Jeff Green which point evidence would able Hopkin- Mark not have been ordered Hopkinson that or- support the conclusion son,’ but that this circumstance found -death of Green. dered torture * * * evidence was not The present. which the The evidence the record only includes the finding supports majority this court can following. State heinous, especially pecuniary was murder atro- 2. The was committed for murder gain. cious or cruel. arguably point supporting to as the submis- burned and tortured. A reading of the 6-4-102(h)(vii), testimony testimony sion of is the conclusively proves above § that welding concerning equipment. just possible, such an inference is Jeff argues evidence that all most of not lawful. All Reinholtz said welding aby have been burned may Green was that him asked about a weld- talked to Hopkinson rod and that Mark er —the inferences that can be drawn from welding equipment, Randy Reinholtz about inquiry an such are many. The doctor enough to infer circumstan- jury stated conclusively that Jeff Green was tially Hopkinson ordered the torture. burned, but with what he did not know. my opinion, In it is to assert inconceivable this, jury From could in- only properly that such evidence was sufficient. fer that Jeff Green was burned some- thing cigarette. my other than a opin- Exactly what was the evidence? di-On ion, the jury State asks the and this court to examination, rect Randy Reinholtz testi- cross the a canyon bridge. without Absent fied: nothing some other proof, substantial can “Q. Did he you anything ever ask about be inferred from the respect evidence with welding equipment? to Mark Hopkinson’s participation in the Well, my “A. he asked me if father had torture of Jeff Green. a welder and I told yes him and that was the end of the conversation. Summary and Conclusion

“Q. you Did he ask where the welder kept anything of that nature? Assuming that the record reveals no law- No, “A. sir. evidentiary Hopkin- ful connection between “Q. you get Did he ask it for him or son against and the acts of torture Jeff anything like that? conceding, must, Green and as we that the I just yes language especially “A. No. told him and that “the murder was hei- nous, contemplates was the end of it. atrocious or cruel” it the evidence must show that is the de- “Q. would he ask for a weld- Why you participated fendant who in such death- ing set? dealing activity as—in be de- “A. I don’t know.” law — heinous, scribed “especially atrocious Stahl, expert, Dr. the medical testified: State, (Hopkinson supra), cruel” v. it fol- Doctor, “Q. Moriarity) Mr. those are (By given lows that unauthor- of burn than the degree more severe ized, ag- highly nonstatutory inflammable earlier; cigarette you depicted burns gravating ponder circumstance to that correct? life-or-death mitigating-aggravating bal- “A. Yes. ancing process. impermissible by This is “Q. opinion they Do have an what you statute, 6~4-102(h) (i.e., “Aggravating were inflicted with? are circumstances limited to the follow- type. “A. A hot iron of some It could State, Hopkinson law. v. ing:”) hanger; it have been heated coat could supra; Elledge supra; Henry knife; been a have have heated could Cir.1981); Wainright, (5th F.2d Ste- been a iron. soldering impossible It's Zant, phens supra. The trial court’s in- say exactly many because there were so nonstatutory aggravating sertion of this they're smudged together burns process balancing into the circumstance imprint body.” the exact is not left on the mitigating where circum- added.) (Emphasis weighed by delicately stances were to so alone, On a decision testimony sentencing jury the basis of this order that infer, Hopkinson State submits that could could be reached about whether doubt, Hop- beyond reasonable that Mark would live or die must indeed be considered supplied welding prejudicial. kinson I reach this conclusion because killers *61 opinion aggra- be the equipment majority so that Jeff Green could the considers constitutionally to have not the statute has been or vating question circumstance v. the record Godfrey Georgia, supra, submitted since In the properly applied. been support it. to sufficient evidence contained that a Supreme United States Court held majority say: which cir- aggravating statute embraced relating “The to extensive evidence describing cumstance the as “outra- offense that the the circumstance aggravating vile, or or inhu- geously wantonly horrible atrocious, heinous especially murder man” violative the defendant’s convincing cruel, the na- and is of most Eighth rights under the and Fourteenth ture.” 664 P.2d at 59. construed, though Amendments as even not, however, point do evi- majority to be previously same statute had been held “heinous, atro- dence which associates the facially and constitutional constitutional or cruel” characterization mur- cious Georgia previous Gregg v. construed in its surpris- der with defendant. This is opinion. there are facts of record ing because no that the tor There is no doubt whatever evidentiary which such an asso- permit will may Jeff ture-murder Green —and and Hopkinson ciation between defendant should, as “es by all accounts —be described murder. Cir- aspects the torture Green’s cruel,” God heinous, atrocious or pecially Hopkinson or- cumstantial evidence that frey Georgia, supra. v. Even so—the law. That he ordered killing? dered the —Yes. mur that, type in order for this requires Green tortured? —No. the submission of der warrant We concerned here with whether are not n. 6-4-102(h)(vii), supra aggravating § authorizing “especially hei- statute for death-penalty circumstance to nous, or cruel” cir- atrocious contain deciding purposes, the record must is not constitution- facially cumstance is or a reason beyond evidence which establishes Florida, supra; Gregg v. Proffitt It is. al. was the v. doubt24 that defendant Georgia, supra; Hopkinson able su- or, way, participated in this is in a material pra.23 appeal The issue whether author where the court said: rior Court of Santa Clara 797, § not the judicial pears clarify which discourse between precision of the gested prosecutor special mine While less must tion “It ment, cision or as a “None of these “ ** 6-4-102(h)(vii) properly seems Hopkinson, that hurdle were capricious what constitutes rule California. See agree to be futile. * either as elements of special it impose Cal.Rptr. render pitiless’ circumstance charged special xhe construction could narrow unlikely, does not made channel the that the statute meaning circumstance on the the death be certainty required of —terms People. persons terms is supra, reasons.” 632 P.2d at 153. clear, facially n Furthermore, grant [§ 6-4-102] crime meets the ‘necessary’ overcome, rule in several circumstance. jury’s sentencing For trial eligible penalty n it unfettered discre- ‘unnecessary’ P.2d constitutional, County, majority was ‘conscience- attempt proved, one People court and the Wyoming charged n reasons, does not fail standards of even assum- for for thing, to find torture —to add basis 31 Cal.3d said: arbitrary to deter- statutes ^[*] punish- scope crime Supe- — as a sug- that ap- de- is 24. Section where the § ing jury.” absence of ble doubt before which the such, they crimes—when Stat. in vain meaning, guilt truth of the men of “The guage 6-4-102(e) was fashioned—said: conscience or turous it could be. is or “The existence of such vagueness problem. upon 921.141(6), necessarily pitiless or, §§ conclusion Dixon, supra assumes common its statute —after for Florida in this 782.04(1) 6-4-102(e), supra subdivision and trial must first a standard special mitigating F.S.A., actually pity. torturous, read in case, be the existence of conduct being intelligence degree judges circumstances of Fla.Stat. proved beyond inescapable circumstance.” murder We for determination of the (a)(14) n. As considered conjunction 794.01(1), for murder circumstances. cannot fathom so a conscienceless Court, ‘unnecessarily’ ascertainment applicable must n. 2. See is so performed jurors define those assumes the in comment- So.2d at by judge Wyoming’s guess vague F.S.A.—to a reasona- will look the lan- at its what also: with that Fla. tor- As

HI heinous, m the atrocious cruel and features tures pity without affirmatively and —who killing. additionally displays a lack of base human of morality killing method is a Thus we —whose have held —as have the United the shock to conscience of all who would Supreme States Court and the Su- hear of it? If the evidence indicates that preme legislation Court after whose our the killer-defendant falls within the latter statute was “especially fashioned —that the category heinous, “especially atrocious heinous, aspects atrocious or cruel” the of —the or cruel” aggravating circumstance be crime must in fact shown to be acts be the injected into sentencing process. the If it of the defendant and acts be those must falls classification, into the former it may as may categorized such be as a special, not, because then the effect unusual would be to type and atrocious of so murder apply the the statute a way statute will not con- which would therefore be “impermissible sidered “impermissible vague,” vague” and and and Hopkin- thus viola- son v. supra. Eighth It follows that not all tive of the defendant’s and Four- of acts murder will fit the hei- teenth “especially rights Amendments as described by nous, description. atrocious or cruel” Con- Constitution, the Federal as well as his cor- cerning aggravating same circum- ollary Wyoming constitutional rights. God- stance, Supreme the Court of said Florida frey Georgia, supra. v. Fla., Dixon, (1973): in State So.2d “ * * * What is intended to be included THE CERTAIN RESUBMISSION OF AG- capital are those crimes where the actual GRAVATING CIRCUMSTANCES capital commission of felony the ac- AMOUNTS TO DOUBLE JEOPARDY companied by such additional acts as to Appellant also claims that error occurred apart set crime from norm of of reason resubmission two statu- capital pit- felonies —the conscienceless or tory aggravating during circumstances iless crime which is unnecessarily tortu- second sentencing trial which jury rous to the victim.” penalty the first trial found be inap- had words, In other this aggravating circum- plicable to the Green murder.

stance jury insists that what consider sentencing In the aspect trial, sort of the first mentality presided it is that over the State jury acts with which the cir- submitted to the a total aggravating question eight cumstance in aggravating Was circumstances which associated. person sought prosecution this a who urged applicable out and killed his were to the victim absent death of Jeff In returning introduction attendant Green. the ver- pain death, emotional or physical suffering25 dict of found that four of —or—is the defendant not a killer but these circumstances were ap- a person also who depraved tor- plicable to the murder of Green.26 How- —who “ Godfrey Georgia, supra, ( ) 25. As in per- where the ‘1. The murder was committed giving imprisonment. United son States Court held the under sentence “ ‘( ) Applicable a similar the death of Vincent circumstance Ve- renders har. vague statute and overbroad thus violative “ ‘( ) Applicable Beverly to the death of Ve- rights Eighth of the defendant’s under the har. Fourteenth Amendments to the United States “ ‘( ) Applicable to the death of John Vehar. “ ‘(x) Applicable to the death of Jeff Green. Constitution. “ ( ) previously ‘2. The Defendant was con- Hopkinson State, supra, 632 P.2d at degree victed of another murder in the first or a 167-168, at the first triál felony involving the use or threat of violence to found: person. “ “ ‘We, jury, duly empaneled sworn ‘( ) Applicable to the death Vincent Ve- try the above cause do find the existence of har. “ following aggravating circumstances ‘( ) Applicable Beverly Ve- time of [Emphasis the murders: added.] har. “ (Check many spaces *( ) Applicable Items [in] to the death of John Vehar. “ through you find, only.) ‘(x) Applicable 8 as or check Item 9 to the death of Jeff Green. *63 to the ever, to circum- cable death of Jeff Green respect aggravating even the though jury rejected earlier had them. that the stances which provided 5 and of purpose the murder was committed for Hopkinson argues the resubmission arrest and avoiding a lawful preventing or these two statutory aggravating of circum- stances was error for the the pecuniary for reason the murder was committed rejection of their the first applicability by aggra- these the found that gain, first sentencing constituted of acquittal an applicable were not to vating circumstances and the was for- those circumstances Jeff Green. the murder of proving again by from them precluded ever death sen- After reversal of the first our proscriptions against jeopardy the double trial, for a tence and remand new Wyo- contained in the United States and five the State chose to submit statuto- agree. I ming Constitutions. circumstances. rily aggravating mandated against jeopardy double proscriptions The were the Included within those submitted to Fifth Amendment are embodied in the the murder aggravating circumstances that Art. United the States Constitution pur- Jeff was for the of committed Green Constitution, supra n. Wyoming 11 of the § a pose avoiding preventing of or lawful right The these consti- guaranteed 6.28 (§ 4-102(h)(v)), arrest and that the mur- 6— provisions guarantees that no indi- tutional gain was for pecuniary der committed than jeopardy vidual shall more put resubmission, (§ 6-4-102(h)(vi)). On the same offense. question the to once for two sentencing jury second found these cir- the af- protections be decided whether others,27 jeopardy of cumstances, appli- concept to be the double as well forded “ “ ) ( ) ‘( Applicable knowingly to the death of Jeff Green. ‘3. The Defendant created a “ great persons. heinous, ( ) especially death to more risk of two or was ‘7. The murder “ ‘(x) Applicable to the death of Vincent Ve- or atrocious cruel. “ har. ‘(x) Applicable Ve- to the death of Vincent “ Beverly Applicable to the death of Ve- ‘00 har. “ har. ‘(x) Beverly Applicable Ve- to the death of “ Applicable to the death of John Vehar. ‘00 har. “ “ ‘( ) Applicable to the of Jeff Green. death ‘(x) Applicable the death Vehar. to of John “ ( ) “ ‘4. murder was while committed the ‘(x) Applicable to the death of Jeff Green. engaged accomplice or an “ Defendant was was officer, ( ) judicial a for- ‘8. The murder of attempt in the commission of or an to commit officer, county judicial attorney, mer or former flight committing attempt or after or to commit county attorney during exer- or because of the assault, arson, any robbery, rape, bur- sexual duty. cise of his official glary, kidnapping piracy the or aircraft or un- “ ‘( ) Applicable Ve- to the death of Vincent throwing, placing, discharging lawful a har. destructive device or bomb. “ ) Beverly “ ‘( Applicable Ve- to the death of ‘(x) Applicable to the of Vincent Ve- death har. har. “ “ ) Applicable ‘( the death John Vehar. to ‘(x) Beverly Applicable the to death of Ve- “ )‘( Applicable to the death of Jeff Green. har. “ “ ( ) ‘9. No circumstances.” ‘(x) Applicable the of John Vehar. to death “ ‘(x) Applicable the of Jeff Green. to death “ sentencing jury concluded 27. The second also ( ) ‘5. was for the The murder committed person the was committed murder purpose avoiding preventing a lawful ar- imprisonment (§ 6-4- under sentence of custody. effecting escape rest of from [or] “ 102(h)(i)); previously con- ‘( ) was the defendant Applicable of Vincent Ve- death degree murder first har. victed another “ Beverly ‘( ) especially (§ 6-4-102(h)(ii)); Applicable Ve- murder death heinous, (§ 6-4-102(h)(vii)). har. atrocious or cruel “ '( ) Applicable of John Vehar. death “ ‘( ) Applicable of Jeff Green. to the death noted, double-jeopardy previously 28. As “ pecu- ( ) ‘6. for The murder committed ap- Amendment was made clause plicable the Fifth niary gain. through Fourteenth states “ ‘( ) Applicable of Vincent Ve- death Maryland, Benton Amendment. See: har. L.Ed.2d “ Beverly ‘( ) Applicable Ve- har. “ '( ) Applicable to the John Vehar. death of

H3 protections. are applicable circumstances. present protects It prosecu second question To is: tion for rephrase inquiry, the same acquittal. offense after It protects Can each set out against circumstance prosecution second for 6-4-102(h) be an offense same after considered offense conviction. And protects for purposes jeopardy? against I am of multiple punish double ments against (Footnotes dou- same opinion proscriptions offense.” omitted.) ble this case jeopardy apply to U.S. at *64 S.Ct. 2076. the cir- resubmission of two provided 6-4-102(h)(v)

cumstances for Both Pearce and DiFrancesco concerned (vi) appellant’s rights guar- violated as themselves questions with of the double- anteed the double-jeopardy clauses. jeopardy implications surrounding the sen- tencing of criminal defendants. Principles Basic Pearce, In supra, North Carolina v. the Recently, in United States v. DiFrances Supreme United States Court was faced co, 117, 127-128, 426, 432, 449 U.S. 101 S.Ct. with a challenge by a defendant 66 L.Ed.2d 328 the Supreme Court of imposition longer of a upon sentence recon- the United out underlying States set the viction which petition- came as a result of concepts of the double-jeopardy clause: er’s efforts to have his earlier conviction set general design “—The of the Double The question aside. the confronting Court Jeopardy Clause of the Fifth Amendment was whether or not imposition the is that described in Green v. United greater sentence violated the double-jeopar- States: dy claim, rejecting petitioner’s clause. In “ ‘The prohibition constitutional princi- then Justice Stewart noted several against “double de- jeopardy” was ples regarding double-jeopardy the clause signed protect to an individual from sentencing: and criminal-defendant being subjected to the hazards of trial “Long-established constitutional doctrine possible conviction more than once that, beyond requirement makes clear the an alleged offense.... The under- discussed, guarantee already against idea, lying one is deeply ingrained double jeopardy imposes no restrictions in at the Anglo-American least system upon length imposed of a sentence of jurisprudence, is the State with 1896, upon reconviction. least At since all its power resources and should not Ball, 662, when United v. 163 States U.S. be to repeated attempts allowed make 300, 1192, decided, 41 L.Ed. 16 S.Ct. an to convict alleged individual for an it has been settled that this constitutional offense, thereby him subjecting to em- guarantee imposes no limitations whatev- barrassment, expense and ordeal and er upon power retry a defendant compelling him to live in a continuing getting who has succeeded in his first anxiety state of insecurity, as well principle ‘The conviction set aside. enhancing the possibility that even preclude does not provision though innocent he be may found a retrying Government’s defendant guilty.’ [184], 355 at U.S. 187-188 [78 whose conviction is set aside because of 221, 223, S.Ct. at 2 L.Ed.2d 199].” proceedings leading error In DiFrancesco the Court reiterated what it part is a well-established conviction regarding said earlier af- protections jurisprudence.’ our constitutional United double-jeopardy forded clause 463, 465, Tateo, States U.S. 711, Pearce, North Carolina 395 U.S. 1587, 1589, 448, 12 L.Ed.2d 450. And at 2072, 23 L.Ed.2d 656 1919, least when Stroud v. United since Pearce, observation was following States, 50, 40 S.Ct. U.S. L.Ed. made: decided, it been has settled “ * * * guarantee retry That has been said to corollary power a de- consist of three separate power, upon constitutional fendant is the the defend- appeal imposed reconviction, right whatever sentence impose

ant’s authorized, dangerous special- legally court under the sentence district than greater Organized not provisions whether or Crime offender the first convic- imposed sentence after Act of 3576. 449 18 U.S.C. § Control ‘That a conviction is tion. defendant’s 117, 101 426, 66 L.Ed.2d 328. at S.Ct. at U.S. than di- on collateral rather overturned right granted government The statute pur- for these rect attack irrelevant court and vested the circuit appeal States, see Robinson v. United poses, imposed the sentence power increase 396, 397, Cir., F.2d aff’d on an- Circuit the district court. Second ground, 324 other the statute Appeals had found Court of Tateo, 89 L.Ed. 944.’ States United unconstitutional, and the S.Ct., 466, 84 supra, 377 U.S. at whether certiorari granted to determine 12 L.Ed.2d pro appeal provision violated for this ‘well-es- “Although rationale jeopardy. scriptions against double *65 juris- part of constitutional tablished our holding government’s that statuto- In the verbalized, variously has prudence’ been violative of dou- right appeal of was not ry ultimately premise the that upon it rests the the ration- jeopardy, Court extended ble has, original at the defend- the conviction underlying previous decision in ale the behest, wholly been nullified and ant’s Pearce, supra. Basically, Carolina v. North to whatever wiped the slate clean. As opinion, by Justice majority the authored has punishment actually been suffered Blackmun, spoke proposition to the that conviction, is, premise the first that under of historically logically imposition and the a course, fiction, an as we unmitigated of given the finality sentence has never been recognized opinion. have in Part I of this acquit- of judgment which is afforded to a But, goes, as itself so far the conviction of evolving guilt phase from crimi- tal the that of that has not part and the sentence 132-136, at proceedings. nal 449 U.S. served, been no more than a yet it is telling 434-37. thrust of the at The S.Ct. say that simple statement of fact to the the of the opinion sentencing is that nature The wiped slate has been clean. convic- is different the nature the phase from aside, unexpired tion has been set and the against double guilt phase proscriptions will portion original of the sentence never are not offended fur- jeopardy generally may be served. A new trial result seek to assess a proceedings ther But if result in a acquittal. it does con- reasoned proper sentence. The Court viction, we the constitu- say cannot follows: double guarantee against jeopardy tional imposition the weight of its own restricts “D. The double considerations jeopardy single punishment of an otherwise lawful reprosecution acquittal after an that bar for the offense To hold question. a sentence. We prohibit do not review of upon cast doubt contrary would be to design of have noted above the basic principle whole the basic validity is, as jeopardy provision, double Bail, enunciated in United su- States convict, against repeated attempts bar pra, upon the unbroken line of deci- consequent subjection with defend- principle sions that have followed that for embarrassment, expense, anxiety, ant to years. almost 75 We think those deci- possibility that he insecurity, and the sound, we entirely sions are decline though even inno- may guilty be found from reflect.” depart concept they considerations, however, These cent. (Footnotes omitted.) at 719- 395 U.S. significant application no have 721, 89 at 2077-79. right statutorily granted prosecution’s appeal This limited review a sentence. challenge sentencing Another founded approximate does not involve a retrial double-jeopardy on principles mounted the basic issue DiFrancesco, the ordeal of trial on supra. in United States 8576, had invoked or innocence. Under government guilt § this case its is is taken appeal promptly (1979); Jones, to be United States v. 540 F.2d (CA10 1976), denied, on record of sentenc- essentially cert. 429 U.S. defendant, course, is court. 51 L.Ed.2d [97 551] knowledge charged statute (1977); States, Dunn United 182 U.S. ex- appeal provisions, and its and has no App.D.C. 561 F.2d 259 While pectation of finality his sentence until these do criminal sanctions not involve appeal is concluded or the time to sentence, the increase a final and while sure, has appeal expired. ap- To be is defendant aware the original peal may prolong period of any anxi- sentencing imprisonment term of exist, but it so ety may does imposed, later the situation be period provided by finite statute. fore us is different no critical respect. appeal is no more of an ordeal than Respondent was similarly aware that a appeal Government under 18 U.S.C. dangerous special offender sentence is 3731 from the dismissal an indict- subject to on appeal. legiti increase His ment or information. The defendant’s expectations mate are his not defeated if primary anxiety concern and obviously sentence is increased on appeal any more relate determination innocence expectations than are the of the defend or guilt, already and that is behind him. placed parole ant who is or probation subject The defendant to no risk that is later revoked. being convicted, harassed and then al- highlights “All this be- distinction Furthermore, though innocent. a sen- acquittals tween and sentences. North tence characteristically determined *66 Carolina v. Pearce and Bozza v. United part information, large on the basis of 160, 645, States U.S. 67 S.Ct. 91 [330 as the presentence such report, developed (1947)] L.Ed. 818 demonstrate the outside the courtroom. It is a purely Jeopardy Double Clause does not require judicial determination, and much that a given sentence be a degree into it goes inquiry is the result of is finality that prevents its later increase.” nonadversary in nature. added.) 136-137, (Emphasis 449 U.S. at Jeopardy “E. Double Clause does 101 at S.Ct. provide right the defendant with the principles These cases announce basic specific at any know moment in time say protections which that the afforded the punishment what exact limit of his double-jeopardy applica- the clause are not will be. Congress turn out to has estab sentencing aspect ble to the of criminal many lished types criminal sanctions proceedings. This rule the ascends from under which the defendant unaware acknowledged concept an recognizes precise the extent of his punishment for historical and obvious difference between time, significant periods of or even for resulting acquittals from a trial in which life, these yet sanctions have not been guilt question the or innocence at considered to be violative the Clause. issue, as compared the issues which con- Thus, jeopardy there is no double protec front the court when the has defendant against tion revocation probation upon charges been convicted the that have See, imposition the of imprisonment. lodged been against him. States, e.g., Thomas v. United 327 F.2d denied, (CA10), 795 cert. 377 U.S. 1000 [84 Sentencing Jeopardy Capital Double 1936, (1964). 12 S.Ct. L.Ed.2d 1051] DiFrancesco, glar- the are After decision a proba There other situations where parole ing question asked tion or remained which whether revoked and sen See, the imposed. supporting tence of rationale DiFrancesco and imprisonment other e.g., Kuck, rejecting double-jeopardy United v. 573 cases sen- States F.2d 25 (CA10 Walden, 1978); tencing v. applicable United States claims were death- 966, denied, (CA3 1978), 578 F.2d penalty sentencing hearings 972 cert. mandated Furman, Proffitt, 444 849 Gregg, U.S. S.Ct. 62 L.Ed.2d supra, supra, [100 64] 116 DiFrancesco, v. also United States See the United Court of supra. Supreme 133-38, 435-438; at 449 U.S. at S.Ct. question portion of the answered States 23- Stynchcombe, U.S. Chaffin v. Mis- Bullington the decision in 1981 with 1977, 1981-1982, 36 L.Ed.2d 93 S.Ct. 430, 101 souri, 451 S.Ct. U.S. States, (1973); United Stroud L.Ed.2d 270 (1919).” 64 L.Ed. 103 Missouri, supra, Bullington v. In at 1857. or not whether to answer was asked Court previous reluctance suggesting double-jeop- After afforded protections con- double-jeopardy apply a defend- of the Court to violated where were

ardy clause sentencing, major- realm of imprison- cepts to life ant, sentenced previously Bulling- characterize case, went on to ity opinion in a obtained capital ment in a different manner. attempted ton’s case in which state new trial The Missouri penalty again. impo- seek the death that resulted procedure “The that double- determined Supreme imprison- Court life sentence of sition of the im- preclude did not jeopardy principles at his Bullington upon petitioner ment at retrial. penalty of the death position however, significantly trial, differs first granted Court The United States employed from those double-jeopardy and held that the Jeopardy certiorari where the Double cases Court’s reimposition clause barred sen- inapplicable held has been Clause trial. petitioner’s new was not jury in this case tencing. The discretion to select unbounded given question, majority analyzing a wide from punishment appropriate position its revisited historical Rather, a by statute. range authorized when it said: and was hearing required separate Double “It established that is well both a held, presented the retrial of a Clause forbids Jeopardy two alternatives and stan- choice between acquitted defendant who has been making of that choice. guide dards v. DiFran charged. crime United States simply recom- prosecution Nor did 117, 129, cesco, 449 U.S. an appropriate what it felt to be mend (1980); Burks 66 L.Ed.2d *67 the burden of It undertook punishment. States, 1, 16, 98 S.Ct. United U.S. a rea- beyond certain .facts establishing 2141, 2149, (1978); United 57 L.Ed.2d to obtain the quest in its sonable doubt Co., 430 Supply v. Martin Linen States verdicts. of the two alternative harsher 1354, 564, 571, 1349, 97 S.Ct. U.S. and, hearing resembled presentence The (1977); Fong v. L.Ed.2d Foo United respects was like indeed, in all relevant 141, 671, States, 369 U.S. 82 S.Ct. trial on the immediately preceding the (1962); 7 L.Ed.2d Green v. Unit It was itself or innocence. guilt issue of States, 221, 2 ed 355 U.S. 78 S.Ct. so punishment the issue of a trial on Court, however, (1957). This L.Ed.2d 199 statutes. by the Missouri defined precisely attempts prin has to extend that resisted contrast, sentencing procedures the “In sentencing. imposition to The of a ciple previous cases Court’s considered not particular usually regard sentence is the trial on have the hallmarks of did not ‘acquittal’ ed an more severe ” * * * (Footnote or innocence. guilt imposed. that could have been sentence added.) 101 emphasis omitted concluded, generally The has there Court at fore, Jeopardy that the Double Clause for us to note is that important point prohibition against no absolute The imposes sentencing procedures death-penalty the of a harsher sentence at the imposition legislature were the Missouri a defendant has succeeded in mandated retrial after trial guilt determination original conviction set aside. more akin to having his sentencing a normal Pearce, they were to North 395 U.S. than See Carolina burden prosecution’s the (1969). hearing 23 L.Ed.2d 656 because 89 S.Ct.

H7 prove beyond was to its ease a reasonable the ‘anxiety and insecurity’ faced aby to imposition doubt order warrant penalty phase defendant at the of a Mis sentencing death penalty. the normal capital souri surely murder trial are at phase prosecution’s the only burden was to equivalent least to that faced any de make a appropri- recommendation as to an the guilt phase fendant at aof criminal ate sentence. trial. The ‘unacceptably risk high procedural These differences were [prosecution], the superior with its re enough reject the Court to “clean sources, defendant,’ would wear down a approach urged by slate” of Mis- State id., 129, 101 S.Ct., at at thereby lead Rather, souri. 101 at 1860-1861. to an imposed erroneously death sen requiring Court concluded that state tence, would exist if were to State provide proof applicability of stat- have a further opportunity to convince utory aggravating beyond circumstances impose the ultimate punishment. doubt, reasonable Missouri had chosen to Missouri’s use of the reasonable doubt require death-penalty sentencing jury capital standard indicates that in a sen “to prosecution determine whether the has tencing proceeding, it is the ” ‘proved its case.’ 101 S.Ct. at 1861. Giv- defendant, that should bear ‘almost this, en the Court characterized the first the entire risk of Addington error.’ sentencing jury’s rejection of death pen- Texas, [418], at 99 S.Ct. alty petitioner’s finding case as a [1804], at 1808 L.Ed.2d Given [60 323]. prosecution prove failed to its case be- considerations, these our today decision yond doubt, or, words, a reasonable in other depend upon does not at all the State’s an “acquittal” of the penalty. death announced intention to rely upon the following conclusions were set out: same circumstances it “A verdict of acquittal the issue of sought prove at petitioner’s first trial guilt is, course, or innocence absolutely upon its statement it would intro final. The values prin- that underlie this duce no new evidence in support of its ciple, stated for Justice that petitioner contention deserves the Black, are equally when a applicable penalty. Having received ‘one fair rejected has claim that State’s opportunity proof offer whatever defendant deserves to die: assemble,’ States, could Burks v. United “ idea, ‘The underlying one that is [1], [2141], 437 U.S. at at 98 S.Ct. deeply ingrained in least Anglo- 1], L.Ed.2d State not entitled [57 system American of jurisprudence, (Emphasis added.) another.’’ with all its resources and at 1861-1862. power should not be allowed make Missouri, Bullington decision repeated attempts to convict indi *68 supra, clearly proposition stands for the offense, vidual an alleged thereby that, upon finding by jury a a the subjecting embarrassment, him to ex imposed penalty death should not be in a pense and ordeal compelling him to case, protections capital by live in a afforded the continuing state of- anxiety insecurity, double-jeopardy preclude clause enhancing as well as State possibility though on a retrial from to seeking impose even innocent further may he guilty.’ words, found Green v. death as a sentence. other In once States, 184, 187-188, United reason, rejected, has jury for whatever 221, 223-224, 2 L.Ed.2d 199 imposition penalty, of the death defend- DiFrancesco, ant “acquitted” “See also is deemed have been United States U.S., S.Ct., question at 437. The cannot be retried on the of life or ‘embarrassment, expense and ordeal’ and death.29 course, Bullington

29. Of the decision in observation is not crucial to the decision since grounded procedures statutory required procedures closely Wyoming’s on the those model by legislature; however, jurisdictions. the Missouri such an of other those before it can yond answer- a reasonable doubt is, however, a not question There penalty puts upon the impose the death is of Bullington ed the decision in much the same kind jury capital in a case question, case. That present concern in the determining it has in a defend- duty noted, or not whether previously as I asks in requirements, The three guilt. ant’s precluded the clause double-jeopardy function, are like the jury’s terms of the aggravat- certain resubmitting from State offense all given elements of a criminal sentencing at the second ing circumstances be- jury of which the must find to exist cir- trial where those self-same doubt before it can yond a reasonable not to have had been found cumstances This makes our guilty return a verdict. first which had by the proven been more like a capital sentencing process I am of penalty. the death imposed like an ordi- guilt determination of than that, although left undecided opinion sentencing decision of nary discretionary inescapable conclusion Bullington, judge a trial such as that dealt with Bullington requires a reasoning that the look, therefore, DiFrancesco. We more rights against dou- finding appellant’s principles dealing jeopardy double the resubmis- jeopardy ble were violated convictions, many with criminal of which circumstances. sion of several DiFrancesco, were alluded to than of DiFrancesco itself. In oth- holding From Jurisdictions Authority Other Jeopardy the Double er words we believe though myriad death-penalty Even on the places some limitations Clause been handed down decisions have capital sentencing hearing in a new state jurisdictions, in other follow- highest courts error committed legal ordered because of few very the Furman decision of which a hearing from defendant double-jeopar- with the grips have come to appeals.” 275 at 482. successfully S.E.2d dy posed by appellant issue this case.’ setting After out this distinction —the same detailed thorough analysis The most important that is so to the deci- distinction from the question reported is that Bullington sion in North Carolina Su- —the North Carolina State protections that the preme Court concluded Silhan, supra, 275 S.E.2d double-jeopardy clause afforded under the Silhan, the North Carolina on the placed a number of limitations sought identify what can Supreme Court death power retry penalty state’s to a second and what cannot be resubmitted appeal. successful following the defendant’s when the first sentencing on remand opinion says: The im- has returned a verdict sentencing jury “Applying Jeopardy the Double Clause first posing penalty. opinion the death discussed, just we derive jurisprudence points proce- out that under North Carolina following principles applicable to our dures, prereq- as is Wyoming, the case sentencing procedure: The Double capital imposing the any jury uisite to decision Jeopardy is a limitation Clause prove the is that the State defendant’s, state’s, power pro- not the existence or of the selected applicability imposed fol- ceed. If a life sentence is beyond a rea- aggravating circumstances crime, capital for a lowing conviction sonable doubt. 275 at 482. S.E.2d may a new appeal state nor capital-sentencing procedure was also char- hearing be ordered on defend- sentencing to de- acterized in the same fashion used conviction even if the appeal ant’s of his *69 Bullington procedures scribe the Missouri was the result of trial error life sentence Missouri, supra death-penalty v. the to defendant. This would be favorable —that sentencing guilt-determi- trial is more like a having been tantamount to defendant’s sentencing than the normal phase nation penalty. upon the death If acquitted of hearing: appeal of a death sentence defendant’s “ * * * for a new sentenc- three case is remanded jury That the must find the prohibitions hearing, jeopardy double

specific ing must find them be- things and preclude remand, would not the 3. relying state from On the may rely State on any any aggravating on circumstance of aggravating circumstance submitted jury to the applica- which it offered sufficient evidence at the and determined to be ble appealed by jury from the is hearing and which for which there suffi- or, evidence; cient jury either not then submitted to the submitted, if the found it to jury then remand, 4. On may rely State not on jeopardy exist. The a double dictates aggravating circumstance [of] determined relying on preclude would the state from be supported to not by sufficient evi- dence; of which it aggravating circumstance evidence at the hear- offered insufficient remand, 5. On rely State on appealed from. This would tanta- any aggravating circumstance previously having mount to state’s offered insuf- it, submitted to the jury, by considered ficient evidence of an essential element of jury which the as being failed find state, a criminal offense which case the applicable. because of double jeopardy considera- agree I every each and restriction tions, retry could not even defendant Silhan, supra, because, set out in State as if it had sufficient evidence which could concluded, the court they by are mandated at be offered a new trial. Similarly of jeopardy. dictates double prohibition against jeopardy double Restriction No. 5 above is the one which preclude relying, would the state from at applicable is to appellant’s case. That re- sentencing hearing, any aggra- a new on says striction it was error for the State vating circumstance the existence of rely aggravating on the two circumstanc- which the jury hearing appealed at the 6-4-102(h)(v) (vi) es mandated at § from, it, upon considering failed find. sentencing hearing the second because the jury’s failure to find the existence of had State submitted them to the first jury, circumstance, the aggravating after inapplicable which had found them it, had considered would be tantamount rejection death Jeff Green. This having to defendant’s acquitted been jury acquittal first became an of those ag- (Emphasis added.) this circumstance.’’ gravating circumstances. This conclusionis S.E.2d 482. because, inescapable Wyoming under the The restrictions mandated the double- 4—102), statutory (§ jury scheme for a 6— jeopardy according clause decision in impose the death penalty State must Silhan, are: supra, State doubt, prove beyond a reasonable Imposition 1. of a life sentence after a conclude, need jury only existence trial penalty forever precludes statutory death — the State from aggravating one circumstance. seeking death an ap- Thus, each of the circumstanc- (defendant propriate punishment30 is 6-4-102(h) es listed in all respects is § “acquitted” deemed penal- death similar to a crime offense for which ty); Therefore, appel- there is one element. new charge

2. On remand lant’s first case chose sentencing the State hearing31 may rely any ag- try eight on the offenses gravating 6-4-102(h), circumstance not listed in previously but found submitted to the there appellant guilty for which four of them32 evidence; being impose sufficient —each one sufficient to restriction, course, decision, exactly This what sentence rather than reversal on grounds support the United States Court concluded a evidence to im- insufficient Missouri, Bullington position short time later in su- itself. pra. rely on 32.On retrial the State chose not to two appellate 31. This out would arise of an court inappli- other circumstances found legal decision that trial or requiring error had occurred jury. cable the initial setting jury’s aside of death- *70 120 hearing “At the of at least regarding resentencing the rules Under as a sentence.33 aggra- of Silhan, appellants, one evidence supra34 in v. jeopardy double State vating circumstances was introduced that reversal respects, in all adopt which I would sen- had not been introduced at the first re- sentence is latest appellant’s Valencia, tencing hearing. v. 124 State ag- of two the resubmission quired because (1979) (evidence Ariz. 602 P.2d 807 rejected by

gravating circumstances appellant that was convicted of another against proscription jury violated prior hearing). light after the first crime conclusion is man- This jeopardy. double change that the Watson finding our Amendment to the Fifth dated both proce- section 13-454 is interpretation of and Art. 11§ United States Constitution ameliorative, light of and in dural and said in Constitution. We Wyoming finding Bullington distinguish- is our that P.2d Vigil Wyo., v. able, does not constitute we hold that this (1977): resentencing hearing A jeopardy. double “ * * * jeop- double respective While the aggravat- of both any at which evidence Wyoming State ardy provisions is re- mitigating circumstances ing Fifth Amendment and the Constitution consti- appellants’ does not violate ceived are dissimilar Constitution to the Federal de- if the evidence rights, tutional even meaning have the same language, they origi- véloped or was discovered after application.” are coextensive in hearing or was not intro- sentencing nal some other reason.” duced there for Conclusion Majority’s The Erroneous added.) 667 F.2d at 1265. (Emphasis overemphasize my view- meaning Not therefore, not, stand for the Knapp does majority of this court have point that thing there “is no such as proposition that rejected appellant’s double- erroneously aggravating circum- ‘acquittal’ an from an claim, nonetheless com- I must jeopardy Instead, says Knapp v. Cardwell stance.” Knapp v. placed ment on the reliance returns the death that when a first Cir.1982), Cardwell, (9th 667 F.2d that issue on retry the state can penalty, little if judgment which in bears my ag- remand and can introduce evidence in the case position appellant’s relevance to re- previously circumstances not gravating at bar. with the stric- conformity all in upon, lied clause. No- double-jeopardy tures of the Knapp cites majority opinion does the court Knapp opinion where in the Cardwell, supra, proposition for the posed with the issue deal thing ‘acquittal’ no such as an “[tjhere is case, might holding and I add that the circumstance aggravating from an consistent with restriction Knapp fully to note majority fail penalty phase.” outlined from the decision No. above the Ninth Circuit expressed by that the rule Silhan, supra. the contours pertains to the fact where the authority for the jeopardy double are not offended I am aware that there circum- appellant’s rights state aggravating proposition introduces an jeopardy are not death-penalty against being put stance at a twice retrial of the resubmission of question violated was not submitted in circumstances such The follow- circumstances or the court at the first trial. the case at bar.35 exemplified by is the those language of the court: Florida, petition (denial My for writ in conflict with Jones v. 33. conclusions here are not Marshall) certiorari) my (dissenting opinion any way temper of Justice earlier dis- and do not in -, 74 L.Ed.2d evidence cussion of the lack of sufficient support -U.S. heinous, “especially (1982). atrocious or cruel” circumstance. Godfrey Georgia, example: 35.See expressed in State v. I note that the views (1981); State v. Gil- 284 S.E.2d Ga. Silhan, supra, recognition have received some bert, S.E.2d 179 277 S.C. See: the United States Court. *71 However, a reading of opinions those con vinces me that the analysis sup utilized AVIATION, INC., Wyoming

port superficial, illogical the conclusions is corporation, U.S., d/b/a AIR contrary underlying to the rationale Appellant (Defendant), Missouri, in Bullington the decision v. su pra. I am treat convinced that question ment of the consider which merits AVIONICS, INC., Wyoming WYOMING opinion Silhan, ation is the su State corporation, Appellee (Plaintiff). pra. Supreme There the North Carolina No. 5845. carefully, logically conclusively proper question. came to a resolution of the Court of Wyoming. court, the majority Unlike of this I find June that reversible error was committed when permitted to submit two aforementioned circumstances which an earlier had

rejected after careful consideration. To do appellant’s

so right violated under dou-

ble-jeopardy clause of the States United

and Wyoming Constitutions.

THE DEATH PENALTY IS

UNCONSTITUTIONAL

My reversing final reason for appellant’s I sentence stems from what said in

my opinion first in this case. Hopkinson

State, supra, fully 632 P.2d at 172. There I my

set view out that the death

unconstitutional Art. violative of Art. 1. Wyoming 15 of the

§ I

Constitution. 632 P.2d at 199-215. con- views,

tinue hold those rely and will respect

what I have previously said with

the constitutional issue.

ORDER DENYING APPELLANT’S PRO

SE FOR MOTION CONSIDERATION

OF PLAIN ERROR

For the reasons stated in Part XI date,

court’s of this opinion it is

ORDERED that appellant’s Motion

Proof, Showing For Consideration In Palin Existed, Proper- Error Which Was Not

[sic] be,

ly is, In Briefs Argument Shown Or

denied.