*1 ENGBERG, Roy Appellant Lee

(Petitioner), MEYER, Attorney Joseph B. General Wyoming, and Duane Shil the State Wyoming linger, Warden Penitentiary, Appellees (Respondents).

No. 87-15. Supreme Wyoming. Court of 17, 1991.

Oct.

Wyoming Program, Public Defender Munker, Defender, Leonard D. State Public McClain,Deputy and J. Martin State Public Defender, appellant. for Gen., Joseph Meyer, Atty. B. and John Renneisen, Gen., Deputy Atty. ap- W. pellees. C.J.,* BROWN, Ret., and

Before CARDINE, THOMAS, URBIGKIT MACY, JJ.

THOMAS, Justice, writing for the Court innocence, affecting guilt on the issues or Justice, CARDINE, writing for the affecting imposition Court on the issues capital of the sentence.

MACY, J., opinion dissenting filed part concurring in part.

URBIGKIT, J.,- opinion filed an part concurring part.

dissenting THOMAS, J., dissenting opinion filed an capital respect with to the reversal of the Ret., sentence, BROWN, C.J., in which joined. post- appeal this the denial case,

conviction relief murder capital divide, pertinent the issues does statute, that affect between those matters innocence and guilt determination of or imposition those impact capital of a division sentence. Because disposition respect court with case, justices agreeing that this with three (Engberg) lawfully Roy Lee degree murder but one first convicted of agreeing the other two those with justices capital sentence should be set opinion aside, majority of the court guilt affecting to those issues respect with * argument. Chief Justice of oral at time circumstance, ing assigned innocence to Justice the fact that the crimes has been majority opinion of the may and the induced

Thomas have been economic affecting respect to the issues family court conditions. The then recom capital sentence has imposition capital punishment, mended im which was assigned to Justice Cardine. been pursuant posed by court 6-2- to § 102(f), (June A Repl.). W.S.1977 sen THOMAS, (on question of Justice twenty-five thirty years tence of degree murder). guilt or innocence of first Eng- imposed aggravated robbery. function the court in this The first berg appealed judgment and sentence procedural apply rule of appeal is to our crimes, for these court affirmed. Next, questions that could not be waiver. A more statement of the facts detailed *4 presented appeal on or for direct which underlying Engberg’s conviction can be procedural to cause exists avoid waiver State, in P.2d 541 Engberg found examined error of constitution- must be for (Wyo.1984), cert. denied 469 U.S. magnitude. respect al With to the convic- murder, degree the crime of first tion of After court affirmed his convictions this questions pros- failure of these include: rehearing, for coun- petition and denied his Engberg hypnotic to advise of a ecution for assist appointed Engberg sel was to key witness; a á claim of session with presenting petition post-convic- a him for counsel on direct ineffective assistance of Engberg twenty is- tion relief. asserted (this requires that we appeal issue afford support to court in of his sues the district attention to two other conten- incidental rehearing. Wyo- petition The State for tions); claim of cumulative error that was a ming pursu- petition to dismiss the moved Engberg's right to to a fair tri- prejudicial 12(b)(6), Following ant to Rule W.R.C.P. al; charge of conflict of interest because a argument, trial a oral court entered attorney general’s legal member findings fact and con- memorandum of for on staff had served counsel to explaining clusions its decision of law appeal; a claim that this his direct grant motion. An order was the State’s court has structured an unfair and consti- dismissing entered in the district court seeking tutionally process post- infirm for post-conviction Engberg’s for re- petition relief. All five of the claims conviction but taken order. appeal lief. This from that fatally affecting by Engberg as asserted of proce- fall under the rule his conviction sake of all completeness, For the others, respect With to dural waiver. by Engberg are set the issues asserted ground as a that none serve we conclude opinion. I to Our Appendix forth of first setting for aside the conviction those issues convinces the examination of degree We affirm the dismissal murder. could, or court six of them that all but by Engberg’s petition for the trial court of should, appeal, raised on direct have been post-conviction insofar as that relief good appeal in this and no cause is shown propriety of his dismissal relates to the include in the direct for the to them failure conviction. appeal. said: haveWe convicted, Engberg was after “ * * * disciplined court has This taken felony jury, of the murder crimes of relief, point- approach post-conviction to W.S.1977, 6-4-101(a), violation § ing is not a for the out that it substitute 6-4-402, robbery in armed violation § upon a con- appeal from of review findings of Following W.S.1977. these ap- to be as an viction nor is it treated re- guilty, the received with evidence raised peal. Questions which be spect capital punishment to whether should are post-conviction relief a motion for and, in imposed accordance with 6-2- § magni- limited those of constitutional (June Repl.), W.S.1977 found five miscarriage of manifest a tude which statutory aggravating circumstances and have Those issues could mitigating justice. statutory circumstances, no but appeal open determine, are not non-statutory presented mitigat- been did fairness, process, fundamental and a reli- post-conviction a motion for challenge that the death by the able determination they are foreclosed relief because imposed. should be judicata.” res Cutbirth doctrine of (Wyo.1988) P.2d appellant was afforded “18. Whether omitted). (citations during his of counsel effective assistance tion, to, Engberg are: This rule dix. This Wyoming.” enhancing Kay Otto’s close its use the task present it. This presenting ining issues raised tion the issue on prejudice courts will facilitate ing any claim of “2. Whether lel to the rule from sought he demonstrates should « * and forecloses fifteenth issues set forth is a rule of applied the first issue and * * remaining issues as articulated raising proceedings of a conviction of the federal courts procedural arising convicte(j in a presented on Cutbirth, 751 P.2d at 1262. procedural the State’s failure adoption of a rule error which he could post-conviction applied in the federal hypnosis from direct considera- federal courts. in federal good cause person waiver is in a material the third which review appeal and actual memory violated in the State waiver the failure appeal as means of in the is foreclosed post-convic- applicable in exam- very proceed- through for not to dis- appen- unless paral- way like sues as “Issue petition followed petitions The State of process wherein courts petitions rid of them.” established tive of lief. procedural bar to and establish a appellant’s petition ings “I. Was there error appeal office of the General’s sent the State “20. Whether “19. Whether was plain holding equal ^[*] 20,” states them as follows: arguments fundamental fairness due urge that an Assistant for procedure proper representation was a ^[*] post-conviction post-conviction post-conviction Attorney obvious confusing Wyoming Wyoming prior lower court on procedure this Court’s and, post-conviction proceed- ^[*] the issues raised cases and whether statutory responding first in the re- post-conviction improper General ^[*] and unworkable Supreme styles these is- simply dismiss which relief? relief relief to procedures Engberg’s ^[*] discussion regard *5 language Attorney is viola- process for the ignore Court. it has repre- ^[*] get to obligations appel- and denied its ethical deprived of a fair Engberg Was “VIII. law, right process to due his lant his trial, process confrontation due or confrontation, his to right Kay of the State to disclose failure of counsel. effective assistance hypnotist? contact with Otto’s # ^{[*] [*] [*] [*] [*] [******]} jury properly instructed “XIII. Was appellant’s right to be “16. Whether statutory aggravating to circum- punishment unusual free from cruel and stances; pro- Engberg denied due by the process due was violated and to subjected or to cruel and unusual cess finding aggravating circum-

jury’s punishment? that the murder was committed stances Engberg Did effective “XIV. receive gain and the defen- pecuniary while appeal? on assistance counsel engaged in the commission of a dant was already robbery had nature robbery when the “XV. Does the cumulative capital warrant relief? any elevate the crime to case been used to errors murder. Attorney entire General’s “XVI. Is the post-conviction disqualified staff the cumulative nature “17. Whether Engberg’s one of that, regardless proceedings because error is such appeal on direct has since error, attorneys together one four harmlessness Attorney Assistant General?” appellant’s rights to due become they prejudiced raised, question Engberg urges respect per- with district court and, interrogatories error was committed dur mitted these issues that be filed ing appeal after his direct or that he has response, hypnotic the State admitted the present good cause for not demonstrated By Kay session. the affidavits of Otto agree ing the issues at that time. We police hyp- officer who conducted the 18,19 quoted Issues and 20 above could not session, suggests notic the State that the appeal. have been raised on direct We hypnosis was unsuccessful. con- good conclude that cause has been demon evidentiary hearing tends that an must be procedural strated to avoid the rule of question. conducted in order to resolve 2 and 16. As respect waiver with to Issues are hearing required We satisfied that no former, dis prosecutor did not because, law, under our case any attempt Engberg, and hypnotic session to close hypnotize a witness must be disclosed. until after his direct it was not discovered respect Issue it is appeal. upon language With The State relies upon decisions premised recent federal from Haselhuhn v. Eng- require

which would a conclusion that (Wyo.1986), cert. denied 479 U.S. berg’s imposed sentence was in violation of of the United States of Constitution court stated: “ * * * America, accept principles if should we State must advise the de- [T]he change in those cases. The found fendant of the fact that a witness has demonstrates sufficient cause to avoid law previously hypnotized been and make procedural Finally, rule waiver. our request available the defendant all of cumulative error will be con claim proceedings relating statements and sidered, respect to those is but hypnosis.” *6 ap properly before the court in this sues State, (Wyo. also v. 662 P.2d 103 See Gee peal. 1983); State, Chapman v. 638 P.2d 1280 Engberg’s first address claims relat- We (Wyo.1982). The insists that this lan witness, ing hypnosis key Kay to the of a guage in reaches situations which the Otto, sister, who was with the victim’s actually hypnotized. Chap In witness was by he was shot and killed

victim when however, man, proposi we articulated the Engberg. good are satisfied that We degree hypnosis tion that the fact or demonstrated for not cause has been are that difficult evaluate. We satisfied presenting appeal, this issue on and error upon depend a defendant need not the con stan- must be found for violation of the respect with to that clusion of the State precedents. in Even dards set forth our suggested fact. We never have that the though state standards were some our dependent requirement of disclosure is subsequent Engberg’s con- articulated hypnosis. the effort at upon the success of viction, entitled to in- he would have been Haselhuhn; State, 695 P.2d Pote v. voke them because his case had not been (Wyo.1985); Chapman. 617 rules finally decided at the time those were however, conclude, that promulgated. We Engberg satisfied that We also are require post-convic- that this error does not claim the of this was entitled to benefit granted Engberg relief because has tion be requirement. disclosure He was convicted prejudice. not demonstrated substantial 20,1982. in on Our decision Gee December 28, April 1983. While was announced hypnotic that a The record now discloses in that the rule suggested we that decision in effort to en- session was conducted an implicit Chapman, articulated Kay Otto’s recollection of events hance conviction, Engberg’s which did antedate This the time her was killed. at brother rely upon proposition we do not Engberg disclosed to information was not Chap on notice virtue of the State was prior or his counsel to the return fact, Engberg was entitled to the benefit and, man. jury’s verdict was not discover- of the rule announced Gee because preparation Engberg’s peti- ed until the applied retroactively. relief. When the must be post-conviction tion for 76 (rule (Wyo. State, State, (Wyo.1989) 1298 P.2d 558 enun- In v. 538 Ostwald 610, Ohio, forth Doyle set in ciated in v. 426 U.S. 96 1975), adopted principles we 293, 2240, (1976), Denno, applied S.Ct. L.Ed.2d 91 388 U.S. S.Ct. v.

Stovall retroactively appeal). direct order to cases on L.Ed.2d Engberg’s appeal re had a defendant should Because not been determine whether Gee, application retroactive decided at time decided ceive the benefit we applied this court.1 should receive the bene- We P.2d decision they applied the rule in Gee. should be fit of announced principles, those case, when we said in Flores this light principles, Even in these our (Wyo.1977): P.2d persuades examination the record us purpose ruling served “Where beyond a doubt that this error reasonable ‘substantially improve would prejudicial. There is no was not reasonable finding process accuracy of the fact jury’s probability verdict would application a retroactive of such trial’ use of hypnosis have been different had the mandated, decision United States respect to Kay with Otto been disclosed. Currency, 401 United States Coin & an she This is not instance which was the 1041, 1046, 91 S.Ct. L.Ed.2d U.S. Engberg; only witness who identified sev ** other testified that he was eral witnesses Essentially, is the rule advanced in addition, the the murderer. In record con Stumes, 104 S.Ct. Solem v. tains an abundance of circumstantial evi (1984); United States linking Engberg robbery dence 537, 102 Johnson, 457 U.S. murder, day On he the murder. (1982); Hankerson v. North departed Casper inexplicably where Carolina, 97 S.Ct. occurred; acquired the murder he had mon L.Ed.2d 306 Williams United day, source of ey on that but the those States, 401 U.S. unexplained; paid he his funds overdue instance, L.Ed.2d 388 such and rent for rent a week advance even good faith on the old neither reliance law though premises he abandoned the rented impact on the administration of nor the day; same he used aliases to conceal only pro justice require sufficient are identity; deceptive respect he his *7 prod spective application. Williams. purpose purchased to the he which concerning hypnosis uct of our decisions is car in after the car used Rawlins driven finding rule does enhance the fact that the failed; Casper material evidence was testing process utility of its because along the found road between Rawlins and credibility of the witness. Utah; times, City, Lake Salt various Furthermore, wife, application Engberg, pawned or his had a .38 retroactive is revolver; Engberg’s grounds on caliber a round of ammunition not foreclosed “finally Flores, would fit was discover E.g., decided.” which that revolver case was 746; Ostwald, pocket in the 538 P.2d ed in the vest abandoned 1298. of a home; “finally rounds respect decided” mobile additional were locat Our rule with to availability appeal Engberg’s ed in room when he was relates to motel cases arrested; and, purchased judgment of has been in the automobile after the conviction Rawlins, appeal orange-toned, exhaust multicolored has been rendered. When ed, “finally lightweight jacket cap ski and a hold the case to have been brown we Flores; those worn the killer were Ostwald. also Cle similar to decided.” See State, 686 P.2d 541. (Wyo.1978), Engberg, P.2d con found. Under 844 nin v. circumstances, of the oppor- the loss reh’g sub nom. Summers v. these firmed standards, (b) (Wyo.1975), the new extent of v. 538 P.2d 1298 served Ostwald Denno, 293, U.S. quoted from Stovall v. we 297, law enforcement authorities the reliance 1967, 1970, (1967), standards, (c) 18 L.Ed.2d 1199 87 S.Ct. old the effect on the on the following: justice ap- retroactive administration “ * * * guiding criteria resolution plication of the new standards.” (a) implicates purpose question to be the opportunity effectively to to cross-exam- respect impeach Kay Otto with tunity to witness; ine an important eye could not lead hypnosis the use privy hypnosis weigh- the use of different result. ing the credibility Kay Otto. argu Engberg’s We also address The federal standard is that the failure the use the failure to disclose ment that prosecution evidence disclose of his constituted a violation hypnosis found to requires be material reversal of a Brady v. process due as announced Pennsylvania Ritchie, conviction. 1194, 10 83, 83 S.Ct. Maryland, 373 U.S. 39, 989, 107 S.Ct. U.S. L.Ed.2d 40 Brady requires L.Ed.2d 215 approach suggested In a shift from the fa is both “evidence that state to disclose 97, Agurs, United States U.S. either ‘material to the accused and vorable 2392, S.Ct. 49 L.Ed.2d 342 the Su- ” States United guilt punishment.’ or 667, preme Court held in Bagley, 473 U.S. 3375, 105 S.Ct. Bagley, 473 U.S. specific request S.Ct. no (1985); Brady. Im 87 L.Ed.2d required impeachment for disclosure of evi- evidence, exculpatory evi like peachment respect dence. The test to materiali- Brady rule and must dence, is within however, ty, now reads: Bagley; Giglio material. if be disclosed “ * * * The evidence is material if States, 405 U.S. S.Ct. United that, probability there is a reasonable (1972). We have stated 31 L.Ed.2d had the evidence been disclosed hypnosis evidence of previously that defense, proceeding the result of the impeachment purposes: valuable A would have been different. ‘reason- * “ * * credibility of a witness [T]he probability’ probability is a suffi- able by hypnosis seriously impaired could be cient to undermine confidence in the out- inasmuch certain circumstances under Bagley, come.” 473 U.S. at as: S.Ct. at 33. “ admissibility ‘The issue relative appeal federal courts of have con pre- testimony of witnesses who were Bagley sidered the rule in to be retroactive. prod- viously hypnotized whether Sullivan, (10th Trujillo v. 815 F.2d 597 hypnosis was to refresh or uct Cir.1987), cert. denied recollection or develop the witness’ own United the witness and add additional to teach (1st Ingraldi, 793 F.2d States v. Cir. beyond that to the recollection facts Blackburn, 790 F.2d 1986); Brogdon v. mentally stored in the has been Cir.1986), (5th 1164, reh’g denied 793 F.2d 1287 consciously unconsciously. memory, rt. denied 481 U.S. ce 1985, fact properly one for the The issue is reh’g all issues relative to the finder —as are *8 3245, 749, cert. 1012, 107 S.Ct. 97 L.Ed.2d [Chapman v. credibility of the witness.’ Butler, 483 Brogdon sub nom. v. State,] P.2d at 1282. 638 13, 1040, L.Ed.2d 802 108 S.Ct. 97 U.S. Chapman inquired in carefully “And we Pflaumer, United States v. (1987); not the v. supra, as to whether or cert. denied (3rd Cir.1986), F.2d adequate opportunity to had defendant 1263, 1046, 106 89 L.Ed.2d 572 U.S. S.Ct. present to the determine Hall, 329 S.E.2d 860 State v. aspects hypnotism relative to of evidence (W.Va.1985). Engberg Trial counsel for particular witness.” and its use on proposed of wit request all statements did Gee, at 104. 662 P.2d general request for nesses and submitted a requests These Napue 1280; exculpatory evidence. Chapman, P.2d all See Illinois, court. We need granted by the trial People the State of 360 U.S. were of request should 1173, (1959); not determine whether 3 L.Ed.2d 1217 79 S.Ct. hyp use of understood to cover Pugh, Cal.App.3d have been People v. testimony of the wit nosis to enhance The failure to disclose Cal.Rptr. 43 hypnosis of was ma- ness. If the evidence deprived of hypnosis of the use definition, peal may disclo- to choose not raise certain issues under the federal terial Bagley. Brady; lessening impact specific “the to avoid of required. sure was feels offer issues which counsel a reason explains that reasoning there which success,” citing Jones v. able chance of our under state prejudicial no error was Barnes, 463 U.S. 103 S.Ct. Brady claim under applies to rule also Kennedy Shil L.Ed.2d 987 is Bagley. This conclusion consistent linger, (D.Wyo.1991). F.Supp. cases which federal with several of majority have followed the the feder We product overwhelming of found that adopting al in the standard articu courts relating is that evidence evidence Washington, Strickland lated in material that no error hypnosis is not 668, 104 U.S. Trujil under federal standards. occurred reh’g denied 104 S.Ct. lo; Pflaumer; United States v. Ingraldi; purpose for the Risken, Cir.1986). (8th 788 F.2d 1361 appel determining effective assistance of Compare Maynard, Bowen 799 F.2d Appellant persuade late counsel. must us Cir.1986), cert. denied (10th to him representation afforded (identi L.Ed.2d 404 demonstrating was deficient errors so against signifi fication evidence defendant appellate not serious that counsel could be cantly impeachable by withheld evidence functioning considered be accordance weak); Hall, otherwise 329 S.E.2d and case that, guarantee with the constitutional (most identifica important issue was furthermore, performance the deficient testimony sub tion of witness which was prejudicial appellant. evidence). impeachment by withheld ject analysis This under the federal standard difficulty inherent Because resulting in non-disclosed a conclusion that standard, applying developed hypnosis material fur evidence was not evaluating effectiveness of trial coun persuades dis ther us that the failure to sel, appellate proceedings, adopted we session, hypnotic close the accordance process pursuant Cutbirth Gee, was harmless.2 appellate claim of ineffective assistance application

Engberg’s claim that he de counsel resolved appellate objective coun criteria. We held that ineffective nied effective assistance issue, sel, appellate is demon as advanced in his 18th stated assistance of counsel first, by showing: particular subject not to the rule of waiver because it strated facts, appeal. in the record could not be raised in his His found without equivocal interfer argument speculation ineffective assistance resort ence, upon inadequate failure of counsel which the claim found because rests; representation by his every argued appellate issue motion counsel to raise and, second, post-conviction persuasive. that those record facts serve relief not unequivocal clear rule appeal, an to invoke a failure to raise issue meritorious, transgressed in a law clear and even if does not demonstrate which was obvious, arguable, way. appellate merely counsel. ad ineffective assistance Cutbirth, dition, 751 P.2d 1257. We noted Cut appellant must show that he was birth, 1263, that, prejudiced as a matter of because the failure to 751 P.2d at choice, presenting ap- appeal resulted an the issue on direct tactical counsel *9 suggested rule. See United States v. has that this issue should discovered evidence 2. The State newly Agurs, evidence be treated under discovered L.Ed.2d 342 State, Opie articulatéd 422 P.2d 84 standard quoted Agurs, As U.S. at "If State, (Wyo.1967), recently applied in Gist v. as applied to the usual motion for a the standard (Wyo.1987), appeal remand P.2d newly after discovered evidence new based on 1988). (Wyo. Lacey 766 P.2d the evidence was in the were same when (Wyo.1990). fact that the 803 P.2d 1364 possession when it was found in a State’s as evidence was not discovered because of fail source, special signif would no neutral there by prosecution to the rule of Gee ure follow obligation prosecutor’s serve icance to the to significant those circum is a stances, distinction. Under justice." cause of newly inappropriate to it invoke the Wyoming opposed upon some The State of admission effect substantial adverse him; is, testimony by of the a memorandum this court which had possessed arguments: advanced these appeal, it presented the issue on direct been reversed the conviction. testimony proper would have “1. Such is not sub- ject expert testimony matter for under Engberg’s claims weighed We have Wyoming opinion law as it relates to standard, conclude that against this and we evidence in the of common knowl- area suggest arguments not even most of his do edge. transgression of a clear a clear and obvious testimony “2. Such best could be appropriate unequivocal rule. It is to speculation, generalization classified as of those specifically consider two claims theory. because, they meet the standard. arguably, argument “3. Cross-examination and Engberg’s contention We shall consider proper dealing are the means of with permitted should have been that he eye-witness testimony. identification present expert testimony relating to the testimony “4. The would be an invasion eye identification an witness. We also jury’s judge of the function to be the sole relating consider his claims to the ex- will weight credibility of the of evidence. wife, testimony clusion of the of his Donna Any probative “5. value of the testimo- Engberg. ny substantially outweighed by preju- Engberg claims that the trial court dice to the State. refusing testimony erred in to allow the Any probative “6. of the testimo- value witness, Loftus, expert respect Dr. substantially outweighed ny is also its she, others, factors have iden which mislead, tendency distract and confuse tified, research, through experimental the real issues of the case.” influencing reliability eye witness testimony The district court ruled that the Engberg presented identification. a memo would not be received because it invaded randum to the trial court which he ad province jury. addressing following reasons for admissi vanced post-conviction proceeding, claim in the bility testimony: of the the trial court determined that exclusion of “1. It will assist the trier of fact and, testimony was within its discretion the evidence or determine the understand further, any error harmless. facts in issue. developed, A rule had traditional been unreliability eyewitness “2. The iden- trial, gener prior Engberg’s that courts poses of the serious tification one most ally expert testimony would not admit problems in the administration of crimi- reliability eye witness identification justice. nal testimony either would not be because psychological “3. The facts and their helpful province or would invade credibility effect on the witness’ are dem jury.3 More recent research seems to beyond knowledge common clearly process complex that the is more onstrate juries. most assumed, the re than earlier and some of findings psychological expert contrary does not search are to intuitive “4. Chapple, 135 province perceptions. invade the because See State v. (1983); People v. any opinion on the credi- Ariz. 660 P.2d 1208 need not involve McDonald, Cal.Rptr. bility particular testimony, of a witness’ 37 Cal.3d (Cal. psycho- 46 A.L.R.4th merely reviews the relevant but 1984), cited therein. Further logical findings and enumerates the vari- and articles more, policy reflected in Rule affecting reliability ous factors liberal 702, F.R.E., to Rule is identical eyewitness identification.” States, *10 51 L.Ed.2d E.g., Dyas 376 A.2d U.S. 97 S.Ct. 3. v. United 827 denied 429 973, Amaral, (1977); (D.C.App.1977), cert. denied 434 U.S. 98 States v. 488 F.2d United 549 529, (1977); (9th Cir.1973). S.Ct. United States 1148 Brown, (10th Cir.1976), cert. v. 540 F.2d 1048 80 raise not constitute ineffec- of ultimate failure to it did

W.R.E., elimination the and the appellate to re courts tive of counsel. has caused some assistance issue rule accepted viability previously the view Engberg’s shall consider We also admissibility of to holdings respect the error, appen sixth claim of set forth the eye witness expert testimony relating to dix, Moore, of ineffective assist under the claim 786 v. identification. United States arguing that appellate ance of counsel. 791 (5th Cir.1986), reh’g denied F.2d 1308 in permitting the erred his wife Down trial court v. (1986); F.2d 928 United States immunity Cir.1985). privilege spousal to (3rd There invoke the 1224 ing, 753 F.2d despite waiver, Engberg contends that trend more his a modern appear does to be spouse. testi expert privilege party the is that admission favorable to the identification. also exclusion of He asserts error relating eye witness mony to however, Garner, testi testimony that such who is, hearsay, of Janet still rule of the subject the discretion would have testified as to earlier state to mony is wife, Eng- instance. United States any given Engberg. ments Donna court 462; amended, Poole, opinion berg’s that to position 794 F.2d Donna’s refusal v. (9th Cir.1986); F.2d 853 testify 806 made reh’g. denied her unavailable witness Smith, 736 F.2d Moore; justified v. United States admission circumstance Cir.1984), 804, (6th denied 469 U.S. hearsay 1103 cert. pursuant to Rule 213, (1984); 143 trial, 105 S.Ct. At its resolution W.R.E. McDonald; People Chapple; relief, v. Downing; post-conviction Engberg’s motion for (Colo. App.1986); Beaver, 725 P.2d 96 spousal found that the district court Maryland, 307 Md. v. Bloodsworth spouse. privilege was vested the witness (1986), 548 A.2d 512 A.2d 1056 cert. denied proffered hearsay ruled It also that Buell, (1988); v. Ohio.St.3d State could not be testimony of Janet Garner denied, cert. 489 N.E.2d received. 240, 93 L.Ed.2d 107 S.Ct. U.S. case, Engberg in the his Early invoked reh’g denied 479 testifying right prevent his wife from to Moon, v. against privilege spousal him under the (1986), ap 726 P.2d 1263 Wash.App. immunity. apparent it later When became Wash.App. peal remand after hearsay testimony damaging that certain couple we that P.2d 1157 When concerning Engberg had stat- what Donna rule in specific our consistent concept with received, police to a officer could be ed expert tes Wyoming the admission that right prevent his to Engberg then waived of the trial timony is within the discretion testifying. appears It his wife State, (Wyo. P.2d court, Price v. premised this tactical decision was on State, 1991); Triplett v. 802 P.2d Engberg if proposition that would benefit State, 738 P.2d 1092 (Wyo.1990); Brown v. and, favorably him if testified to she Donna State, 682 P.2d 991 (Wyo.1987); Jahnke is, not, testimony if her was con- did State, 627 P.2d 1374 (Wyo.1984); Buhrle police told the sistent with what she earlier (Wyo.1981); must conclude that there we officer, Engberg impeach to would be able clear un transgression of a no relying upon her statements Also, if effec law. equivocal rule of made Janet she had Garner. appellate counsel evaluated tiveness advice Subsequent Engberg’s law at the time light prevailing of the privilege, court his decision waive appropriate, appeal, chambers, Engberg given in Donna exclusion of the clearly favored case law quote to the stand State.4 We Although this claim would not called testimony. ensuing dialogue from the record: specious appeal, if raised have been testify challenge of their not incriminate the invo because has not chosen to State, jury. themselves. Haselhuhn privilege in front of the We cation (Wyo.1986), wit cert. denied already in which have considered situations (1987); Hopkinson privilege L.Ed.2d 174 own have invoked their nesses *11 privi- “THE She can assert the Engberg, you are COURT: Mrs. “MR. GUETZ: lege. defendant, Roy Engberg, wife of the Honor, “MR. SKAGGS: Your under case you not? are law, assert, Roy’s privilege it is to not Yes. ENGBERG: “MRS. hers. testify your Is it wish to “MR. GUETZ: “THE the more recent COURT: Under in this case? rule, immunity she can assert her- No. ENGBERG: “MRS. Absolutely, assert that im- self. she can willing testify to you Are “MR. GUETZ: munity on her own. in this case. Honor, “MR. SKAGGS: Your now if I don’t have Not “MRS. ENGBERG: position in a prosecution going to be to. her assert- they can comment on where know, Engberg, you “MR. GUETZ: Mrs. ing immunity. are choice to make and we your that is MILLER: If we could take a short “MS. you choice want to asking you now what Obviously the State has had an recess. case, you want to make in this whether Perhaps to her. we opportunity to talk testify or not? opportunity to talk should have the same No, I don’t. “MRS. ENGBERG: asserts the to this witness before she immunity of our client. approach the on behalf May “MR. we GUETZ: bench, Your Honor? you objec- “THE COURT: Do tion? may.” You “THE COURT: not, Hon- suppose I Your “MR. GUETZ:

Thereafter, conducted this discussion was or, feelings her are.” she voiced what but at the bench: reference judge’s the trial We understand Guetz, doesn’t “THE Mr. she COURT: misappre- rule to reflect a to the modern testify. want part his decision was on his hension her to. “MR. can’t force GUETZ: We authority from the Su- controlled recent No, her you can’t force “THE COURT: United States. The preme of the Court to. in the conclusions position is reflected same opportunity I want the “MR. SKAGGS: denial of filed in connection with the of law the im- cross-examine her and assert relief. post-conviction Engberg’s motion every question. munity on States, 445 U.S. Trammel United You want what? “THE COURT: 40, 100 L.Ed.2d 186 S.Ct. opportunity “MR. I want the SKAGGS: held States Supreme of the United Court the im- to cross-examine her and assert privi may invoke the spouse that a witness munity every question. That was said immunity. lege spousal I don’t think if she “THE COURT: re- law federal common to be the rule you, testify that —I would ask fused pro had been contrary to what and was Guetz, explain clearly to her Mr. W.R.E., which would posed as Rule immunity spousal and she has she spousal immu privilege have limited the testify. have to doesn’t was not but nity party spouse vein, similar oppose adopted I that. She does In a by Congress. "MR. SKAGGS: decision of Roy priv- rejected has the the court the earlier privilege. not have States, Hawkins v. ilege. United in privilege (Wyo.1981), court voked, cert. denied 455 aware that the P.2d 79 632 922, the matter in approach it is far better to recently a conviction in have reversed we should be Certainly, proceeding More a case in chambers. permitted court which the trial possibili adjourned chambers as soon presence of witnesses in the prosecution to call Otherwise, is a ty apparent. there becomes prosecution jury court and the who the deplore We clear risk of a reversal Jones. as in privi Amendment invoke the Fifth knew would unnecessary presentation such an issue testify. P.2d 54 Jones v. lege potential front because of this, as in (Wyo.1989). instance such In an prejudice. Hopkinson, if counsel or the Haselhuhn *12 in has (1958), prior in In the cases which court which the 3 L.Ed.2d statute, it had the never has spousal considered privilege the court held that like In to address a situation this. occasion the immunity by claimed both could State, (Wyo. 348 P.2d 280 Chamberlain The party spouse. the spouse and witness 1960), as a rebuttal the wife was called Supreme decisions are United States Court in against prosecu the a witness husband position controlling. Consequently, the not statutory rape of a tion husband to respect feder- of the federal courts child. The court there concluded minor per- nothing more than al common law is judicial in subject was to that the statute authority. suasive relating exception the to terpretation; that privilege arising spous- out of rule of The by against other a committed one the crime Wyoming by immunity al is set forth in corporal against not limited to violence was W.S.1977, 1-12-101, pro- statute. Section wife; and that the crime person the the vides: prosecuted for which the defendant was “(a) following persons shall not testi- the special wrong personal a was such respects: fy in certain against justified offense his wife as her # ^{[*] [*] [*] [*] [*]} being permitted to testify. In Pike State, (Wyo.1972), court P.2d wife, provided “(iii) except as husband or * * se, if recognized per error that would be 1-12-104; in W.S. objected, permit to a wife to the husband exception, this statu- In absence of the testify when called the State as a wit competency, tory provision sound would exception unless found the stat ness W.S.1977, 1-12-104, privilege. not Section The also ute was invoked. court held statute, preceding then referred error under the circumstances of that provides: prejudicial. case was not Simms wife shall be a witness “No husband or State, cert. denied 409 pro- against except the other in criminal (1972), ceedings by one for a crime committed recognized privilege court waiver other, against the or in a civil action or husband the defendant. by the who was proceeding against the other. by one asserted, privilege the claim of was When They may in all civil and criminal cases ruled that the State could court each other same be witnesses transcript testimony at the use the her ex- though the relation did not marital examination, given preliminary which was ist.” marriage, prior if the wife did not statutory testify. Although complaining that he was language described different This elect, apply. to so the husband waived the different rules forced situations privilege, found error. clearly and this court no first sentence of the statute The (Wyo. Seyle P.2d 1081 shall not be a Then that husband wife states court, Chamberlain, 1978), citing held except in against the other certain witness that, charge first in a in which the not the cir- case was which are found situations child, testimony degree murder of of this case. The second sen- cumstances equally available the State or wife the wife provides tence husband this statute. though the and to the defendant under for the other as be a witness complained, appeal, husband Engberg’s not marital relation did exist. prosecutor upon failure his error be examined under comment claim of must witness, and court the wife as a because the to call sentence of this statute first plain held was not error. simply his called as a is clear that wife was record Wyo. upon Spears, 76 spouse court relied State v. A who witness the State. court 300 P.2d 551 which the by the a crimi- called as a witness upon proper that it to comment called as a held proceeding perforce nal must be produce the wife the defendant’s failure to against defendant. record witness him she available to attempt as a witness when clear that did also is prosecution. not to the a witness for him. but his wife as call belong spouse; the court to the did witness cases these In none of spouse rarely belong a witness also is it denied to whether directly consider *13 privilege if called spouse. Wigmore, the party Evidence directly invoke might spouse. party 1961) Because (McNaughton 2241 at 254-55 testify against rev. to § only respect omitted; with to (footnotes issue emphasis original). the address we appellate assistance of coun- effective the legislature that the intended A conclusion limited to a determination of sel, arewe privilege available to both the to make the unequivocal rule of a clear and whether party spouse spouse and the witness regard, transgressed. In this it law language. The manda- consistent with this sentence of say fair to that the first seems be,” light read in the tory words “shall 1-12-104, W.S.1977, perpetuates § concept privilege, properly can be spous- privilege of common law rule of the spouse permit to the witness to construed the testi- immunity in instances which al “becoming the instrument of that avoid against party mony spouse of a is offered though party even condemnation” statute, construed, although the spouse, protection. If spouse chooses to waive that exception of what consti- explain the may description accept Wigmore’s we spouse. against a witness tutes a crime privi- concept of entitlement to invoke the again turn to the We Chamberlain. See arguable lege, certainly that the evidence, authority on rules of eminent Engberg correctly ruled that Mrs. court on in Wigmore, relied Chamber- Professor privilege an errone- claim the albeit could Wigmore, Evidence lain. In 8 § advanced. Un- ous reason have been 1961), (McNaughton there is a discus- rev. circumstances, those we cannot discern der privilege. It possesses the sion of who unequivocal rule of law any clear and recognition that the reason begins with therefore, and, violated we can- which was support of this commonly offered most appellate find ineffective assistance of marital dissen- prevention of privilege, the error in the counsel for failure to assert belonging tion, privilege to results in the respect permitting to appeal direct with It party only and not to the witness. spouse privilege. to claim the We witness goes on: Engberg agree with the trial court that “ * * * suggested taking the other But post-conviction relief for was not entitled immuni- privilege, namely, for the reason reasons. these being situation of repugnant ty from the complete examination of To spouse or of becom- by one’s condemned regard, in this Engberg’s contentions we spouse’s condem- of a ing the instrument premised the claim of error also consider privilege (§ supra), nation upon refusal of the trial court to admit party that of and of equally seems be testimony hearsay of Janet Garner. words, the de- In other while witness. hearsay testimony could be re That protect- is entitled be fendant husband Engberg if were not avail ceived Donna through the against condemnation ed Engberg insists that the able as a witness. is also testimony, the witness wife wife’s Engberg to Donna becoming extension protected against entitled to be spousal immunity privilege claim of that condemnation— the instrument but, stage at that in made her unavailable being equal case the sentiment each trial, as a witness quality. she was unavailable degree yet different Wyoming. Even only for the State of generally to seems “The latter view might possessor been the though she by implication underlying the accepted against Eng- testify not to privilege of a utterances, precise but judicial various privi berg, nothing in the statute extends a depend rulings naturally rare and are spouse by the de lege to the when called It is wording of statutes. much on the In order for in a criminal case. fendant that at least in some established courts unavailability to Engberg to demonstrate spouse belongs party privilege him, he had to call his wife as witness. as a the other is offered against whom refuse to had continued to privilege If she then Rarely is the witness. respect that she conclusions found Our these court could have testify, the dispose testi- the claim of cumula Garner issues also unavailable and the Janet error which asserts. been admissible. tive mony would have possibly State, (Wyo. her to call effort a Schmunk of an In the absence 1986); behalf, Engberg P.2d cannot Browder v. as- in his witness of the trial The result of those cases de (Wyo.1982). refusal court error for sert course, testimony. upon the existence of hearsay pends, receive instance, In this we conclude that error. *14 assuming Engberg that Even and, consequently, error there there was no and, by the court for this rea misled the is no claim to consider of cumulative he son, could not call his wife as a believed Jennings State, v. effect of trial errors. behalf, on his could we still find no witness (Wyo.1991); State, P.2d 1299 v. Justice not in the decision of the trial court to error 1002 (Wyo.1989). 775 P.2d hearsay testimony the receive of Janet Gar matter, to Eng- As a final turn we rely upon If a to ner. witness is allowed arguments berg’s raised issues erroneously, unavailability has privilege of any 20. We can see no demonstration by some United been found courts. See Engberg if one could prejudice even (4th McCloskey, v. 682 F.2d 468 States by that committed the conclude error was Cir.1982). v. But see Math United States by attorney general representation of (5th Cir.1977); is, F.2d 294 4 D. Loui in this the state action when Mueller, C. Evidence sell & Federal § Engberg represented member of his staff (1985). Unavailability is one at 1029 appeal. direct can discern no his We receiving hearsay for prerequisite testimo alleged inway which that conflict would 804(b)(6), Hop ny Rule W.R.E. See under Engberg disadvantageous been have (Wyo.1981), kinson Furthermore, post-conviction process. denied 455 102 S.Ct. cert. U.S. something Wyoming, require we more language of 71 L.Ed.2d As the simply impropriety. We than assertions of hearsay requires, testimony rule acknowledge, some factual cannot without supported by also must be circumstantial showing, attorney that member The con guarantees trustworthiness. general’s staff who had a conflict this reported tradictory versions of the events in, any involvement nature would Engberg by police Donna officer and of, the knowledge work done on behalf of concerning Engberg’s in Garner Janet addition, Wyoming. In the State in the demonstrate that volvement murder objective evaluation of effective assistance guarantee of trustwor the circumstantial appeal counsel on avoids the concern present. not There was no thiness was general attorney might involve that the corroborating presented which evidence his member of staff who did serve coun upon relied to enhance the trust could be in order to insulate that sel reported to Janet version worthiness ineffectiveness ac staff member from the circumstan the absence of the Garner. cusation. trustworthiness, guarantees. of tial Engberg’s argument As to testimony admitted hearsay could be Mueller, procedure post-conviction which has been D. Louisell & C. properly. See fundamentally adopted Wyoming cited un and cases at Evidence Federal § reason, fair, argument by must be advanced For the same admission n. 12. disadvantaged by testimony required in order to someone who was was not Engberg’s pro We are process. of due satisfied meet fundamental standards Arkansas, every 483 U.S. claims have received consideration to cess. Rock (1987); they are under our statute Green which entitled of the State 60 and under Constitutions Georgia, 442 99 S.Ct. If Mississip and the States. a dif Wyoming United L.Ed.2d 738 Chambers is to post-conviction procedure ferent be pi, invoked, must that is a matter which be (a) appellant’s rights one 5. Whether under legislature. The by the addressed Fifth Amendment to the United Engberg, place, applied to his States Constitution Article deprivation of any § not result did Wyoming were violated Constitution rights. constitutional he when evidence that refused to wear Eng- raised of the issues review Our cap stocking photo- that he could so his denial of appeal in this berg trial and graphed was introduced his persuades relief post-conviction motion guilt. argued as evidence of that, respect Engberg’s with this court (b) appellant’s Whether to confront degree murder, cor- first we conviction him was denied the court’s witnesses that: rectly held permit * refusal cross-examination “ * * Our examination of the record photographed him police officer who persuades no the law us that there is concerning appellant’s medical condition. claims respect error * * (a) spouse a defendant’s can 6. Whether Engberg, *.” appellant, made spousal privilege decline invoke *15 at 644. testify defendant to have when the seeks first guilt his of the crime of Insofar as spouse testify. concerned, degree murder we affirm (b) the Sixth Amendment to the Whether Eng- dismissing of the district court order and Article United States Constitution post-conviction relief and berg’s petition for Wyoming 10 of the Constitution were § any Engberg has exhausted conclude that by judge’s erroneous violated the trial remedies. substantial state ruling appellant could not call Don- witness, cross-examine na I APPENDIX her, prior nor her statements introduce THE OF ISSUES STATEMENT impeachment purposes. for (c) spouse who Whether a defendant’s permit to 1. Whether the Court’s refusal testify to is an unavailable wit- refuses expert eye-witness to appellant call an hearsay whose statements be ness deprived error which identification was into admitted evidence. fundamentally appellant right of his to pre- use of a conclusive right compulsory trial to 7. Whether the fair and his appellant to of first de- sumption convict process. requires gree plain murder error and disclose 2. Whether the State’s failure to of conviction. reversal hypnosis as means of enhanc- its use rights under memory appellant’s its ethi- ing Kay violated 8. Whether Otto’s to the United States Amendment obligations appellant and denied his Fourth cal law, Article 4 of the right right due process to his Constitution § by were violated Constitution confrontation, right Wyoming his effective to by the of evidence seized introduction assistance of counsel. during ap- a warrantless search of police (a) appellant 3. denied due Whether pellant’s trailer. process by proce- law extradition testimony of the ballis- Whether 9. bring Wyoming dure used to him to such incompetent should expert was tics proceedings de- here must be disregarded, and should be have been null clared and void. now, there disregarded and thus whether (b) appellant Whether due was denied support to is insufficient evidence by process the introduction of evidence conviction. had police that he to be beaten by the 10.(a) prosecution’s use and to Whether the who arrested him

officers in order press prior appel- to manipulation fleeing. him prevent right deprived appellant his lant’s trial State’s 4. Whether the introduction fair trial. to a showing that fre- appellant evidence right (b) effective right appellant’s Whether quently used aliases him his him was denied fundamentally fair assistance counsel to a trial. robbery already used had been when capital elevate the crime to murder. attorney’s fail- court-appointed his initial 17. Whether the cumulative nature misuse prosecution’s ure to combat that, regardless error such of the media. error, together harmlessness of one failure 11. the trial court’s Whether rights they prejudiced appellant’s to due de- cause venireman Alberts for excuse fairness, reli- process, and a fundamental fair trial prived appellant right his to a penalty determination that the death able impartial jury. an imposed. should used procedure 12. the voir dire Whether effec- appellant was afforded 18. Whether right his him appellant’s trial denied ap- during his tive assistance counsel impartial jury. fair Supreme peal Wyoming Court. of evi- (a) 13. Whether the introduction of- improper 19. Whether it was appellant phase in the penalty dence Attorney represent fice of the General Mis- escaped from the authorities had proceedings post-conviction the State process right to due souri denied him his Attorney urge that an Assistant Gen- finding that the fundamentally fair and a proper representation proce- was a eral’s imposed. penalty death should be appel- dural bar to the issues raised in closing ar- (b) prosecutor’s Whether the petition post-conviction relief. lant’s gument phase of the trial Court’s discussion and Whether this to due appellant of his deprived *16 holding regard to prior cases with fair process fundamentally and petitions post-conviction ignore relief for prosecutor appellant argued when plain statutory language and obvious to in order to re- needed be executed procedure establish a which is viola- and Wyoming him strain and when the Su- process tive fundamental fairness due previously recognized preme Court has equal it has procedure and and whether argument proper kind of confusing a and established unworkable heinous, atrocious, or cruel where the simply process wherein courts dismiss is involved. aggravating circumstance get petitions post-conviction relief to for to permit 14. the court’s refusal Whether rid of them.” opportunity to evi- appellant the Justice, CARDINE, concurring in the circumstance, mitigating dence of THOMAS, Justice, opinion except execution, de- cruelty of manner of sentencing respect relating to issues to the right process of appellant his to due nied phase of the trial. finding fundamentally fair law penalty. impose the death I appellant’s right pro- due 15. Whether ap- a death verdict returned cruel un- and to free from cess be pellant’s sentencing This is be- trial. case punishment violated usual upon post-conviction petition us for fore statutory presumption in favor of death penalty cases are different relief. Death requires Wyoming law which under punishment is other cases. The from all to bear burden demon- defendant corrected; wrong, it be If it is cannot final. strating mitigating cir- that sufficient undone; made it cannot cannot be be outweigh aggravating cumstances so, case with right. And we review leniency. as to warrant circumstances so purpose of care detail for the utmost right to free appellant’s Whether impose do assuring ourselves that we punishment and cruel and unusual arbitrarily, or penalty unlawfully, the death jury’s process was violated to due unjustly by adherence doubtful slavish aggravating circumstances finding as application of technical doctrine. pecu- committed that the murder was error, presenting the Appellant claims the defendant was niary gain and while following our robbery issue for review: engaged the commission degree to be appellant’s only require- free of first murder. The “Whether punishment unusual during from cruel and ment is that the murder occur process were violated to due perpetration, attempt defendant’s circum- finding aggravating jury’s perpetrate, one of the felonies listed the murder was committed stances that Thus, statute. consider we whether the the defen- pecuniary gain and while penalty properly death invoked follow- of a engaged in the commission dant was ing appellant’s degree conviction of first already had robbery robbery when murder, (felony) felony being robbery. capital to elevate the crime been used Supreme The United States murder.” Eighth has Court stated that the Amend part on direct This issue was raised prohibition against ment’s cruel and un part by Justice appeal and addressed in punishment, applicable usual made Rose, dissenting, in through Amendment, states the Fourteenth (Wyo.1984), P.2d 558-62 cert. prohibits imposing a state from the death 1077, 105 S.Ct. 469 U.S. penalty arbitrary capricious in an man I). develop (1984) Subsequent (Engberg Instead, sentencing body ner. must be our stat ments in case law and revision of provided genu with standards will require penalty death utes that we review inely narrow the class of crimes and the pro sentencing post-conviction in this relief persons against the death whom ceeding. imposed by allowing it to make an individu here address The issues we are whether alized determination on the basis of the robbery sup- underlying the use of the character of the individual and the circum port independent aggravating circum- two Stephens, stances of the crime. Zant v. stances, robbery an and the use of the 862, 878-80, 2743- aggravating circumstance when it had al- ready to elevate the crime to been used [unconstitutional, arbitrary “To avoid permissible. capital murder were We con- capricious sentencing], aggravat- *17 robbery clude that both uses of the were * * * ing reasonably circumstance must impermissible; jury instructions relat- justify imposition the of a more severe ing aggravating mitigating to the cir- compared sentence on the defendant incorrect; that, cumstances were ac- Id., guilty of others found murder.” cordingly, appellant’s sentence must va- be 877, 103 at 2742. U.S. at S.Ct. cated and this case remanded for resen- tencing. Gregg Georgia, See also U.S. 2940-41, 206-07, S.Ct. 49 L.Ed.2d Appellant felony was convicted of mur- S.Ct. reh. (Dec.1977 Repl.)

der under W.S. 6-4-101 Furman v. Geor- 50 L.Ed.2d 6-2-101): (now W.S. * * * 238, 294, 92 2754- gia, 408 U.S. “(a) perpetration Whoever * * * (Brennan, J., concur- L.Ed.2d 346 of, attempt perpetrate, any or * * * ring), denied 409 U.S. reh. robbery any being kills human * * * guilty of murder in the first degree. has chosen to meet this re- Wyoming “(b) creating separate statutory person quirement by A of murder in the convicted punished by jury degree sentencing procedure first shall be death under which imprisonment according aggravating mitigating life to law.” or considers pen- deciding whether the death factors Wyoming allows assessment of the death first imposed case of alty should be each upon degree of first penalty only conviction part Wy- degree pertinent murder. The murder, premeditated is murder with which fol- read as oming’s death statute Felony felony malice or murder. murder lows: jurispru- occupies unique place our evidence, “(d)(i) hearing After all the dence. It a defendant who commits allows a recom- unpremeditated convicted shall and render jury an murder be deliberate the defendant to jury, death is defendant ommends ed defendant it found by the foremen of dict, imposed, sentence. whether posed unless ing tenced to able death, gravating circumstances section * * * “(f) cumstances tion ist; and “(C) aggravating circumstances aggravating circumstances forth in subsection “(e) mendation based “(B) “(A) circumstance Unless (j) The death time, # # Based Whether Whether if If the law. upon the shall its verdict is a recommendation (h) *18 made, the defendant should this section judge the death sentence to death to life agree death or life beyond of this section is found. ^{[*] [*]} Where a recommendation exist as upon these designate judge one sufficient jury trying sentence penalty shall the court following: least one imprisonment shall not sentence cannot, or circumstances which ^{[*] [*]} death. but (1) or a reasonable shall set (h) jury shall sentence punishment ^{[*] [*]} imprisonment. set forth in sub- within reason- forth more mitigating cir- writing signed considerations, shall sentence impose a life the case outweigh found to exist ^{[*] [*]} in subsec- aggravat- sufficient be sen- its ver- section; provid- be doubt. judge, to be # rec- ^[*] ag- im- set ex- tion of another bance; defendant’s conduct the defendant was a murder and his duress or under the substantial extreme act; tory “(vi) purpose of “(v) the unlawful ful arrest “(iv) cause of “(in) “(i) cuniary gain; former former district charging of a destructive device custody; atrocious "(viii) mitting “(ii) The murder was committed while “(j) Mitigating circumstances shall robbery, glary, kidnapping “(vii) “(vi) “(v) following: prosecuting- The defendant acted under The relatively The The victim was The The The judicial participation prior defendant has or the exercise rape, murder defendant was an murder mental or emotional distur- or murder capacity of committed or murder of avoiding or attempting cruel; criminal effecting throwing, sexual attorney or former minor; officer, person; attorney, was was under the influence or aircraft assault, arson, committed for especially committed for activity; a judicial no participant preventing district consented his another placing or significant during defendant homicidal act accomplice in commit, official escape from piracy attorney, or extreme heinous, domina- officer, person county or a law- bomb; in the duty, bur- his- dis- be- pe- or criminality his conduct appreciate “(h) are lim- Aggravating circumstances require- his conduct to or conform following: ited to the im- substantially ments of the law was “(i) per- a committed The murder was paired; imprisonment; son under sentence “(vii) age of the defendant at “(ii) con- previously The defendant was (Dec. of the crime.” W.S. 6-4-102 time de- in the first victed of another murder Cum.Supp.). Repl. & 1982 gree or or felony involving use person; statutory provi- threat of violence to the jury, applying following above, detailed found “(in) sions defendant knowingly created aggravating circumstances: (2) great risk death to or more two was committed persons; “1. That the murder imprison- sentence person under “(iv) The murder was committed while ment. engaged, or the defendant was an previously of,

accomplice, in the Defendant the commission an That or “2. first murder commit, of another attempt flight or after com- convicted available, legally felony involving the use or which it the conclu- degree aor person. virtually inescapable threat of violence sion is it is knowingly Indeed, cre- being arbitrarily. the Defendant inflicted “3. That (2) or great risk of death to two ated a lottery sys- more than smacks of little persons. more tem.” 408 U.S. at 92 S.Ct. at 2754 murder was committed “4. That (Brennan, J., concurring). engaged in the Defendant was while the imposing The Court held that the death attempt or to commit commission of penalty guidelines under statutes without committing attempting flight after or rationally uniformly and criteria to se- any robbery. to commit imposition lect of death cases rather committed for “5. That the murder was arbitrary in application than life to pecuniary gain.” therefore unconstitutional. difficulty

The constitutional with W.S. 6-4- case, Engberg’s enhancing 102 as it existed at the time of In this effect of the sentencing Engberg’s it allowed was that underlying felony (robbery) provided two and, him felony murder to convict both aggravating circumstances led more, him death without sentence (1) Engberg’s death sentence: murder allowing imposition of the death (2) during felony, commission of a and mur- upon jury finding: “at least one result, gain. pecuniary der for As a * * * aggravating circumstance”—that be- underlying robbery was used not once but * * * * * * “(h)(iv) ing committed murder three times to convict and then enhance the * ** any robbery.” in the commission of Engberg’s crime to a death seriousness provided requirements no be- This statute felony involving murders sentence. All felony itself to yond the crime of murder definition, robbery, by contain at least the appropriately select those to be narrow aggravating circumstances detailed two therefore, on its sentenced to death places felony This murder de- above. face, arbitrary imposition of the permitted position in a than the defen- fendant worse statutory penalty. death This scheme murder, premeditated dant convicted felony sentencing preserved death mur- simply his crime was committed in because very der the evil condemned and held un- Georgia, felony. This is an conjunction constitutional Furman v. with another permitted in 92 S.Ct. 2726. It classification, capricious arbitrary and a sentence to death felony murder cases narrowing Furman/Gregg violation of the gener- applying any standards that without requirement. ally per- of crimes and narrowed the class further Additionally, we find a Fur- penalty. given sons were the death who problem aggra- because both man/Gregg sentencing scheme The statute recreated a vating overlap they in that refer to factors Supreme Court the United States defendant’s crime of aspect the same being found resulted in death sentences jury’s it is true that the robbery. While imposed unevenly, unfairly, arbitrarily and sentencing quali- analysis capital is to be infirmity in this statute capriciously. The *19 legislature the quantitative weighing has since been corrected tative rather than a later discuss. factors, 553, as we shall I, aggravating at of presented with two jury the should be Furman, Court, the faced with the In merely the un- sentencing aggravating factors because of scheme as now same kind us, felony robbery, observed that: rather than derlying before was finding be) felony. The of an (or may case some other mere judges, as the “Juries qualita- discretion practically implies have untrammeled a aggravating circumstance or insist that he to let an live accused The tive value as to that circumstance. 248, at 2731. die.” 408 92 S.Ct. U.S. at aggravating circum- qualitative value of an when the same unjustly stance is enhanced and stated further that: multiple to create underlying fact is used inflict- punishment the death is “When of aggravating factors. ed in a trivial the cases number of felony distinguish Phelps, murder is We an element of When Lowenfield 231, 246, 108 98 L.Ed.2d 484 U.S. S.Ct. circum- aggravating listed as an itself S.Ct. denied 485 U.S. reh. stance, 6-4-102 requirement the W.S. (1988), 99 L.Ed.2d 286 which involved circum- “aggravating at one that least persons killing the of three convic- sentence be- be for a death stance” found degree of murder tion of three counts first meaningless. Law Dictio- Black’s comes aggravating circum- in Louisiana. The sole (5th 1979) “aggrava- defines ed. nary, 60 jury the that “the stance found was as follows: tion” knowingly a risk of death offender created attending the com- “Any circumstance great bodily harm more than one or or tort which increas- mission of a crime at person.” Lowenfield, enormity or guilt or adds to its es its the 554. The Court reaffirmed S.Ct. at consequences, injurious but which is narrowing requirement statutory aof beyond the constit- essential above application penal- for of the death scheme (em- tort the crime or uents of itself.” stating: ty, added) phasis muster, capital- pass constitutional “To statute, do not used these factors As sentencing ‘genuinely nar- scheme must “aggravation.” of The fit the definition persons eligible row the class of pecuniary gain and aggravating factors of reasonably justi- death and must felony do not serve the commission of imposition fy the of a more severe sen- narrowing persons class purpose compared to oth- tence on defendant death, and the Fur- guilty to be sentenced ers found of murder.’ Zant v. weeding-out process 862, 877, man/Gregg fails. Stephens, 462 U.S. 103 S.Ct. 2733, 2742, cf. precedent applying In our review state Georgia, Gregg U.S. Furman/Gregg statutory criteria to (1976).” 49 L.Ed.2d 859 U.S. factors, find the case of aggravating we 108 S.Ct. at 298 N.C. 257 S.E.2d Cherry, That Court noted statutes of cert. denied grades provide five state of Louisiana (1980), particu and, statute, homicide within narrows case, persuasive. the defen larly that receive death class offenders who supermarket employ and killed a dant shot separately for who by providing life those during robbery. jury convicted ee possibility parole. receive life without felony During the defendant of murder. Thus, statutory permis- schemes were two sentencing phase, jury was sub stated: sible. Court mitted, aggravating cir and found as an narrowing required for a function “[T]he cumstance, others, among murder regime capital punishment may be committed while the defendant ways: provided either of these two robbery engaged the commission legislature may itself narrow Supreme a firearm. The North Carolina offenses, capital Texas definition underlying Court stated “[o]nce done, so that the and Louisiana felony has used to obtain a conviction been concern, guilt responds finding of to this murder, has degree first become broadly de- legislature may or the more of that crime and not there element capital for nar- provide fine offenses and prosecution basis additional after aggravating rowing jury findings of 257 S.E.2d at 567. Cherry, or sentence.” penalty phase.” circumstances at a defendant is The court held “when 246, 108 *20 at Lowenfield, at degree of first murder under the convicted 555. rule, judge felony murder the trial shall and continued: phase jury sentencing at the submit ‘narrowing aggravating “Here, per- function’ trial the circumstance was of the the Id., guilt phase concerning felony.” jury at the at the underlying the formed guilty three it found defendant when 568. compen- “The murder was committed for provision under the of murder counts sation, the collection of insurance bene- specific has a intent ‘the offender that gain.” pecuniary fits or other similar upon great bodily harm kill to inflict or 6-2-102(h)(vi) (1991 Cum.Supp.) W.S. The fact that the person.’ than one more required to find sentencing jury is also legislature Finally, the made murder con- circum- aggravating of an the existence aggra- nected with other violent felonies an part of the consti- in addition is no stance vating premeditat- circumstance when narrowing process, tutionally-required present: ed malice is aggravating and so the fact “The defendant killed another human be- ele- duplicated one of the circumstance ing purposely premeditated and with make this of the crime does not ments in, engaged or as an malice while constitutionally infirm. There sentence of, accomplice in commission or an question the Louisiana is no but commit, flight attempt to or after com- death-eligi- class of scheme narrows the commit, mitting attempting or sentencing then at the ble murderers and assault, arson, burglary robbery, sexual the consideration of mit- phase allows for 6-2-102(h)(xii) kidnapping.” or W.S. igating and the exercise of circumstances added) (1991 Cum.Supp.). (emphasis 246,108 at S.Ct. at discretion.” 484 U.S. changes think these demonstrate a We recognition by legislature sys that the Supreme Court found The United States place aggravating tem of circumstances provid- case that Louisiana Engberg’s sentencing problematic Lowenfield narrowing process guilt phase at the ed the bootstrapping effect of felo because of the provisions The clear of the trial. stat ny murder convictions. The current Wyoming provide statute that the narrow- sentencing govern a second ute should ing sentencing phase occur it does not contain the phase trial because therefore, gov- Lowenfield, does not trial. Att deficiency of the earlier statute. Cf. disposition (Wyo.1984). ern our in this case. 684 P.2d 812 letweedt v. case re disposition Our re compelling

Another reason for portion of our quires we overrule a versing appellant’s sentence is that death I, opinion Engberg I. we sentenced, legislature since has he was that submission the contention addressed modified the death statute mak gain” pecuniary of “murder for aggra ing changes three which affect the * * * while the and “murder committed vating circumstances used his case. * * * engaged in the com defendant was First, legislature most of removed * * * any robbery” improp mission of felonies, previous including list of rob- aggravating circumstances er because both bery, the list of crimes which consti- aspect the defen same referred to the aggravating circumstances in W.S. 6- tute reasoning We found the dant’s crime. 2-102(h)(iv). reads as fol- The new version persuasive: court Carolina North lows: Oliver, 302 N.C. “In committed while “The murder was (1981),that court held that the S.E.2d 183 engaged, or was an ac- defendant was circumstance identified as aggravating of, or an complice, in the commission gain pecuniary examines murder commit, attempt flight com- or after conduct, motive, not his defendant’s commit, any mitting attempting or air- not an element of the offense while throwing, piracy craft or the unlawful may consider his motive jury properly discharging of placing or a destructive capital respect to the issue of a 6-2-102(h)(iv) W.S. device bomb.” that the Later that court held sentence. (1991 Cum.Supp.). of murder for aggravating circumstance appropri- Second, pecuniary gain always almost legislature qualified has jury where ately will be submitted to the question of what kinds of crimes are during the gain: murder is committed by pecuniary deemed motivated *21 death, is shall robbery. a sentence of an armed State v. verdict course of Irwin, writing by 282 S.E.2d 439 designate signed 304 N.C. in the fore- the Carolina court’s The thrust of North jury: the man of aggravating holdings these two is that “(i) or aggravating circumstance The both be submitted circumstances unanimously which it circumstances 686 P.2d at 553. jury.” Engberg, the doubt; beyond a reasonable found I, opinion Engberg our in entry the Since "(ii) or mitigating The circumstance Supreme Court—relied North Carolina the unanimously which it circumstances upon by approval and cited us with —has evi- preponderance a the found Ques Oliver, in explained State v. further dence; and 228, 354 N.C. S.E.2d inberry, 319 synthe Quesinberry, "(Hi) In the court mitigating The circumstance that, Cherry and held sized Oliver any ju- circumstances individual felony is convicted where a defendant preponderance the ror a found only, inappropriate to consider it murder added) (emphasis evidence.” gain the that pecuniary fact a both 1989. emphasized portion The was added in separate aggra robbery was committed as Wyo.Sess.Laws ch. 1. The ver- § cannot vating factors because the motive in sion of the statute effect at the time purpose the for the act divorced sentencing phase simply the stated: Quesinberry, 354 S.E.2d at aggravation. “(e) im- penalty The death shall not be longer find Accordingly, we no Oliver 452. (1) ag- Engberg posed I. least one principle for the cited unless at valid Carolina court agree We North gravating circumstances set forth in sub- cited, and, other reasons for this (h) of this is found. section section I to that it is the extent overrule if is a jury, its verdict recommendation opinion. We now inconsistent with this death, designate signed writing shall felony underlying that where hold jury aggravat- the foreman of the felony a defendant of mur used to convict ing or circumstances which circumstance underlying felony only, der elements In beyond found reasonable doubt. again aggravating as an may not be used judge nonjury cases the shall make such sentencing phase. We ac factor cannot, designation. jury If the within finding knowledge jury’s ag of other time, agree punish- on the reasonable gravating circumstances in this case. We im- imposed, judge shall ment to be know, however, what effect fel cannot pose Wyo.Sess. life sentence.” 1977 gain murder, robbery pecuniary ony ch. 122 W.S. 6-4-102 Laws § found had in aggravating circumstances (Dec.1977 Repl.). weighing process jury’s and in final change reflects the United States Su- appropriate. that death was determination preme Mary- in Mills Court’s decision Although the issues are dis- above land, case, phase of this positive (1988), a while L.Ed.2d 384 decision made 6-2- we make note of amended W.S. also pending still before this petition was concerning jury of miti determination Mills, the held In Court that court. 6-2-102(e) gating W.S. circumstances. must trial court a death sentence case (1991 part: Cum.Supp.) states each individu- clearly jury instruct the “(e) penalty shall be im- The death mitigating cir- juror may al consider ag- posed unless at least one he to exist in mak- cumstance or she finds set gravating circumstances forth sub- determination, ing regardless sentencing (h) of this section found. section jury unanimously found whether the judge shall make such nonjury cases to exist. 486 mitigating circumstance cannot, If the within a designation. 377-80, Re- 108 S.Ct. at 1867-68. U.S. at time, punish- agree reasonable pos- unless a “substantial required im- versal is imposed, judge to be shall ment can be out. this occurred ruled jury, sibility” its pose a life sentence. if *22 sentencing phase instructions II The aggra- jury find required that the case dissenting opinion quotes The the author beyond a reasonable vating circumstance opinion’s writing of this from Hopkinson, mitigating by a circumstances doubt at 1188—first out of context and then to The instruc- preponderance of evidence. suggest I feeling that have no for victims against factors each weighing tion for of crime. mitigat- whether the other did not indicate First, context, out of I quoted am found ing unanimously. factors must be refusing accept capital pun- the law of told the jury Another instruction that it “I ishment because am convinced now that agree unanimously on must a verdict of this is an policy.” unwise Omitted from so, death, is unable to and if it do the court quote very is the next sentence: sentence of life. The impose will verdict that, “I am convinced also at this time in jury gave jury two The form choices. history, our these statutes are constitu- mitigating either find the could circum- and, therefore, tional I the law. have outweighed aggravating support, stances cir- taken an oath to obey and de- life, fend the constitution and will honor that Engberg cumstances sentence Hopkinson, oath.” at 1188. mitigating circumstances did outweigh aggravating circum- Second, my it is said that discussion of stances and sentence him to death. No- killing applies only perpetra- death and tors, where the instructions or verdict form implying feeling that I no jury Thus, mitigating was the told that the cir- quoting again victims of crime. me Hopkinson editorializing and then unanimously cumstances need not be found is stated: mitigating but that the circum- jurors they stances be found individual “These are noble words. Would had uttered to weighed by been memorialize a tor- individually them in decid- victim, family literally ture blown ing question. life or death apart, or an innocent victim of an armed (1991 Cum.Supp.) Because W.S. 6-2-102 robbery support rather than in of con- govern sentencing phase will retrial of the victed, Thomas, J., cold-bloodedkillers.” case, of this we need not decide whether to dissenting, at 5. extend the Mills decision to in a dissenting justice I my assure the feel- Smith, Sawyer retroactive manner. See ings killing apply about life and death and — U.S.—, to victims as well as all mankind. I do not (1990); Lane, Teague apologize feeling regret for a over the killing beings something other human — State, (Wyo.1977). Flores v. 572 P.2d 746 My great- in which others seem to revel. Nevertheless, important it is to remember we, hope someday is that as a est civilized always that our law has “that matters been society, stop slaughter will kill- —the require unanimity, which convict and fail ing beings. Educating peo- all human —of ure to convict can result from the vote of ple about how to live with each other is the aggravating juror one and that and miti path achievement of this result. surest gating circumstances should dealt poorly, do it either or not at all. Now we State, way.” Hopkinson in the same dissent, quoting writings after other 1186, 1190 (Cardine, J., (Wyo.1990) 798 P.2d opinion, referencing of this author dissenting). to a unanimous ver stating him that his name words State, beyond dispute. Taylor dict is ring,” incredulously asserts have a “hollow (Wyo.1980); Wyo. see P.2d justice that these references are not to that I, Art. It is essential Const. § illogical support discussion to at all. proper Engberg be accorded the instruc this claim could be understood had it considering mitigating finding Wonderland, tions come from Alice in see Har- (Wyo.1989) circumstances a retrial of the vey v. J., (Thomas, dissenting). The dissent lec- phase felony murder conviction. of his *23 con- ming statutory scheme as well as the opinion, because majority the tures that Supreme trolling Court product United States justices, other is the joined two precedent Maryland, Mills drafter, court, therefore not the and is single not justice a a reference to direct important mandatory and considera- are Surely, at all. justice a to that reference this not disposition in case and tions our for goose for is sauce the what is sauce the. “articulating merely dictum[.]” joined by is opinion gander. dissenting The Therefore, prod- it is the justice. a second empirical The states —without dissent and, suggest- court dissent uct of the in data, authority any or study, citation of ed, justice to a said reference is nothing in is “there evidence basis whatsoever —that justice at all. to that a reference seeking prosecutors are not of the fact that in death in cases which a sen- penalty the established, being and With that rule might appropriate be tence to death well my feelings colleagues, I the sensitive to they judi- do not that the because believe has come candor in agree the time that Op. at ciary permit will the execution.” Perhaps the real basis for our discussion. unsupported. 168. This assertion is bald colleague's vigorous my dissent esteemed support propo- But there is evidence to the gleaned from its observation that can be in attor- spending sition that limits district opinion the effect majority the would “have neys’ bargains. As a plea offices result in eliminating penalty in the death * * respected long-time, Wyoming most district remaining Wyoming in two cases interviewed, attorney said when Op. tragic How it is at 168. to lament capital possible “he is cases aware two kill perceived opportunity loss these in never other counties that went However, there is no need for two men. couldn’t af- court because counties It The is incorrect. is sorrow. statement expense. prosecutors ford The set- now, Engberg will on incorrect because plea bargain.” tled for a remand, given sentencing hear- a lawful be ing correctly consider and at which can upon proper

life death instructions on or bringing in prosecution means wit- “[i]f and, appropriate, impose if the law out-of-state, nesses from cost penalty. death a plea the deterrent that fosters bar- Barron, $, gain.” prose- needs Defense majority The dissent criticizes its Star-Tribune, deal, Casper cutor can alleged dissenting opinion and citation of 22, 1991, A8, Sept. at col. 4. However, Op. at reliance on dictum. “ Unfounded, lack unsupported con- blame for proposition that ‘matters which placed deci- to con- death executions require unanimity, penalty and failure vict juror vote one sions this court is neither constructive vict result from the can helpful. effect, is to mitigating always, cir- nor aggravating ‘I’m oversimplify dealt with the cumstances should be with debate ” tough-on-crime, accu- you’re way,’ Hopkinson same soft-on-crime’ J., demagoguery that (Wyo.1990)(Cardine, sations. It is the sort of dissent- upon unfairly political seize ing), merely hypothetical or candidates dictum a exploit. simplistic these argument Rather, problem is the a dissent. slogans they often premise statutory for the current scheme buzz words Wyo- specific real and issues and do obscure the required instruction under pressing prob- 6-2- not aid in the solution of ming death statute. W.S. example, (iii). populous state 102(e)(i)through lems. For changes recently a milestone in mitigating country passed rel- statutory factor are scheme that, capi- history, first in its for the time not an “effort to evant and eliminate * * * 100,000 persons incar- counted more than punishment Wyoming, by artic- tal dictum,” Eng- prisons. That is a milestone op. cerated in its ulating dis. because persons prison it is more than berg resentenced amend- because will be under that Therefore, any anywhere in the Wyo- industrialized nation ed scheme. revised delay. sentencing jury ag- world, Presenting of America. to a States except the United is not gravating mitigating look at that state’s factors re- begin to Should we ‘tough- Surely if ally ask ourselves burdensome difficult. milestone and really working? We approach suggestion on-crime’ will prosecutor eschew than crime difficulty job have more violent honestly, such and do his industrialized nations. We other western reasonably, by law. required and as *24 drug problem than oth- a greater have affirmed. Sentence vacated Conviction one murders. We are ers. We have more proceedings case remanded for consist- and developed countries minority of of small opinion. ent with this All penalty. of this that retains the death thoughtful study. serious and deserves MACY, Justice, dissenting part and pun: that crime must recognizing While concurring in part. incarcerated, ished we and offenders doing that in so we should understand also portion I dissent to of Justice Thom- and not the cause. The treat the disease question opinion pertaining to the as’ many, they causes and deserve serious are Engberg’s guilt It is or innocence. unrea- debate, study, and consideration. that, require sonable for this Court to nature, law, by very its business of default, procedural order to avoid defense conflict, controversy, disagree- involves Engberg’s counsel should have called wife healthy ment. A discussion different already second had time after she re- very essence points of is the of law— view type very fused to is the testify. This grow, each way it is we live better with secondguessing of defense counsel’s trial other, improve system our of law to strategy which have said we will do we society. spirit It was this better serve reviewing are when we a claim ineffec- important questions discussion Seeley tive assistance of counsel. See presented in this case was undertaken. Also, (Wyo.1986). P.2d at trial while the record shows that both by It is the dissent we said ignored Wyo.Stat. counsel the court penalty. claim is abolished the death Thomas’ 1-12-104 Justice con- § exists pursuant absurd. The death Engberg’s struction the statute violates by legislation adopted Wyo- in 1989 constitutionally protected to obtain ming legislature. Because we are a Const, in his amend. witnesses favor. men, government laws and not we Const, VI; Wyo. art. See also § sentencing phase must reverse Urbigkit’s Justice Section V.B. of Chief case. concurring dissenting part opinion prosecutor, a member of the Whether part. government, cap- seeks executive branch that it imprisonment I concur with Justice Cardine punishment or life is a ital underlying rob- impermissible deci- to use placed decision with his office. The honest, when bery aggravating as an circumstance result from an fair ought sion already had used to elevate the and circumstances been assessment of the facts It is also first-degree I crime to murder. particular case. am confi- present in each support robbery to duty impermissible use the not shirk the prosecutor dent the will independent circum- whining aggravating two in this about court case difficulty stances. complaining about the caused

TABLE OF CONTENTS Page AND THE PROCEEDINGS ISSUES PRESENTED I. HISTORY OF II. FACTS III. OF REVIEW SCOPE Introduction Outline A. B. Scope Penalty Review Death Cases Right by Procedural Default C. Forfeiture Constitutional OF COUNSEL INEFFECTIVENESS IV. ISSUES PHASE V. GUILT rH Contended Errors A. B. H T—I «O his Engberg Right to Call to Allow Refusal the Trial Court as a Witness Wife Established Totality the Record of Procedures What Use of C. Witness” Secondary From an “Unavailable Evidence D. E. F. Open Court of the Prejudice in Presentation Witness Trial to Allow Court Eyewitness Identification Witness—Refusal Testify the Potential for Expert Witness Call Error in Identification i—I<N OO Attorney Engberg and His That to Inform of the Prosecutor G. The Failure Her Mem- Hypnotized to Enhance Principal Eyewitness They Had the *25 Hearing a Post-Trial ory Subsequent Denial of CO Engberg by Raised Phase Issues H. Additional Guilt lO DEATH PENALTY ISSUE VI. 1C CO in “Modern” America Penalty The Death A. B. Capital Punishment a Predicate for Felony Murder as IO Wyoming Present Statute C. n © by Ameliorated Conflicts Now Weighing and Burden of Persuasion D. Present Law rH CO Penalty Issues Death E. Other rH CO CONCLUSION

VII. t-H COCD (1984) (Engberg Justice, dissenting in URBIGKIT, S.Ct. Chief I), concurring part. in this court observed part and “[t]he the trial of this case was factual issue at appeal pro- post-conviction-relief This In deci identity perpetrator.” consideration of this court’s second vides sion, desideration court found this “[t]he death Roy Engberg’s Lee conviction and methodology of voir dire examination Fargo the murder of a Wells sentence for discretionary. Id. at jurors” was delivering money grocery to a store guard issue, perempto second use of 547. On the in sec- Wyoming. I dissent this Casper, going beyond Witherspoon challenges ry appellate advo- of trial and ond absolution Illinois, 391 Witherspoon v. expendables, and con- cacy involved conviction errors 1770, 20 L.Ed.2d 88 S.Ct. U.S. opinion of Justice Cardine cur with the reh’g 393 U.S. 89 S.Ct. denied penalty death reversal. we said: L.Ed.2d I. imposed by the limits Swain Within Alabama, supra [380 THE HISTORY OF PROCEEDINGS 759, reh’g de- AND ISSUES PRESENTED 1528, 14 381 U.S. nied sen- Following jury verdict death (1965)], peremptory chal- tence, five appeal was taken with initial recognized partisan as lenges must be (1) voir right stated: to individual issues application. idiosyncratic nature (2) challenges jurors; peremptory dire of part of the tools of interested They are (3) qualified jury; death to create a used they such al- advocates. As and able kill to of intent insufficient evidence wholly discre- ways been viewed as (4) use penalty; duplicate justify the death respect beyond inquiry with tionary and robbery and an offense committed to motivation and intention. factors; gain aggravating pecuniary as penalty. proportionality of death I, P.2d at 549. The intent Engberg by this court kill issue was addressed Engberg In would intentional homicide 105 decision that (Wyo.), cert. felony murder ISSUE 2 for the requirement not be * * * penalty sentence. death failure to disclose its the State’s hypnosis enhancing use of as means significant issue addressed in The most Kay memory violated its ethical Otto’s of murder for I dual use his obligations appellant right and denied ag- robbery distinct pecuniary gain and law, right process to due his of con- validating gravating circumstances. frontation, and his to effective as- instruction, concluded that “the court sistance of counsel. sep- [permitting submission of both rule premised upon arate circumstances] ISSUE 3 aggravat- assumption that the number of * * * (a) appellant pro- was denied due independent some ing has circumstances procedure cess of law the extradition Id. at 553. This was the significance.” bring Wyoming him to such that used aggra- numerically aggregating thesis of proceedings here must be declared Finally, Engberg I vating circumstances. null and void. nei- that the death determined * ** (b) appellant pro- due was denied disproportionate nor when ther excessive cess of evidence that introduction Wyo- capital compared other cases police he to be officers had beaten Id. ming. at 555. *26 prevent him who arrested him in order to briefing apparently appellate Initial fleeing. from students prepared by law school Program University of at the Defender Aid ISSUE appellate attorney in the Wyoming. The * * * of evidence the State’s introduction position left public defender’s office showing appellant frequently used petition filed rehear and new counsel a for right denied him his funda- aliases presenting is ing first what now the Lock mentally fair trial. issue, Collins v. Lock hart-Lowenfield (8th Cir.), hart, 754 cert. denied F.2d ISSUE 1013, 106S.Ct. 88 L.Ed.2d 475 474 U.S. * * * (a) rights under the appellant’s Phelps, Lowenfield Amendment to the United States Fifth 568, reh’g denied Article 11 of the Constitution and § 944, 108 Wyoming Constitution were violated aggregative factor to of use of he refused to when evidence that wear then felony murder status and achieve he stocking cap photo- so that could be aggravating for an of the same factor use his graphed was introduced at trial penalty circumstance. The issue was death guilt. argued as evidence of * * * by the denial foreclosed to (b) to confront appellant’s right petition rehearing. by him the witnesses was denied court’s permit cross-examination of refusal II), appeal fol- (Engberg In this second photographed him police officer who post-conviction lowing denial of trial court concerning appellant’s medical condition. 212- relief, presented are now we stating page appellant brief additional ISSUE differently phrased issues: * * * (a) spouse in- a defendant’s can privilege tes- spousal voke and decline to ISSUE tify the defendant seeks when * * * permit appel- refusal to testify. court’s spouse * ** eye-witness iden- expert lant to call an (b) Amendment to the Sixth deprived appel- error which tification was and Article States Constitution United fundamentally fair right Wyoming to a were lant of his Constitution § judge’s by the trial erroneous right compulsory process. violated and his trial appellant could call Don- ruling that ISSUE * * * witness, Engberg as a cross-examine na procedure dire the voir used her, prior her introduce statements nor appellant’s right denied him his trial to a purposes. impeachment impartial jury. fair trial an * * * spouse re- (c) a defendant’s who ISSUE testify unavailable witness fuses * * * hearsay (a) statements be admit- whose the introduction evidence appellant penalty phase ted into evidence. had es- caped the authorities Missouri right process him to due his ISSUE finding that fundamentally fair the death * * * presump- the use of a conclusive imposed. should be * * * appellant degree of first tion to convict j.jje (b) prosecutor’s closing argu- plain requires error rever- murder penalty phase of ment in the the trial sal of the conviction. deprived appellant of his to due fundamentally process and fair argued prosecutor appellant when the ISSUE needed to be executed order to re- * ** rights appellant’s under the Fourth the Wyoming strain him and when Su- to the United States Consti- Amendment preme previously recognized has Court Wyoming 4 of and Article tution § argument only proper that kind of intro- were violated Constitution heinous, atrocious, where the or cruel police of evidence seized duction aggravating circumstance is involved. appel- during a search of warrantless lant’s trailer. ISSUE *27 * * * permit appel- refusal to the court’s

ISSUE opportunity lant the evidence circumstance, * mitigating cruelty * * of a the testimony of the ballistics ex- execution, appel- of manner of denied pert incompetent was and should have right process lant his to due law and a disregarded, and dis- been should be fundamentally finding impose fair now, regarded and thus whether there is penalty. death to support evidence the con- insufficient viction. ISSUE 15 * * * right to due appellant’s process ISSUE and to free from cruel and be unusual * * * punishment by violated the statu- (a) prosecution’s ma- use and tory presumption in favor death under press prior appel- nipulation of the Wyoming requires law which defen- deprived appellant right his lant’s trial demonstrating dant to bear the burden of to a trial. fair * * * mitigating circumstances sufficient (b) right appellant’s to effective outweigh aggravating circumstances by counsel was him assistance of denied leniency. so as to warrant court-appointed attorney’s fail- initial his prosecution’s misuse ure to combat ISSUE media. * * * right to be free from appellant’s punishment and to due cruel and unusual ISSUE by jury’s find- process violated were * * * circumstances that ing aggravating the trial court’s failure to excuse pecuniary committed for deprived ap- for cause venireman Alberts the murder the defendant pellant right to a while was en- gain of his fair trial robbery commission of a jury. gaged in the impartial Argument IV already used robbery had been when the murder. capital the crime Eng-

to elevate impropriety illegality Did Wyoming affect the

berg’s extradition to courts? Wyoming jurisdiction of ISSUE * * * Argument V of the error cumulative nature trial due to Engberg denied fair Was that, harmless- regardless of the

is such Engberg denied publicity; was pretrial error, they prej- together any one ness of pretrial due to effective trial counsel process, due rights to appellant’s udiced publicity? fairness, de- and a reliable fundamental penalty should that the death Argument

termination VI * * * imposed. process selection Was the

proper? ISSUE 18 Argument VII * * * expert afforded or exclusion of appellant was Was the admission [ineffec- ap- during his testimony discretionary of counsel and did the exer- tive assistance Supreme Court. peal Wyoming affect a constitu- cise of that discretion

tional in this case? ISSUE Argument VIII * * * trial, due Engberg deprived of a fair Was office of improper for the it was failure of process or confrontation represent attorney general Kay contact to disclose Otto’s State proceedings to post-conviction hypnotist? with a general’s attorney urge that an assistant procedural Argument IX representation was a proper appellant’s the issues raised bar to process due Was relief. petition post-conviction spouse had a ruling that his trial court’s testify?

privilege not to ISSUE Argument X * * * as an Engberg’s status Was evidence holding discussion and this court’s in the escapee properly admitted regard petitions for prior cases with closing prosecution’s ar- phase; was the *28 plain ignore relief post-conviction proper? penalty phase gument at the language statutory and establish obvious of funda- procedure which is violative a Argument XI equal fairness[,] process due mental in Engberg’s proffer of evidence Was it has estab- and whether procedure [sic] lethal the effects of “mitigation” to show pro- confusing and unworkable lished a excluded; etc., is this issue gas, properly peti- simply dismiss cess wherein courts moot? get post-conviction relief to rid tions for Argument XII of them. presumption in Is there a favor as: frames these issues

The State Wyoming under statutes penalty death Argument I cruel and un- process of due or violation punishment? procedures fol- usual error in the Was there Engberg’s on in the court lowed lower XIII Argument * * * relief? petition post-conviction properly instructed Was the II Argument circum- statutory aggravating to pro- stances; due Engberg denied was of con- it error to admit evidence Was unusual to cruel and subjected cess guilt trial? sciousness of at punishment? Argument III Argument XIV suppress evi- Engberg’s motion

Was assistance receive effective Engberg Did properly de- trailer dence seized appeal? on of counsel nied? testimony on expert witness to introduce XV

Argument identi- potential eyewitness for error errors nature the cumulative Does Furthermore, Engberg his fication. relief? warrant this case kept police attorney unaware that the were Argument XVI principal eyewitness attempted to have the attorney general’s entire staff dis- Is the Eng- memory. her hypnotized to enhance post-conviction proceed- qualified berg felony murder and was convicted one of Engberg’s four at- ings because robbery aggravated and sentenced to death appeal torneys direct has since be- on and a consecutive on the murder conviction M attorney general? an assistant come years on twenty-five thirty term of II. robbery conviction.2 FACTS III. Otto, sister, Kay Rogers Vernon and his Fargo, employed by making were Wells SCOPE OF REVIEW delivery grocery a money van armored A. Introduction and Outline left the store to Casper. store in two to face man find themselves face with penalty ap death Consideration Rogers gun. Vernon was armed with a limited issues raised on peal within the instantly killed in front almost shot and appeal broad based attack initial and the escaped his the robber with sister and requires post-conviction relief now made later, Eng- bag money. week About a concepts. different application of three berg while drunk Las Ve- was arrested First, scrutiny heightened standard following gas, Day Nevada New Years requires for death cases review complaint his family wife. violence recognition. is the limitation that Second po- injury Engberg from the received addresses a constitu post-conviction relief during required hospital- lice arrest both in this tional issue which is found case surgical operation. ization appellate primarily ineffectiveness the issues brought Wyo- counsel failure raise Engberg eventually forfei appeal. Finally, mur- initial constitutional ming charged premeditated trial, presented in procedural During ture default felony der murder. appel his contended waiver the omission of denied the to call Cut appeal initial since judge late counsel in the witness when trial wife his (Wyo.1988) rather than con- birth v. 751 P.2d 1257 incorrectly applied federal join the privilege. must be considered. I cannot trolling law also state on testimonial phase guilt reso- opportunity majority of this court he was denied the Additionally, robbery pendency appeal No from the convic filing during 2. was taken court *29 by proceeding post-conviction-relief jeopardy question direct has no ever tion and double court, Eng- separate petition filing a in this of be need not now considered. been raised and by challenged representation berg State’s 1988); State, (Wyo. v. 751 P.2d 367 State Schultz appellate attorney general of since his office Wood, Conn. 545 A.2d cert. 208 changed join appeal initial had counsel for 109 S.Ct. denied 488 U.S. attorney general’s Repre- of office. the staff (1988); Choy, State Ah Haw. n by Engberg preclusion were attacks sentation denied both in trial court (1989); N.E.2d P.2d Woods v. rejection of and with (Ind.1990), (1989), reh'g N.E.2d 1325 proceeding filing the direct court the by of — —, cert. 1,May State ex rel. order entered an McCovey,803 P.2d State v. L.Ed.2d 1074 McClintock, Petitioner, Engberg, Roy v. A.G. Lee review, See, 1990). (Utah in current Com Wyoming, Attorney the State General of of ment, Merger Application Doctrine Stack, General, Attorney A. Gerald Office of Merger Felony dle, Rule Texas: The Mud Murder Renneisen, General, Attorney Deputy John W. Baylor See also State L.Rev. 535 Attorney General the State Senior Assistant — —, Ortega, 817 P.2d 1196 v. (N.M.1991). N.M. Evans, County Wyoming and J. Scott Natrona (Wyo. Attorney, Respondents, No. 85-76 District 1985). involving comparison dis For a recent counsel, qualification see United of defense (E.D.N.Y.1991). Gotti, F.Supp. States quately preserved at trial. We decline to by conviction justifies the lution adopt approach and denial of and instruct of our absolution combination by both trial default committed to hereafter all issues on their procedural State brief appellate counsel. penalty merits in death cases. general appellate A rule of review concepts assess these This court should criminal cases in Utah is that a contem- stan- review post-conviction-relief within objection spe- form of poraneous or some capital case. I will applicable to a dards preservation of claims of error must cific issues, including de- pursue the substantive record part of the trial court wife, be made Engberg’s expert testimony nied review appellate an court will hypnotism before eyewitness identification appeal. early as II issues will such claim on As Engberg Other witness. however, recognized excep- con- considered to the extent that this Court cases, helpful general governing will be for future sideration tion to the rule significantly although I will not reconsider in criminal scope appellate review raised and determined initial the issues penalty im- cases where the death * * * I on occurred before came appeal which Nevertheless, posed. because of is not a broad suffi- this court. This based permanent the serious and nature of W.S. this homicide victions. Present discussion within a massive the United least penalty have been opinion ciency of the evidence enacted sands dress confined thirty significant decisions.3 7-14-101 constitutional issues by Wyoming legislature to ad- appellate published guilt, post-conviction-relief States occurred and also since the through body of case law since death Supreme I was written. Thou- been segmented 7-14-108 case penalty in criminal con- addressed Court but developed review of decisions initially instead issues, penalty ments of error which were at trial but were the first time on ror which is and correct manifest ous Court ative assigned there needs to continue to be a * * * penalty imposed ^[*] objection in such cases to has [W]e exception customarily 4< appeal, have the sua rule. ^[*] objected raised and briefed for appeal. but is considered Accordingly, this 4c notice, consider, in such contemporane- sponte prejudicial to at trial or not palpably ap- 4c preserved prerog- assign- death cases, 4c er- record. Not parent on the face of the Penalty Scope B. Review in Death keeping with only is such standard in Cases law, but controlling statutory and case provid- penalty of execution is When policy safeguard- it also furthers punishment, ed for criminal this court trial in ing to a fair defendant’s assignments of error now should consider by permitting re- penalty case a death the same standard presented first under even in proceedings below view Utah, supreme courts of Loui- used compliance procedur- the absence of siana, courts out a and Ohio. These carve technicalities. al contempo- exception to their death objection Tillman, 551-53 raneous rule. State empha- (Utah 1987) (footnotes omitted and responds to a number added). Georgia, 408 Furman v. sis defendant’s claims of error reversible *30 2726, 2760, 238, 306, 92 33 S.Ct. urging U.S. this Court not to or rule consider 346, 902, 93 reh’g denied 409 U.S. L.Ed.2d they on such claims because inade- were any appropriate change constitutional standards Recognition meet today. found 3. the law is State, (Wyo.), changes Hopkinson v. 664 P.2d 43 significant Wyoming in from the death 262, 908, 104 S.Ct. 78 Wyo.Sess.Laws denied 464 U.S. penalty in 171 cert. statutes ch. addition, (1983). See, conflicting infra, majority opinion 246 In L.Ed.2d death on giv actually VI(C) aggravation-mitigation instruction penalty by Justice Cardine section present standards in this case meets neither I en this dissent. would conclude that proper application applied Eng- of constitutional penalty nor even principles statute as in either death written. Hopkinson possibly when I was berg case I or the could 102 of death reh’g 89, 164, qualitative difference denied 409 34 L.Ed.2d “[T]he S.Ct. requires 89, 163, punishments reh’g 902, from all other 34 L.Ed.2d 93 S.Ct.

U.S. 902, 90, greater degree of scruti correspondingly 34 L.Ed.2d 409 93 S.Ct. denied U.S. Reid v. Stewart, (1972), J., concurring; capital sentencing determina ny 164 Covert, 1, 1222, 1262, Mississippi, 65, v. 354 77 S.Ct. 472 U.S. Caldwell U.S. tion.” Harlan, J., (1957), 2633, 2639, concur 320, 329, 105 86 L.Ed.2d S.Ct. State N.E.2d L.Ed.2d 343 policy.” approach Kirkpatrick, ments L.Ed.2d Bay, holds ty is preme 443 So.2d 1040, 109 denied ring; Kirkpatrick, (Fla.1988), tion, propositions of legal arguments which were not briefed care Because lant. lant, we been tence Our Supreme 534 N.E.2d argued by 529 So.2d 845 Hamblen that “in cases where imposed, this of error not briefed 910, 914, reh’g Court uses the brought to our attention. we 466 U.S. that has been analysis Williams, 847 S.Ct. similarly: Barkett, any have have (1989) (emphasis (1984). The Louisiana Su Court of 1176, 103 v. errors reviewed the record with considered begins by addressing 948, 110 993, 104 S.Ct. State, law 38 Ohio J., dissenting; (La.1988); and Court parties. cert. denied denied advanced that same standard and imposed gravity 546 Ohio 443 So.2d at 553. 527 So.2d the death reviews as matter of S.Ct. (La.1983), St.3d phrases their 39 Ohio St.3d added). on pertinent not have 489 U.S. 2374, the sen- State v. 800, State In addi- assign appel- appel- penal reh’g cert. 808 80 v. Make a Review Wyoming jurisprudence found ue nicalities. added), caution than 146-47, cy is not that should, failure his nounced tended error] The foundational 463 salutary rulings and instructions v. [ and determine But at 3452 231 (1916) Wyo. State, affirming brief, (1985) (quoting U.S. rule, editor the familiar Justice 283 Difference?, at 1 ]; and to save we [77 In one, 491, inapposite. ^[992] Capital P. which we believe P. in ABA State v. this think, L.Ed.2d 1171 558, [(1916)], devotion before Riner indicated: it is a death 161 P. 552 406, attacked Ohama Wyo. exceptions to court 998-99, Wyoming judicial Cases: Should our govern here. Under 411 California Wyo. Morris, rule heretofore indicated. effect of Indeed, Remand sentence duty (1929) Parker procedural Cirej [(1916)]; (1990) to be a (1983)]). appellant capital touching the 41 161 P. 556 greater val- to consider prejudicial traditional v. [the (emphasis Nos. v. Ramos, stated: wholly Death State, ^[3446] cases, Wyo. tech- lega- con 3-4, 128, an Bey, summation, see State similar call mystery that men “What a broad N.J. 548 A.2d 846 For by poet The question broached death?” De Ledewitz, Procedural perspective, see minds of Bell much on the Jerome Penalty in Death Cases: Funda days. In state appellate judges these fault Miscarriage Actual mental Justice and pen- death circuits where the and federal Innocence, (1988).4 24 Crim.L.Bull. 379 capi- exists, finding alty that judges are extraordinary impose demands tal cases Supreme recently The New Mexico Court time, and their Henderson, upon emotions N.M. their their stated (1990): intellectual resources. interesting footnote to recently is an Supreme It States followed. The United Court recognized received a death history Joseph more than Giarratano stated ‘‘[w]e places special that the Constitution one occasion Governor of the from the commutation procedures used convict an constraints on Essay, "To the Best Virginia. See also State of capital offense and sentence him Giarratano, accused Wrong”: Knowledge, Been Have Never Our We Murray v. death.” Punishment, Capital Finality Fallibility vs. 2765, 2769, cert. Essay, Teetering on Yale L.J. *31 83, U.S.—, S.Ct. 112 55 111 L.E.2d denied— Life, 100 Yale L.J. Death and Between Brink: recognized (1990). quotation It (1991). 993 considering suspect the statements of limitation

103 Right By like C. abstract, capital cases are Constitutional In the Forfeiture Procedural require They litigation. forms of other Default legal principles apply appellate courts to Although my disagreement is well stated Yet trial level. found at the to facts therein, by proce- forfeiture constitutional cases, hangs in the bal life where these Cutbirth, dural 751 default defined de cases ance, “great” are akin to the morally P.2d 1257 or constitu- cannot be “imme Holmes, where by Justice tionally ignored scribed Murray here. also v. See hydrau State, kind of exercise a (Wyo.1989); diate interests 776 P.2d 206 Kallas v. previous State, what (Wyo.1989); makes P.2d 198 and Amin pressure lic doubtful, State, and before v. (Wyo.1989). Within seem ly was clear Harris, 1038, the strictures of of law 109 S.Ct. principles settled which even well required this court is to address constitu- v.Co. Securities Northern will bend.” appellate tional ineffectiveness of counsel. 197, 400-01 States, 193 U.S. [24 United Washington, v. See Strickland 466 U.S. (1904).5 468, 436, 48 L.Ed. 679] S.Ct. 2052, 674, 668, reh’g 104 S.Ct. L.Ed.2d here not in contend- occurs significance The 1267, 3562, 104 S.Ct. denied 467 U.S. coun- very competent trial by ed omissions (1984) for illustration L.Ed.2d counsel on sel, appellate in failure of but attorneys responsible to brief failure of the clearly issues devel- appeal present first claims of trial error on obvious Reed, 489 U.S. Harris v. oped in the trial. Any appeal. application initial (1989); 1038, 255, 103 L.Ed.2d 308 109 S.Ct. 72, 433 U.S. 97 S.Ct. Wainwright Sykes, v. 387, 105 S.Ct. Lucey, 469 U.S. Evitts v. 594, 2497, 434 U.S. reh’g 53 L.Ed.2d denied 821, 830, reh’g 470 U.S. (1977) 880, 241, 54 L.Ed.2d 163 (1985); 84 L.Ed.2d 841 105 S.Ct. presently prejudice factors as cause Comment, A New Look at Harris v. Reed: ig- will not be denominated Cutbirth Jurisdiction Over State Federal Habeas issues which are nored within the Petitioners, L.Rev. 493 58 Fordham substantively discussed in de- hereinafter tail. capital punishment man finality reasonable, ration states insure dates that issue, example, one where On it, imposing procedures fair when al and in oral ar- attorney general admitted error (Mo.1982), Bolder, 635 S.W.2d not have been unreason- gument, it would 1137, 103 S.Ct. 459 U.S. cert. denied pervasiveness importance and able for the (1983) (citing Jurek v. Tex 74 L.Ed.2d 983 recognized subject to have been 49 L.Ed.2d as, 96 S.Ct. 428 U.S. public defender Engberg’s law school 875, 429 U.S. reh’g denied considering singular ex- representation (1976)), adequate Furthermore, trial. posure it had at the first remand, of counsel constitutes assistance not we should reversal and Const, requirement. Wyo. State, 777 constitutional did in here but as we Jones Const, law; 1, 6, Wyo. process prejudice. (Wyo.1989) recognize art. due P.2d 54 § problem accused to defend. egregiousness art. Jones § by parading Goodpaster, highlighted The Trial for this case was for Life: Effec wife, previously in Death Pen identified Engberg’s Counsel tive Assistance of prosecutor Cases, opening 58 N.Y.U.L.Rev. statement alty in the Nevada Comment, Supreme in her husband Court’s have turned Ohio appear openly at complaint, then police Quality Control Court- Move Toward and refuse to guilt phase of the trial Indigent Appointed Counsel Defen Jones, TU P.2d jury. testify Capital before Charged dants With Offense we said: Crimes, L.Rev. 21 Akron Shilling Osborn v. persuasive, we are If these authorities er, (D.Wyo.1986), F.2d justification F.Supp. for care and atten could find other aff’d State, experience Cir.1988) finally, with the (10th tion in this court's recent Osborn case, 672 P.2d 777 Osborn (Wyo.1983), Osborn (Wyo.1991). 806 P.2d 259 1051, 104 S.Ct. cert. denied *32 64, (1932))(emphasis origi- 77 L.Ed. 158 in of this case the circumstances Under omitted), profoundly invoking Amendment in nal and footnotes the Fifth the of shocking segments: in by Haef- two illustrative presence Keeler and jury’s the ner, suspected be jury the at least who (undoubtedly attorneys Some those appellants alleged co-conspirators with Balkcom, (11th F.2d House [v. murder, strongly attempted was too Cir.), the cert. 105 S.Ct. denied U.S. by a overcome caution- prejudicial to be (1984)] 83 L.Ed.2d 148 and Mitchell this We cannot consider ary (11th Cir.1985), instruction. Kemp, 762 F.2d 886 [v. easily jury could error harmless. cert. 107 S.Ct. U.S. inferred, purpose this only the have (1987)]) simply are dem- testimony have was to could served cap incompetent. Approximately of 90% onstrate, invok- were that the witnesses poor, poor ital are and the all defendants they Fifth Amendment because ing the the frequently represented by too are conspiracy. guilty underlying were of incompetent inexperienced. Amazing or could rea- probability that the ly, one-quarter Kentucky’s row of death guilt of sonably an admission infer attorneys inmates had trial have who appellants process to through a transfer resigned since been disbarred rather non-testimony at trial that she would have been fect very serious death under the Vegas” For ipation by suasively guilt ical creating testimony at trial. calling of Keeler and Haefner added treme highly prejudicial. questions permitted. confirmed weight not accentuated probability created present his clearly wife will quintessential trial guilt Of by statute. penalty phase no less elicited be avoided perspective, open prosecution’s case if her Because transference, presentation and suggestion per- importance, “flight testimony through inference of partic- retrial other crit- had Las ex- de- by let form the those But that does Bright, served chiropractors communities that Supreme and Mitchell. than esty Yet, * “chiropractors” political * * ^[******] much embodied face communities.” We stop it we must. To Put in a Court: equivalent Tony disbarment! will to death-penalty expert who not mean that we allow Amadeo’s “There are do nutshell, it is possible do cases with law stop country simply of brain brain such as House lawyer do, however, type degrees per- quote many small surgery surgery in surgeons. in the Steve lacks trav- and, predictably, “pa- capital cases IV. dies. tient” often This intolerable. INEFFECTIVENESS OF COUNSEL particular lawyers the views of Whatever capital might punish- be on merits To the extent that within this ment, least members of the bar should at society greed, denominated character- proposition accepted since support the — by cruelty energized ized extrem- v. Alabama Powell [287 ism, leaving actually shocking, to be little (1932)] defen- 77 L.Ed. —that article, Berger, Chiropractor current and sent may not condemned dant Surgeon: Lawyering as Brain Defense guiding “the hand his death without Capital Cases, N.Y.U.Rev.L. & Soc. XVIII proceedings every step in the counsel at (1990-91) (quoting Mi- Change 249-54 In the last decade of against him.” Bright, Report Stephen B. To- nority century, promise of Powell twentieth System More ward a Just Effective kept. to be remains Penalty Death Cases: Review in State O’Brien, At- Addressing the Needs Report the See Recommendations Damned, 58 UMKC L.Rev. Penalty torneys Habe- Death ABA Task Force on expression (1989)and where the app., A-38 Powell Corpus podiatrist for the Alabama, changed to substitute

105 why, Burr, single analysis: happened, what one Representing chiropractor. also wrong, and what was its effect. was Politics Death Row: The on the Client 1 L.Rev. Advocacy, 59 UMKC mistakes, ne packaging into which counseling last stuffed glect, sloppy prin- portrays an inextricable Engberg II ignore practical harm is the to avoid and its right enfolding constitutional ciple logic appel unreality ignore ineffectiveness of to and inef- by procedural default forfeiture counsel. It is obvious that Cut- late By definition, of counsel. fectiveness if Amin, birth, attach Murray, Kallas7 subjected right which was there was Strickland, 466 U.S. ment by procedural constitutional forfeiture self-produced justifi in a 2052 is embodied was sub- represented accused default, conviction should be affirmed cation that Con- counsel. jected to ineffectiveness of regard process, for the due fair without of constitutional any contention sequently, ness, reasonably pro and even error-free inef- always equivalent raises an forfeiture ceeding the conviction is from which obligated to jurist fectiveness issue. con To revisit the record is to grasped. right analyze scope of the substantively enormity capacity template the disposses- weigh the in order to defaulted fact, ma ignore. guilt phase In actual to avoid of the failure of counsel sive effect substantively ad jority simply does not competent error the default invoked issue, except as dress the ineffectiveness reason, justice serve For this we practice. by the pre-staged this case was Cutbirth addressing by claimed quicker and better Amin, Murray, opinion and followed delivery system opera- justice mistakes in post- jurisdictions, In most and Kallas.8 raising first directly tion instead of preferable process conviction relief is the constitutional forfeiture specter of and inevi ineffectiveness issues to consider centering then on procedural default and is obtained tably required where evidence required phase second for consideration appeal challenge the conduct of first pro- permitted the why the trial counsel Pelle appellate counsel. United States v. Cir.1988); I (1st to occur. would eliminate tier, cedural default 1126 845 F.2d (8th proce- Lockhart, right forfeiture 849 F.2d 1134 constitutional v. Williams phrases6 Cir.1988); Griffin, of denied 699 default as buzz States dural United Cordero, (11th Cir.1983); re in the 1102 process equal protection F.2d due P.2d Cal.Rptr. 249 756 in 46 Cal.3d justice directly examine search for Smith, Cal.Rptr. Holmes, 474 Cal.3d 90 dissenting Hyde United In re 3 6. Justice 793, 811, 347, 391, States, have never inti- “'[W]e P.2d 975 S.Ct. (1912), right to counsel is conditioned the misfor- mated that the said is one of "[i]t L.Ed. ” Shillinger, encysted upon actual innocence.' Osborn that ideas become tunes of the law * * * Cir.1988) (10th (quoting provoke n. phrases cease to F.2d and thereafter Morrison, analysis.” Kimmelman v. further 2574, 2586, (1986)). 206; 597; Amin, Murray, justifying P.2d forfeiture 7. When constitutional Kallas, default, appellate incapacity 776 P.2d 198. procedural trees the forest or see the counsel to either find necessary cat- in this dissent to only It has been unexplained; one need read the remains Engberg’s alogue arguments rule, counsel which explicit Wyoming and evidence statute client, not be- in behalf of her failed to offer conjunction and W.R.E. W.S. 1-12-104 Engberg likely to Note, cause I conclude Testimony Spouse’s in Criminal specific appeal on each a reversal on obtain omission, Cases, Wyo. well as Com- LJ. 35 appellate but to demonstrate ment, Rules Evi- Symposium on the Federal thoughtful service counsel did not render Wyoming Practice dence: Their if Effect Engberg need not entitled. which 628-29 Adopted, Land & Water L.Rev. XII to reversal that he was entitled omitted), establish (footnotes authors where the prejudice of counsel. in the denial order to show commented: witness-spouse jurisdictions grant petition- Some I find "that the inexcusable failure grant testify assign- privilege and some not to appellate counsel to raise crucial er’s error, privilege The issue is unresolved arguably might to both. have re- which ments of judicial analysis ex- reversal, Wyoming. that does deprived petitioner of the sulted in a belong only privilege may suggests that the appellate ist counsel effective assistance party-spouse. under the Constitution.” he was entitled (1988); hearsay, stantive conclusive Heyward v. 524 N.E.2d Sandstrom seizure, presumption, invalidly Moore, search (Ind.App.1988); Com. expert, prejudicial publicity used excess Pa.Super. 542 A.2d *34 media, of pre-trial process, misuse voir (R.I.1988). Tooher, A.2d 1084 expandable, prior repu- Witherspoon (10th Shillinger, 861 F.2d 612 Osborn dire — evidence, prosecutorial person tation bad Cir.1988). argument in final to be misconduct —need counsel, appeal, in Appellate initial killed of manner of like animal—evidence in- presented composite jury for review inhumane, improper execution cruel and as embracing in quiry part the With- concern penalty phase, up proof in double burden expendable issue individual erspoon and gain robbery pecuniary of divided adequacy prejudicial exami- voir dire for felony aggravating dual murder to become finding kill as an Then intent to nation. penalty, factors for death as well cumu- issue, recognized counsel the division presented subjects as lative error. Those circumstances, robbery two not the into but present not the additional is- could include itself, robbery of the improvidence appellate of interest of first sues conflict proportionality issue. then became a (not appeal), in- counsel to first available clear, concerns, Broad, in- and well-defined post-conviction re- Wyoming’s aneness of ques- cluding guilt penalty phase both (not appeal), lief to first and inef- available tions, ignored, or not the unnoticed were (not prior appellate counsel fectiveness of clearly defined least of which was appeal). litany to first available pre- issue of the or Sandstrom reversed overwhelming in demonstrated ineffective- second-year proof. Any sumed burden appeal. ness of first counsel for crimi- familiarity student’s with law school duplicitous cause and result conclu immediate nal law should have afforded in aca sions derived Cutbirth cannot in- recognition aggravating of the issue of demically emplaced justify by result robbery felony in the murder as cluding Osborn, preordained conclusion. F.2d petition rehearing only first raised on default is inimical to com Procedural ignored summarily then this court. petency performance. majority can Admittedly, I find court to have would properly ignore appel not the character wrong there, it is procedurally been nonperformance late which oc counsel wrong now. substantively If what we are curred in this case excommunicate presented in totality this case constitutes nonper those concerns virtue counsel, effective assistance woe formance, say nothing and then is left litigants who are faced with that common Maschner, to be Hannon v. considered. seeking justice juris- within this standard (10th Cir.1988); F.2d & Robson diction. Mello, A Ariadne’s Provisions: “Clue of issue as To understand ineffective Thread” the Intricacies Procedural presented, appellate that the it is seen first Independent Default, Adequate and dire; (2) (1) individual voir counsel found Grounds, Penalty, and Florida’s Death kill; (3) intent to divided use 76 Calif.L.Rev. 89 Harris v. Cf. (4) robbery; pecuniary gain and consti- State, (Fla.1988) (majority 528 So.2d 361 tutionality penalty. Apparently of death dissent). A reversal of Osborn v. seen, certainly event not but in (Wyo.1983), 672 P.2d 777 cert. de initially, twenty-six subjects included were nied 465

presented including eye- post-conviction, (1984) judiciary the federal challenge, identification undis- affirming Shillinger, witness Osborn (not hypnosis ap- first F.Supp. closed available to 861 F.2d (D.Wyo.1986), aff'd extradition, peal), beating/bad per- (10th Cir.1988), hardly arrest can afford com evidence, evidence, person alias bad conclusions and son fort to this court hospital as ineffectiveness of counsel photographed reasoning refusal to be an succeeding in this guilt, presented cross-exami- consciousness issue now nation, immunity, death case. spousal admissible sub- bristling arguable appellate at- case claims of failure of

The obvious error, petitioner’s open- counsel filed an in this case is not dissimilar torneys consisting ing 20-page brief of a reflected in the Nebraska recita- performance Broomhall, and a one-page argu- 221 Neb. tion facts of State v. case * * * (Broomhall I) ment. N.W.2d 845 where, appeal, the conviction was direct course, appellate Of an counsel is not discretionary trial court deci- affirmed on a responsible to be held for an actual friv deny sion to a continuance to obtain client, appeal by olous his and we do not diligence by important witness after due California, hold that Anders [v. not shown. the defendant’s counsel was *35 738, 1396, 18 (1967) 87 S.Ct. ] raising the same lack of post-conviction, On Feggans require and the advocate to con counsel, diligence of the conviction was due arguable trive issues. But in the instant Broomhall, 227 reversed. v. Neb. action, peti each counts on which II). (1988)(Broomhall 417 N.W.2d 349 potentially tioner convicted was vul reversal, critique In as a of conduct of legitimate provocative ap nerable to counsel, the court enumerated: pellate contentions that should have been difficult, impossible, if not to under-

It is responsive manifest to an alert attor highly the failure to call a stand how ney. qualified apparently credible witness Cordero, also In re 756 P.2d at 1377 as important ingredient refute the most addressing only ignoring errors of not obvi- credibility— case—witness State’s impairment, ous defenses of but also fail- by any imagination could stretch of the introduction, fail- object ure to to statement strategy. to reasonable trial amount argue defenses of law ure to research and Certainly defense counsel did not ad- to introduce evidence of third and failure during testimony. vance such reason his party ownership inculpatory of an article II, 417 N.W.2d at 354.

Broomhall “failpng] egre- by as described the court as pursue the leads and evidence giously to this

Similarly, Justice Mosk addressed made to him.” available Smith, subject in re 3 Cal.3d In (quoting (1967)): Cal.Rptr. the court priate that are petitioner before ment can be made serves both must set forth a advocating changes resentation “Counsel must * Judged by the * * legal legal citations to the from Cal.Rptr. authority, * * * issues with citations issues arguable. People understanding the court and his client prepare a foregoing statement of the facts the Court of appointed the case. supporting Moreover, Feggans, transcript, argue the law brief 971-72 the facts and P.2d criteria, counsel all issues The brief 67 Cal.2d thoughtful theory to assist if change. counsel discuss Appeal appro- (1970) argu- rep- in the dovsky, tack, ing that should trouble fense by the failure mined to be within the realm of meaningful standards to test tiveness of trial counsel. As illuminated tent assistance. science of the decisions. competent and indefensible This * * * I ^[*] critique counsel are rationalized as problem U.Pa.L.Rev.1965, Right find it somewhat In all too ^[*] of David of the courts to establish courts and bar is deter- ^[*] to Counsel Under seriously aggravated powerful persuasion many Rudovsky in Ru ^[*] 1971-72 cases, case, collective The most in- actions of de- ironic that ^[*] the effec- lawyer- tactical I compe- (1988): find con- ^[*] At Indeed, increasing ethical de- are our inadequate. while we demonstrably counsel, denigrate we had mands on defense fared better petitioner would have the sixth amend- pro purpose the central attorney in favor of a his withdrawn effective assist- meaningful and despite petition- ment: petitioner, se brief In a ance counsel. acknowledged legal ineptitude. er’s claim of However, compare analysis Hayes cally, ineffective assistance Lockhart, reh’g appeal F.2d on counsel cannot be raised direct (8th Cir.), grant cert. denied 869 F.2d evi- requires its resolution often because judgment ed and vacated contained in record dence which not Harris, F.2d appeal.” on at 686. See White, (quoting from Blackmon Osborn, comprehensive consideration Cir.1987)): (8th F.2d at 626 861 F.2d n. See also United rep- holding (8th Cir.1988) counsel’s defense Long, 857 F.2d States constitutionally defi- resentation was Dubray, F.2d 771 States v. United cient, mindful that our function is are (8th Cir.1984). we perform- counsel’s not to trial insulate problem forth out of this Another strains criticism, review and post-trial ance from any justi This record is barren of morass. cases, in death for a especially why attorney fication of who worked lawyer’s professional reputation not to appeal disregard initial chose preserved expense at the of a defen- objections originally error established rights. At same dant’s constitutional Engberg’s attorney. Lacking evidentia- *36 time, however, resist we must ry explanation provid for be foundation second-guess temptation “the a law- hearing require ed which most courts lawyer yer’s makes strategy; trial consideration, procedur for ineffectiveness it appears on the law as choices based anticipates nei apparently al default time, the as at the facts disclosed adequate testimony ther of the client point, proceedings to that and his particularly testimony nor of trial more judgment best to the attitudes and preserved counsel should be for review. judge jury.’’ of sympathies 810, Hatch, 144 N.W.2d State v. Wis.2d 425 probably No not much counsel worse (1988). Hay 27 See also v. United States incompetent McCoy than counsel. v. Cf. man, 205, 263, 72 96 L.Ed. 342 U.S. S.Ct. Wisconsin, 1, Appeals Court Dist. of (1952). This this 232 is not state of 1895, 429, 100 486 U.S. 108 S.Ct. L.Ed.2d appeal actually since record shows Murray, 440 847 Giarratano which, specific procedural defaults defi Cir.), (4th granted F.2d 1118 cert. 488 U.S. nition, malpractice constitute and ineffec 303, 923, (1988), 322 109 S.Ct. had tiveness whenever the omitted issue 1, 2765, rev’d 492 U.S. 109 S.Ct. 106 any arguable validity in a case as this such — (1989), L.Ed.2d 1 cert. denied U.S. penalty we appeal. death On this record 83, —, (1990). 112 L.Ed.2d 55 S.Ct. ap happen can did not on first see what process Wisconsin assures counsel peal. a The federal cases teach that “when has looked at the record and considered disposes [post-conviction court a relief] substantively. appeal Anders State of petition hearing, must allegations without a 738, 1396, 18 California, 386 U.S. 87 S.Ct. except accepted as true to the extent 493, 924, reh’g L.Ed.2d record, they by the inher are contradicted (1967). 2094, By its S.Ct. incredible, ently or conclusions rather than very nature, appeal this could not be first Mos statements fact.” United States v. appropri case issue even if the unusual (1st Cir.1988). F.2d quera, 845 Company, F.2d ate there. Turner there, Here, requested hearing absent (9th Cir.1987), cert. denied 489 U.S. explanation cause observable 1327, 103 1059, 109 reh’g L.Ed.2d “[petitioner's allegations ineffectiveness, 109 S.Ct. denied 490 U.S. are Id. not contradicted the record.” (1989); Reed, L.Ed.2d 205 Harris added). (emphasis at 1124 (7th Cir.1987), granted in F.2d 684 cert. appeal, as Engberg’s time of first At the 108 S.Ct. part 485 U.S. College Wyoming, today, University judgment L.Ed.2d 268 rev’d sponsored a law school student Law provide students Pope, program People v. 23 Cal.3d 152 defender aid experience under the su- Cal.Rptr. “Typi- with clinical P.2d professor. Appellate rehearing law is denied for issue pervision of public defender’s office as- should have been included in the initial counsel for pro- Engberg’s reality case to that clinical signed brief. Post-conviction relief be- Nothing writing for brief assistance. gram only comprehensive comes the and matured appeal record now on this or available appellate process this death documentation furnished on the first case has before and will now receive in the analy- what appeal reveals who did issue system. state court briefs, appellate or but preparation sis example why This classic decision is a strength comparisons scope relevant spirit post-convic- I follow the would informatively ap- The direct are valuable. tion-relief statute to assure that criminal peal appellate this death case cited brief for cases, legitimate legal relating all issues cases, forty-five dozen texts and half post-conviction are one relief accorded sub- A four statement of considered issues. stantive review without the existentialism legal pages occupied thirty-nine facts prejudice of cause and so that constitution- more, argument only seventeen not includ- rights al accused do not become comparison, ing the conclusion. In relative synonymous appellate lawyer with counsel num- twenty-six we are now faced with bashing and defensive rationalizations of issues, subcategory in a brief of bered mistake, error, neglect igno- obvious cases, pages, citation of about 160 1134; Williams, rance. 849 F.2d State v. singular pages number of attached in Wiley, 228 Neb. 423 N.W.2d 477 appendices. preferable How much both to the syllogism as within this defined Cut- delivery justice system and to court *37 jus- of Engberg Wyoming definition birth — if the brief and would it have been State for tice cannot be utilized declination to present substantially court could have de- rights realistically consider of an indi- basic appellate of termined issues instead deter- adequately represented. vidual be A counsel, mining prior for undisclosed penalty case novel difficult death and reasons, Engberg waived those interests of significant given issues most cava- initially present ap- in initial failure appellate lier counsel treatment both for present peal? post- I find in at this context Engberg appeal this deci- and court first juncture Engberg conviction relief has Geimer, Reality in sion. See Law of an ineffectiveness of counsel—conflict Trial, Capital Penalty XVIII that, whatever else interest —contention (1990-91). Change N.Y.U.Rev.L. & Soc. stated, bypasses Cutbirth perceptiveness of suc- The hard work and requires mandatorily substantive consider- is ef- appellate counsel now denied cessor appellate presently ation each issue of- of phase guilt to most fective consideration fered. majority’s application questions by Osborn, context, present in should teach resulting procedural default from failure difficulty exists us that much. A further representation by counsel on and defect of organized its here in that the order result, appeal. procedural first default appeal differently presentations its brief ap- then ineffectiveness of deny is used to Engberg. hours of Innumerable con- pellate majority counsel. uses the analysis consequently is re- coordination then prove premise clusion to uses majority by is quired which saved premise appropriate- establish disposition its constitutional procedural ness the result conclusion. determined of counsel versus ineffectiveness forfeiture self-illustrated, anomaly of this is case realistic attention dual decision. Without procedural but result in substantive find, issues, I under to the real would An disturbing. conclusion is far more ab- insufficiency rep- these circumstances surdly death brief insufficient case appeal, on initial that Cutbirth resentation responsi- filed at least the primary is under controlling Engberg was neither since bility representative the office of hearing given nor fair personal choice public representa- defender. After that or constitu- completion appeal, which would meet state federal tive leaves before why viably presented contentions Cutbirth, even criteria. See tional appeal on initial J., dissenting. This is not writers 1257, Urbigkit, brief adequately completely Coleman failed action waiver deliberative Cir.), (7th adequate cert. as an address planned 845 F.2d 696 review O’Leary, appellate brief. Waiver death case denied Black, Hardin v. challenge certainly earlier omission of (11th Cir.1988). Ginther, 845 F.2d People in issue. not here P.2d at result. is to what fied, cision of the dicial, As Syllogisms * * * I stated ^[******] pragmatism in 1292: If * * * extent and with pragmatism aside, attorney is dissent neglect or deficient question for address calling in result is innately preju- what reasoned Cutbirth, 751 procedur- justi- de- N.E.2d (Ala.Cr.App.1984), sel. Moreover, 423 N.W.2d Mich. ce same for both 542 A.2d Thompson v. rt. 15; the standard 212 N.W.2d 922 Com. 477; Moore, aff'd appellate and trial (1988).9 Knapp, State, 525 So.2d 820 of effectiveness 525 So.2d Heyward, 524 (1973); 834, 109 S.Ct. A.2d 106. Pa.Super. Wiley, coun (Ala.1985), appro- more process it is will be relief, al what post-conviction At a minimum Knowing the logic. priate reason addressing subject should be evidence waiver, poses court fiction of client penal- developed the convicted death before liberty inter- on the an irrational burden respon- assigned the ultimate ty criminal is demonstrate effective- est of the client to life or even now a sibility of execution just stupidity, slovenliness ness where of the sins of as a direct result sentence not nec- preparation will lack of reasoned by counsel.10 Os- or commission omission essarily suffice. born, Osborn v. 861 F.2d See also (Wyo.1991). In this P.2d 259 recog- is failure The vice Cutbirth case, inquiry of brief cross-examination default, particular- procedural nize that they were appeal, initial whoever writers of counsel, not occur appellate does ly so for *38 did, they separately would be and whatever inaction of The action or in a vacuum. including spent, time research informative either intended writing counsel was brief issues, made, regarding effort slothful, conferences unintended, mis- negligent or or record, original expended in review of by if de- and definition guided ignorant clearly devel- why many so wise, especially thoughtful or intel- and faulted cannot be ig- casually time issues were wrong oped trial what is ligently presented. Only context, brief, appeal. in the nored right cannot be. defaulted; be what is can filed, it to have ended before then seems any facts or majority afforded The has not attorney part Morgan’s Mr. critiques on the of coun conduct It is worrisome that we find Zant, Morgan likely woefully inadequate ineffective. performance in and sel as reflected 775, Cir.1984), said, (11th sub overruled 743 F.2d 780 Despite the federal court thereafter what Cir.), (11th Kemp, 1479 nom. Peek v. 784 F.2d prejudice since the there was is obvious that 421, 939, 93 S.Ct. cert. denied 479 U.S. 107 Georgia Supreme in Mor Court decision 1047, (1986), reh’g U.S. 479 L.Ed.2d 371 denied 198, 485, gan S.E.2d 199 241 Ga. 246 912, (1987): S.Ct. 93 L.Ed.2d 107 862 2418, 967, denied, (1978), 99 S.Ct. cert. 441 U.S. Morgan of coun- also asserts ineffectiveness 976, 1073, reh’g 100 denied 444 U.S. 60 L.Ed.2d appeal. on It is uncontradicted sel (1979) 475, produced a 393 62 L.Ed.2d S.Ct. Morgan’s file did not trial counsel record Elev issue and the the non-briefed dissent on only appeal after notice of and filed a brief Appeals then reversed Court enth Circuit Georgia Supreme to im- Court threatened any preju There was not decision. unanimous brief, pose The included sanctions. after the of counsel in ineffectiveness dice left argument, pages raise as five failed to Appeals Court of had corrected Circuit Eleventh charge the trial court’s to the sentenc- an issue appellate neglect. brief mistake the trial argu- ing jury. Counsel failed to attend oral Georgia Supreme ment before the Court trials, life, Willie Darden as 10. and death of request by the that he to heed a court failed expressively recently completed informa- so supplemental adequacy brief file a Hatch, N.W.2d 27. tive. charge. We find this trial court’s

1H avail,” be “of little the con trial itself would began foreclosed issue of with the recognized repeatedly. Court has I viability penalty. of the death stitutional person rights that an accused “Of all always reject proce uniformly and would has, coun- right represented by to be legal malprac dural default absolution pervasive for it sel is far the most of counsel—unless tice—ineffectiveness ability his assert other affects face that neither is clear on its the record rights he have.” existed, or malpractice nor ineffectiveness compre special right alternatively, record is value of unless why pro explains counsel assistance of hensively developed post-conviction “[i]t recognized right long been that the Wainwright, 777 F.2d has ceedings. Smith v. right to counsel is the to the effective 185 F.2d 1037 reh’g denied 905, (11th Cir.), of counsel.” 477 U.S. assistance cert. denied 565, reh’g 91 L.Ed.2d denied S.Ct. relationship of constitutional 12, 107 S.Ct. U.S. intrinsically has been woven into counsel Jurek, currently As witnessed since at society of American fabric 2950, and more re 428 U.S. 96 S.Ct. call of least the clarion Justice Sutherland Lynaugh, cently revisited Franklin Powell, 53 S.Ct. 55. Not 287 U.S. L.Ed.2d 108 S.Ct. U.S. compe only must we concerned with the 1263, 109 S.Ct. reh’g denied 487 U.S. counsel, tency level of effec but also the (1988) death case brief “competent” at tive assistance writing proper responsibility is a for the appellate default torney. Procedural dedicated, experienced per specialist and per the anathema of both brief omission is haps thoughtful, willing, not for the but Being merely a competency. formance college untrained law student.11 pen in the spectator not suffice death does process for the defense alty adjudicatory recognition It in the nature Smith, 609. Reasonable counsel. 111 F.2d training practical experience as related loyalty is re competence undivided Wyo- 1.1 of competency that Rule Williams, 1134; Mann quired. 849 F.2d ming Conduct for Rules Professional (9th Cir.), Reed, F.2d 576 cert. halt v. at This Attorneys provided. Law was sub- ject specifically addressed United gen is well-stated As 648, 653-54, Cronic, 466 U.S. States v. by Judge Sey specificity erally and with 2039, 2043, (1984) L.Ed.2d 657 Osborn, (quoting 861 F.2d at 624 mour in Schaefer, (quoting from Federalism and Strickland, 104 S.Ct. at Procedure, 70 Harv.L.Rev. State Criminal 2063): I, Richardson, McMann *39 any claim judging “The benchmark 759, 14, 1441, 1449 U.S. 771 n. 90 n. S.Ct. coun- must whether be 14, ineffectiveness (1970))(footnotes L.Ed.2d 763 omit- 25 proper so undermined the conduct sel’s ted): functioning process adversarial right represented An accused’s to be hay- cannot relied on as the trial by component a fundamental counsel is just ing produced a result.” justice system. Lawyers criminal our egre- so necessities, ineffectiveness shown was That criminal cases “are not gious was in effect de- that the defendant presence Their essential be- luxuries.” meaningful appellate nied assistance through they cause are the means Green, representation. Cf. Chadwick v. rights person on trial are the other 897, Cir.1984), (11th counsel, n. 5 740 F.2d 901 to a secured. Without Mitigating warning A Renewed Chal ation Evidence: adequate There advance trouble, thought Constitutionality lenge was in but the most the Texas Death Jurek ful and informed even may necessarily Statute, (1988). have the Penalty 55 For 15 Am.J.Crim.L. anticipate perceptiveness 98, the future of a State, what example, Pyles S.W.2d see 755 Floyd, majority Sur of nine foretell. 986, (Tex.Cr.App.), 488 U.S. 109 123 cert. denied Procedure, 493, vey, 22 Tex.Tech.L.Rev. Criminal 543, (1988). S.Ct. Shreves, (1991) Jury Sicola & Consider 500 112 chronic failure as well conceptual as a in petition. instant jurisdictions Other

vestigation Strickland, 668, similarly held that a claim of ineffective 104 2052 delineation. This is not to appellate assistance of prior counsel or tally different from the partic “failure to postconviction provides counsel sufficient * * * * * ipate deliberate trial tactic permit reason to newly allega- asserted Rose, 1245, Martin v. (6th 744 F.2d tions to be subsequent post- raised Cir.1984). accord, In I, like see Broomhall proceeding. conviction See Sims v. 374 N.W.2d II, 845 and Broomhall State, (Iowa 1980); 295 N.W.2d 420 Cur- there, N.W.2d 349. my imagination As 459, tis v. Md.App. 381 A.2d does not stretch sufficiently justify here to grounds, rev’d on other any strategy presentation for the omitted 132, (1978); Md. 395 A.2d 464 Stewart v. appellate appeal. issues on initial This Warden, Prison, Nevada State 92 Nev. is not dissimilar to trial counsel failure to 588, (1976). 555 P.2d 218 present mitigative circumstance of mental given has not any post- been Stephens 642, defect. Kemp, 846 F.2d trial demonstration of reasonably argu- reh’g (11th Cir.), denied 849 F.2d 1480 cert. able, realistic plausible, or academical- 872, 189, denied 488 U.S. 109 S.Ct. ly premised justifying tactical choice appel- (1988); Butler, Wilson late present counsel’s failure appropriate (5th Cir.1987), F.2d 664 cert. denied 484 appellate easily perceived issues as so 108 S.Ct. 98 L.Ed.2d comprehensively presented in this reh’g denied 485 U.S. proceeding.12 I will not subscribe to or Martin, Smith v. accept the dual attorney standard of com- App.3d 213, Ohio 525 N.E.2d 521 petency performance recently attributed to Rounds, See also Com. 518 Pa. the Fifth Appeals: Circuit Court of (1988)(failure A.2d 997 object to testimo approach performance court’s ny expert witness). See likewise on the of trial depends counsel on the context. denigration conflict of represen interest In by petitioner claims of ineffective tation, People v. Easley, 46 Cal.3d counsel, assistance of the court was con- Cal.Rptr. 855, 759 P.2d 490 tent extremely low standards for In Dermitt, Palmer v. 102 Idaho trial hand, counsel. On the other the Idaho Su- by claims the state that a claim is barred preme appeal Court related that an omis- by procedural by default the defen- counsel, sion was not client: counsel, dant’s trial the Fifth Circuit held allegations of ineffective assistance lawyers very to a strict standard. prior postconviction counsel, true, if Floyd, Survey, Procedure, Criminal finding would warrant a that the omis- (1991) (footnote Tex.Tech L.Rev. prior postconviction sion in proceed- omitted). Coyle, See also Assist- Effective ing allegations being now raised ance: Just a Right?, Nominal 12 Nat’l anew Palmer was not a result of an L.J., 11, 1990, June No. at 42. active, knowing choice made Palmer

through prior court-appointed comprehensive research, attor- although con- *40 ney, provide and would therefore suffi- fined to trial I recognize as would to be permitting cient reason newly for applicable appeal, the author considered allegations asserted raised in be and part concluded in in Goodpaster, su- State, 247, (Mo.App.1988). 865, 12. Lint v. 750 S.W.2d 620 cert. denied 464 U.S. 104 S.Ct. Compare majority People (1983). and dissent in L.Ed.2d 174 County See also Brevard Miranda, Cal.Rptr. County Cal.3d Moxley, Bd. Com’rs v. 526 So.2d 1023 (1987), 1988); P.2d 1127 (Fla.App. cert. denied 486 U.S. Owens v. 662 S.W.2d 323 613, reh’g (Mo.1983); Note, denied 487 Assistance Coun Effective (1988). sel, Strickland Penalty and the Illinois Death 651; Stephens, Statute, See 846 F.2d at Note, United States ex 1987 U.Ill.L.Rev. 131 and Thieret, (N.D.Ill. F.Supp. rel. Kubat v. State v. Smith: The Standard of Effectiveness of 1988) compared appeal People as to the state Following Counsel in Hawaii Strickland v. Wash Kubat, 94 Ill.2d ington, 69 Ill.Dec. 447 N.E.2d 9 U.Haw.L.Rev. 371

H3 (footnotes lot I to be desired. realize he was hired N.Y.U.L.Rev. at 360 pra, 58 probably a omitted): job the state to do and not I paid didn’t mention it at the much.... the conclusion discussion leads to This jury room but I think he was not deter- that, case capital some kind of absent try enough He enough. mined didn’t and is no attorney system, certification there compe- jury. They that affected the had less way attorney to insure feasible mean, guess. clearly I he sympathy, Direct and I in of trial. tence advance that, review, guilty, ineffi- were postconviction as but there times collateral be, they may lawyer, I know even I inadequate cient and as and I’m a but vindicating know, a times he should have been remain the best means when right capital defendant's to the effective on his feet and he wasn’t. That’s sad competent attorney. (defendant) sorry The if assistance a because even was a regarding one, review are its issues such he a deserved trial and someone specific competency nature and what for him and look out him.” care apply. it is to standards Tabak, conclusion, see Of similar The duties and functions from counsel in In ^[******] capital case, ordinary criminal cases. defense counsel definably different has Death alty Change Capricious Imposition in Fairness: 1980s, 14 (1986), N.Y.U.Rev.L. & Soc. an Arbitrary the Death Pen- item verse in and recite description, and then to as ineffec- requires great reliabili- Constitution tiveness: ty capital in sen- and individualization

tencing gives capital many attorneys and defendant the capital Too defen- dants, inexperi- his sentencer with due to a combination of presentation resources, mitigating [expert evidence ence and lack of time and fail defenses, might save his appeal] adequate particularly on life. to mount sentencing require- particular sentencing proceedings. These shape capital duties and functions ments Tabak then in effect concludes provide defining basis for “rea- and working penalty system not and death capital sonably competent counsel” arbitrary should be abolished for the and cases/13! operates. capricious in which it way Mello, Facing Sevilla, Death Alone: The Investigating Preparing See also and also Attorney Post-Conviction Crisis Counsel Assistance of Ineffective Row, (1986) Am.U.L.Rev. 513 Claim, Death 37 Mercer L.Rev. Like- particularly footnote three thereof. Amsterdam, analysis by Geimer and Ruthenbeck, wise informative You Don’t Opera- Death: Why Jurors Vote Life Lose on Death Have to Your Shirt Penal- in Ten Florida Death Penal- tive Factors Cases, Justice, Spring ty ABA Criminal Cases, 15 Am.J.Crim.L. ty 1988, at 10. source), we (quoting from an undisclosed performance is defense counsel learn that Of even more concern effectiveness in the outcome as related significant indeed particular and the need for consideration juror in a case where execution Amsterdam, death expertise Supreme Punishment, resulted: 14 Hu- Capital Court it, Rights man where the author say my I feel it “I but shouldn’t have, death-proneness his left discerns always lawyer heart and Only through capital Additionally, guidelines cases. such anee the author’s standards, guidelines judicial preparation, applicability re- close standards communication, them, search, inge- scrutiny enforcing coordination and will death who, lawyer’s product nuity work those few be- in result as reserved for *41 truly nothing mitigate responsibility: there is their cause mercy, may standards, death-qualifying crimes or elicit infused as rules of conduct These unworthy life. This is the true expressed deemed and with the attitudes orientations purpose of trial for life. by guidelines, state elements constitut- Goodpaster, supra, at 362. competent attorney perform- 58 N.Y.U.L.Rev. ing reasonably 114 system protec- States means that the client.

United Since criminal defendant cases, tion is less—not more—than in other facing penalty a death or dies lives with the consequently, higher and that a level legal representation, character of he is Catz, expertise required. counsel is See question justice called to delivery sys Penalty Habeas The Death and Federal tem if attorney substantial mistake of his Corpus: Legislative Proposal, A Modest beyond Although differing only review. Ledewitz, (1988) 20 Conn.L.Rev. 895 and counsel, array trial the factual of failure of supra, 24 Crim.L.Bull. 379. representation found in United States ex Thieret, rel. F.Supp. Kubat v. 679 788 ignorance The level of our state’s or inat- (N.D.Ill.1988) disturbingly similar to the starkly tention is more reflected in the Engberg service afforded appeal. on his where, footnote, Goodpaster article he mercy Reliance on is not sufficient. Wyoming grown relates to the home varie- ty: Although by post- conviction review experienced Some criminal trial counsel proceeding conviction-relief searches for simply do not understand the nature or right constitutional violations which ordi significance penalty capi- of the trial narily law, questions considers errors of State, Hopkinson tal case. v. 632 ineffective assistance of counsel address “ (Wyo.1981), example, P.2d 79 defense proceed ‘fundamental fairness of the ” competently guilt counsel conducted the ing whose being challenged.’ result phase complex lengthy trial of a Risdal, 130, (Iowa v. 404 N.W.2d 131 trial, capital case. Before 1987) (quoting Strickland, 696, 466 atU.S. however, judge when asked 2069). Ruiz, 104 S.Ct. at People See how much time he need for would 1, 201, Ill.2d 138 Ill.Dec. 547 N.E.2d 170 sentencing hearing, replied: counsel — (1989), U.S.—, cert. denied 110 S.Ct. minutes. I’m I “Two serious. have been (1990) 110 L.Ed.2d 652 and Smith v. position probably any- in this more than State, (Ind.1989). 547 N.E.2d 817 See also room, body multiplied by okay, Dugger, reh’g Harris v. F.2d de nothing you say. there ain’t can (11th Cir.), nied 885 F.2d 877 cert. denied They jury] they will do what want [the U.S. S.Ct. point.” and there is no at 197 n. Id. (1989) Fitzpatrick McCormick, (Rose, C.J., dissenting part and concur- (9th Cir.), 869 F.2d cert. denied ring part). 872, 110 203, 107 S.Ct. L.Ed.2d 156 Goodpaster, supra, 58 N.Y.U.L.Rev. at 303-04 n. 22. nor Neither novo, Mannhalt, The review is de cases, large volume of death 576, considering totality F.2d some statistics are part reversed at least in application prescrip circumstances of a time, nearly fifty percent of the can afford performed that counsel competently. tion luxury “appellate and attitude that (Iowa Van N.W.2d increasingly ques courts find themselves Hoff App.1989). The is for search a full and fair tioning competency appellate counsel review, Dugger, Martin v. 891 F.2d 807 questioning competency who are of tri (1989), (11th reh’g denied 898 F.2d 160 Eckstrom, People al counsel.” 43 Cal. — Cir.), U.S.—, cert. App.3d Cal.Rptr. right and the Mello, Radelet & Executing Those to counsel is the to effective assist Kill An Who Blacks: Unusual Case ance of which is for this case to counsel Study, (1986) 37 Mercer L.Rev. provide appellate Tabak, proper review. State v. supra, 14 N.Y.U.Rev.L. & Soc. Davis, 561 A.2d 1082 Change 797. 116 N.J. Those authors reflect the ob Strickland, (citing pervasive quoting fact that the 466 U.S. at vious escalated and 2063). Obviously, challenges ineffectiveness are re the direct arbitrary rights competency sult of the elimination of an advocate’s de measure accomplished. pends defendant virtue of counsel con the task to be duct, unapproved usually unknown to and the most best intentions devoted of

H5 analysis capi- It can be found case necessarily equate with efforts do not corpus expect capital reversals federal courts defense habeas competence. We tal for of counsel in state (or expertise to have an ineffectiveness appellate) counsel equal normally an specific considerations courts demonstrate regarding Davis, greater appellate com capital failure of counsel cases. 561 A.2d if pared to trial counsel can be found at 1089. proper appeal originally ever taken. from present proceeding This comes 440, Dugger, reh’g v. F.2d Johnson 911 Engberg’s appellate counsel to failure of granted opinion vacated 920 F.2d 721 discuss, appeal, by inclusion the initial Armontrout, v. (11th Cir.1990); Chambers trial court er- well matured contentions of — cert. (8th Cir.), 825 907 F.2d 668, Strickland, 104 rors. 466 U.S. S.Ct. U.S.—, 369, 112 111 S.Ct. L.Ed.2d 331 essentially presented appeal 2052. This Puckett, v. (1990); Murphy F.2d 94 893 Eng- dispositive questions whether Newsome, (5th Cir.1990); Nixon v. 888 issues, berg’s life and death (11th Cir.1989); Harrison v. F.2d 112 objection, identified could were then Jones, 880 F.2d 1279 (11th Cir.1989); Fitz by incompetently perform- now be waived patrick, 869 F.2d 1247. issue ing appellate counsel exclusion Smith, attorney Engberg I an has effec appeal. 547 Whether rendered ques is a mixed simple comparison A tive assistance of counsel N.E.2d 817. appel- tion of law and fact reversible de novo on post-conviction brief with initial 1251; Fitzpatrick, appeal. story. late relates the entire 869 F.2d brief Mannhalt, Lee, 847 F.2d 576. See also provided by assessment of answer Making Principled Decision and the trial, happen what did occur at did error Proper Appellate Role Federal Courts: Smith, prejudicial. 547 N.E.2d and was Questions Conflict, 64 S.Cal. The Mixed now Proper requires 817. review us (1991). ap 235 The same standard L.Rev. issues and their consider substantive trial appellate plies to both trial and counsel. effect the fairness of the trial to assess 1430, Wainwright, Matire v. F.2d 1435 811 provided consti whether courts, (11th Cir.1987). In the state tutionally required competent counsel for astro identically rule is structured appeal objections first when those trial v. Cacatian number of cases. nomical disregarded. apparently is to be were It State, 402, (1989); P.2d 70 Haw. 772 691 recognized com that a constitutional error 102, Bryant, 237 N.J.Super. State v. 567 proceeding is in a criminal not harm mitted 495, (1988), rev’d A.2d 212 117 569 N.J. appellate less court is convinced unless Burgins, (1990); State v. A.2d 44 Ohio 770 reason beyond a reasonable doubt 158, (1988); Com. v. App.3d 542 N.E.2d 707 not have reached the same able would Melson, 139, Pa.Super. A.2d 383 556 836 Ng, v. State about the error. conclusion State, 321, v. (1989); 299 384 Grier S.C. (1988).14 See 32, 110 Wash.2d 750 P.2d 632 State, (1989); Long v. 764 S.E.2d 722 State, (Wyo. v. 806 P.2d 1282 Johnson (Tex.App.1989); Pennington v. S.W.2d 30 1991), C.J., dissenting; Satter Urbigkit, State, (Tex.App.1988). 740 768 S.W.2d Texas, v. white S.Ct. problem Delaware enormity I L.Ed.2d 284 revisit Arsdall, path- presented justice by this court’s Van 475 U.S. State, way from Cutbirth v. P.2d Chapman 89 L.Ed.2d Amin, 597; Kallas, (Wyo.1983); 774 P.2d California, 386 U.S. 87 S.Ct. State of through Murray, reh’g denied 776 P.2d 198 simple directly face the 206 in an effort year particularly case. accept so in death the first law This court cannot 1989). (Tex.App. (even year Cooper student 769 S.W.2d student school a first law test Sevilla, supra, that), Bryant, See. Mercer L.Rev. 927 N.J.Su also would know Note, (1988), per. 495, Assistance Counsel: rev’d 117 N.J. 567 A.2d Effective Statute, Penalty Death A.2d the measure of Strickland and the Illinois sufficiency appeal case 1987 U.Ill.L.Rev. 131 criminal a serious *43 procedural hospital axiom that default —constitu- evidence of events at the Nevada Engberg pro- following tional or otherwise—in trial was his counseled where taken during injury testimony cannot occur counsel mis- cesses without arrest. This dis- put stocking cap it it his refusal defaulted, take. exists to be was cussed to on a If by to look photograph created mistake. It is far better for a the absence of and reaching at the for right attorney first conduct instead of without advice the to an by try to to primary proof the absolution characterization and was introduced for sub- sweep rug to justice stantively demonstrating attempt under the where is not to the State, Compare guilt. be found. 260 avoid detection as This Meders evidence of (1990)in by subsequent 389 S.E.2d which followed Ga. will be denial Supreme right for granted Engberg the remand the the Court trial to introduce hearing to examine concerning current and immediate doctor’s statement delusional following photographed hospital ineffectiveness of counsel the state when request cap. Finally, Engberg wise counsel state. bed without the was Understanding require- police constitutional denied cross-examination of the offi- involved, Engberg ment I his injured will move to cer about condi- delusional during review. appellate photography substantive issues tion session. y. by B. to The the Trial Court Refusal Engberg Right Allow to Call GUILT PHASE ISSUES His as a Witness Wife A. Errors Contended principal presented A Eng- issue involves present appeal, guilt phase In issues challenge berg’s of the trial court decision presented include: deny right him the to to call his as a wife open court, Engberg’s 1. wife was I witness. would reverse on this obvious presented by the witness clearly significant State as its after error. Engberg’s privilege interspousal waiver of court, argument In oral before this and, presence jury, she was appellate counsel State’s related that “[o]n given testify; the election not to spousal is our privilege, issue Engberg 2. consequently was denied position probable there error witness; to call his wife as his spouse’s here in the exclusion testi- (Emphasis added.) mony.” 3. After invocation his wife of a explains then been exclusion to have privilege testify, not Engberg was also error. I harmless conclude the denial of denied introduction of her statements testimony erroneous, to be not but party hearsay; third as inadmissible prejudicially harmful. It does even Engberg 4. right by Denial of the come close constitutional criteria present a provide expert witness testi- only may harmless error. It not have but mony validity on the eyewitness identifi- probably did have an effect on the decision scene; at the crime cation Jones, jury. 777 P.2d 54. Ac- Attempted hypnotism principal State, Limbaugh v. 549 So.2d 582 cord identifying witness had not been revealed Cooper (Ala.Cr.App.1989)and Engberg until after conviction when (Tex.App.1989). prosecu- S.W.2d 301 during post-conviction-re- first discovered Eng- opening statement discussed tor’s investigation.

lief Vegas arrest and Don- berg’s claimed Las

Cursory given fingered consideration will then be her husband for the na being badly for bad acts evidence of opening beaten Casper statement murder. police arrest, attorney officers at the time of Engberg’s that claim is contended produce to be evidence flee- defense evi- would indicated ing constituting guilt, evidence prosecution show the dence at acts evidence of the of an alias. wrong. proof bad use That intended was circum- included will be the introduction of successfully Further the State invited vented when *44 up let’s first. take an easier one We privilege to her not Engberg’s wife assert suppress issue to the testi- envi- have filed motion testify. complied.15 She to understanding Engberg had just been one Donna who mony of ronment Roy Eng- evidence and Lee prejudicially happens created without to be the wife of opportunity to Engberg then denied was this berg. I am at that time—at time contest or defend. going that We have to withdraw motion. hearsay given been of state- notice 25, 1982, Engberg’s counsel On October Engberg, appar- ments so it’s Donna testimony by sup[p]ress his moved “to Wyoming ent that if the of cannot State completely in- testimony spouse as such they simply testify, just force her to will Wyo.Stat.Ann. reason admiss[i]ble * * rely they hearsay on this statement hearing subsequent on No- At a already her which obtained 17, 1982, subject again vember admissible; may may I or not be don’t addressed: into it far I haven’t looked know. Honor, Okay, Your [Defense Counsel]: going I enough, but am to withdraw think this motion for disclo- we want—I suppress testimony her and at motion to one. The sure informer is the easiest I give notice that will con- time will pretrial Wyoming in its memo- State of being sent to her allowed to be called they have informer randum stated in chief. case State’s the informer is. and I don’t know who 8(k), respectfully give time I use At this would paragraph It would be to going object I There was an informer in- notice that am informer. hearsay upon my I assume from the use of statements with- and would volved suppress her giggle counsel table over here it motion to drawal was, Engberg, testimony. but I probably, Donna to make sure.

want Okay. THE COURT: assumption His Counsel]: [Prosecution part my So that [Defense Counsel]: correct, Your Honor. I pretrial memorandum where said we correct, That’s Mr. THE COURT: that, going drop I’m rely on would of that. Skaggs; that takes care issue, interesting It’s an what that. ruling We have a up forced into the Counsel]: come if we were [Defense would that, it disclosed as Donna spousal testimony, or whether issue Engberg? hearsay not statements would be ad- her Yes, missible; interesting.

THE COURT: counsel. would ****** the State had On November Engberg Now, Honor, subpoena served on Donna Your [Defense Counsel]: Gothenburg, Nebraska.16 a motion—let’s see— you have made Morrison, (4)_The privilege will claim of non- F.2d 223 15. See United States v. Cir.1976), (1), (2), (3rd prose- the activities of the as No. where disclosure 8K— subject witness defendant’s cution "convinced” the the same in Sec- referenced girlfriend take fifth amendment rather pretrial filed October tion of his submission K testify of defendant as a denial of than favor as follows: oppor- right which affords the the constitutional (1) Any about use K. X information tunity witness. See abo United to call a defense case. in this an informer or lookout Hammond, reh’g F.2d States v. (2) intention of X State’s A statement (5th Cir.1979) States v. and United F.2d 862 calling or lookout as witness. informer Cir.1973). Thomas, (6th F.2d ****** suppress: Motion to C. motions X Other pretrial October conference form filed on spouse testimony Defen- 14, 1982, suppress the State stated: grounds and for the reasons that dant on K. Use of informer: immunity. _ spousal absolute there is (1) informer There x was not an Thereafter, suppress was filed motion involved. _ _ 25, 1982, request for disclo- well as a October (2) not be informer will will informer: sure of at the trial. as a witness called Defendant, NOW, name, address, supplied COMES has ItX through attorney the Court for and moves his phone of the informer. number developed extremely panorama then rule. Those statements are The trial damaging in rea- themselves. We have mid-trial: change son to believe that she her As the Court is Counsel]: [Prosecution testimony degree to some from those aware, the next we intend to call witness Roy. Secondly, statements of benefit to Engberg, is Donna the wife of the Defen- Roy Wyoming we have advised Su- dant, here in chambers and we are now *45 preme if Court decisions that indicate his and the Defendant is spousal Defendant were to claim immuni- attorneys and we want to make it abso- ty prosecution could comment in clos- they lutely clear on the record that are ing on the failure call his Defendant’s to willing any privilege immuni- to waive wife as a witness. Those factors miti- ty testify agree for the wife gated against claiming any spousal im- testify. allow her to time, munity. Roy, you at this do wish Skaggs? THE Mr. COURT: privilege spousal to assert the immuni- Honor, Okay, Your [Defense Counsel]: ty? particular point, at this we have advised No, go you THE DEFENDANT: respect par- our to this Defendant —with suggested, Wyatt. get Let her on the problem, ticular advised him we have stand. is to claim his absolute saying, Eng- THE COURT: You’re Mr. spousal immunity prevent her from berg, you waiving spousal are im- testifying. We have further advised our munity? spousal if client that he elects to claim really THE DEFENDANT: That is immunity, there is a chance of the hear- alternative, isn’t it? say Vegas statements from Las to Offi- Well, THE I am not— COURT: becoming cer Cooper Jim available for Yeah, prosecution use under the witness THE I DEFENDANT: will exception hearsay unavailable waive. Engberg agreed appear Douglas, Wyo- the disclosure of the Informer stated in Para- 8(k) graph ming day of the State’s Pretrial on the 6th of December 1982 but Conference Form, appear and whether the Informer will be has now failed to and has asserted that Petitioner, therefore, appear. called at trial. she will not re- (Emphasis original.) spectfully requests that the court recommend By prospective a list witnesses filed Octo- in its Certificate that said witness be taken 29, 1982, Engberg custody

ber Donna was included as an into immediate and be delivered to Deputy County, anticipated witness for the State. Sheriff of Converse Wyoming, Wyo- Engberg, in defense witness list filed Novem- an officer of the State of 22, 1982, ming, ber included: to assure attendance in this state [her] proceeding. 1. criminal All witnesses and addresses listed on as witness in said day, Supplementary State’s Witness List and State’s On the same Certificate for Attendance court, prepared by the Witness List. was issued the trial Application county attorney, part An for Certificate for Attendance and in stated: Out Of State that Donna Witness was filed the State on 3. That believes [the State] 7, 1982, Gothenburg, Engberg residing December Nebraska included: petitioner Eng- necessary 3. That and material witness to be believes that Donna is a Nebraska, berg residing Gothenburg, prosecution of said criminal trial is a called in the necessary following reasons: material witness to be called in prosecution Engberg of said was with defendant on De- action for Donna the follow- ing reasons: 1982 and thereafter traveled with cember Vegas, they stayed Engberg Donna was with Las Nevada where De- him to defendant on January defendant was arrested on cember thereafter until traveled with Vegas, Engberg given they stayed him to Las Nevada where 1982. Donna has statements to agents implicating January until defendant was arrested on law enforcement the defen- given charged. Donna has in the crimes for which he is dant statements to ****** agents implicating law enforcement the defen- charged. the crimes for which he dant in 7. That the court recommends that said ****** custody witness be taken into immediate Deputy Sheriff of Converse Petitioner believes that unless said be delivered witness Wyoming, custody County, is taken into immediate she State of to assure her at- fail though Wyoming, appear in the State of as a wit- even so ordered. Such tendance be- proceeding. lief is based on the fact that the said ness in said criminal Donna

H9 force We can’t Okay, Counsel]: will convene we [Prosecution COURT: THE to. minutes, her five folks. in about No, Honor, you can’t force her THE Your COURT: Counsel]:

[Defense her request that after to. we time would direct, recess have a testimony on we all oppor- I want the Counsel]: [Defense testimony. go her can over so we her and assert tunity cross-examine problems with I have no every question. THE immunity COURT: that. want THE You what? COURT: calls [Prosecution ^[*] Donna ^[*] Engberg. Counsel]: ^{[*] [*]} * * * ^[*] The State ^[*] tunity to cross-examine [Defense immunity on Counsel]: every question. I want the her and oppor- assert if she re- I think

THE don’t COURT: you, ask testify would *46 that —I ENGBERG fused to DONNA Guetz, clearly that explain to her Mr. by the as a witness having called been and she spousal immunity has she State, duly testified first sworn testify. have doesn’t follows, to wit: oppose I that. She Counsel]: [Defense Roy has the the privilege. have does not EXAMINATION DIRECT privilege. BY Counsel]: [Prosecution privi- THE She can assert COURT: record, please tell you could Q. For lege. your name? the Court and Honor, under Your Counsel]: [Defense Engberg. A. Donna assert, law, privilege to Roy’s case it’s Q. you reside? do Where not hers. Gothenb[u]rg, Nebraska. A. the more recent THE Under COURT: you the wife Q. Engberg, are Mrs. immunity rule, her- can assert she Defendant, you Roy Engberg, are that im- Absolutely, can assert she self. not? her munity on own. A. Yes. when it misadvised court was testify this in Q. your wish to Is rule on testi- federal Trammel applied the case? says “the witness- privilege which monial A. No. refuse to privilege has a alone spouse willing testify in this Q. you Are may be nei- adversely; the witness testify case? testify foreclosed nor compelled ther if I have to. A. Not don’t United testifying.” Trammel v. from know, you Q. Engberg, Mrs. 906, 914, 40, 53, States, 100 S.Ct. asking are make and we your choice to privi- (1980). “Testimonial L.Ed.2d 186 you make choice want to you now what testifying prevents spouse lege” testify case, you want to in whether this commu- A “confidential the other. against or not? testimony prevents privilege” nication No, I A. don’t. in said mari- reveal what was would which May ap- we tal confidence.17 Counsel]: [Prosecution bench, Honor? Your proach the Wyo- applied court should The trial may. You COURT: THE 1-12-104: ming law found W.S. ^[******] No husband or wife shall be a witness pro- except criminal other Guetz, against the she doesn’t Mr. COURT: THE committed one ceedings a crime testify. want Note, Spouse’s Testimony Comment, found in statute also Rules Symposium on the Federal Cases, Wyo.L.J. Criminal Wyoming Practice Their Evidence: Effect privileged disqualification and witness discusses L.Rev. Adopted, XII Land & Water if (1977). communication. as a confidential analysis Wyoming evidence A detailed other, against problem or in a civil action noting coerced result first proceeding by against one the other. privilege presented was not objec- They may in all civil and criminal cases joinder tion to trial concluding then be witnesses for each other the same as not, that the testimony wife’s though the marital relation did not exist. present court’s conception, exculpatory, al- though actually placing her husband at the Wyoming This statute has remained sub scene with an stantively unchanged availability gun of a since enacted in 1899. (1899); Note, armed Spouse’s robbery charge. W.S. simply Testi § Amin can- Cases, mony Wyo.LJ. in Criminal support decision on the Direct consideration or at least application Wyoming privilege stat- implication spousal of the issue of testimo ute as affording to the witness- ny Wyoming cases is found in Biggs v. spouse to testify refuse to approved when State, (1904); Wyo. 77 P. 901 Strand requested to do so the defendant. State, Wyo. (1927); 252 P. 1030 Wigmore, Evidence § Fox, Wyo. Fox v. 296 P.2d 252 (McNaughton 1961). rev. Consequently, (1956); Spears, Wyo. State v. present post-trial construction of W.S. (1956); State, P.2d 551 Chamberlain 348 1-12-104, adopted, which is develops now (Wyo.1960); P.2d 280 Simms 492 differentiated application that has never (Wyo.), P.2d 516 cert. denied 409 U.S. accepted in any prior Wyoming been case. Pike v. *47 Argument legislature that the intended State, (Wyo.1972); 495 P.2d 1188 Seyle v. privilege to make the available to both the State, (Wyo.1978); 584 P.2d 1081 and witness-spouse party-spouse and the is un- State, Amin v. 695 P.2d 1021 (Wyo.1985). supported by case apparent law or statu- It is obvious that these cases afford no tory text. Engberg Since wanted to call support present for the decision unless the witness, his wife as a privi- there was no disregarded.18 second sentence of the law lege for Engberg Donna to exercise and analyze To explicit Wyoming statute in testifying. Engberg avoid was denied the requires relation to this case consideration right constitutional to potentially call a process, fairness, of due constitutional or beneficial witness and was also denied due any unequivocal even whether clear and process Wyoming under both the and fed- rule of law violated the trial court’s eral constitutions. After the education of rejection testimony which was com- completed by prosecuto- had been pounded by appellate counsel’s failure to statements, rial opening response and con- original the issue appeal. Spe- on by Engberg problem tradiction a became cifically, in close review of each one of high compelling stakes significance prior cases, Wyoming these there is noth- eyewitness attack on the identification ing Wyoming precedent law and to state hope case acquit- structure to to achieve an privilege that a wife has a testify not to tal. Realistically by opening statement and affirmatively requested when testify by to presentation, trial Engberg Donna became prosecution. her husband a criminal prosecutorial persuasion witness with Among cases, prior these numerous W.S. that Engberg could not diminish or defeat Amin, 1-12-104 was considered in 695 P.2d by any validly submitted actual evidence. joint 1021 in the invoking context of a spousal testimony in her own defense. admission of While the the wife’s testi- statutory This court settled the violation mony in a criminal case where her hus- statutory VerMeulen, interpreta flavoring. 18. Whatever standard of People tra-effect v. 432 strict, applies, e.g., tion this court (1989). realistic or Compare, N.W.2d Mich. 438 38 accommodative, State, White v. 784 P.2d 1313 however, opinion my spe Justice Thomas’ 1989); (Wyo. (Wyo. Hoem v. 756 P.2d 780 cially concurring opinion statutory consist 1988), consistently the same standard should be Allied-Signal, ency Wyoming v. Inc. State Bd. used not whatever standard from time Equalization, (Wyo.1991) 223 of (Thomas, justify to time serve to a result-oriented deci J., C.J., majority; Urbigkit, specially case, says says sion. In this the statute what it concurring). applied and should be as written without con duty is to Montana. Our construe se unless law of per is error is defendant band * * * 1-142 we find it. Absent the law as exceptions coming § under infirmities, statutory de- constitutional 1-12-104], and circumstances [W.S. prejudicial, change not empowered or not this Court termine whether potential re- law of statutory this state. in view nevertheless n reason error, can be no valid versible Roberts, 1214, 1218 P.2d v. State court would admit a trial why conceived 1981). (Mont. Shafer, also v. See State spouse contrary evidence Euell, (Mo.1980); v. State S.W.2d that statute. directions Evans, (Mo.1979); and State v. S.W.2d n. 2. There is Pike, P.2d (1982). It was 287 S.E.2d 922 170 W.Va. support the nothing Wyoming law to Michigan, for well over recognized “[i]n privilege has a that a wife claim privilege has con been century, spousal requested do so her testify when Wadkins, People statute.” trolled prosecution. in a criminal husband 542, 546 300 N.W.2d Mich.App. VerMeulen, 432 (1980). People case, since of this In the circumstance N.W.2d 36 See also testimony as Mich. permit the elected Hamacher, Mich. People v. by whomever to be favorable intended (1989); Thompson, People privilege previous- N.W.2d was no presented, there 314 N.W.2d 606 Mich.App. law for Donna 111 by Wyoming ly provided Note, Pa right People v. Hamacher: The of his Engberg to exercise denial singularly important Privileged Marital Communi have admissible rameters of Engberg, cations, Det.C.L.Rev. 177 Consequently, defense evidence. under prosecutorial use husband, denied a constitutional also the Consider 803(24) 804(b)(6) due and also denied to a witness W.R.E. (W.Va.1987). Wyoming and fed- Bailey, 365 S.E.2d

process under both compel- It is said eral constitutions. separate Kentucky recognizes two statu- *48 2241 at Wigmore, supra, ling logic in 8 § testimony. on husband-wife tory limitations 254: of communi- disclosure confidential One is suggested reason taking But the other privilege refuse second is to and the cation namely, immunity from privilege, for the in from testify. Although different text to being of con- situation repugnant the con- statutory system is the Wyoming, becoming spouse or of demned one’s Com., 744 S.W.2d Estes trolled. of a condemna- spouse’s the instrument State, 430 Williams (Ky.1987). Cf. ** to be *, privilege seems the tion (Ind.), appeal dismissed N.E.2d and of party witness. equally that 103 S.Ct. 459 U.S. 1059, 103 S.Ct. 459 U.S. reh’g denied adoption of the Trammel The trial court’s (1982), only “privi- where L.Ed.2d 626 Wyoming statute mean- renders the rule recognized. communication” is leged testify can not to if wife elect ingless the prosecuto- when corrosive her husband in recognizing that the error After first explicit the applied. is With pressure rial unquestioned, it be- and substance form inap- adoption place, in statute state trial recreation bizarre comes re- rule becomes Trammel plicable federal improper decision to events absolve error. versible trial by charging defendant’s court the trial to only jurisdiction Any not the such Wyoming procedural default. counsel court suggesting The Texas that misplaced rule. in reject argument the Trammel in against disregarded Trammel record distinguished Engberg protect Young in called on state statute when the State relying their error committed (Tex.Cr.App.1980). jury, State, in front 603 S.W.2d to the stand his wife had Jones, in Montana: he thereafter Similarly said re-empha- case to again his recall her may possess merit this view Whatever prejudicial effect only in federal size applies ], it [:Trammel testify. No fac- second election not statutory her contrary to and is courts charging timating terms, tual basis for trial counsel with his involvement. In basic by procedural this constitutional forfeiture the denial Engberg any testimony default is found trial events unless we from his posture wife contravenes the ignore Engberg’s continued effort to obtain Washington Texas, v. State 388 U.S. testimony Engberg. of Donna Obvi- 1920, 18 (1967), 87 S.Ct. L.Ed.2d 1019 defin ously, to reach that answer to excuse the ing of the accused defendant to error, necessary it is to attach the compulsory process to obtain witness Const, procedural default failure and mistake to es in his Wyo. behalf. art. trial counsel. That would be novel both § factually briefing and in for this case. approach federal which misdirected adopt Even if we the convoluted construc- the trial court started with Hawkins v. argued by tion of these facts States, United 358 U.S. 79 S.Ct. appellate duty then either counsel had a (1958), L.Ed.2d 125 holding sub modified raise the failure as an ineffectiveness con- States, nom. Trammel v. United appeal tention on initial or that status is 40, properly now before us as ineffectiveness where conviction was reversed after the counsel, suggested which has never been government used defendant’s wife as a wit- by any writer, prior Engberg, brief privilege ness objection over his based on a appeal. State or this court on initial Actu- premise common law and construction. ally, objection there was no notice of fail- Stewart, concurrence, Justice contended any significance by ure of trial counsel and privilege should be that of the suggest otherwise now decision is witness and not of the accused and said highly inappropriate. “[ujnder such a rule the defendant in a criminal case prevent could not his wife C. Totality What the Record and testifying him, against but she could Procedures Established compelled not be to do so.” Id. U.S. at decision, majority, con- 82, 79 141. The Tenth Circuit verts what was confused and confessed Appeals, Court of which did apparently not error non-argued into a and non-briefed Hawkins, like its reversal sent Trammel First, disregard conclusion to error. Supreme to the United States Court specific ruling the face of the of the trial co-conspirator denial of error in a spouse court that Donna would testi- immunity granted case where fy, again the defense thereafter had to call *49 elected, pursuant wife and she then to her protected her to the stand to be from some- immunity, testify to over the husband’s thing in the nature of “waived error” so privilege objection. claimed Substantively, that the trial court would make the same pursued. the common law evaluation was ruling. recognition This contention belies judicial The various utterances on the succeeding that the federal rules Wyo- and matter privilege exercise of the ming rules in effect for more now than a privilege belongs establish that the quarter century of a were intended to elimi- party spouse against whom the other is regurgitation nate this of needless in kind witness; however, offered as a firm- it is pointless process procedure. and See ly established that privilege also be- Additionally, W.R.C.P. trial counsel longs to the spouse. witness rely should have been to on the trial able Trammel, 1166, United States v. 583 F.2d court’s Engberg statement “Donna (10th Cir.1978), 1169 granted cert. 440 U.S. has used her privilege” that the and believe 934, 1277, L.Ed.2d 59 492 said; trial court meant that the what was 445 U.S. 100 63 S.Ct. L.Ed.2d issue was decided aff'd repeated as by the (1980) (emphasis original). 186 in court answer to the to objection State’s proof Supreme offer of hearsay United States Court introduction. au- Engberg to Denial of his testimony thenticates its decision for federal wife’s law was disastrous as the case perspective, developed changed from within historical opening mores, statement into other in- testimony review the common law as

123 been, testimony testimony might Engberg non- to for the es the limited adverse preferable clearly expected it to be to what- federal of evi- statutory purposes of rules police Vegas from ever the officer Las “Accordingly, we conclude that dence. say Engberg Donna said when she would so that the existing rule should be modified complaint against her January filed the privilege to re- witness-spouse has alone husband. adversely; the testify to witness fuse testify compelled neither nor foreclos- contrary directly To conclude vio Trammel, 445 U.S. testifying.” ed from rights the constitutional of the defen lates 53, 100 S.Ct. at 914. testimony dant relevant ad Arkansas, by Rock 483 dressed v. U.S. concept principle No or was utilized 37 S.Ct. See 107 applied which state rules decision Kentucky, v. 109 also Olden privi- or state statutes on specific evidence 480, 102 (1988); Taylor L.Ed.2d S.Ct. Evans, 922. Also not lege. 287 S.E.2d Illinois, U.S. S.Ct. privilege the exercise of the considered was reh’g denied U.S. L.Ed.2d witness-spouse when the accused by the testimony, specifically seeking her with- 14. We then have a Washington, any privilege.19 drew See United States defect, further and even more serious con (3rd

Morrison, Cir.1976), 535 F.2d nature, majori created stitutional the prosecution where activities justification ty’s decision denial to “convinced” the witness defendant’s testimony of his the accused desired girlfriend take the fifth amendment Engberg’s The denial of access to wife. testify than in favor defendant rather testimony right to adequately denies a right a denial the constitutional protected an interest defend forecloses opportunity affords the to call a defense by both state and federal constitutions witness. See likewise United States Amendment). (Sixth Exculpatory testimo Hammond, F.2d reh’g 598 F.2d rejected ny desired for use (5th Cir.1979) and United States right to defend in by this decision. Thomas, (6th Cir.1973). F.2d cluding introduction of available material case, apply In this consider we testimony has addressed the Unit been explicit Wyoming statute and not an ab- Rock, Supreme further ed States Court stract and attacked “sentimental relic” Taylor and is con considered Olden principle.” “reasoned historical Since trolling Clearly, on this sim and decisive. Wyoming privilege provence is not the basis, Eng- ple yet direct constitutional it the judicial system, the federal neither is resulted his denial berg’s conviction ignore Wyoming rights courts to Re Amendment defend. of Sixth is, result, provided constitutionally has as an as a re legislature what the versal quired. existed established which has now standard VerMeulen, century. most of Secondary From D. Use Evidence N.W.2d 36. crucible of this case *50 an “Unavailable Witness” opinion appearance from statement to Engberg

this witness before the State’s testimony as the of Donna Since denied, witness, last communicated from examination had been prejudice by direct subject again: availability Engberg’s counsel raised denied Whatev- undeniable. Light Trammel, troubling Privilege: Balancing Interests “In nature of albeit as al non-statutory through adaptation Experiencé', 19 Ind.L.Rev. 645 common law and Reason courts, Note, for the federal Privileges construction is demon a (1986); Marital Federal question, strated engendered. conflict and confusion Need Further Context: The Criminal Modifi the conflict Consider found in the Trammel, & 43 Wash. Lee L.Rev. Since cation case, Parker, joint United involvement States v. Note, (1986); in Crime: The Joint Partners Cir.1987), (4th cert. F.2d 408 834 938, Against Privilege Participants Exception to the with Spousal Testimony, 53 Fordham L.Rev. Adverse Evidence, Right Every Lempert, A to Woman's Note, (1985); Spousal Adverse Privi Note, Iowa L.Rev. 725 The Joint Alive?, Wash.U.L.Q. lege: or Dead Participation Exception to the Marital Testimoni now, proponent procure through Okay, can reason- Your Counsel]: [Defense Honor, I this time proof offer able effort and would state at we have an would procure Engberg. we made other efforts to to would have related Donna We testimony particular her and on I have these particular offer at this time—and facts, way procure is no we can put I will her on there Janet Garner here and testimony. that any believe respect hearsay stand evi- other We (c), 804(b)(6)(c), pur- general Engberg that has told her. under dence Donna pose justice rules the interest of okay? that After that I would Would will be served the admission hearsay move to admit it under the ex- best her to Janet into evi- ception. statement Garner dence. Counsel], THE COURT: [Prosecution on you you

do comment that? Thank you. have THE Would COURT: that, respond Counsel], Well, far as [Prosecution as Counsel]: [Prosecution please? that, they preserve want the record on way proper I don’t if that is know briefly, Just [Prosecution Counsel]: not, going but— about this this Your Honor. We have discussed Well, what, previously. respect I’ll tell you THE matter With COURT: Engberg perception, there no evi- has used recent has been Gentlemen. Donna percep- privilege. spouse. a It is her dence that this matter is a recent her She is items, going regard tion. other we privilege I’m not allow the With she hearsay have discussed this matter evidence. spousal privilege, her has exercised supported by effort an offer privilege holds. She desires not to she chambers, outlining proof proposed authority testify and there is abundant which, investigator testimony from an privilege, one exercises that when Engberg’s presenting statements hearsay inadmissible even would be wife, factually would attacked request motion be would that the we specifically case and controverted State’s denied. opening contentions of the statement my THE That is also under- COURT: prosecution. standing. going deny I’m the motion. Following proof defining the offer testimony Eng- prospective direct Donna justification for admission obvious berg, pursued defense counsel admissabili- Simms, provided by P.2d 804 evidence ty text substance as W.R.E. prior where defense counsel was faced with interviewing in- through testimony of an preliminary testimony of a witness vestigator: hearing parties not married. when were Honor, testimony in Your at The actual court after which

[Defense Counsel]: his to have his particular point, I will make a motion defendant waived against him testimony testify wife was available to admit the of Janet Garner introduction, including 804(b)(6) her testi- pursuant 804. Under both live to Rule (b)(5), mony hostile witness examination from I would state at this time that Simms, prior transcript. This court Mrs. unavailable witness. (footnote citing 804(a)(1). 492 because of P.2d at 521 omitted She unavailable Evidence, (Chadbourn Wigmore, grounds privi- exempted She is § or, 804(b)(5) rev.1974)) lege secondly, disqualification fits under said “that a she being privilege exercise of makes admissible because is a state- witness *51 Also, present testimony fits the unavailable perception. ment of recent she witness’s 804(b)(6) to his excep- accordingly the and should allow resort under under other tions, testimony, to former a doctrine was not phrase the 804. It is a which catch-all accepted early English law by mate- common statement offered as evidence of a chancery courts well established in proba- fact. is a statement more but was rial It practice generally being probably to and would be point tive on the which it is in our courts.” any other evidence which a followed offered than spouse poena by is the defense was evidence not Why in this case similar through she Engberg the testimo- ever obtained and “never became available investigator validity response is re- of the ny of the witness witness.” defined, context of except in the fined or the facts of the trial are so self- within prosecution is fre- good for the what is evident that further comment is unneeded in The State quently not available defense. dispose this contention. Simmons v. ignore phraseology us to would ask (1988). Md. 542 A.2d 1258 “Having his wife chosen have Simms. Next, argument presented is that the testi- witness, inis no testify as a defendant privilege monial exclusion was valid which argue his ‘forced’ election position to about specific disregard continues to criteria * * Simms, P.2d at 521. See also providing Wyoming statute Pike, at n. 2. else P.2d Whatever access, 1-12-104. W.S. might the harmless error said about be powerful argu- and more distinct in impaled was dis- application Pike as by support of supplied ment the State for sent, right of to fore- the defendant procedural Engberg denial was failure testimony spouse close the adverse give notice of intent to advance trial question. was not hearsay. admit This basis was never stated, Overtly explicitly the decision and considered the trial court under the solely on court was based trial presented or circumstances either before at privilege as first announced when exercised justified Finally, trial and is no more now. as Engberg Donna was called a witness appellate the State brief summarizes the the State to continue to be determinative “[tjhere that evidence and contends no Engberg, for her status a witness possibility proof based the offer of on made hearsay testimony and his introduction of hearsay that the excluded testimo- It should that were available. statements ny of Garner would affected the Janet analysis recognized be that within the also Appellant proceedings. outcome of the Simms, privi 492 P.2d exercise of by overwhelming evidence.” convicted unavailability of lege resulted fact, majority again by In critical here witness, in permitting substitute evidence this conclusion converts what was confused (the 804(b)(6) under W.R.E. troduction non-argued error into a confessed 804(b)(5)). same as F.R.E. See also State on sepa- non-briefed issue decision based Fisher, 141 Ariz. cert. evidentiary analysis. rate U.S. denied 469 decision, justifica- Heaping hyperbole imposed This L.Ed.2d 436 albeit denial, tion, error majority, consistent in added third basis of the substantive directly contrary precedent rejection, to our my most severe which occasions Simms. now time determi- first of the evidence that analysis nation as case, citing Wyoming In corroborating no evidence there was claims his unavailable wife became an upon be presented which could relied privilege by virtue of the decision witness of the version enhance the trustworthiness consequently hearsay and that the ad investigator lacking reported to the 804(b)(6) sup missible under W.R.E. guarantees trustworthi- “circumstantial ported as well the cases of Rhode Is ness,” testimony could not hearsay Innis, land v. 100 S.Ct. properly. 4 D. Louisell & C. admitted (1980); 64 L.Ed.2d Faretta v. Califor Mueller, Federal Evidence 491 It § nia, 422 U.S. 95 S.Ct. stated, possible, although not Brady v. State Mary majority now determines that the trial 1194, 10 land, court determined that the in- should have encompass a United Garner, vestigator, was herself un- Janet process due constitutional denial. States problem trustworthy. more answer, appel distinct now the State contends conception unearthed hearsay is that it is late brief that the use evi first The trial court denied because no sub- for the time. properly dence was *52 prosecution. questionable for the Mac privilege of and See admissibility on the basis possible Louisell & was or 682 F.2d and D. pursuit Closkey, no corroborative majority Mueller, The supra, now does 472 and 491. considered. What C. §§ determine, judicial inquiry requirements Wyo. a first-time of right to witness Const, court, might the trial if it have been 10 and Amend art. the Sixth § of the reliabili- present construction what are ment States of the United Constitution repeated state- ty of unavailable witness clearly possible As presented. the best in may have been order ments of wife facing proof to a death- available defendant inadmissibility de- justify the trial court execution, testimony should conviction Black, Evi- Federal Rules cision. See weight have admissible for the been 803(24) 804(b)(5) Residual dence & to the justified —The which have been it would Overview, 25 Hous.L.Rev. Exceptions Mueller, jury. Louisell su 4 D. & C. —An See Mueller, & C. and 4 D. Louisell Black, Hous. pra, supra, and § content In factual supra, and 491. §§ subject never have L.Rev. 13. The should relevance, the unavaila- and authoritative been since the should reached wife MacCloskey, bility case of States United by privilege testified released when Cir.1982) in directly (4th 682 F.2d the husband. point. ourselves, principle where find we countervailing inter- might be It however, applied which should be is found justice attainment versus corrobora- ests Morrison, in the converse Thomas weigh adversely to the factors would tion line cases as stated Hammond interest even where criminal defendant’s Carlson, 547 F.2d 1346 United States otherwise the evidence was not available. Cir.1976), (8th cert. denied 431 U.S. appeal a decision be sustained on Such where of the trial court. as exercised discretion taking the witness into defendant scared is not occurred this trial. That what then the Fifth Amendment and the witness not rule on this basis The trial court did prosecu- became available state objections by the State neither testimony. Ham torial use of other See there, here, nor were made on now mond, Thomas, F.2d F.2d 1008and majority pre- Consequently, the now basis. Here, process, in exercised due this prius type a nisi wrongly to exercise sumes apply Eng- right same should in favor discretionary evaluation evidence berg. after re That result afforded téstimony availability of a wife denial MacCloskey, versal in 682 F.2d where support presented was to prior testimony by proffered denial use posture her defendant husband. trial erroneously excluded when defendant was Obviously, the mistake premiere made was un took the Fifth Amendment witness in denial of the trial evidence. The second pressure from the prosecutor. der by appellate counsel was mistake made Salerno, F.2d also United States present negligence neglect to this obvi- (2nd Cir.1991), prosecution where the appeal. on first ous trial court mistake immunity opposed prior withheld then Now, compounds by extrapola- majority testimony hearsay objection under a result weighing to utilizing tion in its evidence ing “megatrial” month rever a thirteen should justification what determine sal. determined have been considered and again ignore proce- trial court. We majority intend Surely the would not re- posture long held dural court that, in consideration state constitutional discretionary decisions made quiring to be 803(24) 804(b)(6) rights, are W.R.E. repeated by court as Smith prosecute to defend. available to but never involving (Wyo.1986), 715 P.2d 1164 justice considerations substantive 804(b)(6) subject of W.R.E. the identical Communications, v. Collins Williams case criminal defense. Inc., (Wyo.1986) justify 720 P.2d 880 would usage 803(24) witnesses and the availability of W.R.E. Wyoming under 804(b)(6) un- criminal defense to the criminal defendant is *53 Inc., Co., Distributing 78 v. Ill.2d Rodriguez Constitutions. United States Crawford 70, 296, 34 Ill.Dec. 397 N.E.2d 1362 Faretta, (Wyo.1985); State, P.2d 410 711 calling This was error in the additional Smith, 806, 715 95 2525. 422 U.S. S.Ct. Cf. open for in privilege exercise court witness 14, 1164; 388 87 Washington, U.S. P.2d near certainty jury the that the with would Thomas, 1920, 488 F.2d 334. and S.Ct. against Eng- inferences draw unfavorable take stock the well This court should solely prede berg Engberg’s from Donna rights of a analysis of defendant reasoned testify. termined refusal to United States Salerno, testimony in 937 F.2d to secure 1326, Chapman, reh’g 866 F.2d 797, only this is what we have but then (11th Cir.), 874 F.2d 821 cert. denied 493 in prosecution done for the Cardenas v. 932, 321, 110 L.Ed.2d U.S. S.Ct. 107 312 State, (Wyo.1991). 811 P.2d 989 (not error, however); (1989) plain Lim substantively requires This error alone The baugh, 549 582. Texas So.2d cases provide to new trial. conviction reversal expressive on exceptionally have been the subject calling error re reversible E. Presentation Prejudice Witness jury the calcitrant witness before where Open Court spousal immunity exists. Stewart v. by pro This is created concern State, (Tex.Cr.App.1979); 587 S.W.2d 148 non-testifying cess witness was State, (Tex.Cr. where 209 Johnigan v. 482 S.W.2d jury privi to presented State, invoke before App.1972); Wall v. S.W.2d 59 lege subject immunity. (Tex.Cr.App.1967). This resolved See also Johnson v. trial, State, by Jones, (Tex.Cr.App.1990), 54.20 In initial 777 P.2d S.W.2d — U.S.—, 2914, by significance jury for effect was initiated cert. denied Cooper, opening by prosecution in 115 L.Ed.2d 1078 statements Ford, 301; People v. S.W.2d but see Vegas in Las discussing the arrest Cal.Rptr. 754 P.2d Cal.3d Engberg, that Donna outlining evidence (1988). Wyoming should now settled essence, Argument in her husband. turned Jones, 777 P.2d 54. this issue Engberg response by was this was not true, by Engberg’s to evi addressed Jones, 777 P.2d 54 touchstone of was Opportunity dence. to the evi prosecutorial impropriety by conscious ref- precluded by dence State’s invita 380 U.S. Douglas, erence S.Ct. Engberg privi to assert her tion Donna Namet, 1074 and S.Ct. process by lege testify. The used not to analysis completed, 1151. Once that I commencing opening state the State consider effect of an then “admission jury appearance ment to before the final guilt through process” transfer prosecutorial prejudice directly Jones, ran into the 777 P.2d at accused defendant. 60. campaign by most authorities. rejected exchange whereby here wife asked Alabama, 380 U.S. Douglas given testify v. State to refuse to and was (1965); open 13 L.Ed.2d 934 S.Ct. court could serve confirm States, guilty knowledge U.S. 83 her as evidence Namet v. United (1963); prejudice in 1151, 10 guilt of her this People husband. S.Ct. apparent even Pirrello, Ill.App.3d 117 Ill.Dec. case was more insidious alleged the two than was the case when People 520 N.E.2d 399 privilege testifying open option to Technically speaking, presenta exercise court 20. during spouse non-testifying present until was made trial. witness not the decision tion of the First, testify Any privilege appeal. briefing for this decision to have exer ed as an issue appearance justification cise should be achieved without can be found in action of this State, testimony (Wyo.1986), in accord with the 727 P.2d 280 before court in Haselhuhn Jones, this has examined criteria court denied 479 rt. ce case, 54. In Donna factu See also Prime v. P.2d ally Jones, prosecution by custody (Wyo.1989), in the virtue but see 767 P.2d 149 subpoena. proceedings Her Additionally, of the out-of-state testimonial trial court testify permitted opportunity Eng- if the trial proper intent not events foreclosed prosecu undoubtedly berg's object known at that time did court was since he counsel put the witness actually provide court tion before she was stand. know the trial would *54 128 583; McGinty, v. 14 to So.2d at State

uncharged coconspirators were called 71, (1942); 1086 testify and as 126 P.2d State v. the witness stand refused Wash.2d 93, Winnett, (1907). described in Jones. 48 92 P. 904 Wash. guilt of conviction on other With reversal apparent from close record review It is bases, of this we avoid either review issue brought Engberg Donna State plain retroactivity of error or on the basis of purpose for the estab- from Nebraska principle application of of a determined of unavailability to lishing a admit basis Wyoming example, law. for federal See police as made to offi- prior her statements 288, law, Lane, Teague v. 109 804(b) if purview of W.R.E. cers under the 1060, 334, reh’g 103 L.Ed.2d denied testify Engberg did not she chose not to or 1031, 1771, 490 109 S.Ct. privilege. Engberg’s his decision to U.S. waive privilege suppression (1989) release v. 478 Hardy, withdraw 206 Allen preference premised on a for her live 255, 2878, (1986). Thereafter, testimony. when the trial totally unexpected, invocation any Unless privilege by effectively her court invoked immunity privilege or witness of excluding sen- provisions of second presence occur should outside of the 1-12-104, Engberg turned tence W.S. Jones, 54; Smith, jury. 777 P.2d State v. hearsay preferential as to a himself 553, (1989).21 116 Idaho P.2d 777 1226 testimony of her record without State, 204, Md.App. v. 86 also Jones 586 recognition participation the intrinsic A.2d 55 other evidence had radiated about her. Eyewitness F. Wit- Identification Engberg Trial events not the Trial Court to ness—Refusal of testimony, right to call his wife for desired Engberg Allow the an Ex- to Call implication prejudice by but created pert on the Testify Witness Po- jury testimony her would have tential Error Identification she hostile since was called and ex- been eyewitness- just But how accurate are apparent as witness in cluded an State 5,000 possibility wrong- of over es? Engberg With Donna thus open court. ful convictions the United States annu- apparently as last and decisive called steady witness, ally and trickle of news ac- openly then her invoke persons imprisoned counts of innocent privilege before the created inferences that the human alert us the fact Engberg’s guilt. Preju- and innuendos legal process of identification contains preemi- in the eyewitness dice identification proof amply risks of error. This conclusion is cannot be doubt- nence case 54; Limbaugh, Jones, supported P.2d 549 research. ed. 111 (1903); Com., 962, engendered prejudice error of S.W. 497 Wilson v. 157 Va. 21. The reversible calling non-testifying by deliberately Haselhuhn, witness S.E. 15 162 280 Cf. acknowledged frequently J., in conviction rever (Urbigkit, dissenting). See also De Gesualdo exemplified by prosecu prejudice sal. This is (1961); People, 147 364 v. Colo. P.2d 374 proper evidentiary without a tion contrivance Poma, Mich.App. People v. 96 294 N.W.2d States, purpose. v. United 344 F.2d 467 Tallo Annotation, (1980); Preju Propriety and 221 Solis, (1st Cir.1965); People Cal.App.2d v. 193 Witness, Calling Prosecution’s dicial Effect (1961); Cal.Rptr. People 13 813 v. Terra Privilege, to Extract Claim Self-Incrimination morse, (1916); Cal.App. 30 P. 1134 Col 157 Charged Against One Involved in Ac Offense State, Ga.App. 226 v. S.E.2d 154 son Annotation, cused, (1983); 19 A.L.R.4th 368 Chrismore, (1976); v. 223 Iowa Calling Prejudicial Prosecution's as Wit Effect of Trine, (1937); People v. Mich. N.W. ness, to Extract Claim of Self-Incrimination State, (1910); Warren v. 336 So.2d 726 N.W. 3 (Miss.1976); Privilege, One Involved With Which Offense State, 208 Miss. 43 539, Outlaw (1962); Charged, Accused Is 86 A.L.R.2d 1443 State, (1949); Hylton 100 Nev. So.2d Annotation, Calling Offering Spouse Accused’s State, (1984); Velasquez v. P.2d Prejudicial as Witness Prosecution Miscon 1985), (Tex.App. 727 S.W.2d 580 S.W.2d aff’d duct, (1961); 209; 1 ABA 76 A.L.R.2d 920 Stan Johnigan, (Tex.Cr.App.1987); 482 S.W.2d 3-5.6(b) State, Justice §§ dards for Criminal 3- Caldwell 162 Tex.Crim. S.W.2d 5.7(c) (2d 1980). ed. 45 Tex.Crim. Moore cant eye-witness Per- identification evidence Siegel, Psychology & Zalman provided for Identification, conviction.22 Eyewitness ception, 27 Crim.L.Bull. Lineup, appeal One of the difficult issues of this omitted). (footnote was denial to use of *55 part of a expert identification one identification witness. Within this Mistaken fast evolving tremendously litigated A and problem. misidentification broader eyewitness involving usage comprehensive public policy approach issue expert special witness or submission of a suggest techniques must for less- several instruction, consistency little national ening wrongful incidence of convic- state, Actually, exists. within this the ex- example, guilt tions. For where is based pert witness has used in serious been cases eyewitness testimony, ex- entirely on and, review, appellate for only this case has traordinary paid must be attention Similarly, reached us. instruc- general specific questions of reliabili- Telfaire given tion has and denied and been denial always ty. Expert witnesses must be previously approved appeal. has been on testify allowed to on the issue of reliabili- ty training given police special error When faced with claimed high-risk employees (e.g., officers and expert witness, Engberg denial to of an stores) of banks and on ob- convenience again State contended a constitutional for- during servation and documentation procedural by feiture default “solution.” criminal incidents. unsupportable This of is an resolution rejection appellate issue created (footnote omitted). Id. at 174 appellate exasperated by the failure of competent today puts Before counsel appeal. counsel to include it first As involving signifi- his client on trial a case retrial, casually I dis- direction cannot identification, proof by eyewitness cant rea- regard rights the constitutional reading competency require sonable would Const, 10, right Wyo. under art. § Loftus K. the current book of E. & Ketch- Const, defend, Wyo. accused to art. am, Witness Ac- Defense: law, in process conjunction due § cused, Eyewitness Expert and The the Sixth Amendment to the United States Memory (1991). Puts on Trial Who Faretta, Constitution. thought authors us initial lead properly issue should be S.Ct. 2525. This quotation Shakespeare, from William Ham- predomi- presented when intermixed with let, III, Act scene ii: nating assist- consideration ineffective you yonder Do cloud that’s Hamlet: see Zant, appellate Curry ance of counsel. shape almost of a camel? (1988); 258 Ga. 371 S.E.2d 647 Palm- mass, By Polonius: and ’tis like a er, 960; State, Sims v. camel, indeed. (Iowa 1980); State, N.W.2d 420 Curtis it is like a Hamlet: Methinks weasel. Md.App. A.2d 1166 rev’d Polonius: It backed like a weasel. grounds 395 A.2d other Md. like Or Hamlet: whale? Warden, Stewart v. Nevada Prison, 92 Nev. 555 P.2d 218 Very like a whale. Polonius: Bronson, (1976). Valeriano Cf. provides: The dedication to the book “We Conn. 546 A.2d 1380 and men dedicate this book to women accused, why I wrongfully con- do not understand this issue was who have been victed, appeal imprisoned, considering or have otherwise suf- not raised on initial (at expense public faulty eyewitness fered testimo- incurred defender because related, expense) having ny.” will be later Elizabeth state the witness avail- As testify re-emphasized by in able This is Loftus the witness called to for the trial. singularly signifi- previ- that the same witness had regarding case fact Ketcham, interesting Bundy”. supra, segments of E. & K. at 61. One the most Loftus 22. Boy: Chapter 4: "The All-American Ted book mistaken, frequently completely but Wyoming death in another ously testified degree of error in such frequency identification. Alberts involving case also (Wyo.1982). There undisclosed to the P.2d identification remains justifi- between jury. iden- fact-finding Faulty eyewitness differentiation to be a has misguided disinclina- cation, incapacity tification, perjury, is con- second representation. Appel- adequacy major tion in cause of the conviction sidered responsibility pursue has a Radelet, counsel late persons. See Bedau & innocent non-pur- at trial unless established issues Potentially Miscarriages Justice in Valeriano, by research. is mandated suit Cases, 40 Stan.L.Rev. Capital 1895. McCoy, A.2d 1380. See S.Ct. highlighted by Justice problem was This Anders, 738, 87 Frankfurter, The Case Frankfurter F. Cf. *56 appellate re- Extrication of the issue (1927). go We could and Vanzetti Sacco realistically thought- called cannot view further and find that Sir Walter back even Arnolds, Car- fully E. W. unintended. See of Raleigh lost his head as the result both roll, Seng, Eyewitness M. Tes- M. Lewis & hearsay faulty identification. timony: Strategies and Tactics problem is consideration of the Judicial Sobel, Arnolds) Eye- (hereafter E. and N. In 1896 case of In re not new. and Prac- Legal witness Identification: Estate, 35 A. Bryant’s 176 Pa. (1988). Problems tical (1896), it stated: 577 denial, negligence of neglect or Since litigation are parties to the The issue on to include this appellate counsel estate, and their claims claimants of his mandated to unexplained, we are appeal is question identity. of depend upon the analysis post-conviction a substantive subjects are more difficult There few Initially, hypnotism issue review. justice of the administration with which process aggravates due con- this case superfi- has to deal. carelessness eyewitness identification validi- cern of the observers, rarity powers ciality of application ty. in evenhanded Justice description, and the different graphic reject dou- require this court should of form or peculiarities force with which the kind process of due where standard ble per- expression strike different color or prosecution, if experts available to the sons, recognition or identification make jury with foundational they assist testified of the least reliable of facts one ex- the kind of knowledge, not be would by actual witnesses who have to even help- to defend as either perts available and, question; parties seen the where provence jury. of the invading the ful or not, there is the added they have obstacle (2nd F.2d 108 Fogg, v. 589 See Jackson language to de- inadequacy Cir.1978); P.2d 483 Long, v. State the minute variations feature scribe 1986); Note, (Utah Eyewitness Identi- up go to make the indi- and color which Perspec- Changing A in Utah: fication personality. vidual also tive, L.Rev. 113 See 1988Utah (S.C.1991). Whaley, 406 S.E.2d ignorant keep The incantation eyewitness high degree of erroneous as a eyewitness identification Analysis not diminished over a identification has presents prosecution function of criminal is alert century. Louisiana half necessity and clash that timeless between eyewitness identification to problem with validity. need be said Little questionable key is the ac issue convict. “Where cases, eye necessity. many In about perpetrator, rather identity as the cused’s only or at least identification witness committed, the crime was than whether See principle prosecutorial evidence. negate any required reasonable (9th state is Smith, 563 F.2d States v. United probability of misidentification.” State Cir.1977), denied 434 U.S. cert. 1100, 1109 Carter, (La.App.1988). 522 So.2d Hufsted- L.Ed.2d 769 linchpin reliability is the This is true since concurring. ler, J., specially Extensive admissibility of identifi determining suggests that research documented well testimony. suspect cation Walker testimony is not eyewitness not commit the real criminal was (quoting (Ala.Cr.App.1988) Man- So.2d large. Brathwaite, left at son v. (1977)). Peo- also Brown, 461 F.2d United States v. N.Y.S.2d N.Y.2d Riley, 70

ple v. (D.C.Cir.1971), Judge re- Chief Bazelon 842, 517 N.E.2d 520 eyewitness sponded problems treat- thoughtful judicial by stating aspect of the most identification other One “[n]o People process accusatory on this is found creates so much ments N.W.2d Anderson, justice miscarriage Mich. opportunity —for (1973): punishment of an innocent man.” “Un- questionably, identifications are often unre- psycho-legal fundamentals consistently less perhaps reliable the tension between case derive from liable— than lie detector tests, we eyewitness involved iden- four factors unreliability.” past cases. four excluded for Id. in criminal tification n. factors are: I.23 usually necessary 1. The natural identification, eyewitness Erroneous eyewitness identification of reliance on faith, good many given confidently in times police prosecu- defendants led the conviction and execution has

tion; *57 charged capital people innocent scientifically judicially The and rec- 2. Radelet, 40 supra, Bedau & crimes. See ognized that there are serious fact (Appendix at A: Cat- Stan.L.Rev. 91-172 reliability eye- of on the limitations Defendants). problem The of alogue of defendants; identification of witness faulty has eyewitness identification been scientifically judicially The rec- 3. and books, comprehensively addressed scien- employed ognized frequently that fact publications legal journals. For tific and police prosecution procedures of- and fundamentally fair Wyoming law to be as (and frequently unintentionally) it, ten we make a defendant should be can misidentifi- eyewitnesses mislead into evidence which can shake able defendant; cation of the eyewitness the confidence identifica- prosecution is use just as the free to legal and fact 4. historical that tion— is a of eyewitness identification. It matter people significant number of innocent analyzing After they fairness.24 of crimes did fundamental have been convicted Ordover, Porraro, in 6 Crim- See also an excellent review also 121 R.I. 404 23. See (1988). Advocacy (1979); With those standard trilogy, inal the Wade United States Law A.2d 465 Wade, Yarmey, Psycholo- included A. texts must be (1979) (1967); California, gy Testimony and E. Loftus Eyewitness Gilbert v. State of S.Ct.1951, (1967); Testimony: Doyle, Eyewitness Civil and & J. U.S. 87 Denno, (1987). merely of a As illustrative Stovall v. Criminal societal, (1967) psy- subsequent portion and cases. scientific and small reviews, monograms see M. chology and article Note, analysis provided in Interesting An McCloskey, Treadway Cite Unseen: Distor- & M. Twenty-Years Diminishing A Protection: Pro Study Allport and Postman Rumor tions Standards, Trilogy’s posal to Wade Return to the Literature, Testimony 11 Law Eyewitness (1987). See also Com 15 Hofstra L.Rev. 583 Bersoff, (1987); Behavior 19 D. Human ment, Eyewitness at Erroneous Identification System: Psychologists and the Broader Judicial Cure, Lineups Its Problem and —The Perspectives, 10 Law Behavior and Human compare the U.S.F.L.Rev. 85 earlier (1986); Bregman, Un- Juror H. McAllister & N. article, Quinn, In the The Di Wake Wade: Eyewitness derutilization Cases, Nonidentifications: Eyewitness mensions of Identification Ap- Implications, J.71 and Practical Theoretical addition, 42 U.Colo.L.Rev. 135 In see (1986); & K. Deffenbacher plied Psychology 168 1987) (Wyo. Charpentier P.2d 724 Loftus, a Common Under- Share E. Do Jurors J., (Urbigkit, dissenting). Behavior?, Concerning Eyewitness standing (1982); R. Chris- Behavior 15 Representative easily as more Law and Human tiaansen, available Sweeney, & J. Individual Munsterberg, Ochalek are K. sources H. On the Witness Borchard, Eyewitness Memory and (1908); Convicting E. Stand Inno- Confi- Differences Psychology Frankfurter, Wall, (1932); Judgments, 110 J. General supra; cent F. P. dence Wells, Applied Eyewitness-Testimony (1984); G. Eye-Witness in Criminal Cases Identification Arnolds, Sobel, System and Estimator Vari- supra; Variables supra. N. Research: E. Supreme major attempt first Court’s eyewitness reliance on unquestioning “dangers eye- inherent legal system, two confront identification suggestibil- and the rules witness identification argue for uniform prominent scholars pretrial ity in the context of the inherent such identification: govern primary identification.” Court’s con- inadequa- light of the unenumerated legal cern was to evolve standards and and tes- eye-witness identification cies of substantially that would reduce remedies safeguards are timony, procedural new identification. erroneous pro- following proposed required. The suggested alterna- are not Reid, Testimony tections on Expert Katz & evidence, such eyewitness Identification, tives Fallibility Eyewitness very vital role in play can evidence describes: CrimJustJ. proceedings. investigative the testi- Many psychologists believe Rather, safeguards suggested are these eyewitness crime mony of an to a might eyewitness evidence in order This article address- often be unreliable. jury proper in its presented to a scien- question es whether behavioral prejudicial perspective. least testify permitted to tists should be jury explain criminal trials to Eyewitness & Cunningham Tyrrell, Credi eyewitness danger relying Sights inherent Adjusting the the Judi bility: identifications. Lawyer ciary, 37 Alabama police These scholars recommend legal admissi- After a discussion of the lineups using suggestive analysis avoid testimony, an bility of this instructions, re provide special problem courts scope of the the nature and evidence, corroborating employ pro quire presented, followed a discussion of procedures for in-court identifica expert tective specific upon topics *58 tion, require procedures pretrial identification testify. and eyewitness identification (St Denno, 388 87 conclusion, presents this some article ovall (1967) (Denno 18 1199 L.Ed.2d in guidelines judge assist his the hearing)). this matter. of discretion on exercise rep-A nearly O’Connor, literature is endless. Sobering

The A “That’s Man”: found in & analysis is Levine Eyewitness resentative and Study Identification of Identi- L.Rev. 1-2 Tapp, Psychology The Criminal 49 St.John’s Polygraph, of Kirby, (1974) (footnote omitted) Gap The From Wade to states: fication: (1973)(quoting 121 1079 U.Pa.L.Rev. four in the morn- It is almost o’clock 218, 235, Wade, 388 U.S. States v. lighted United and, he in the ing, stands 1926, 1936, (1967) 18 1149 squad at the 110th doorway of the room omitted), which stated: but, and footnotes precinct, Manny is Balestrero tired — scared, still, more 12, 1967, Supreme he scared Court worse June On cases, Things life. trilogy he has ever been in his in a than United States closing him. Wade, His seem to be around Gilbert v. Cali- States v. United Denno, evening interrogation since earlier and dealt Stovall fornia not, standard, brutal; by any been police practices has constitutionality persistent, just no has been obtaining force procedures eyewitness and used— relentless, questioning by ceaseless two marked These decisions identifications. 1974); (Dec. ables, Today Psychology 116 and G. All- Psychology Personality 36 J. & Social Postman, Psychology (1978); Buckhout, Eye- port Rumor & L. The Psychology R. 1546 Monahan, Identification, also & Social Psychology Walker witness 1 Law and (1975); Luce, New Use Social Science in Di- Frameworks: A Law, Neglected 75 T. Review The Did Eyewitness 559 and How The Identification, 73 VaX.Rev. mension 4 Criminal Snared?, (1977); Portman, Wrong National Law Eye- Man Get The S. Defense Mistaken 7, 1988). (March more One of the vali- Remedy, A Journal witness Criminal Identification: 4 Buckhout, (1976); teaching to be Eyewitness orientation R. dated sources Defense Iden- Williams, Loftus, Courtroom, B. Bell & K. Pow- Psychology is E. in the found tification (April Loftus, Testimony, Trial 64 Eyewitness E. Criminal Defense 5 Recon- erful Eyewitness, 1988). structing Memory: The Incredible determination, one for skeptically polite, and often the sole who are so detectives adamantly unbelieving! Yet, every trial. commenta- so criminal

[*] ^{[*] [*] [*] [*] [*]} tors extensively have documented wrongful result- frequency of convictions swiftly to its bitter The drama moves ing from mistaken identifications senses, again rather Manny than end. long recognized the threat darkened sees, in the room. movement poses the ideals such misidentification words: whispered “That’s Then come As Felix justice. of criminal Justice collaps- world Manny’s man!” whole noted, Frankfurter once “The identifica- es. strangers proverbially untrust- tion of interim, and, (After a mistrial worthy. testimony The hazards such perpetrator apprehended.) real by a number are formidable established legal within is an article of faith “It English in the records of instances testimony eyewitness profession and American trials.” Biggers: Neil Pulaski, unreliable.” Eyes Did Deceive You? Ex- Note, Your Supreme Court Dismantles Wade pert Psychological Testimony on Protection, Trilogy’s Due Process Stan. Unreliability Eyewitness L.Rev. Identifica- tion, (1977) (quot- 29 Stan.L.Rev. unreliability eyewitness identifi- supra, Frankfurter, ing 30) (footnotes F. poses one of the most cation evidence omitted). variety just detail of problems in the administration of serious subject articles on are few other justice. Identifying the defen- criminal issue, presents astounding.25 wrongdoer as the dant

25. The of 719 regarded McGowan, Quinn, Grano, tutional (footnotes inaccuracy Guilt 89 Criminal greatest believe, the use "Although eyewitness suspecting lized to correct ished. our tration tion. of criminal experts to dence have “All of the ones. Yet taken eyewitness identifications. cern to those involved Convicting the Until (1974) (quoting G. peril testimony, ideal that legal systems society Kirby, supra n. Safeguards evidence.” prosecution; major vagaries (3d Identification, Wm. & form of evidence in criminal recently, of the criminal law is ^[******] single omitted). has not Constitutional ed. conviction law. Biggers, traditionally cause of rather than abuses no Innocent?, watching 1963)). threat to the achievement of comparatively of confessions an innocent of visual gone It has been innocent Remain what and Ash: Do judiciary had done little identification is injustice Williams, unnoticed.” in the real U.Colo.L.Rev. eyewitness made for 72 Mich.L.Rev. been of for the Interpretation and Against is man shall identification danger thought many voluntary person conceivably lying testimony in the adminis- administration rare but the use of not, Mary involuntary Any mistake of great Comment, identifica- is mis- trials, by Proof of be Danger Consti- at 135 L.Rev. a civi- highly errors many pun- con- evi- put its Need Expert Testimony Eyewitness many Dick.L.Rev. nal (quoting the waite?, Munsterberg, supra n. Comment, Testimony: 12 AmJ.Crim.L. justice ble human the American “Justice would less often many are to the and may are tirely clarity “'[I]nnocent form evidence. This inherent in ingness human cation chologists fair and efficient have permitted astrous Throughout Eyewitness Supreme Cases, combination treachery decided testimony recall, not be as accurate 52 U.Colo.L.Rev. suggested on the weigh psychologists Jonakait, that, testimony Cautionary Jury memory process, effects, poses Helping the The Need for America. Identification have demonstrated with effectively there is guilty due to normal deficiencies in Court Tell Manson v. Brath testimony systems testify evidence daily Wash.U.L.Q. people testimony plays of human this judicial with the Reliable Identification: produced is an administration of criminal will based century, Eyewitness Perception, (1978). Jury will be psychologists 24). safeguard constant concern experts were a serious threat Additional remain free.”’ as it seems. Instructions in system. Many inherently legal system's unwill- perception, Testimony memory." Evaluate eyewitnesses. legal substantially *59 miscarry (1984) (quoting H. eyewitness by inherently more experimental imprisoned, to inform a critical role commentators against its dis- unreliability, (1981)). conscious of Safeguards, Eyewitness increasing should be unreliable if Recently memory identifi- all who jurors Crimi (1983) that it to the Could Since Note, cases falli- psy- en- continue to face Fassett, identifications shall literature, The Third able In current Expert needlessly judi- shut Response to Tes- doors Unique closed Circuit’s Perception: Eyewitness scope Is timony ciary limiting intent on Get?, 19 Seton dismantling You See You What What of trials. Given duration (1989) provides a Hall L.Rev. protections devel- of the constitutional ex- thoughtfully detailed and documented ago oped twenty-two years to ensure concludes: position and then unreliable identification evi- exclusion of unreliability eye- The inherent arising unduly suggestive dence evidence, identification combined witness those closed doors pretrial procedures, protec- the dilution of constitutional with certainly tragically facili- will almost iden- designed tions to exclude unreliable innocent defen- tate the conviction of tifications, adoption of necessitates dants. safeguards where such judicial additional reliability ex- invoking the When disputed. critical and evidence both analysis eyewitness identifi- pert witness safeguard, ex- such The most effective cation, found in review of four concerns are testimony, pert identification should be many expansive cases and literature: pres- frequently far more than admitted ently majority Amaral allowed admissibility expert The test for standard. Enunciated F.2d [488 1148] application of testimony is F.R.E. with years ago by the Ninth Cir- fifteen over test, States, Frye Frye v. United either cuit, inconsistent with that standard is 293 F. 1013 or a App.D.C. the Federal the more liberal criteria of currently modernized standard. in the and has resulted Rules Evidence generally agreed and de- 2. There are testimony. of such near-blanket exclusion eye- validity concepts for practical termined recog- Third Circuit Downing, the testimony. identification witness standard nized the of the Amaral flaws implicated equality recommended more lenient admis- 3. Fairness is testimony. expert expert identification to the availability sion of witness However, discretion the tremendous prosecution. defendant as to courts, cou- Downing afforded district and the essential charac- 4. The nature to exclude pled open with its invitation exercised discre- of the trial court teristics except those testimony in all cases such presented by contentions of identifica- tion single solely upon a uncorrob- based invalidity. tion identification, regrettably pre- will orated acknowledged Judicial answers any significant increase in its admis- vent three directions. The problem have taken Hence, who criminal defendants sion. clearly nothing un- testimony attack unreli- first is to do require expert however, supreme eyewitness Recently, courts of findings relevant of scientific testimony *60 281, particular Chapple facts of the case. Ariz. 660 and the Arizona in State v. [135 Comment, Eyes Psychological 1208, (1983) Have It? Do the P.2d 1224 and California ] Accuracy, Eyewitness Testimony Regarding 38 351, 375-76, People v. McDonald Cal.3d [37 169, (1986) (footnote Baylor ted). omit- L.Rev. 169 726-27, Cal.Rptr. 252- P.2d 208 690 (1984) judge com have ruled that a trial ] 53 very issue of Of all the areas where refusing to admit mitted reversible error in participation expert criminal witness in expert testimony eyewitness identification. on issue, perhaps trials is at the most contro- adopt this courts These are the first state eyewitness at the iden- versial time is indications, however, position. There are experts increasing frequency tification. With And, may it is jurisdictions follow. that other testifying been Whether in this area. many keep in mind that trial important has, testimony should how- such be admitted testimony already this in crimi judges admit ever, been within the trial discretion of the trials. nal appellate all court. Almost courts that have Sanders, Eyewitness Expert Witnesses in Facial upheld on the matter have ruled the trial Cases, XVII Tex.Tech.L.Rev. expert Identification testimony exclusion of court’s intro- omitted). (1986) (footnotes 1410-11 effects of duced to discuss the various factors juror eyewitness performances, or on on as- eyewitness identification. sessment of

135 eyewitness testimony might much jury will reliance justified hope that either Telfaire, given. United States v. enough adequately discount iden- be 469 smart Eye second, (D.C.Cir.1972). Note, testimony, that the F.2d 552 or oth- tification Testimony is sufficient so that the invalid witness and the er evidence Identification Cautionary Jury Alterna- Need Instructions really not testimony does matter. Cases, in Criminal power U.L.Q. 60 1387 on of cross-exam- Wash. tively, reliance State, Hampton v. justifi- frequently given as a In 92 Wis.2d is also ination (citing Chap (1979) procedure 868 for the uncontrolled as an 285 N.W.2d cation State, identifi- man v. eyewitness 69 Wis.2d 230 N.W.2d adequate validation Williamson, v. State testimony. 824 84 cation Since none these ex- (1978)), testi planations reliability assure of result for Wis.2d 267 N.W.2d 337 mony significant expert permitted, are in a witness those who innocent was cases, remaining although scope, spe solace restricted while the number possibility guilty special that the cial instruction was denied. The comes from approach instruction has us will confess or be otherwise un- found broad individual covered, age, unfortunately previously has post-conviction processes will be but been rejected in a justification plain or that the this court error con remedial normal society concept any text substantive consideration sufficient of utilitarian without perspective. Campbell v. of its wrong-place, wrong-time trage- what broad —so State, court, but see (Wyo.1979); 589 358 dy To one federal P.2d resolution. where Thomas P.2d v. acceptable (Wyo.1989), 237 precept latter J., Urbigkit, specially concurring. eyewitness identification was unreliable Cf. Jackson, (7th Hodges, case United States v. The 589 F.2d 108. 515 F.2d 650 used. Cir.1975); Holley, United States v. critiqued by appellate federal court Wheaton, (4th Cir.1974); State v. as “the rare case a record almost entire- F.2d (1986); State ly credible evidence of 240 Kan. 729 P.2d 1183 bare of untainted Warren, identifica- guilt” Kan. P.2d 1236 eyewitness as founded Mastracchio, suggestive Id. at 108. See similar 546 A.2d tion. (R.I.1988). of identification United States processes The Tenth Circuit Court Russell, (6th Cir.1976).26 Appeals position F.2d adopted an intermediate upon posited unavailable testi collaborative spreading The second and effort test McNeal, United mony. F.2d States prosecutorial contended identification (10th Cir.), cert. denied by special jury to education of the reaches application The instructions. most common usage approach of some third ameliorative address- version Telfaire provides expert the use of witness jury instruction which four factors a es deciding testimony pursuant consider how to W.R.E. 702.27 should when case, plicable psychological also to the evaluation A recommendation not found justified analysis, expert analyzes probably scientific who behav- but in factual is that evidence be, questions. polygraph, ioral identification as it is more reliable than facts and Jackson, eyewitness many F.2d at the court ob- cases. Justice identification in O'Connor, hearing: supra, regard Frank O’Connor served to a Wade noted in omitted): (footnote judge find- St. John’s L.Rev. made no detailed state ings suggestiveness as to relia- either as to haunting There remains unanswered the in- *61 familiarity bility a basic of evidenced lack and quiry century of nineteenth student: legal appropriate standards. with the really prevent would "What erroneous identi- perfect In the most fication?” worlds and concept rejecting general evidence The suggested guidelines adopted, per- with all the fected, jurisdiction expert witness in a a from scientific implemented and in full force and not demonstrate whether or the case does where effect, injustices inequities, inequalities and instruction is used is most ex- nor tensively Telfaire continue to exist—at least in will this life. availability pos- in the denied stated argues experience litiga- author from his The ture as: may judge polygraph as a that the serve as tion holding adequate presently that the trial court did not abuse a answer than what is more refusing expert reasoning regard polygraph its to admit this His discretion done. testimony, suggest expert singularly ap- do not mean to that we witness examination is we for 136 Sears, Co., Roebuck & Scott v. F.2d significant, in- 789 process is

decisional used v. United States (4th Cir.1986); advisability cluding propriety and both 1052 Amaral, of a Denno (9th Cir.1973); limine hearing motion in 1148 and 488 F.2d State, v. (Del.Super.), Fensterer trial. in advance of A.2d resolution granted judgment and vacated rt. ce expert general principles As for witness 292, 15, 88 L.Ed.2d 474 U.S. 106 S.Ct. consid testimony, separately definable (a) include com trial court erations witness, qualification of the petency and expert tes admissibility The standard for Vineyard, 497 S.W.2d 821 (Mo. see State v. timony differently phrased is somewhat Windmere, Inc. v. Internar App.1973) and Unit Appeals Circuit Court Sixth Co., 373, tional Ins. 522 A.2d 405 N.J. Kozminski, 1186, ed v. States 821 F.2d (b) subject (1987); appropriateness of the granted 484 U.S. Cir.), 894, cert. (6th People 702, see testimony under W.R.E. (1987), judgment 225, Cole, v. 99, P.2d 854 47 Cal.2d remanded, 931, af f'd Inc., Windmere, 405; A.2d (1988) (em Spry, 87 S.D. (1973), 207 N.W.2d original) test: phasis four-part as a Bucking overruled sub nom. State testimony to expert be admissible For ham, 240 N.W.2d 84 90 S.D. four-part must be under Rule a test Hartman, sub nom. State modified (1) qualified expert; (2) testifying a met: Giannelli, (S.D.1977) 256 N.W.2d to conformity (3) proper subject; on a Evi Admissibility Novel Scientific accepted explanatory theo- generally a States, A Frye dence: United Half- ry; probative out- value of which Later, Century 80 Colum.L.Rev. weighs any prejudicial effect. function); (1980) (as affording the three-test noteworthy It a can be is difference (c) prejudice under creation undue evi- assessed between a test scientific see Foster v. W.R.E. 508 So.2d expert testimony. dence compared (Miss.1987); (d) probative value J., dissenting. Id. Guy, at compared prejudicial general to effect a lucid power exercised trial court discretion One of more reviews see evidence, admissibility testimony found deny expert his is litigant desired reliability eye- recognized insufficiencies think the broader issue of counteract testimony unimpor- eyewitness irregularities witness identification identification Rather, requir- simply example, we believe testimony. tant. ing Did For recent see How Snared?, this sort evidence trial courts admit Wrong Man The National Law Get no one Journal, not the answer. There is answer Memory supra on Witnesses Trial. problem, but are a number of safe- there Challenged Frequently Being Crimes Are guards prevent convictions of the innocent Journal, Fallible, The Wall Street March eyewitness based on unreliable identification. col. which states: they prosecute do not if Prosecutors have publi- new indicates such research evidence is unreliable. Trial courts think the just eyewitnesses’ fallibility cases of "are cized testimony suppress if the identification larger iceberg,” says tip Ste- of a much procedures evi- rendered the identification Penrod, memory phen D. researcher at dence unreliable. Effective cross-examina- University of Wisconsin in Madison who persuasive argument by defense tion and psychology both and law. holds doctorates in safeguards. Proper in- are additional counsel signifi- “The rate of mistaken identification is the factors in evaluat- struction of on cantly higher people than most tend to be- testimony ing eyewitness identification lieve,” says. he proving state’s burden of identification ****** beyond are other safe- a reasonable doubt memories, Suggestions also become ex- can guards. requirement jury unanimity * * * suggest. periments Prof. Loftus safeguard. Finally, this has the also court deliberately Hypnotists can or inad- also grant power if it is convinced that the relief memory vertently implant an unreal or false guilt was of a convicted defendant’s evidence fashion, experiments in a witness in a similar legally insufficient. Helterbridle, shown. N.W.2d State v. *62 suggestions by police lead an (Minn.1980). Unfortunately, foregoing Subtle can enu- picking suspect nothing eyewitness to in out of contemplates than err different meration experiments lineup, historically dozens of indicate. occurred as insufficient what has

137 1224, Supreme v. 753 F.2d 1230-31 Jersey Downing, New States in statements Cir.1985): Windmere, (3rd regard in to the in Inc. Court

particular recognized: ultimately which scientific reliability There proponent topic found inadmissible. are results can in terms of generally voice expert testimony prove its prints three general accept- which was That court ways required in testimony in which courts have found test certain [W]e of Rule ^[******] find circumstances, persuasive can 702. satisfy * * * more type recent that, helpfulness expert under cases community: professional agree ance within the in Chappie, We with the courts (1) knowledgeable Smith, ex- testimony and McDonald under certain (2) scientific litera- perts; expert authoritative testimony circumstances on (3) ture; judicial persuasive reliability decisions eyewitness identifications general accept- acknowledge reaching such in can assist a correct expert testimony. ance of decision and therefore meet 702.[30] helpfulness requirement Rule Windmere, Inc., That 522 A.2d 408.28 applied approach by factu- case reasoned making jurisdiction in Retained discretional analysis acceptability criteria. al each probative prejudicial evaluation versus is further reflected v. super- United States Frye generally test has been 1308, Moore, 702, reh’g 786 F.2d denied 791 current seded F.R.E. more (5th Cir.1986) Via, F.2d 928 State v. recognition relationship science’s 108, (1985), P.2d 238 in- 146 Ariz. 704 cert. fact-finding for truth in trial search 1268, 1048, U.S. 106 89 denied 475 S.Ct. quiry.29 psychological principles as (1986). L.Ed.2d 577 The more recent real are psycho-legal fundamentals enumerated responsible analyses general in istic and have derived four factors to be involved ly issue to re quoted concluded that the whether eyewitness identification earlier ject Anderson, (with requires an affirmative conclusion of 468 205 N.W.2d at exhaus- Hamm, prejudice. v. 146 See State bibliography). tive 130, 584, (1988). 430 591 Wis.2d N.W.2d authority line of where trial denial Perhaps viably addressing the case most appeal began on reversal resulted eyewitness invalidity identification and the Chapple, Ariz. P.2d v. 135 660 State justification expert testimony for relevant McDonald, People v. 37 1208 Ap the Fifth comes from Circuit Court of Cal.Rptr. 208 690 P.2d 709 Cal.3d peals Dispensa Lynaugh, F.2d v. 847 presented (1984). These cases (5th Cir.1988), 211 as now addressed after expert wit expanding philosophy that peni release of the defendant from state testimony be admissible when ness should tentiary serving years four after adequately present directed and properly year fifteen sentence. eyewitness principal support A ed. invalidity provided present general Third standards which inquiry was Under Appeals apply case of to discretion under W.R.E. 403 and Court of United Circuit Williams, comprehensively presented Rules 4 Ohio 446 Admissi 28. State St.3d Cf. Evidence, (1983), bility 115 F.R.D. 79 where evidence of the N.E.2d of Scientific supplementing earlier Science print was as described to be voice admissible Evidence, (1983). F.R.D. 187 the Rules Starrs, by Professor Starrs in "wretched results" Monahan, supra n. & 73 Va. also Walker Frye v. United Restructured and Revital- States L.Rev. 559. Proposal A to Amend Federal Evidence ized: (1987). Rule F.R.D. Smith, 30.See also United States v. 736 F.2d (6th Cir.), cert. denied 469 (3rd Downing, 753 United States v. F.2d 29. support Further Williams, (Me. Cir.1985); State 388 A.2d P.2d 63 found in Skamarocius v. Johnson, (Tenn. 1978); Brooks, State v. 717 S.W.2d (Alaska People App.1987); Giannelli, supra, Cr.App.1986); 80 Colum.L.Rev. 490 N.Y.S.2d 692 Misc.2d Moon, analysis Wash.App. rules of A current evaluation P.2d admissibility concerning scientific evidence *63 mony vali- eye eyewitness identification evaluate the on expert witnesses who clearly structure. meet criteria dation assume rational identification witness key issue is iden- the test or the more modern the the accused’s Frye either “Where of in than whether tity perpetrator, 702. Discretion rather approach W.R.E. as re- concept properly committed, used to state is cannot be the crime was knowledgeable testimony deny negate any probability validity quired reasonable long Carter, as is retained within as the evidence 522 So.2d of misidentification.” sepa proper not individualized to bounds as validity invalidity rately or attest to the admissibility use of the issues for recog It is critiqued eyewitness. also in ad- expert should be determined witness in has a nized that exercise the discretion hearing or a mo- trial Denno vance of 706 to proper place W.R.E. 403 or under Porraro, tion in limine resolution. v. State redundant, may reject testimony which (1979). is A.2d This R.I. benefit, unduly prejudicial, or oth lacking planning, rationally justified by more expert similar erwise excludable would proceed- scheduling expeditious and trial subjects such witness information Also, ings. the attend- since cost of impact, occurrence of a sex speed, point of upon the expert usually ance will fall offense, psychological explanation ual testifies, public, or not whether the witness R.W., 200 delayed State report. See by advance deci- savings are accommodated N.J.Super. grant 491 A.2d cert. This disposition. sion in the Denno motion judgment A.2d 891 101 N.J. ed (a) process of the permits determination modified, 104 N.J. af and f'd (b) expert witness; status of determina- (1986) (psychiatric analysis of A.2d 1287 testimony; scope proposed tion of the capacity). testimonial (c) application and as a discre- the case required is Clearly, trial court tional conclusion consideration proper exercise of discretion to within purpose and function. Function permit every case always this evidence purpose present discretional decision as- eyewitness exists. identification where sessing really there is a viable whether analysis justifies exclusion where Close the sci- issue of identification about which testimony unquestiona- is the identification knowledge expert witness can entific valid, personal ac- bly as a case of such Ordover, Law jury. aid the Criminal con- quaintanceship, significant occurrence (1988). Advocacy, at 6-1 tact, identification an ob- or other clear (as recog- Engberg For the trial of viously competent knowledgeable wit- I), nized was cen- identification is not Similarly, ness. where identification prosecution tral in defense. critical conviction, justi- important to exclusion questioned competency First to be is the testimony proba- since serves no fied qualification Second witness. recog- Arizona function. The courts

tive subject for ex- appropriateness discretionary in the nized these constraints pert testimony jury trial con- in a witness Poland, case of Ariz. State the testi- conformity text. Third is the Utah has followed a sim- P.2d mony explanatory theory, and fourth Bruce, path ilar admissibility of resolution in the eternal 1989). (Utah prejudicial weighing probative value versus ad- The evidence reaches relevance and effect. highly missability identification is where clearly quali Loftus Dr. Elizabeth and, ques- significant perhaps, reasonably exposure experience fied national case, exclusion of tionable. such testified particularly so since she had factually constitute a expert witness (Wyo. P.2d 898 Alberts against of conviction directed verdict 1987). Doyle, Eye Loftus E. & J. If define discretion real defendant. we Testimony: and Criminal the witness Civil judgmental apply decision and terms of step con properly next principles emplaced in W.R.E. answers expert expert analysis testi- is assessment in modern witness sidered terms *64 139 335, (Ala.Cr. State, validity. ker v. 568 So.2d 339 admissibility Clear testimony for Hall, 161, proposed App.1990); v. 244 Mont. and the State ly, criteria was met this (1990); Melson, proof offer of P.2d 556 A.2d 836 within the 797 183 enunciated text (Utah Kinsey, as validated with 797 P.2d 424 justify denial and State v. could (Utah an ex reputation App.), national 800 P.2d 1105 witness of cert. denied history 1990). Hoffheimer, forensic ex Requiring courtroom tensive See also testimony came pert appearances. Her Jury Eyewitness on Instructions Identifi Downing, parameters 753 within cation Evidence at Federal Tri Criminal 1208; 1224; P.2d Chapple, 660 and als, (1989) F.2d Criminology 80 & 585 J.Crim.L. McDonald, 690 709 as defined P.2d Comment, Expert Testimony Eye on testimony expert under proper bounds witness Constitution Identification: Eyewitness le 702. identification W.R.E. Expert Speak”, 56 Tenn. Says, “Let the gal advanced too far jurisprudence has (1989). Wyoming sadly fails to L.Rev. 735 Estate, re A. Bryant’s since 1896 in In 35 turn to modernization at this forward studies, now earlier to sus and even crossing adjudication. in criminal law Ad expert use of tain denial of criticism ditionally critiqued, Lof- we would find well invalidity. impreciseness Schneider, Strange tus & “Behold With Expert Surprise”: Judicial Reactions to in the Consequently, is then fourth Testimony Concerning Eyewitness Relia should exercise concept that trial court (1987).31 1 56 L.Rev. bility, UMKC presented conflicting when discretion proper genesis for decision. For a exercise G. The Failure the Prosecutor discretion, Cooper, see v. 708 State Engberg Attorney and His Inform (Mo.App.1986), 299 where S.W.2d They Principal Eye- Had the That unconvincing have been bored with would Hypnotized to Enhance witness on or insulted with an attack their evidence Memory Subsequent Her Deni- intelligence since no real issue of identifica- Hearing al a Post-Trial Bruce, 779 presented. tion was P.2d at The test for use is a function of unbelievably first appeal, This now properly exercised discretion which should relief, post-conviction combines four un essentially the to address same the ad- majority subjects comfortable any missibility expert witness testimo- harmless error resolution resolve in one when ny. Discretion reasonableness bal- court denied a factual hear after ancing probative function as a benefit and following ing responsively consider v. prejudice as detriment. Martin really evidentiary presentation of what full (Wyo.1986). 720 P.2d 894 II, happened. combined is eyewitness presented sues are Supreme has most Court of Colorado identifi cation, plus hypnosis, plus Brady non spoken subject Camp recently this disclosure, post-trial hearing plus denial. (Colo. 1991) People, 1 v. 814 P.2d bell Here, counsel nor trial neither Downing, F.2d 1224 which is following 753 defense com court knew until trial was justice logic pathway court after pleted principal had jurisdictions, witness take. In other should also subjected hypnosis prior been continues without re the recent case law Galloway, Engberg. Prosecutorial mission from v. identification of non-disclosure was (Iowa 1979)through prejudicial error. Unit McDonald N.W.2d (2nd Sanders, Miller, Cir. Chapple 51 ed States 411 F.2d People Schreiner, 1969); 77 N.Y.2d Cal.Rptr. People Cal.3d — (1990), U.S.—, N.E.2d 552 cert. denied S.Ct. 570 N.Y.S.2d 59 N.Y.2d 2249, 114 People Hughes, then Par- rise! of endless science from the scenes 31. While of our mind New distant bounded level take, Schneider, lengths supra, views we L.Rev. at 1 Short nor 56 UMKC see the be- & Loftus hind; (1711)). Essay Pope, on Criticism (quoting advanced, strange But more behold with sur- prise (8th montrout, Cir.1987), 835 F.2d 1240 cert. 453 N.E.2d N.Y.S.2d denied, cert. denied U.S. *65 Also, (1989). (1988). review, 571 101 894

L.Ed.2d L.Ed.2d Note, Hypnosis see and the Defendant’s investigation, the suc post-conviction In Case, Right Testify in 1989 to a Criminal appellate discovered that counsel cessor (1989). Utah L.Rev. 545 eyewitness had principal hypnotism the to “attempted” and undisclosed both been thoughtful analysis provided by A is during trial. Engberg either before or Comment, Hypnotically Enhanced Testi- Eng- proceeding, post-conviction-relief Charm?, mony: it Lost 15 Has its S.I11. an opportunity to have berg asked for an 289, (footnotes U.L.J. 293-95 omit- had evidentiary hearing to establish what ted): attempted hypnotism why and occurred hypno- The scientific is that consensus activity hidden from his counsel. does enhance recall. If this were the sis discovery, court, post- the trial After considered, to only factor be there would any evidentiary decision denied conviction argument no its use. be about But any prop hearing. The eliminated decision problems hypnosis associated with create by inquiry, leaving er examination oral problems lie in the conflict. These four denial affidavit the decedent’s sister’s major suggestibility, areas: confabula- actually hyp had that she succumbed when tion, fabrication, deliberate and increased attempted police on her notism was confidence. Iwakiri, representative. v. 106 Ida State in the Suggestibility hyp- inherent 618, (1984). People v. ho 682 P.2d 571 Cf. subject A process. hypnotic notic is in- Romero, (Colo.1987), 745 1003 cert. P.2d hypnotist tensely focused and has 1296, 485 99 denied U.S. please the hypno- increased desire to (1988). 506 L.Ed.2d by complying implicit tist with both and writing case law and academic con Both Leading questions explicit demands. can sidering again end subject are almost However, imply the correct answer. less, including to defend case of suggestions need not verbal. The at- be Rock, U.S. S.Ct. demeanor, 107 2704. See titude, expectations and Guerra, People v. 37 Cal.3d 208 Cal. coupled hypnotist, with tone of voice and (1984); Note, Rptr. P.2d 635 Rock suggestive body language, convey can Hypnosis Arkansas: Criminal messages to the Most subject. subjects Testify, to 41 Ark. Right respond will to these subtle hints and Defendant’s Note, (1988); Rock v. Ar L.Rev. accordingly. answer Hypnosis Prejudice and the kansas: Often, subject’s please desire to May Not Memories Be Your Rule —Your will affect the truth of their statements. Own, (1988). 21 J. Marshall L.Rev. 409 See subject may The not be able remember Note, Hypnosis and Criminal also being which are asked for Defen details Eighth dants: Circuit The then hypnotist. subject Life will halluci- 53 Mo.L.Rev. 823 Beyond, imagine missing nate or details. pseudomemory This will remembered comparable An extensive list of cases can being fantasizing This accurate. Rock, principal as the be found well plausible information seems called People Shirley, P.2d case subject does confabulation. The (Cal.), republished 181 Cal. 31 Cal.3d lie, but the mind creates addi- mean 243, 723 P.2d cert. Rptr. story logi- more tional facts make the cal. Coe, 101 Wash.2d See State v. (1984); Martin, danger deliberately ly- The someone 684 P.2d State ing hypnosis while under is minimal. Wash.2d Laureano, larger problem that someone 101 Wash.2d pretend hypnotized lie independent to be to en- verifi P.2d where story. Only required. also v. Ar- hance his version of the cation is Little tendency knowledge admit such evi- working played a who has someone adequately dence, techniques accepting it could as “scientific” and hypnotic * * * However, experiments However, period fake the results. reliable. after that even the have shown the area trend as the of time this was reversed difficulty distin- field best carefully scientific results controlled faking those who are guishing between studies accumulated. later decisions Feigned hypno- are not. and those who exclude tended to such evidence problems the same as when presents sis testify only to their permit witnesses * * * hyp- perjury. commits a defendant recall. prehypnotic *66 attempt to the ve- notist can determine inadmissibility trend has This toward same racity of the statements the gathered momentum and considerable a would decide whether manner that undisputed the direction represents now lying. Generally, the in- a witness was * * * Only in this a of the law area. few less to lie is much centive for a witness permit decisions the admission of recent than of the actual defendant. that hypnotically testimony, enhanced even on in- of is the The last area concern case-by-case a basis. has af- subject confidence that a creased Law, Developments in Utah See Recent The that are confa- hypnosis. ter details (1991). 1991 Utah L.Rev. 119 See also mind by assimilated the bulated are often Bruce, Additionally, P.2d 646. see they are subject believes that the Romero, 1003; State, P.2d Stokes The of confi- real memories. amount (Fla.1989); Iwakiri, 548 So.2d regarding recalled dence that one has the 571; Johnston, 39 Ohio St.3d State responsiveness on to materials is based 898, reh’g 40 Ohio 529 N.E.2d St.3d the hypnosis accuracy than the of rather and, particu N.E.2d 850 misplaced This confidence information. lar, perilousness in trial procedural the us witness, a more credible who creates Zayas, Ill.2d age, People v. difficulty to cross-examine. The harder Ill.Dec. 546 N.E.2d 513 The witness, testing the combined when recently spo Illinois courts have even more concerns, provides the ba- with the other Ill.App.3d Henry, ken Tardi hypno- to opposition sis the use of for Ill.Dec. 571 N.E.2d 1020 However, hypnosis fact re- sis. that rebut- veals relevant evidence can not be that division apparent It is a close has ted. previously this court on the existed within testimony. usage hypnotically induced Tuttle, of P.2d State, (Wyo.1986), 1018, 110 727 P.2d 280 (Utah 1989), Haselhuhn v. denied 494 U.S. cert. (1990), 1323, 108 the Utah rt. denied 479 U.S. ce Supreme stated: Brown and Court State, JJ., Urbigkit, dissenting; Pote v. twenty years Over course of the last State, (Wyo.1985); Gee v. P.2d so, have tak- or courts across nation (Wyo.1983); Chapman v. P.2d 103 approaches en to this issue at different (Wyo.1982).32 Initially, P.2d 1280 Without re- the courts dis- 638 different times. research, rapport conjecture, quackery, initially with the establishes some 32. Centuries empiri- purpose experiment subject by discussing have resulted in little of the ses- hypno- certainty phenomenon subject making cal about by certain that sion and definition, hypnosis Defying has been sis. Through proceed. variety freely wishes therapeutic technique for three as a endorsed methods, subject then asked to focus date, however, To the scientific decades. community relax, hypnotist, try intensely and to on the encouraged not the use of has saying. hypnotist is what the visualize hypnosis truth-inducing device. Because as a generally hypnotized, subject be- Once legal skepticism lies at heart of suspend increasingly willing his or comes admissibility hyp- surrounding the debate judgment. Apparently, this results her critical notically testimony, some under- refreshed shift, response which is a will- criterion in a standing the current state of scientific report that ingness about events are to rejected details hypnosis required. knowledge about relay. usually Un- too unsure begin hypnosis with a Typically, sessions fortunately, response this lax criterion often hypnotist period known as induction. question ly “beyond as the of doubt” meandering precedent, our gard degree hypothetical high hypnosis, which was never standard we prior opportunity was question voluntarily by police here since revealed either accurately develop provided counsel Otto, not attempted Kay prosecution, was investigation what real- by examination and eye- principal was the witness who strongly I advise happen. would ly did shortly after the rob- witness identification that a Denno hearing in and bar bench years the trial was bery. About two after permit- provided should be advance trial concluded, hypno- possibility pretrial any proper ting court to assess the trial anticipated by tism of witnesses was first hypnotically induced testi- infection con- appellate counsel and then astute supra, Comment, mony. 15 S.I11.U.L.J. The issue private investigator. firmed court find trial factual indeterminate within actually hypnotized. witness record, issues addition to substantive find her identifi- might court also testimony hypnotically circumscribed hypno- or not testimony, whether cation eyewitness particularly relating to identifi- tized, sugges- hypnotic inflicted was not *67 question testimony, raises the cation any In if it occur. the absence tion did prosecutorial non-disclosure. testimony potential relat- confinement of a an inordi hypnosis, in Review of the record reflects by or we write ed to affected faced, assumption, or is by question decision absolution nate factual this court this ignorance. Engberg, “guessing like counsel with happened.” adjudicating is truly This what present- problem explicitly The three-fold Cutbirth, See ignorance. from (1) hypnosis by hypnosis this issue is: ed Story J., Urbigkit, dissenting and (2) principal attempted; witness State, Urbigkit, (Wyo.1988), 755 P.2d 228 prosecution intentionally then withheld State, Frias v. J., specially concurring. pretrial; hypnosis activity from the defense Cf. (Wyo.1986). evidentiary An 722 P.2d 135 (3) hearing provided no post-trial comparison made the evidence can be with rationally to determine what State, of what did occur Calhoun v. in actually happened. onlyWe know factual- per- hypnosis as a of their in as well as ence after result results in an increase inaccurate phenome- accurate This recollections. ceived increased recollection. with, from, yet congruent Distinct low- particularly significant in non becomes response hypnotized ered criterion sub- A who testifies context of a trial. witness resulting ject’s suggestibility increased self-assurance, misplaced, and with even if hypno- he or she focuses on the attention inaccurate, detail, great though is considera- Having suspended tist. his or her critical jury bly or her credible to a than his less more judgment, subject may be anxious to descriptive counterpart. A confident and less favorably please questioner responding artificially witness confidence has been whose suggestions explicit implicit to both the less to cross-ex- increased is also vulnerable hypnotist anyone or else made Thus, the in admit- amination. risk inherent may subject at the confabulate, This lead the session. testimony ting hypnotically in a refreshed tri- gaps memory her or fill his or informa- al is outcome based on unreliable accurate, plausible, necessarily not with but legal tion. risk forms the basis for This pseudomemory, It result data. also hypnotically refreshed debate as to whether perceived recollection where there ought testimony in criminal admitted memory no at all. trials. Additionally, subject’s preconceptions Note, Sixth, Fifth, and Fourteenth Amend- ability hypnosis about the to induce recol- Paradigm ments—A For Deter- Constitutional hypnotist’s lections the nature of the mining Admissibility Hypnotically Re- possibility questions of inaccu- enhance Testimony, Criminology 78 J.Crim.L. & unconsciously subject may al- freshed A rate recall. (1988) (footnotes omitted). See 854-57 during hypnosis responses his ter or her Goleman, Hypnot- similarly, New Studies on the expectations he she accordance with Feigned?, ic State: Is it Real or New York Times prior session. There is also evi- has to the Service, (Chey- Wyoming News State Tribune subjects hypnotized make more dence that enne, WY), April 1987. The conclusion of leading questions responding to than errors in non-hypnotized subjects. sugges- perceives susceptibility and this writer tion, community accuracy problems but much of scientific Compounding is a these suggestion susceptibility experi- questions to what? change subjects confidence often (1983), the State was uncomfortable with 468 A.2d 45 cert. denied Md. testimony. Ms. Otto’s 466 U.S. Maryland, sub Tichnell nom 846, reh’g prosecu- 80 L.Ed.2d 79. The State’s actions were 104 S.Ct. misconduct; exculpato- hypnosis is torial S.Ct. ry which must be disclosed. evidence tape, (videotape, audio L.Ed.2d 865 ****** witness). con expert stark independent evidentiary opportunity not af trast to the 31, 1984, Martin 109. On December compara Engberg, forded case is appointed represent Peti- McClain was State, 330, 343 Bundy ble 455 So.2d purposes pursuing available tioner for 1109, 106 (Fla.1984), cert. denied 476 U.S. post-conviction relief. where 25, 1985, February days four 110. On and the hypnosis “the circumstances due, date this Petition was before the procedure fully used were disclosed hypnosis was Mr. McClainlearned that opportunity had every the defense involved, Kay regard at least fact with credibility to attack the witness] Otto. [the hypno

based on the fact she had been 111. This information was obtained Dugger, 850 Bundy tized.” also investigative done on a result work (11th Cir.1988), cert. denied Mr. McClain’s behalf and not because F.2d prosecution comply a decision Brady request, Petitioner’s or Disci- Johnston, n. N.E.2d at 903 7-103(B), Wyoming plinary Rule or the Supreme ruling Court’s v.Gee *68 post-conviction process arrive We (Wyo.1983). 662 P.2d 103 first in- present appellate only counsel Petitioner attached evi- 112. has not rehearing petition in a denied volved appear of those matters which dence original incomprehensibly inept after al- record or those documents the State appellate predictably effort failed. time, point have. ready should At post-conviction appellate counsel examined regarding hypnosis are not affidavits briefing: transcript argued the trial Moreover, has more available. the State prosecutor’s questioning regarding was than Pe- knowledge 78. The this issue reasons, leading. designed to does. For these Peti- intentionally titioner It was any supporting tioner has attached explaining that keep the witness from evidence, and does not understand very hypnotized at the she had been or constitutes a waiver. this failure attempted to the State had least prosecutor did not hypnotize her. petition, as post-eonviction-relief That Gee, repeat a of State v. where want years more than two filed March testifying disclosed while at trial witness sentencing date of December after the Here, hypnotized. had that she been by motion of Martin preceded was Pe- prosecution successfully kept office, had J. McClain of the Public Defender’s attorneys special and his from discover- January regarding titioner filed exposed newly use before dis- ing hypnosis investigator the State’s trial, through extremely interesting informa- it wanted make it covered hypnotism.33 In accord with this letting the defense catch on tion of without trial NOW, attorney pursuing Roy purposes Engberg, Engberg’s Lee 33. COMES relief, attorney, court-appointed through post-conviction Martin or- his available McClain, authorizing requests an order J. of the State Public dered that resources investigator or an on his behalf Mr. McClain Office be made available to assist Defender’s Kay eye-witnesses to Otto and other to contact Eng- representation McClain's of Mr. in Mr. robbery, police investi- Buttrey’s well as the gators, berg. hypnosis order to ascertain whether examining the trial In the course of 2. memories. witnesses’ was used to enhance by ques- transcript, Mr. McClain was struck reasons, the fol- Mr. McClain states For his lowing: during Otto’s redirect and answers Ms. tions dis- Ms. Otto indicated that the examination. 31, 1984, Wyoming 1. On December regarding testimony crepancy in her Mr. Supreme appointed Mr. McClain as Court resulting investigation, Engberg hypnosis by Eng- asked for dered to contradict actual evidentiary hearing, which was never berg’s clarification cross-examination petition provided by the court. With embodying his of confrontation. affidavit, Engberg amendment on attached With the record devoid of denial factual presented following information devel- hypnotic deliberately effort was oped by special investigator: prior withheld from defense counsel to trial 26, 1985, February approxi- 5. On thereafter, Brady clear viola P.M., mately I Bill 2:20 contacted Claxton 1194; Brady, tion. Casper, Wyoming. Dickerson, (Ala. Ex Parte So.2d 6. Mr. Claxton stated that he had at- 1987). by general In answer denial to the tempted hypnotize Kay Otto some post-conviction-relief petition, response 22, 1981, time after December rob- given by the State was at best half bery of and another Far- Ms. Otto Wells hypnosis true where had been at least at go agent Buttreys outside of a Food tempted and was exculpatory withheld as however, Casper, Wyoming; store in he before, during information and after trial. of the date. unsure sparring subject After some on the tape 7. Mr. Claxton said that no re- hypnosis hearing May at a trial court cording attempt hyp- was made of his comprehensively the issue was ad- notize Ms. Otto. argument dressed in oral without the re- Subsequently, I checked with the quested post- evidentiary hearing at the Casper Department Police in- and was petition hearing conviction-relief held in Department formed that the had made á August, 1985. See Griffin report County verbal Attorney Burton J., (Wyo.1988),Urbigkit, P.2d 246 dissent- Guetz and as a no result written docu- ing. Engberg’s again presented counsel hypnosis mentation of the session exists. subject post-conviction- in a motion for No records pinpoint were available to hearing: relief hypnosis attempt date on which the had occurred. Issue XII deals with the refusal *69 permit expert Petitioner to call an on responded, justifying The State without Now, eyewitness par- identification. the non-disclosure, by earlier three affidavits— ticular witness involved was Elizabeth conclusory hearsay affidavit of an inves- Now, I officer, disagree Loftus. do not the tigating hypnotist, with a second the and State. The decision on the other Ms. whether or not an Otto. Denied to critically important right expert testify evidentiary defense can is an was the rul- to test validity ing, of those affidavits as ten- and under the rules of evidence it is length Wyoming of time she had viewed the robber’s 6. Mr. McClain then checked the face was preliminary hearing, since the caused the fact that Supreme topic hyp- Court's decision on the the seconds she counted State, nosis and discovered the case of Gee v. * * * she viewed the face her initial and determined (Wyo.1983). During 662 P.2d 103 the * * * estimate was in error. witness, cross-examination of one the defense 3. Mr. McClain sudden also noted the counsel discovered that the witness had been change in Robert of the Latham’s recollection hypnotized memory. to enhance her The Su- identity robber’s trial. which occurred at preme Court affirmed because had materials prior been furnished to defense to counsel oddities, 4. Based on these Mr. McClain trial with a notation that the had been witness counsel, Engberg's Wyatt talked with Mr. However, hypnotized. the noted the Court Miller, Skaggs and Linda in order to ascertain failure to disclose error un- would have been they whether indicating had received information Brady Maryland, der prosecution that hypnotically had 10 L.Ed.2d eye-witnesses’ enhanced memories. testimony given 7. Because of the in the 5. Both trial counsel they indicated were case and because similarities provided any

never However, indicating. information so Gee, suspicion between it and there exists a Ms. Miller did indicate that she hypnosis may been used here. that recalled in other cases in Casper hypnosis Police had used to enhance a wit- memory. ness's part defend, I of his to under Far- the trial court’s discretion. within etta vs. dispute that at all. don’t California. that,

However, my I—it’s concern response, stated: its discre- the trial court abuses where Concerning case, hypnosis in this I still ability Defendant his and denies the tion that don’t feel the Petitioner has come witness, then the constitutional to call anywhere showing near making a factual Amendment, right under the Sixth require that would this Court conduct defend, implicated. right to evidentiary question. hearing on this an my that there was an It’s contention regard, four affidavits in that We have and, first, this case abuse discretion the same affidavits we had the last time occurred just on the basis of what at hearing this we had a before Court. The trial, rely I on cases cited in would defense has not come forward —or the Arizona, California, and, I my brief from Petitioner has come forward with believe, Third Circuit. More recent- that, anything in addition and I think years, ly, in the last two those courts enough time the Court has before eyewitness identification have ruled that it to decide that issue on merits. help jury field needs is a proof As on concerns burden eyewitness expert an on identifica- and hypnosis, we have cited to Court U.S. provide help tion can that is we also call Bagley, vs. and would necessary possibilities all the to consider Hopkinson attention Court properly, the evidence view newly which talks about this kind dis- that, basis my it’s contention on the covered evidence in a Post-Conviction cases, those there was an abuse dis- context, Hopkinson Court cretion here. newly said evidence discovered However, complicated more it’s than as a treated the same motion should be complicated by it’s Issue that because trial, talking for new and if we’re about VII, hypnosis issue. We have situ- evidence, impeachment that’s for the de- partic- ation where the witness—and likely fense result to show would focusing Kay one ular we were acquittal, I think the burden hypno- attempt Otto. There was it’s concerns this issue and whether hypnotize her. wanted to tize The State prejudicial is set harmful or forth they were concerned about her because Hopkinson Bagley cases like 4- place. her in first That adds more hearing as to what any evidentiary Without why expert, help needed the reason we exactly happened why, the trial court’s *70 then, that, this, and added is unravel phraseology and as decision in form exact hypnotized inability to be the witness’ by provided: filed the State what effect—how did that —how and ¶ At L Petition Amend- Consolidated trauma might that affected the that have ed asserts that the State’s fail- it experiencing, was would have she hypnosis ure to denied disclose use it, made heightened would have her him a he that fair trial. At asserts 11P police helping about more concerned up leading questions used cover were somebody, etc. capture he hypnosis. repeats such Under IW of Issue and because And because VII of due but includes an invocation 11L hypnosis the failure to disclose the process. case, affects Issue aspect that Fact: Findings of XII, with XII viewed Issue should be provided 41. The State the Court light mind. In of the new has Issue VII in personal made on with three affidavits information that we under Issue Otto, knowledge Kay oath VII, and under if an discre- there wasn’t abuse E. “Bill” Clax- Cooper James and William before, certainly XII tion on Issue there Otto, Cooper and now, ton. The affidavits as a result Petitioner was is witness, Kay Otto met with Claxton that right his to call reveal a witness oming. P.2d 1280 were P.2d 103 believable, for that leading questions cution’s cross-examination purported variances between testimony three Kay Otto met with enced about Yet, Kay before nary liminary hearing hypnotically hypnotized. Conclusions of Bill 44. Petitioner’s claim Hypnotically 43. Petitioner claims trial were hypnosis, preliminary Claxton, testimony hearing testimony unobjected her, months earlier. questions December Kay who reason redirect of Chapman Otto met with at the that influence preliminary is enhanced. Otto’s all enhanced alone unconvincing.. hypnotist, but varied hearing testimony. Law: adequately explored de preliminary as well as And the to at Gee and recross. have been minimis, cover Kay testimony inadmissible in Bill Claxton on or on March hearing. State, from her trial. If Bill Claxton due to testimony is would Otto testimony up Claxton hearing and natural more than Kay Kay hypnotized Wyo., 638 was Wyo., The form employed appear hypnosis. answers, was 18, 1982. prelimi- subject prose- Otto’s Otto’s never influ- long Wy- of a pre- not pra, trolled United hypnotist is to be considered States, ment S.Ct. 763 terial in the ror is harmless. See under Pote v. plied dented I). (a tively only. See Lemieux v. Ariz., hypnotist. limited role case closed to the notized can take 644 P.2d 1300 Bundy v. S.Ct. (1984), Court If the Furthermore, If criminal So.2d [667], 105 we [471 must, for whatever testimony to this [132 ex rel. Collins v. evidence, cert. denied [476] ruling and did more than assume that even no solace. For such an meeting Arizona, Ariz., So.2d] Ariz. 90 L.Ed.2d 366 case); State, Fla., 455 So.2d 330 played by hypnotist (1985) (Bundy sense case, should State, supra, defense, (1982) (a civil no 180] unaffected if the see at 19. Pote then this case States v. Bundy v. we are 644 P.2d Kay also Giglio Superior ruling it was [Petitioner] applied U.S. [132 reason, be Bundy Otto with the State, supra; (1986) Bagley, II). still meet State, Fla., Brady case); v. United [1109], Ariz. extremely Superior were impeach- hypnosis unprece- prospec- (Bundy dealing Court, II, in this with ^[473] 214] con- ma- still dis- su- ap- er- clearly testimony admissible when effect, Engberg presented with a hypnotically enhanced. Pote v. is not as a constitutional denial mu- further (1985). It State, Wyo., P.2d Haselhuhn, tation derived who never that a witness has follows inadequate time allowed where Kay Otto, is not hypnosis, been under expert get on the for that defendant testifying, simply for precluded from following hypnotic subject hypnotism ef- having hypnotist. met with a here, expert. by pseudo fort As different Strictly hypnosis use of speaking, the hypnotic activity un- were *71 facts inmay not It exculpatory is evidence. precluded all pretrial which then disclosed State, quite contrary. fact be Gee v. the subject. the trial cross-examination on supra, at has the Our court made hypnotic Had been revealed sequence the one of for compulsory eyewitness matter disclosure on Engberg’s and had witness prosecution testify, the outside of v. Ma the Brady allowed examination been interesting. ryland, U.S. been most result would enlightened in Gee was criteria found S.Ct. decided more more See the 668; Martin, 651; year Roy 684 P.2d Coe, after than P.2d Laureano, 889, where Chapman, supra, was 682 P.2d inde- tried. decided required. Engberg’s is See also pendent month after trial. verification Neither Johnston, 529 N.E.2d at 905. applies Kay hyp Otto was case never accede to the this di- I cannot extremist and aspects, case is process In due adopted unjustified posture by this court current decision of contrary to the rectly hypnosis, Haselhuhn, generally on in Appeals Court of Lit- Eighth Circuit 280; Gee, Chapman, 662 P.2d 103 and P.2d tle, where the federal 835 F.2d certainly P.2d but even if that brings the state court defined “[w]hen case premise accepted, is still cannot against charges indigent defen- criminal logic precedence. in or For a justified be dant, steps must take to insure that it approach, more realistic see Rock v. meaningful has chance to accused granted 288 Ark. 708 S.W.2d cert. his As a that an defense.” basis 93 L.Ed.2d 381 S.Ct. expert hypnosis required is to consider (1986), testimony which was reversed for hypnotic adjusted validity and effect of Rock, the defendant testimony, it was stated: (1987).34 The hypno- shown that Though studies have position adopted by Wyoming discredited subject’s an increase in a sis leads to present comparable support finds little recollections, imagined both true and jurisdictions. other * * * Thus, may some memories result. disarray In to this of conflict- contrast hypno- experts have concluded that while theories, ing and discredited the basic investigation and estab- sis is useful in adopted Shirley hypnot- rule we —that leads, ically testimony is less useful as a truth- induced is inadmissible lishing * * * adher- per se—continues to draw new dead. * * * ents. hypno- major Three characteristics of * * * spirit if not all follow the [A]nd can lead to inaccurate memories. sis principal decision on the the letter of our confabulation, process by first agree the con- they issue at hand: gaps in her subject fills community the scientific con- sensus of memory to make her recall more coher- oppose hypnosis use of tinues to the added information is ent. Sometimes potential memory witness- restore accurate, imag- purely times it is other inherently ground that it is es on the distinguish subject ined. The cannot be- impairs the defendant’s unreliable and imagined memories. the true and tween confrontation, all therefore right of suggestibility. problem The second testimony induced inad- hypnotically hold please hypno- subject wishes to respective jurisdictions. in their missible tist, questions way so she answers (footnotes Guerra, at 662-63 wants, necessarily hypnotist cor- omitted). Suggestion by hypnotist can rectly. analysis and detailed an extended unintended; wholly he or she be Note, Sixth, and Fourteenth Fifth, through suggest response tone Constitutional Para- Amendments —A voice, demeanor, body language. The Determining Admissibility digm memory-hardening. problem third Testimony, 78 Hypnotically Refreshed gives subject great confi- Hypnosis Criminology 857 n. 36 & J.Crim.L. memories reviewed. Be- dence concisely author reflected accuracy in the cause she now believes survey of the extensive comprehensive “[a] memory, regardless of its actual her hyp- to the use of legal literature devoted truth, will be difficult to the witness justice system would nosis the criminal cross-examination. shake under help.” arti- of little onerous and (footnote omitted). ap- analysis differing at 1244 expansive Id. cle’s Johnston, twenty-one admissibility in includes comment that requirement proaches *72 usage.35 reject hypnotic uniformly states 529 N.E.2d 898. Rock, Note, Guerra, 635; well as the supra, be found in ble cases can principal See also 690 P.2d 34. Shirley, 425; Note, 641 P.2d 775. case supra, 21 J. Mar- Ark.L.Rev. listings compara- Extensive shall L.Rev. 409. interestingly argument converse was An (5th Butler, presented Rault v. 826 F.2d 299 Tuttle, several federal 780 P.2d the consistent with cases where See also denied product found introduction the Court which have found Utah and one federal circuit. twenty-five states is that overwhelming any evidence evi- hypnosis is not relating dence to material recognizing non-disclosure and Although occurred the and that no error under hearing, majority the at- factual * * * This analysis federal standards. of Engberg in two contention tacks the resulting under standard in a the federal First, any the majority denies campaigns. non-disclosed conclusion that evidence post-conviction evidentiary hear- right to a hypnosis per- not material further was disclosed it is now that there was ing since to suades us that the failure disclose the attempt hypnotize This an witness. session, Gee, deliberately hypnotic withheld information is then accordance with by the bland statement that there absolved was harmless. probability jury’s is no reasonable that the interesting majority postulates been had the verdict would have different hypnosis of witness if materiality rule of respect hypnosis Kay Otto use of usage for impeach- denial for defendant’s Nowhere, except in the been disclosed. ment is to be harmless. characterized opinion writer, eye of the is there mind’s In first those analysis, before federal cita- compelling upon evidence this which reviewed, necessary are tions it is to know factually supposition can be advanced. to be harmless: majority what defines by stating Secondly, failure to dis- “[t]he witness; principal pos- identification hypnosis deprived Engberg close the use hypnotic sible affect on identification opportunity effectively cross-ex- witness; principal non-disclosure of important eyewitness; amine an hypnosis singularly oppor- affected which the use privy hypnosis just tunity for the ac- cross-examination Otto”, credibility of weighing Kay prosecution deliberately failing tion of recognizes impeachment majority provide information which have been evidence, evidence, exculpatory like other exculpatory both in substance and useful in and, Brady rule to avoid viola- within Perhaps it is cross-examination. more than tion, if must be disclosed material. Conse- one, maybe even all of them. then, states, quently majority as the cases, by majority Cited are four federal in Pennsylvania found federal standard strange support none of which rule or Ritchie, S.Ct. define the of the asserted harm substance (1987)is that L.Ed.2d 40 the failure of Risken, less concept. United States prosecution to disclose evidence found to be (8th Cir.), F.2d 1361 cert. denied 479 U.S. requires reversal of a conviction. material (1986), L.E.2d 302 escape compelling To initiate the tampering prose- was a case with witness proclaiming syllogism after the status “pay” cutorial on an undisclosed witness law, majority federal deduces that testifying. issue basis was credi not determine the re- need whether “[w]e bility, hypnosis. Although not substantive quest should have been understood to cov- question present validity I that case hypnosis to the testimo- er use of enhance analysis, does not in current even text hyp- If the ny of the witness. evidence materiality of anything princi offer about material under the federal defini- nosis was independent Then, pal hypnosis whether tion, required.” witness disclosure was prosecu- escape, majority strength con- of the or weakness complete the States cludes: torial evidence. United v. In (1st Cir.1986), again graldi, F.2d 408 reasoning explains case, a delayed not a witness hypnotized prejudicial no error under our there was prosecutorial of the witness’s in applies to revelation rule also the claim under state held Bagley. former harmless since Brady and This conclusion status open Cir.), hypnotized in his court and cert. denied 483 to be testify then to that state as where the convicted killer under demonstrative L.Ed.2d 803 (rejected appeal) in denial of error evidence. claimed

149 provided are a denied is the direct We now claim of That case at trial. available prepare necessary access the defense. information this case where opposite of Ritchie, knowledge Lacking 107 S.Ct. 989. not available. here was cross-examination hypnosis, of the existence cross-examina (10th F.2d 593 Maynard, 799 v. Bowen subject principal tion of the witness on the 962, 107 Cir.), S.Ct. denied 479 U.S. cert. severely was confined. identification (1986) again pros- a 458, 404 93 L.E.2d identification, Clearly, her as the court ac situation, information ecutorial withheld knowledged appeal, princi in first been used hypnosis, which could have pal problem source of conviction. Another required ha- impeachment and in result is created reaches the Ake v. Okla the state court corpus beas reversal of homa, 68, 1087, 105 84 470 U.S. S.Ct. Sullivan, 815 v. Trujillo conviction. (1985)concept. only L.Ed.2d 53 Not would (10th Cir.), 484 U.S. denied F.2d 597 cert. expert eyewitness cause for witness (1987) 296, 929, 256 98 L.Ed.2d 108 S.Ct. improved, identification have been but nature of involved cumulative consideration witness af could then have evaluated the violence does propensity to the victim’s hypnosis fect of principal on the witness of circumstances not assist here these right This identification. for defense hypnosis. undisclosed hypnosis know that was involved had been escape lightly major- as the cannot so We recognized by specifically court Gee. perva- very ity attempts a basic Tuttle, 780 P.2d 1208. The See also at comprehen- issue in case so Brady a sive hypnosis non-disclosed reaches confronta eyewitness hypnosis, sively infected expert and the wit tion assistance presently inadequate examination properly are ness order to defend which 87, at 83 Brady, In 373 U.S. S.Ct. record. provided guarantees constitutional 1196, suppres- that “the at the court held Rock, 107 S.Ct. 2704 also teaches accused. prosecution of evidence favor- by the sion concept evidence of the request upon accused violates able to an as included within the Sixth Amendment is process where evidence material due guarantees. * * In guilt punishment either Bagley non-disclosure Brady-Agurs- 97, 104, v. 427 U.S. Agurs, United States other recent fed occurrence is not without 2392, 2398, (1976), L.Ed.2d 342 96 S.Ct. defining totality of eral and cases state thought extended: “A fair further inappropriateness majority decision. Brady analysis holding indicates validity relating to Non-disclosed evidence requirement in the of material- implicit required corpus habeas re of identification suppressed ity is a concern that the evi- state conviction in McDowell versal may have affected the outcome of dence (4th Cir.1988), Dixon, F.2d 945 cert. v. Bagley, the trial.” United States 1033, 1172, S.Ct. denied 489 U.S. 667, 105 87 L.Ed.2d 481 S.Ct. (1989). Reversal came Car L.Ed.2d 230 differing exculpa- from the actually Cir.1987), (3rd 826 F.2d Rafferty, ter Brady tory evidence considered 484 U.S. 108 S.Ct. rt. ce information impeaching withheld Agurs, (1988) upon non-dis 98 L.Ed.2d 661 counsel was prosecutor from defense detector adminis closed adverse lie tests considered. important prosecutorial wit tered to an if there is The evidence material hiding the crim prosecutorial ness. The that, had probability the evi- reasonable in principal witness also inal record of defense, the been disclosed to the dence 809 F.2d Kemp, in Moore voked reversal proceeding result of the would been (11th Cir.), denied 481 U.S. cert. probability” A “reasonable different. (1987) L.Ed.2d where 107 S.Ct. con- probability sufficient to undermine Brady, Giglio in addition to the court cited in the outcome. fidence States, 405 U.S. v. United 3383, 763, Napue 473 U.S. at S.Ct. Bagley, Illinois, 360 U.S. Alaska, People the State Davis v. S.Ct. Cf. *74 150 prosecutor’s concern that the office recognition requirement upon of the remand

For professional facts,” discharges and obli- Haber official to “establish the trial see v. (11th Cir.1985). possibility is gations. F.2d That test reasonable Wainwright, 756 1520 People facts hearing applied materiality. to determine to define The to a to be 67, 518, Dugger, Vilardi, similarly recognized v. 556 Stano v. 76 N.Y.2d N.Y.S.2d (11th Cir.1990). (1990). F.2d al York 901 898 Stano N.E.2d New 915 leged prosecutorial suppression of collusion the broad con- court declined to abandon resulting in involving a attorney his own of the lesser cept Brady-Agurs favor Brady confession. A issue was found protection Bagley and stated: * * * hearing. a remand for required which showing agree of a that a We (10th Saffle, v. F.2d Coleman the failure possibility” “reasonable — Cir.), U.S.—, cert. denied exculpatory report con- to disclose the 22, (1990), the court held appro- tributed to the verdict remains the must be con that withheld information materiality, priate standard measure picture. sidered in the context the whole prosecutor was made aware where the picture Engberg in Surely the whole discovery de- specific request conjunction hypnosis cludes with the impor- the material fendant considered * * * questions princi cross-examination tant the defense. pal witness and the fact that identification Further, backward-looking, outcome- expert denied his witness on defendant was gives oriented of review that standard identification. dispositive weight strength issues not confined to Brady-Bagley are People’s clearly provides case diminished Johnston, the federal courts. See prosecutor, in first re- incentive for the hypnosis N.E.2d also was a case 898 which discovery thor- sponding requests, a differ- documentation about involved exculpatory oughly files to review place homicide had ent where actual material, of disclo- or to err on the side participant occurred and a different exculpatory sure where value is debata- from killer for information withheld provid- defense itself has ble. Where the in the tri- accused. The court’s confidence specific partic- its ed notice of interest al’s had been Pre- outcome undermined. material, heightened than ular rather trial withheld information about misidenti- appropri- prosecutorial lessened care is principal fication witness would also ate. require a trial as a of state new matter law. Vilardi, 523, 556 N.Y.S.2d at 555 N.E.2d Berg, Den 164 Ariz. State Van Note, Specific Requests and 920. See also Moriwaki, (1990); P.2d 1075 State v. Duty to Evi- Prosecutorial Disclose Galloway, Haw. Impact United States dence: 736; State, 566 275 N.W.2d Welch v. So.2d L.J. 892 Bagley, 1986 Duke (Miss.1990). is a inconsist Unfortunately, there basic presents Although case a federal ency incongruity which is stark violation in the withheld in- constitutional should be com unclothed. The difference defense, required adequate formation Hayes, pared People 49 Cal.3d a state constitutional interest there also Cal.Rptr. 783 P.2d 719 Const, Wyo. art. presented under § eyewitness hypnosis required convic where Const, law, art. process Wyo. due For an result tion reversal. identical 10, right of accused to defend. The § situations, Stokes, 548 see similar factual provides Appeals of New York Court Lee, People 434 Mich. So.2d morality founded in better standard — U.S.—, 450 N.W.2d cert. denied prosecutorial non-disclosure fairness for essentially Agurs retains the rule Wyoming cases as a historical Even inflicted later without the decimation minority provide support for cases, do not including specifically Bagley. view Chapman, predicated upon both decision New York standard had before P.2d at where court fairness” the defendant and “elemental *75 Rock, “adequate pertinent to 2704 is means determine as posture of on transpired” opportunity right founded defendant’s constitutional which and that testify in oppor- to order to countervail the credibility explore suggestive on to attack tunity prosecution of to use tainted evi- playing general enhancement role and made, the dence. Whatever observation is is incompetency of unreliability as well Wyoming missing otherwise that is dis- obvious Brown’s alleged hypnotist. See Justice the modem trend.37 P.2d senting opinion Chapman, Then, Gee, P.2d at the happens 1280.36 What when the black letter of law hypno- court said: the confronts the art of black At point, the question sis? remains Implicit Chapman in the su- hypnosis seemingly unresolved. While the holding requirement is that the pra, represents a method for discovery the of defendant be advised the State of the truth, its potential unreliability signals previously fact that a witness had been may provide inap- that it nonetheless an hypnotized and that all statements and propriate against for a basis verdict made proceedings relative thereto be criminal defendant. Until there is con- request. the available to defendant establishing clusive the evidence accura- goes beyond This those con- requirement hypnosis cy refreshing of as a method of cerning pur- materials for discoverable * * recollection, hypnosis the use of in a *. poses impeachment cautiously ap- must criminal This asylum court retreated into seriously proached questioned. and ignorance by denying oppor in Haselhuhn ****** tunity hypnotic when effort was estab * * * Until the of fo- trustworthiness reasonably seasonably to lished or even established, hypnosis is rensic law expert counterpoint obtain witness caution, system must exercise lest the power plant employee dou maintenance justice prey mesmerizing also falls bling regression hypnotist. as a Now is powers of mind. the unconscious any “protection” willingly so total since Comment, Hypnosis in Crimi- Use Gee, Chap asserted in 662 P.2d 103 and Trials: The Black Letter the Black nal man, 638 P.2d 1280 is with Art, Loy.L.A.L.Rev. 705-06 hypnotic having effect been hidden until review, minimum, provides a full itself an excellent after trial. At evidentia- Rock eyewitness although premised on ry hearing conjunction since defendant’s opinion testify, constitutional expert analysis required sem recognizes hypnotically about process. the doubts of due The unrealistic blance at testimony enhanced and discerns least misplaced logically conception opportunity for amelioration. some testimony presented that the the sister decedent, who at the Responses hypnosis of individuals occurrence, vary popular is not material in conviction. belief greatly. assuming guarantees accuracy re- hypnosis The thesis—that deletion yet no testimony there would be reasonable call is as without established founda- her , and, fact, hypnosis often has no probability jury’s verdict would tion memory. The most beyond the wildest effect at all on com- have been different —is response hypnosis, however, ap- need mon imagination; the court look Little, pears F.2d to be an increase in both correct detailed discussions 1240; 635; gener- Guerra, Three Shirley, 690 P.2d and incorrect recollections. 775; Johnston, hypnosis may 898. characteristics of lead to P.2d 529 N.E.2d al Tardi, review, the introduction of inaccurate memories: particularly See in current subject “suggestible” 1020. N.E.2d becomes Ill.Dec. Note, Pote, Admitting Hypnotically Re also affirmation 37. Evidence — record, Testimony Haislip, 35 U.Kan. premised on the that conviction was freshed —State Note, information, reports supra n. 21 J. Mar ade- L.Rev. constituted quate happened. shall L.Rev. 409. means to determine what with an- those facts were hidden from defense try please hypnotist prosecu subject agency met with thinks will be the law enforcement swers likely to “confa- approval; subject How much more sanctified be tion. is, bulate,” to fill in details now be had a lievable all this could make an answer imagination order to type with cross- diligent trial examination and, complete; coherent and more been examination and factual review af *76 “memory experiences harden- subject appellate present forded to for gives confidence in ing,” great which him conclusion, majority I find the review. memories, making true and false both is, reality, as written in a result opinion more diffi- cross-examination effective searching plausible in vain for a reason. * * * cult. Guerrero, People v. 44 Cal.3d See process intro- The inaccuracies Cal.Rptr. 748 P.2d reduced, although perhaps can be duces alone, post- of the On this issue reversal eliminated, by procedural of the use not petition required. denial is conviction-relief guide- safeguards. suggested One set of performed hypnosis for to be lines calls H. Additional Phase Issues Guilt psychiatrist only by psychologist a or by Engberg Raised special training in use and who its * * Engberg additionally * leaves this court in investigation. independent of the proceeding colloquy of with a eviden- The more traditional means assess- issues, tiary-procedural most of which were accuracy testimony also remain ing trial, previously raised at none considered applicable previously of a case are appeal initial all of which now hypnotized defendant. Certain informa- case, disregarded by majority. In each hypnosis may recalled as a tion result by Engberg’s presentation is attacked by highly as accurate corrobo- be verified general’s attorney office as constitutional Cross-examination, rating evidence. procedural default defense. forfeiture defendant, in the face of even a confident evaluation, In overall the disconsonance is revealing is an effective for incon- tool ignoring presentation, presented Moreover, sistencies. can be edu- writers, supervised law student brief hypnosis through cated to the risks of been, they may were however have wiser testimony expert cautionary instruc- experienced ignoring the than the issues Indeed, probably it to a defen- tions. attorney appellate or present coun- advantage carefully dant’s to establish adding sel. I will avoid further disconso- hypno- memory prior of his to the extent phalanx except to this of issues nance sis, decrease in order minimize the provide should where comment as- procedure might credibility the introduce. sistance future cases. Bedford Rock, (footnotes 107 S.Ct. at 2713-14 omit- State, Md. A.2d 111 ted). 850 F.2d Bundy, See also guilt include Issues evidence critique Frankfurter Justice Casper obstrep- homicide derived from 106, 117, Helvering Hallock, arrest, erousness the Nevada subse- (1940),aptly L.Ed. charac- hospital refusal in quent the Nevada be majority terizes decision this case: hospital- following photographed cap essay in linguistic “Such refinement still under medi- surgery ization while further existing still intri- would embarrass cation, pho- of the denied cross-examination might inge- It cacies. demonstrate verbal of the his observations tographer about could nuity, hardly strengthen but and the condition use of physical subject’s foundations of majori- rational law.” The living in Casper. pre-homicidewhile in a an alias ty’s rationalizations result-oriented de- attempted escape Although evidence of premise derives effect from cision to con- considered as a factor establish may be without utilization of clusion interven- Wharton’s Evidence 214 Criminal ing logic, purpose guilt, § fact or reason. The 1972), (13th “escape” ed. the contention requested hearing would been guilt must happened that consciousness relate actually what why determine charged. Bedford, 566 determination of action more offense walking away probable probable evidence of less than A.2d where it would admissible, but the in the courthouse be without the evidence. possession sharpened of a wire evidence may Evidence tend affect error on inadmissible and reversible jury’s necessarily decision ad which caused reversal introduction factually missible as relevant. Velos penalty conviction. death State, 411 (Wyo.1988); Shields validity issue of extradition was An Carnahan, (Wyo.1987); 744 P.2d 1115 rights presented denied constitutional (Wyo. Schmunk v. 714 P.2d 724 Casper upon transfer from Nevada back 1986). question significant for this trial. Further The weighing process envisioned search and presented about warrantless W.R.E. for the rele- determination of Casper apartment where the seizure vancy by concept trial court within the *77 incriminating unspent of car- evidence one prejudice by of delineated W.R.E. 403 is tridge Excluding in a discovered. vest was in the trial vested court’s sound discretion. legality of search and sei- extradition and preclusive question how, all, is if at zure, arguments present category of proffered prove tend does evidence to relevancy. questions of determined What guilt injustice and what extraneous it does guilt of they prove consciousness do about The central create? core of case is this simply degree they preju- to what are and opportunity, eyewitness identification and background relating information to dicial unexplained sudden and wealth accommo- the character of the defendant? As departure dative from the scene of the record, presented on this much of “in- along the murder route where evidence of provide formation” seems to no evidence of the crime was later discovered. To the Engberg probability that committed this proof of to extent the basic items are be robbery/murder Casper. in This record is perhaps what extrane- furnished unconvincing proof about connective even evidence, the is to ous trial court called court as a matter of discretion of the discretionally weigh as a factor relevance supply validity probativeness of which ex- probability prejudice of with as function prejudicial ceeds the effect of disassocia- of Proba- conviction extraneousness. evidence, itself tive bad character not character attribution tive facts and bad provides verify guilt no fact. evidence of and standard historical touchstone The test whether evidence is admissible system justice this and nation’s criminal prove the evidence tends to is whether now be made to should not substitution relevant, charged offense and whether it is by reputation principally serve convict i.e., question whether it tends make the popula- penitentiary for the of expansion guilt probable. more or less Evidence guardian process tions. should be Due rejected and of may be as irrelevant little system of our of crimi- and not the victim only proba remotely if probable value it justice. nal possible prejudice. or would cause tive in rul

The trial court has broad discretion I would reverse for retrial Consequently, relevancy issues ing materiality and and guilt penalty. well ruling upon will be reversed abuse its Martin, 894; P.2d of discretion. VI. Homes, Agency, Wigwam Inc. Hursh Inc., (Wyo.1983); 664 P.2d 27 Barnard v. PENALTY ISSUE DEATH Wendling, (Wyo.1981); 627 P.2d 603 Peo completely concur Castro, Ill.App.3d I Although Ill. ple v. (1989). conclusion of Justice Cardine 546 N.E.2d 662 W.R.E. analysis

Dec. the death provides: decision to reverse some further belief that penalty, I write evidence” evidence “Relevant means subjects require address having any tendency to different make exist- amplification. consequence that is of some conclusion ence fact “Modem” un Penalty in Wyoming Supreme Court A. The Death dered Hopkin Wyoming Constitution der the America cert. de son v. (Wyo.), umbrella cognitive Defined within nied 908, 104 in Gregg Supreme Court the United States I. The volume Furman, may not be provence of overwhelming38 with literature critical question the court appellate the state action litigative justification converse the death pragmatic wisdom opinion as almost com upon public based Greenberg, society. modern so-called our democracy to this pletely in modern limited System, as a Punishment Yale Capital Repres Expediting Death: Levit, nation. Due Furthermore, sive Tolerance and Post-Conviction under L.J. Cases, Capital Jurisprudence Process Constitution States United Wil- Bigel, ren 59 UMKC L.Rev. case, previously has been that decision Cf. Crimes, (1987); Creighton Let- L.Rev. 359 no tal has been prior system Furman] But the outcome [of win, Impeaching Their Prior With than that of the more successful Defendants Reconsidering Dangerous Pro- Convictions: capital punishment. This failure has People v. pensities Character Evidence but rather from from lack of effort resulted After Bedau, Castro, (1985); fashioning acceptable U.C. Davis L.Rev. 681 impossibility of Penalty Thinking as a Cruel administering capital punishment the Death method of Punishment, L.Rev. 873 rights U.C. Davis maintaining system Unusual while Smith, Deathly Errors: Juror & Paduano mandates. our Constitution *78 Imposi- Concerning the Misperceptions Parole in Greenberg, supra, 91 Yale L.J. at 928. Penalty, 18 Co- justification the Death penological for tion No theoretical of (1987); Scheidegger, capital punish- lum.Hum.Rts.L.Rev. 211 penalty supports the death Nears Capital in 1987: The Punishment system as it is now administered. Puzzle ment (1987); Completion, Havle- 15 W.St.U.L.Rev. 95 the deterrent ca- view one takes of Whatever na, Abolishing Penalty Why? How? the Death penalty the swift pacity when it is of the death — Comment, When?, (1987); activity, 127 15 W.St.U.L.Rev. criminal certain result of and current, Price?, Pays 15 system though Factual Innocence ... Who abso- roller coaster — Carter, (1987); Maintaining 319 lutely necessary protect innocent from W.St.U.L.Rev. to execution, Systemic Integrity Capital Cases: The Use safeguard in constitutional basic of Mitigating Court-Appointed racially Counsel Present rights, motivated execu- and to avoid Death, Advocates im- Evidence When the certain executions tions—makes swift and Defendant (1987); Kazya- & Paternoster hypothetical 55 Tenn.L.Rev. 95 possible. killer who calculates A ka, Penalty Death Administration being commit- The executed before his chances of ting of Experiences Over the First Few Carolina: he or she is South must calculate that homicide Brennan, Years, (1988); Con- 245 unlikely put 39 S.C.L.Rev. quite to death. to be International, Penalty: Adjudication and the Death Amnesty stitutional See also Id. Court, Penalty 100 Harv.L.Rev. 313 View From the Death A of America: The United States Court, Poulos, (1986); Capital Supreme The (1987). Law: stunning. Every the Substantive Criminal simple Punishment and pattern it is The is so Mandatory Capital Punish- stopped Rise and Fall has execu- The industrial nation Western of ment, (1986); Project, criminals, Six- Ariz.L.Rev. 143 ting except States. The 28 the United Procedure: Review Criminal unanimity teenth Annual quite recent. of Ap- Hawkins, Supreme Court and Courts Capital United States Zimring Punishment & G. F. of Burt, (1987); 1985-1986, (1986). peals 713 75 Geo.L.J. Agenda, Amster- American at 3 and The dam, Mello, Penalty 14; Rights supra, the Court: The Death Disorder in supra, 14 Human (1987); Goodstein, Constitution, 513; 1741 85 Mich.L.Rev. When Landis & Am.U.L.Rev. 37 Note, the Current CONSTITUTIONALLAW—Is Integrated Approach to the Is Fair? An Justice Debate, Constitutionality Capital Punish- Am. Test 1986 Versus Procedure Outcome of State, of Goldstein, Proper? Hopkinson 632 P.2d 79 (1986); Applica- ment 675 B.Found.Res.J. 1981), & Water L.Rev. 681 (Wyo. XVII Land Principles Fed- to Successive Res Judicata tion of Dolinko, (1982); How to Foreword: Capital Cases: Criticize Corpus eral Habeas Petitions Criminology Penalty, & 546 77 J.Crim.L. Approach, 21 U.C. Death Equitable Search The for Allen, (1986); Supreme Fore- Dix, Court Review. (1987); Appellate Review Davis L.Rev. 45 Rules, Evidence, Judgment Inference, Death, Impose Geo.L.J. 97 68 the Decision to word— Intriguing Adjudication: Geimer, The (1979); Critique Constitutional Any A Death At Cost: Arizona, Crimi- 81 J.Crim.L. & Walton v. Its Case Supreme Retreat From Court's Recent (1991); Wright, Standards, nology Without Parole: 727 Penalty Fla.St.U.L.Rev. Death Life Row, Crim.L.Bull. 334 Note, Death (1985); Penalty: A ViewFrom and the Death Statistics Review, (1991). Murder: Tradition, Book Serial Creighton See also L.Rev. 265 With Break Phenomenon, & Crimi- Note, 81 J.Crim.L. An Elusive O’Connor Justice Tison v. Arizona: (1991). nology Capi- Culpability a New Standard Creates for Capital tery Punish Bar Constitutional Rehnquist on liam H. —Procedural ment, Due Inade Capital Claims in Cases (1991). Ohio N.U.L.Rev. 729 XVII quate Representation Indigent Defen apparent system and the socie Given the dants, 92 W.Va.L.Rev. controlling articulated tal circumference concludes, following the author ad where Supreme Court cases of the United States review, vocacy of continued federal law, upon incumbent for federal it remains “[ojtherwise, death too of will prerequi tribunal to honor the state committing punishment ten be not for attempt of the state constitution. sites crime, being assigned worst but fair, ing rea to define a evenhanded and Litiga Penalty See Death lawyer.” worst Hopkin applied penalty, sonably death see (ABA 1990); I. tion in the '90’s-AForum son, I, P.2d 43 and Robbins, Toward a More Just and Effec J., 541, Rose, My dissenting. conviction Pen System tive Review in State Death process, analysis against entire issue alty A Fair 1990); Cases (ABA Fogel, examined as this case is decision Arbitrariness, Supreme Court Death: fairness, lacking equal protec result either 1972-1989, Punishment, Capital simple justification in tion or rational & Civ. Confinement Eng.J.Crim. New this, occurred in criminal law what Arkin, Dilem Prisoner’s (1990). future, Engberg case.39 The indeterminate Cf. ma: in the Lower Federal Courts anticipation Life once in accurate definable Lane, Teague v. 69 N.C.L.Rev. writer, journal a law is After total confusion Project, The Death Penal See also Rosen, analysis by Professor discernable Perspectives, ty: Personal Loy.U.Chi. “Especially Aggravating Heinous” (1990), initially quoting Plato’s Capital Cases—The L.J. Circumstance Standard, Apology Socrates: “But now it is time Standardless 64 N.C.L.Rev. 941 Maynard Cartwright, go away, you I Which to die live. thing us goes to*a better unclear *79 everyone except but then consider Johnson v. Missis (1988), god.” For addition Morality The sippi, 486 U.S. Ledewitz, 578, 1981, analysis, al see 108 S.Ct. 100 of Capital Exchange, 29 Punishment: An (1988). really What exists L.Ed.2d 575 Death Lot- (1991) Bright, Duq.L.Rev. compared Corn- recognized by 719 with best 2815, 1051, (1988), complication complexity, of 108 100 L.Ed.2d 917 39. For illustration S.Ct. 688, below, Lankford, reversals, v. Thompson State case 113 Idaho v. Okla frequent and see (1987), light of Satter homa, 2687, 747 remanded in 815, P.2d 710 U.S. 108 S.Ct. 101 L.Ed.2d 487 Texas, white, 1792; Bennett v. 486 U.S. 108 S.Ct. Franklin, 164, (1988); 702 487 U.S. 108 S.Ct. 2815, 1051, (1988), S.Ct. 100 L.Ed.2d 917 108 2320; 367, Maryland, v. Mills U.S. 108 S.Ct. 486 State, below, v. Bennett 742 S.W.2d 664 case Satterwhite, 1860, (1988); 100 L.Ed.2d 384 486 light of Satter (Tex.Cr.App.1987), remanded in Aiken, 249, 1792; Yates v. U.S. 108 S.Ct. 484 U.S. white, 1792; Mississippi, v. Jones 487 108 S.Ct. 211, 534, (1988); S.Ct. 98 L.Ed.2d 546 and 108 2891, 1230, U.S. S.Ct. 101 L.Ed.2d 925 108 Oklahoma, 484 U.S. 1054, 1004, Ross v. 108 S.Ct. State, below, (1988), v. Jones 461 So.2d cases (1988). See also Stout v. Okla 971 98 L.Ed.2d State, (Miss. 1984) and Jones v. 517 So.2d 686 1050, 2814, homa, S.Ct. U.S. 108 100 486 (Miss.1987), remanded to the 1295 vacated and light May (1988), remanded in L.Ed.2d 916 of Thomp light Supreme Mississippi Court in of of 356, 1853, Cartwright, nard 108 486 U.S. S.Ct. v. son, 1853; Maynard, S.Ct. 108 S.Ct. 2687 and 108 Oklahoma, (1988); Hayes v. 486 100 372 L.Ed.2d 1230, 2891, Texas, Powell v. 108 S.Ct. 487 U.S. 2815, 1050, 100 916 U.S. 108 S.Ct. (1988), on remand 767 101 L.Ed.2d 926 aff’d State, below, Hayes v. (1988), 738 P.2d 533 case 680, (Tex.Cr.App.), rev’d 492 U.S. S.W.2d 759 light Maynard, (Okl.Cr.1987), in remanded of 3146, (1989), 551 case 109 106 L.Ed.2d S.Ct. Maryland, 1853; v. Jones 108 S.Ct. 486 U.S. State, (Tex.Cr. below, Powell v. 742 S.W.2d 353 1050, 916, 2815, (1988), 108 S.Ct. 100 L.Ed.2d Satterwhite, light App.1987), of 108 remanded State, below, 569, Jones v. case Md. 530 A.2d 310 Carolina, 1792; Lloyd v. North 488 U.S. S.Ct. Mills, (1987), light 108 743 of S.Ct. 38, remanded 807, (1988), 18 case S.Ct. 102 L.Ed.2d 109 1860; 1051, Ricketts, U.S. 108 Woratzeck v. 486 Lloyd, below, v. 321 N.C. 364 S.E.2d below, Mills, (1988), S.Ct. 100 cases (1988), light L.Ed.2d 916 108 S.Ct. remanded 316 Ricketts, Texas, (9th v. 1860; 1322 Cir. Cook v. F.2d U.S. 109 S.Ct. Woratzeck 808 488 below, Ricketts, 1986) (1988), v. Cook v. F.2d 1450 case 102 L.Ed.2d 19 Woratzeck State, Maynard, (9th 1987), (Tex.Cr.App.1987), light re Cir. remanded 741 S.W.2d Satterwhite, Idaho, 1853; light 108 S.Ct. 1792. v. 486 U.S. manded Lankford in the Bubble: Price Barbarism Plastic merit, jury. 807 P.2d 909 Cf. Theory Application 1991). An Existentialist (Wyo. dysfunction develops in Capital Punishment result, in the United to pen since in most intentional death States, alty (1990). cases, events the factual include both 1990 Det.C.L.Rev. separate corollary intent a non- Felony Murder as Predicate

B. “pure” felony homicide mur felony, while Capital Punishment der penalty only reaches a death Felony felony Rosen, intent. and not the system, justice consti American Murder Eighth and the Amendment Ju capital adapta tuting disparate criminal risprudence Death, B.C.L.Rev. tion, paths pen to the death there are two (1990). typical alty. first is the intent-driven Note, Should Courts killing. premeditated Actually, majority reported the vast Principles and Ex Use penalty death cases whether characterized of Justification Felony-Murder Liability?, Impose cuse to felony intentional, murder or the homi (1988). Rutgers The second L.J. factually cide established intentional. Myers, category felony mur Com. ex rel. Smith dysfunctional C f. kill is der the malice intent where Pa. 261 A.2d 550 An pla unnecessary penalty type felony to reach death murder when intent kill is Hamilton, People teau. minority 46 Cal.3d not established comes within reported Cal.Rptr. penalty 756 P.2d 1348 the thousands death cases, cert. array of potential but within a vast Com., King felony if this kind of candidates murder indefinitely poten extended to its Va.App. 368 S.E.2d In the to be full prosecution vulnerability every Engberg, penalty started tial. Death if felony stepped death-prone then homicide creates paths down back both could, nationwide, number, annually the trial status before submission Jiave violations, excess of including driving so if felony court instruct murder forty per year.40 thousand kill was never Non-vehicular intent considered relationship of the death felo- under announced Florida Su- the law ny analyzed by preme the United States murder Court. Florida, Supreme Enmund v. Court in jurisdictions permit do Four additional 3368, 3372-74, 789-92, 102 S.Ct. put as Enmund to defendant such original (emphasis in footnotes these, flatly prohibits death. one State Of *80 omitted) statistically and considered: capital punishment in cases where defen- the Thirty-six jurisdictions state federal actually dant commit murder. Two did not presently penalty. authorize the death Of jurisdictions preclude penalty death these, only eight jurisdictions impo- authorize cases one where defendant such as this penalty solely partic- of the death for sition ipation offense, principal "was in the which was a robbery in a in which another robber another, by participation but his committed Florida, California, footnoted: takes life. [As minor, although relatively was not so minor Nevada, Carolina, Mississippi, Georgia, South prosecution.” to as to a defense constitute Tennessee, Wyoming] remaining Of the [Quoting Colo.Rev.Stat. 16—11— § felony jurisdictions, in 4 not a 28 capital murder is 103(5)(d) U.S.C. require States crime. Eleven some 1473(c)(6)(D)] One other State limits the § respect culpable state with mental felony penalty in murders to narrow death prerequisite to a as a conviction of homicide here. not involved circumstances penalty which the death is autho- crime for remaining States deal with the Nine of States, knowing, rized. Of these make penalty imposition death a vica- for intentional, purposeful, premeditated or kill- capital felony in their murder sentenc- rious capital ing Three oth- an element of murder. States, ing of these In each a defen- statutes. require proof culpable er of a mental States solely participat- may be executed for dant not intent, such as recklessness or state short person ing felony a in which was killed if a life, to human indifference before the extreme actually not the vic- defendant did cause may imposed. penalty be these 11 death States, therefore, In to For a defendant be executed tim’s death. felony the actors in mur- a States, typically statutory aggra- in these subject penalty to the death with- der are not vating present state, are which must proof circumstances proof of their mental out sure, outweigh mitigating To respect factors. required with to Enmund was not may felony murderer be sentenced court’s or vicarious under the trial instructions either analysis perceive twenty- is to that the felo- around this now number homicides presented ny case here Casper Star- murder death as per year. thousand three cases, WY), incongruity only in most since 1991. To (Casper, March Tribune eliminate a pursued prosecutorial number to burden penalty for this provide the death proving by malice and intent substitu- require three and annually would about hour, presumption for the day and tion of the conclusive every executions one-half country. penalty exposure from this It could death associative night somewhere in apparent legis- It is that the greatest growth industry conduct. also become recognized problem by federal almost country particularly since the lature killing statutory join completely changing provisions to government wants Felony- Capital Finkel, by pas- imposition penalty of the death campaign. See Indicia, sage (1989).41 Murder, and Commu- Wyo.Sess.Laws ch. Objective Sentiment, 32 Ariz.L.Rev. 819 (1990). nity application In Wyoming Constitu Killing The Cost Comment, also See analysis posture tion the realistic Criminals, N.Ky.L.Rev. present the thousands of death since cases Furman, deny penalty I percentage expo would death Realistically, only a small sure, felony killing killings by some associa- unless in murder the are attended involving jury felony, financial was found to be intentional or tive whether compliance if least achieve Tison Excluding satisfaction. gain behavioral ego accessory killer, perhaps actor not an or co-actor. thrill the vicarious Arizona, Tison v. husband-wife-boyfriend, U.S. 107 S.Ct. involving killers reh’g only general exceptions etc. stand as felony predominance in crime. L.Ed.2d 688 the included case, Yet, prosecution In exceptional these circum- when either of stances, proceed intent felony offense occur chose not another incident, kill, have waived death often lesser included the State should even a assault, penalty exposure Engberg.42 Ro breaking-and-entering, fire such violation, sen, supra, 31 B.C.L.Rev. at 1169. so forth. The burden arms jurisdic- jurisdictions an intent about a third of American to death in these absent der— aggravating permit if circumstances who kill sufficient tions would ever defendant However, present. robbery these States participated are six of nine in a where a somehow statutory mitigating it a circumstance make that capital felony occurred to be sentenced die. murder accomplice Moreover, was an in a eight the defendant States which have en- person committed another new statutes since acted death relatively participation minor. and his By making capital punishment in such none authorize participation capital minimal circumstances. person felony committed another miti- Wyoming list in current The differentiated circumstance, gating sentencing statutes these rationally problems provides of a con- law other person will be reduce the likelihood that a penalty prone number of death homicides. fined felony for vicarious murder. The executed remaining 6-2-102, statute, present Wyoming W.S. jurisdictions felony three exclude *81 categories considering aggra- the twelve item aggravating lists circum- murder their circumstances, only vating homicides not support stances that will a death sentence. statutorily subject penalty would in- States, death nontriggerman these nine a each of older than seven- volve as a class “sane” victims felony guilty murder cannot be sentenced younger sixty-five than exclusive of felony aggra- teen and to death for the vating murder absent police officers. beyond above and circumstances felony murder itself. 3368; 782, Enmund, In re U.S. 102 S.Ct. 458 only minority jurisdic- small Thus a 358, 1068, Winship, 25 L.Ed.2d 397 U.S. 90 eight—allow penalty the death to be tions— Note, Driving (1970); Felony Away 368 Murder: imposed solely because defendant some- Penalty, L.Rev. 479 12 Stetson From the Death robbery participated how in a in the course Comment, (1983); Constitutional Law: The which a murder was committed. Even if the Eighth Requires a Determination Amendment nine States are included where such a defen- of to Penalty Intent the Death Actual Personal executed for an dant could be felony unintended for Murders, Felony Non-Triggermen Imposed on aggravating murder if cir- sufficient Note, (1983); Redefining a outweigh mitigat- 35 U.Fla.L.Rev. 521 cumstances are ing Non-Triggermen Culpable State Fac- Mental often include circumstances —which ing Penalty, Vill.L.Rev. 367 participation Death 33 minimal in the mur- defendant’s 158 murder as an thrust subject felony The basic is demonstrated system Hawkins, Murder, legal phenomenon Zimring

American not & The Model criticism, analysis Code, comment. Agendas Re Multiple without and the Commentaries, (1988), 1 Penal & Rutgers 773, Model Code 19 783 form, L.J. (1980), felony providing 29 210.2 at model the authors believe that the § where pen constitute death homicide should very feature code mens rea doctrine is “the purposely, if alty committed know murder rule attrac felony-murder that makes * * recklessly under circumstances ingly or prosecutors Elimination of tive to manifesting indifference to the value of improves requirement prove intent life; Note, A human Reasoned Moral simplifies proof for murder homicide Capital Response: Rethinking Texas’s People Land, Ill.App.3d status. v. 169 Cf. Sentencing Lynaugh, 69 Penry v. 342, 955, After 119 Ill.Dec. N.E.2d 711 523 ques Tex.L.Rev. 407 The further (intent underlying felony); in the and Jones tion, majority as earlier discussed State, (Ind.1988). v. 523 N.E.2d 750 penalty opinion conjunction death rule, part em- felony murder as factor, Davis, doubling up v. 325 State preclusive case penalty death braced 607, (1989), 386 cert. de N.C. S.E.2d 418 discussion, separately engen- law and has — 2587, —, 110 U.S. 110 S.Ct. nied journals. critique dered substantial law (1990), 268 the constituent L.Ed.2d is that Sundby, Felony- in Roth As we find & felony felony by-passes intent to achieve A Murder Rule: Doctrine at Constitu- proceeds automatically, murder and then as 446, Crossroads, L.Rev. tional 70 Cornell by single aggravating applied or dual (1985) (footnotes quot- 446-48 omitted and factors, penalty death determination. A ing Stephen, History of the Criminal J. Thus, society can achieve a death 57, (1883); England v. Law of offense which otherwise an 1321, Harrison, 439, 442, 90 N.M. voluntary been more a or invol than Packer, (1977); Revi- Code Criminal major untary committing homicide fel sion, (1973); People 23 U. Toronto L.J. State, ony. 534 A.2d 630 DeShields v. Cf. Aaron, 672, 689, 409 Mich. 299 N.W.2d (Del.Super.1987), cert. denied (1980); Stephan, & and Jeffries 108 S.Ct. 100 L.Ed.2d Presumptions, Defenses, and Burden of (1988), appellate found court to be Law, 88 Yale L.J. Criminal Proof execution-type helpless vic slaying (1979)): prede tim in cold blood. also Consider legal as ma- Few doctrines have been State, Deputy 500 A.2d cessor cases yet great ligned and have shown (Del.Super.1985), denied 480 U.S. cert. resiliency felony-murder as the rule. (1987), 107 S.Ct. lexicon Criticism of rule constitutes a seventy-nine separate stab wounds where jurists everything that scholars and sixty-six in another were one victim wrong legal can find with a doctrine: or incompatible with occurrence accidental “astonishing” and has been described as culpable invoking death unintended “monstrous,” “legal an unsupportable State, state; mental Whalen v. A.2d fiction,” unsightly “an wart on the skin (Del.Super.1985); Flamer law,” criminal an “ana- and as (Del.Super.), A.2d 104 cert. denied “ logical chronistic remnant” that has ‘no 104 S.Ct. practical in modern basis for existence denied 474 U.S. cert. ” Perhaps most that can be law.’ King, People *82 rule com- provides said for the is that it 514, 702, 94 488 N.E.2d 109 Ill.2d Ill.Dec. example with an mentators extreme 872, 949, 107 S.Ct. cert. denied 479 U.S. easy injustice it makes illustrate 249, 173, 479 reh’g 93 L.Ed.2d denied U.S. legal propositions. various 449, (1986), 956, 107 S.Ct. L.Ed.2d 396 93 criticism, intentionally Despite widespread felony murderer acted where felony-murder persists in the vast knowingly killing. in 1 Model Penal rule or * * * Commentaries, The United supra, majority 210.6. of states. & Code §

159 sively policy virtually only documented the rule’s weak remains States thus country recognizing still a rule This has justifications. Article demon- western possible “that the most makes it the rule’s infirmities have strated that might to law serious sanctions known finally constitutional reached stature. imposed homicide.” for accidental Sundby, supra, & 70 Cornell L. Rev. Roth constitutional That article examines two at 492.43 concepts challenging Eighth Amend philosophy engendered The confusion presumptive Process: a de ment Due relatively few death cases of (Sandstrom), criminal conviction vice engi- felony where the nature (Enmund liability a form of criminal strict felony aggra- and then neers murder Florida, 782, 3368, S.Ct. 73 v. 458 U.S. 102 status, capital pro- to a vates offense L.Ed.2d 1140 States v. United question whether the homicide vides Co., 422, 438 Gypsum United States U.S. intentional, inopportune or accidental. 854, 2864, 98 57 L.Ed.2d 438 S.Ct. aff'd type normally The reflected intended 422, 2864, 854 U.S. 98 S.Ct. 57 L.Ed.2d is homicide evidenced numerous cases.44 884, (1978), cert. denied 444 U.S. 100 S.Ct. persuasion adopted The same was once 175, (1979)), 62 L.Ed.2d 114 and in sum Supreme the California Court Carlos v. mary, states: Superior Angeles County, Court Los felony-murder The rule arose from ob- 79, 131, Cal.Rptr. 35 Cal.3d 197 P.2d 672 origins scure historical and has devel- (1983), changes jurist with follow- 862 but haphazardly unjust harsh and oped into a 1986, re- ing campaign an election perhaps fitting, It legal doctrine. Anderson, in People v. 43 Cal.3d therefore, versed separate that two lines of con- 1104, 585, doctrines, Cal.Rptr. 240 742 P.2d 1306 developing indepen- stitutional state, (1987). As adopted for that intent together way dently, come such a necessary felony kill is not a element conceptualize felo- impossible special murder circumstance which ny murder in a manner that does not run requirements guarantees. prosecutorial differentiates afoul constitutional components.45 exten- Courts and commentators have factual 44. For poses granted Felony-Murder denied 481 U.S. Ariz. edge, or gers L.J. complices, 66 N.C.L.Rev. Murder, Merger 275 N.W.2d 736 20 Conn.L.Rev. Second U.Puget Standard of er tionality less Overstepping 104 S.Ct. Articles which detail a writings aff’d Indifference Constitutionality the Death 233 Ga. Doctrine: example, Degree strong probability Sound L.Rev. 311 Bates, 451; King, Punishment Mercer L.Rev. Culpability include: Precedent? P.2d Note, Accomplice, 495 So.2d 1262 as Intent to Kill: Felony-Murder Penalty (malice 488 N.E.2d 949 see State v. Time (1988); Tison Arizona: cert. denied 464 U.S. 96 S.Ct. Comment, for S.E.2d 659 for After Imposing required large Tison v. (1988); Note, Reconsideration, Accomplice Felony- 12 Nova L.J. Felony death); (1988); Tison v. (1983); Gregg v. number of earli Richmond, (La.1986), Rule and the (intent, (1988); supra, Washington’s Arizona Death Note, Murder ce Dispropor Galloway, murder); Arizona, A New 19 Rut knowl Reck Note, Note, on a rt. cert. Im Ac 45.The accurately perceived: L.Ed.2d 800 murder death cases (1988), Sentencing bana v. 872, 826, Com. 1290 jury in appellate derer between Second, felony mitigating same murderers. complete which do not afford ways. [The N.W.2d 706 reh’g 108 S.Ct. (Me.1979); realism where the Bullock, *83 is Bullock decision protection as Spallone, murderers. case First, sentencing procedures. denied 483 U.S. it weakens ^[******] not. review felony consideration of (1987); circumstances result] A deliberate 206, Felony of result is it allows 37 De Paul L.Rev. State (1986), in the same 98 L.Ed.2d 157 author, murderers State v. combines fact the traditional role of the This creates Murderers Created Note, Disparity Pa.Super. deliberate murderers. felony murderers the sentencing procedures Palmer, cert. 1041, recognized murderer is assured while Mary problematic Anderson, aggravating and deliberate 108 proceeding for 486, 224 von finding felony (1987); distinction Neb. 406 A.2d 484 409 Mandel, 313-16 in two by Ca- felony Death 11, mur- A.2d 282, U.S. 97 rejec- penalty provisions, weighing intent and bur- principal result of available pervasive is that proof answer of Tison den of issues which are tion numerically ex- class is so penalty longer death appeal no occur under the re- this may lead to the result, it that in panded provisions. A difficult placement instruc- Eighth Amendment collapse of the total problem penalty for capital tion exist- Note, Reckless limitation standard. Indif- old removed ed statute has been Dispropor- to Kill: as Intent Upon retrial, text. if ference new Tison v. Punishment tionality After murder, again prosecuted capital for as- It is Arizona, 20 Conn.L.Rev. under penalty sessment of death will be Ameri- anticipated that neither rationally prior provi- current statutes instead of the system at its society judicial nor the can ques- supplied significant sions which limit- than a can accommodate more worst tion of erroneous addressed in instructions executions penalty of death ed number appeal. result certainly not the that will number Wyo- particularly There are two relevant felony the intrusion of the non-intent ming penalty death statutes. W.S. 6-2-101 upon Eighth Amendment murder Const, states:46 art. Wyo. §§ increasing (a) Significantly pre- the class Whoever purposely and with exposed will penalty malice, miscreants death perpetration meditated in the or total abo either or both to accelerate serve of, attempt perpetrate, any or sexual in limitation that are lition or to offenses assault, arson, burglary, escape, robbery, penalty justified. tent-defined be death resisting kidnapping, by-ad- arrest or or for Perhaps the content deleted intent ministering poison causing or the same Lip penalty can be extracted from death done, any being to be kills human kin, Theory The Moral Good Punish degree. murder guilty of in the first ment, Harm U.Fla.L.Rev. (b) person A murder convicted of punishment self- happened, so should be degree punished by the first shall be This imposed by voluntary formulation. imprisonment according life death or procedure that if death could achieve so law, except person shall be sub- no caused, another die to balance should ject death for retribution, scales, deter and whether for murder committed before defen- rence, rehabilitation, not in or we need (16) age attained sixteen dant applied If to be to motor vehicle quire. years. usage, serve to the standard could both provide a new population limit increase and (1991 (1989 Cum.Supp.) 6-2-101 W.S. stat- category industry growth —executions. ute). W.S. 6-2-102 states: I re Engberg, specially For concur for (d) Upon conclusion of the evidence felony constit versal with conclusion arguments give shall judge aggra recognized not be uents should instructions, appropriate including penalty in circumstances in death vation any aggravating as instructions or Eng- proven. unless intent kill is fliction circumstances, defined mitigating meet this stan berg’s prosecution failed to (h) section, (j) subsections authority is Specific compelling dard. (in) proceed provided by paragraph case of provided the most recent this subsection: — —, P.2d 1196 Ortega, N.M. evidence, (i) hearing After all the (N.M.1991). reasoning Its should decisive and render a recom- jury shall deliberate adopted Wyoming. now judge, of sentence to the mendation upon following: based Wyoming Present C. Statute (A) Whether or more suffi- Wyoming legislature’s com- one By the 1989 change aggravating death prehensive Wyoming cient circumstances exist por- legislative The stricken portion italicized of the text in the the 1989 session. 46. The bold signifies made in tion indicates text that was deleted. statute the additions current *84 time, te doubt as set agree within a reasonable on a reasonable beyond, section; (h) imposed, of this punishment judge in subsection to be forth impose sentence.; a shall life Whether, by preponderance a (B) evidence, mitigating cir- sufficient (ii) mitigating The circumstance ations tion, found (€) weigh the (ii) nificance. found cumstances ing section (C) or The mere number of shall have no jury Based paragraph (j) of this exist; mitigating aggravating shall exist as set upon unanimously section which the these consider- (i) independent sig- circumstances circumstances forth in this subsec- aggravat- deter- sub- out- limited to the ual (h) Aggravating mously or circumstances which or circumstances which it unani- (in) juror evidence; and ^[*] The evidence. found found ^[*] mitigating following: by a preponderance ^[*] circumstances a preponderance ^[*] circumstance any individ- ^[*] are ^[*] should be mine whether the defendant (i) by a The murder was committed imprisonment. life sentenced death or person imprison- under sentence of aggravating jury The shall consider unani- mitigating circumstances (A) in a correc- jail or Confined exist, each indi- mously found facility; tional any consider juror may also vidual (B) parole probation or On for mitigating circumstances found felony; juror exist. (C) escaping or in- detention After North however, McKoy v. Car- [See, carceration; or olina, 494 U.S. 110 S.Ct. (D) pending ap- Released on bail Mary- and Mills (1990) L.Ed.2d peal his conviction. land, (1988).] ¾c ^{[*] [*] [*] [*] [*]} cases, (ii) (in) judge In nonjury (iv) The murder committed was any aggravating if or shall determine or engaged, defendant while the was exist and im- mitigating circumstances accomplice, the commission an pre- pose sentence within the limits of, commit, flight attempt or an or law, upon the consid- scribed based committing to com- attempting after or subparagraphs erations enumerated mit, assault, robbery^.sexual ar- (i) (C) (A), (B) paragraph of this burglary, n kidnapping- n or aircraft sonr subsection. plac- throwing, unlawful piracy or the im- (e) The death shall ing de- discharging a destructive or ag- unless least one posed bomb; vice or set forth in sub- gravating circumstances (v) The murder was committed (h) of is found. this section section avoiding preventing purpose or judge shall make nonjury cases the escape effecting arrest or lawful cannot, jury designation. such If custody; time, agree on the a reasonable within (vi) The murder was committed imposed, judge punishment to be in- compensation, the collection of sentence. The impose shall a life jury, pe- similar or other surance benefits recommendation sen- if its verdict cuniary gain; death, designate writing tence shall especially faei- (vii) murder signed by jury: the foreman cruel, being unnec- nous, atrocious (i) aggravating circumstance or victim; to essarily torturous it unanimously circumstances which doubt, (viii) judicial murder of a offi- beyond found reasonable —Is officer, cer, judicial district at- former shall nonjury judge cases make tho attorney, or for- district torney, former designation, such cannot. —If *85 162 Wyoming Code attorney, In the current Criminal county prosecuting mer 1983, in 1982 and which was enacted ju- attorney, peace officer, defending continuity provision was inserted to retain witness, during or because or ror prior law for the determi- effectiveness of duty; his official exercise of of a criminal of- nation of the existence (ix) or reason- knew defendant penalty separately fense and to establish the victim ably should have known law. if less onerous the new assessment (17) years was less than seventeen clause, having saving first retained (65) years sixty-five than age or older govern prosecutions for prior statutes to age; occurring prior to the effective date crimes (x) knew or reason- The defendant act, penalty: “In provided then the victim ably should have known effective date pending on or after the case sig- vulnerable due to especially act, involving committed of this a crime disabili- physical mental or date, penalty if the prior to the effective nificant ty; crime is different under this act for the law, penalty prior under the court from the (xi) poses a substan- The defendant impose the lesser sentence.” W.S. 6- shall continuing threat tial of future l-101(b) (c). application This dangerousness likely or is to commit code, changed penalty if was fa- new violence; acts criminal continued person, was con- vorable to the convicted (xii) The killed another defendant State, 684 P.2d firmed Attletweedt v. being purposely and with human (Wyo.1984). 812 premeditated malice and while en- Wyo.Sess.Laws Legislative enactment of in, accomplice or as an in the gaged (1989)relating ch. 171 to assessment of, attempt or an to com- commission following conviction of mur- penalty death mit, flight committing or after degree provides now a more der the first commit, robbery, attempting any penalty procedure. The new modern death assault, arson, burglary or sexual statute, amending re-en- generally kidnapping. acting, included no reference to offenses in- (j) Mitigating circumstances shall guilt prior passage or for committed following:

clude the except thereafter in Section determination ^{[*] [*****]} 3: “This act is effective immediately upon completion necessary for a bill to of all acts (vii) age of the defendant at the 4, provided by Article Sec- become law as crime; time of the Wyoming tion 8 of the Constitution.” (viii) Any other or circum- fact 171, 3 Wyo.Sess.Laws ch. Conse- § character or stance the defendant’s 6, 1989, quently, approval March surrounding prior matter record or passage. I con- effective law became mitigate his which serves offense present law determines clude that the culpability. his procedure penalty assessment future death (1991 (1989 6-2-102 stat- include a retrial for Cum.Supp.) W.S. which would State, ute). P.2d 368 Engberg.47 v. 771 Jones 47. There are no ex (1977)). procedure between post prohibitions While the line in- facto times, Byrd see Blue application wavers at vaded substance the current enactment Const, 525, I, Cooperative, Ridge Wyo. Rural Electric 356 U.S. under either U.S. art. 10 or § Const, reh’g U.S. 2 L.Ed.2d denied 357 art. 35. This S.Ct. § court has addressed 78 933, (1958), State, in Loomer those concerns P.2d 1989). (Wyo. sentence post There the new statute indicates the we stated review of the ex impose than under prohibitions procedur- on the is more difficult to facto turn issue of death " instance, 6-2-102. the new ‘Any detriment. old W.S. For al or substantive statute * * * juror spells con- pun- makes more out individual burdensome the statute * * * commission, any mitigating found crime after its circumstance ishment for a sider Also, post juror makes clear prohibited to exist. the new statute as ex facto.”’ Id. at 1049 Florida, 282, 292, mitigating is illus- the list of circumstances (quoting Dobbert v. 432 U.S. 2290, 2298, only. reh’g W.S. 6-2-102 inures to trative Because S.Ct. prohibí- Engberg, post ex facto S.Ct. the benefit of U.S. L.Ed.2d 166 State, granted part cert. Reynoldson 737 P.2d (Wyo.1989); judg Miller S.Ct. (Wyo.1987); Attletweedt, 684 P.2d ment rev’d (Wyo.1987); (1987). Demonstrating L.Ed.2d 934 *86 jurisprudence, of in its Cali problems dash Weighing and Burden Persua- D. fornia, major of participants one of the sion Now Ameliorated Conflicts litigation, illustrat present penalty death Present Law majority dissenting opinions ed and People Lang, 991, v. 49 264 Cal. Cal.3d shifting assessing the The standards for de cert. (1989), Rptr. 386, P.2d 627 782 penalty jurispru American death modern — nied —, 224, 111 112 U.S. S.Ct. explained by dence can be the deviousness (1990) compared L.Ed.2d when 178 philosophic great of differences within published the same unanimous decision of case and the narrowness volumes Hunter, of People 957, v. date 49 Cal.3d precepts by is determined that cert. 367, (1989), 782 Cal.Rptr. 264 P.2d 608 By is or is executed. defendant not — denied —, 222, 111 112 U.S. S.Ct. statutory changes, Wyoming current there v. De See also State (1990). L.Ed.2d 190 problems removed have been contentious boue, de cert. (La.1989), 552 So.2d 355 including weighing per and of burden — Harris, nied Pulley v. —, 215, 111 112 suasion conflicts. See U.S. S.Ct. — reh’g denied 174, —, 871, 37, U.S. 465 104 79 L.Ed.2d 29 U.S. S.Ct. Johnson, v. People 541, (1990). 1194, 111 112 L.Ed.2d The (1984); 47 Cal.3d S.Ct. 550 569, (1989), ap illustrated in current Cal.Rptr. complexity 255 P.2d 1047 767 Dugger, Stano v. 1501, cert. denied 1038, proceedings pellate 494 110 S.Ct. U.S. — and reh’g granted reh’g 636, (1989), U.S. 889 F.2d 962 108 L.Ed.2d opinion vacated (11th —, 2196, 897 1067 Cir. 110 S.Ct. 109 L.Ed.2d 524 F.2d Brown, People 1990).48 v. (1990); application present 40 of the and Cal.3d Retrial (1985), of the 512, Cal.Rptr. 834, Wyoming 516 statute avoid some 230 Bull, penalty 48. applicable 386, v. With con- are not here. Calder 3 the hundreds new death tions Dall.) (1798); (3 year 1 L.Ed. 648 Miller victions each the small number U.S. cf. Florida, 423, 2446, executions, volu- v. 482 U.S. 107 S.Ct. 96 the literature constant and (1987) analysis, Story, States v. L.Ed.2d 351 and United minous. Wells addresses In current Stevens, (2nd Cir.1989). F.2d 988 words Justice 891 the issue: "In the way procedural lost its in a Court has ‘[T]he advantages charged death defen only path lead- maze of its own creation.’ The application provisions dant for ing by way return to the out this maze is of a Wyoming are self-evident. (9th most current statute Wells, principles Federal Habeas of Furman." McCormick, F.2d The Coleman v. 874 1280 Corpus Penalty: A Need and the Death for 944, 349, Cir.), cert. denied 110 493 U.S. S.Ct. Furman, Principles 80 J.Crim.L. Return to the (1989) post facto 107 L.Ed.2d 337 ex determi 427, (1989) (footnote Criminology omit- & 490 apply consequently does not where the nant amendatory provisions 527, quoting Murray, v. ted and Smith 477 U.S. penalty for death assess 540, 2661, (Ste- 106 91 L.Ed.2d 434 S.Ct. not disfavor the accused. retro State, ment will vens, J., Walsh, dissenting)). See Chal- Acker & spective application in Aden v. addressed lenging Penalty Death Under State Constitu- (Wyo.1988) appropriate is not 761 P.2d 88 tions, Note, (1989); 1299 Succes- 42 Vand.L.Rev. general rule for decision follow the Wilson, Fed- sive Chances Kuhlmann for Life: procedure to assess death now Petitioner, Corpus, Capital and the eral Habeas objective, for retrial more rational effect Note, (1989); Reviving 455 64 N.Y.U.L.Rev. 90, certainly thoughtfully composed id. at Punishment, Mercy Capital 99 in the Structure legislature to address obvious concerns (1989). Goldberg, Yale L.J. also 389 efficacy prior law. about Revisited, Const.L.Q. Hastings Penalty Death 16 8-1-107, purposes W.S. amend For the (1988); Lushing, Capital A Dis- 1 Punishment: W.S. 6-2-102 for retrial do affect ments to Note, (1989); putation, Tison Ark.L.Rev. 105 42 following prior pending prosecution reversal of Capi- Imposing A General Intent Arizona: applied We have the Attletweedt conviction. Upon Felony Mur- 6-l-101(c). Accomplice tal Punishment exculpated from W.S. Dob rule as derer, (1988); 282, Death Penal- 255 bert, 20 U.Tol.L.Rev. For S.Ct. 2290. amend- penalty 432 U.S. 97 Survey May ty, Supreme 1988- Court atory changes purposes, the to the death California (1989); 1988, Estate, Pepperdine July Boyd’s 16 L.Rev. 451 procedural, Matter statute were Comment, Punishment, Capital (Wyo.1980), pen 102 Harv.L.Rev. affected the P.2d 1243 606 alty. Welborn, Dobbert, 282, (1989); A Reinstate 1035 New 432 97 S.Ct. U.S. Effort 83, grant (1988), Cal.Rptr. cert. 758 P.2d 25 2447, Michigan, Penalty ed Death Det. S.Ct. 104 L.Ed.2d Preserving Integrity in Note, (1989), (1988); 494 U.S. 110 S.Ct. C.L.Rev. 33 aff'd U.S.—, Maryland, Capital Sentencing: reh'g Booth v. denied— Note, Maynard (1988); Creighton L.Rev. 333 State, Cartwright: Supreme Killed The How the Court Alabama: 548 So.2d 526 Hallford 1988), (Ala.), Category Penal- in the Oklahoma Death (Ala.Cr.App. Catchall 548 So.2d 547 aff’d Note, Oregon (1988); ty, Joins cert. denied 493 U.S. 110 S.Ct. 24 Tulsa LJ. 215 State, Oregon (1989); Outpost: The Texas at the Constitutional Hinton v. L.Ed.2d 342 548 So.2d Penalty 1988), (Ala.), Supreme Upholds Stat- Court the Death 548 So.2d 562 (Ala.Cr.App. aff'd Wagner, utes in State v. cert. denied 25 Willamette L.Rev. Gottlieb, Penalty in the (1989); The Death L.Ed.2d 383 Legislature: Thoughts Money, Myth, About Some Arkansas: Robertson v. Ark. Note, Hickman, Morality, 37 U.Kan.L.Rev. 443 S.W.2d J. concur- *87 State, 144, Felony Murder Rule and ring; State v. Coleman: The v. 299 Ark. 772 S.W.2d 297 Ruiz State, 682, (1989); Presumptions Criminal In- the Use Wilson v. 295 Ark. 751 Fulfill Cases, 682, 734, Capital opinion tent in XV Ohio N.U.L.Rev. 119 Ark. 752 S.W.2d 295 modified Barnard, Penalty. (1988); (1988). Sur- Death The 1988 S.W.2d 762 Law, (1989); 386, vey Lang, Florida Cal.Rptr. 13 Nova L.Rev. 907 264 782 P.2d California: Sheldon, Note, 935, Continuing Aggravation: 627; People A Source v. 48 Cal.3d 258 Cal. Bell, 242, Improper Mitigating (1989); People Consideration Factors in v. Rptr. 771 P.2d 1330 502, 1, Penalty Sentencing, Hastings Death Cal.Rptr. 41 L.J. 409 P.2d 129 49 Cal.3d 262 778 823; Note, Note, U.S.—, 2576, supra, 53 Mo.L.Rev. (1990); (1989), cert. denied— 110 S.Ct. Sixto, Jeopardy Resentencing (1990); re Double In 109 L.Ed.2d 757 1247, 48 Cal.3d Bifurcated Missouri, Bullington 491, (1989). Proceedings: Criminal v. Cal.Rptr. 774 P.2d 164 259 Breton, 258, (1982); Annual Connecticut: State v. 1982 B.Y.U.L.Rev. 192 212 Conn. Twelfth Law, (1989). Survey Arkansas 12 U.Ark. Little Rock A.2d 1060 562 State, McKay, (1989-90); (Fla. Death Pen- Florida: Bello v. L.J. 115 547 So.2d 914 Arizona's alty: Eighth 1989). and Exclusion Amendment Circumstances, Leavitt, 285, Mitigating Idaho: State v. 20 Ariz.St.LJ. 779 116 Idaho 775 Uelmen, Penalty (1988); 599, 923, 290, Review Death cert. denied 493 U.S. 110 S.Ct. P.2d Judgments by Supreme (1989). Courts 270 107 L.Ed.2d of California: Courts, Kokorateis, 235, People Loy.L.A.L.Rev. A Tale Two v. 23 237 132 Ill.2d Illinois: review, 233, (1989). (1989), Additionally, cert. most for a current Ill.Dec. 547 N.E.2d 202 138 — U.S.—, 3296, Penalty Symposium, see Death denied 58 UMKC L.Rev. 111 L.Ed.2d 110 S.Ct. denied—U.S.—, 18, Penalty Symposium, 804, reh'g and Death 517 59 111 S.Ct. 111 Kidd, (1990). (1990); People v. UMKC 1 L.Rev. L.Ed.2d 831 432, 129 Ill.2d 18, (1989). 136 Ill.Dec. 544 N.E.2d 704 problems by the The recurrent encountered State, v. N.E.2d Indiana: 543 360 appellate courts in consideration of the burden Huffman — U.S.—, (Ind.1989), cert. denied 110 S.Ct. proof weighing instructions for death State, 3257, (1990); v. Minnick 111 L.Ed.2d 767 excruciatingly penalty determination are illus- State, (Ind.1989); v. Games 544 N.E.2d 471 535 by samples trated of current cases from illustra- 874, (Ind.), cert. denied 493 U.S. 110 N.E.2d 530 jurisdictions: tive 205, 158, reh'g Lockhart, denied 493 U.S. (8th S.Ct. 985, 107 L.Ed.2d Perry v. Federal: 871 F.2d 1384 523, (1989); Low 959, 378, Cir.), 110 S.Ct. 107 L.Ed.2d 523 cert. denied 493 U.S. 110 S.Ct. State, (Ind.1989), ery cert. (1989); Martin, v. 807; N.E.2d 1046 547 107 L.Ed.2d 363 891 F.2d Cir.1989), U.S.—, 217, Armontrout, denied— 111 S.Ct. 112 L.Ed.2d (8th Newlon v. 885 F.2d 1328 Smith, (1990); U.S.—, 3301, 176 547 N.E.2d 817. rt. denied— 110 S.Ct. ce 111 L.Ed.2d 810 Lindsey, Louisiana: State v. 37, 543 So.2d 886 (1990); Pulley, 104 465 U.S. — —, (La.1989), Armontrout, cert. denied 871; U.S. 110 S.Ct. Williams v. 891 F.2d 656 S.Ct. — 798, 1796, reh'g denied L.Ed.2d U.S. reh'g (1989), (8th Cir.1990), 108 cert. 912 F.2d 924 —, 2579, (1990). 1092, U.S.—, 110 S.Ct. 109 L.Ed.2d 761 111 S.Ct. 112 L.Ed.2d denied— State, Mississippi: Minnick v. 77 (9th 551 So.2d Pulley, (1991); Harris v. 885 F.2d 1354 1197 Cir.1988), U.S.—, (Miss.1988), cert. granted— 1051, 110 S.Ct. rt. denied 110 S.Ct. ce — 285, U.S.—, 1921, rav’d 854, L.Ed.2d 111 Dugger, (1990); 109 v. Lusk 107 L.Ed.2d 848 486, (1990); v. Clemons S.Ct. 112 L.Ed.2d 489 (1989), reh'g denied F.2d 414 890 F.2d 332 (11th Cir.), 894 State, granted (Miss.1988), — cert. U.S.—, So.2d 535 1354 cert. denied S.Ct. 110 904, 3184, — part 3297, 805, U.S. 105 L.Ed.2d reh'g 491 109 S.Ct. denied U.S. 111 L.Ed.2d 738, (1989), judgment vacated 494 —, 10, U.S. 110 (1990); 693 De 111 S.Ct. 111 L.Ed.2d 825 1441, (1990); Williams v. S.Ct. reh'g (1989), 108 L.Ed.2d 725 lap Dugger, denied v. 890 F.2d 285 cert, State, — v. (Miss.1987); West 544 So.2d (11th Cir.), 782 denied U.S. 898 F.2d 160 (Miss.1989). —, 2628, (1990); 553 So.2d 8 110 S.Ct. 648 Gerald, 40, Harris, Thieret, 756; Jersey: 113 N.J. 549 State v. New v. Kubat F.2d 874 F.2d 867 Hunt, 330, 874, (1988); v. N.J. State (7th Cir.), A.2d 115 558 792 cert. denied 493 U.S. 110 351 Davis, 1082; Coleman, (1989); State v. 206, (1989); 561 A.2d A.2d 874 1259 S.Ct. Pitts, 580, (1989); Ricketts, 1280; State A.2d 1320 Adamson v. 116 N.J. F.2d 865 F.2d 1011 123, Ricketts, Ramseur, (1987); (9th 1988); N.J. 524 A.2d 188 Clark v. F.2d Cir. Biegenwald, People Boyde, (9th Cir.1989); 106 N.J. 524 A.2d 130 State 46 Cal.3d retrial, complex Upon if detail review. argued in conviction-relief major issues again proceeding penalty imposition his death under- death Engberg in this Althouse, Essay. peculiar Engberg- Stand- taken, of these most issues.49 penalty Slippers, Hopkinson type Fluffy ing, disappear Va.L.Rev. of issues should changed a new trial and a statute.

Only a brief mention will now be made of Death Penalty Other Issues those issues to avoid further extension of E. overlong writing. presently this Engberg’s some deference to 212- With brief, major The constitutionality some and not so minor under page post- concept unanimity penalty issues case law of the death remain ing predecessor Bird with the succes- court court, (1987); Biegenwald, 110 N.J. Lucas State v. sor Professor Uelmen stated: Biegenwald, 126 N.J. A.2d that, emerge The thesis that will at least A.2d reviewing penalty judgments, very death two Clark, 108 N.M. New Mexico: State v. appellate different models of function are U.S. cert. denied 493 work. reh'g approaches the The Lucas court review overruled L.Ed.2d 551 very like death cases much interme- *88 655, Henderson, 109 789 sub nom. State v. N.M. appellate approach courts the review of diate ordinary (1990). 603 P.2d process closely criminal cases. The 278, Artis, N.C. North Carolina: State v. 325 process in matches the described a classic (1989), granted S.E.2d cert. and vacated 384 470 study appeals of in the criminal California 1466, 1023, U.S. 110 108 604 494 S.Ct. L.Ed.2d Appeal Appellate Court of for the First District 1, (1990); Huff, 381 635 State v. 325 N.C. S.E.2d operated in the "The court as it mid-1970s: — U.S.—, (1989), granted and vacated cert. approaches perspective its work from a that 3266, (1990). S.Ct. 111 777 110 L.Ed.2d noninterventionist, nonsupervisory, and con- 206, Dickerson, Ohio Ohio: State v. 45 St.3d avoiding. process Its flict decision accentu- 1250, 706, reh’g denied 46 Ohio St.3d 543 N.E.2d strongly finality in- ates the value of and — (1989), cert. U.S. 545 N.E.2d 1285 denied study clined affirmance.” That noted toward 1836, —, (1990); 110 L.Ed.2d S.Ct. 108 965 high of of criminal rate affirmance 895, 20, Cooey, State v. 46 Ohio St.3d 544 N.E.2d appeals reflected basic institutional norms 717, reh'g 46 Ohio 546 N.E.2d 1335 denied St.3d justices ap- perspectives. Essentially, and U.S.—, 1431, (1989), 111 cert. denied— S.Ct. proached great task deference to their (1991); Bradley, 42 113 482 State v. L.Ed.2d judge: the trial 373, 136, reh'g denied 43 Ohio St.3d 538 N.E.2d result, Appeal “As a the Court seldom asks of 712, (1989), de Ohio St.3d 541 N.E.2d 78 cert. appropriate most to a what the best or answer — U.S.—, 3258, 110 S.Ct. L.Ed.2d nied 768, 111 be; rather, legal usually would asks issue — U.S.—, 16, reh’g 111 111 denied S.Ct. trial answer is within whether the court’s (1990). L.Ed.2d 830 addressing acceptable latter bounds. 482, Smith, South Carolina: State v. 298 S.C. appellate question, basic of review norms — U.S.—, (1989), 724 cert. denied 381 S.E.2d Appeal collectively call the Court — 775, 1536, reh’g S.Ct. 108 110 L.Ed.2d judgment if defer to the court 2221, —, S.Ct. 109 546 U.S. (1990). 110 possible, Appeal direct the Court of and ambiguities any the di- resolve doubts in 275, Com., Virginia: Spencer v. 238 384 Va. rection of affirmance." 1036, (1989), 493 cert. denied U.S. S.E.2d 775 appellate review thus be- The basic norms 759, (1990). S.Ct. 107 L.Ed.2d 775 110 These come norms of affirmance. include law have re The of this case would burden principle of abstention in issues not penalty quired Engberg’s death in reversal below, presented the substantial evidence (Colo. Young, any People P.2d event. 814 834 rule, and the harmless error rule. The com- Carter, 1991). Beyond A Doubt Reasonable Cf. norms, de- mon effect of each of these Penalty Proceedings: A Ne Standard in Death Davies, inquiry cut scribed Dr. "is to off Fairness, 52, glected Ohio 195 Element St.L.J. problematic and transform issues into routine (1991). are Once these norms internal- affirmances. judges, changes appellate statutory Wyoming assist this ized intermediate 49. perceptual avoiding recognized by filter that makes norms create in the criticism court appeals appear to be penalty themselves devoid in death case decisions critical scholars recognize any significant issues.’’ the differ- be a failure to described to (footnotes citing appeals Dav- and a Id. at 238-39 omitted court entiated function ies, Appeals conflicting Study supreme concepts as A Criminal court. Affirmed: Decision-Making clearly change Norms in a Court in in the electoral delineated California 543, 592, 607, Uelmen, Appeal, 1982 Am.B.Found.Res.J. in California of 1986 demonstrated (1982)). 48, compar- Loy.L.A.L.Rev. supra n. 237. In 612 23 166 prior process provided hearsay for conviction documen-

mandatory weighing pure in McKoy, Evi- Comment, generally prior tation. statute. particularity McCormick, 1227; Death, (1990). Smith v. 914 dence for 110 S.Ct. Calif.L.Rev. Smith, (9th Cir.1990); State v. F.2d VII. (1991); 400 S.E.2d State 328 N.C. Jones, (1990); N.C. 396 S.E.2d CONCLUSION Landrum, 107, 559 St.3d State 53 Ohio the death serious nature of Given reh’g denied Ohio St.3d N.E.2d heightened reliability most penalty and — cert. denied U.S. N.E.2d 945 consistently required in death courts have —, 111 S.Ct. Davis, sentencing procedures, People v. Stevens, 311 Or. cert. de (Colo.1990), P.2d — Dugger, (1991). Parker v. P.2d 92 Cf. — -, nied U.S. 111 S.Ct. —, S.Ct. (1991), Lohr, J., dissenting, I L.Ed.2d 656 in n. See also the cases cited significant guilt find error both would supra The Lockett Paradox: Sundby, “sufficiently penalty assessment which Reconciling Discretion and Un Guided certainty undermines fairness and Sentencing, Mitigation Capital guided case to the death sentence returned L.Rev. 1147 38 UCLA re require Although reversal.” I would Improper mitigation instruction of guilt the clear the conviction of verse light aggravation were defined this record and trial errors within relating specifically given conflict as regard, dissent I concur reversal persuasion. McKoy, the burden agree that of the death 1227; Mills, for another trial case should remanded *89 Landrum, 1860; Com 559 N.E.2d 710. if elects to punishment prosecution the Bean, People v. 65, Ill.2d 147 pare 137 litigation the the life sen beyond continue cert. 891, (1990), 560 258 Ill.Dec. N.E.2d applied. tence otherwise — 1338, U.S.—, 111 113 S.Ct. McDoug v. with State 270 L.Ed.2d THOMAS, Justice, dissenting with ald, 120 N.J. 523, (1990); 577 A.2d 419 respect capital the reversal of Sanderson, 327 N.C. 397, v. 394 State BROWN, sentence, with whom Chief Wagner, v. and S.E.2d Justice, Retired, joins. — cert. denied 309 Or. P.2d Despite attempt the of the Ameri sincere —, S.Ct. 112 L.Ed.2d to es years can Bar Association over the Perhaps interesting (1990). cases most two slogan legal as the or motto of the tablish touching questions prior the in about community enjoy government that we “[a] way the present Wyoming statute and * * (Marburg laws, and not men Eng- in jury actually instructed Madison, v. 5 U.S. Cranch Tenneson, People v. (both ways) berg are (1803)), regard to 2 L.Ed. 60 and without (Colo.1990), addressing prior a 788 P.2d 786 support the bar for of the bench statute, statute Colorado must concept, precise be that converse People in to be unconstitutional declared the instant accepted Wyoming as true in (Colo.1991). Young, searched, in I have this decision is filed. argument Prosecutorial in final 3. error vain, something in this case different jury responsibili- minimizing the decisional capital validity of the respect with maximizing requirement as a matter ty and Engberg v. in imposed sentence penalty and also law to assess death (Wyo.1984), cert. denied 469 U.S. P.2d 541 expanding aggravative factors to include elements. Caldwell Mis- non-statutory changed case. The Nothing has about the sissippi, 105 S.Ct. there are difference is that only discernible appar members on who new this court two espouse dis the views of the Improper provided ently would 4. documentation one Engberg session, in the first case and including use of sent death taking court had death sentence avoid matter who earlier voted member opinion The majority out context. first majority but has now had a quotes from an Wyo- amendment to the of heart. change ming capital murder statute that was Why Wyoming then do I claim en- that adopted some seven years Engberg after government men, not laws? joys Rogers killed Vernon years some four First, on the majority opinion because the after his sentence to death final became capital punishment reaches out issue appellate Then after full review. ma- capture part that question jority says: overruling Engberg purpose for the case change “The reflects the United States affirmance of the sentence the most recent Supreme decision in Mills Ma Court’s Hopkin- to death this court the Mark 1860, 100 ryland, 486 U.S. State, 798 P.2d Hopkinson son case. L.Ed.2d 384 a decision made while Second, (Wyo.1990). the dis- because petition pending this was still before this death position of the sentence to Mills, held that the court. the Court majority opinion on issue is made in in a trial court death sentence case must complete disregard of the doctrine res clearly jury instruct the that each individ Third, I cannot overlook fact judicata. juror may any mitigating ual consider justices, that one who has assid- he or finds to circumstance she exist every uously recused himself from case or making sentencing determination re involving Hopkinson joining matter since gardless jury of whether the unanimous (I of some the court understand because ly mitigating found that circumstance parties while the contact with one 377-80, exist. 486 U.S. S.Ct. at private justice practice), still was now required 1867-68. Reversal is unless a opinion has no effect joins majority possibility’ that this occurred ‘substantial effectively in this overrules the case but can ruled out. Hopkinson, prior decision of this court sentencing phase “The instructions eschewing P.2d After the front required that the find an case case, Hopkinson it now entrance to the beyond aggravating a rea- circumstance willing, if justice seems even mitigating sonable doubt and circum- through enter unwittingly, to *90 by preponderance of stance a evidence. portal. weighing The for the factors instruction repeal There the those who advocate are not against each other did indicate capital judi- If the punishment statutes. mitigating the factors must be whether department philosophically op- cial is so unanimously. Another instruction found posed capital punishment to that it will find unanimously that jury told it must the every case to set the death a reason death, agree verdict and if it is on a aside, may there merit in the sentence be so, impose will to do the court unable punishment repeal capital of the statute. gave sentence of life. The verdict form occurs, however, there is some When that jury jury the two choices. could that in- justification suggestion for the we mitigating find the circumstances either imperial judiciary that insists deed outweighed aggravating the circum- as to upon imposing philosophy that its life, Engberg sentence or and stances regard majority the question for without mitigating did not that circumstances legis- apparently by a valid will articulated aggravating outweigh circumstances capital As adoption punishment. lative him Nowhere in and to death. sentence on minority member of the of the court or form verdict instructions result, change question, I cannot that this mitigating circum- that told I attention to the event and its but can call unanimously found need be stances citizens, and, on of the implications behalf mitigating by cir- jury but that protest the resolution. by be found individual cumstances individually length jurors weighed by them quote from necessary at It question. deciding the life or death issue of the majority opinion on the 168 ply retrospectively. cases (1991 those 6-2-102 Cum.

“Because W.S. relating retrial the sen issue instructions govern will of the Supp.) case, need not phase this we has tencing mitigating circumstances been be extend the Mills deci State, decide whether to court, Hopkinson fore this v. man Engberg in a retroactive sion to (Wyo.1983), 664 P.2d 43 cert. — Smith, U.S. Sawyer ner. See 78 104 S.Ct. L.Ed.2d U.S. —, Dis and the United States Lane, 288, 109 (1990); Teague Court, Hopkinson Shillinger, trict 1060, 103 L.Ed.2d 334 (D.Wyo.1986), F.Supp. reh. de State, (Wyo.1977). 572 P.2d Flores v. F.Supp. (D.Wyo.1986), nied 648 Nevertheless, important remem it is approved.” were and the instructions ‘that always ber law has been that our grudgingly admire the as- While one must require convict unanim matters which siduity tenacity majority in the ity, can result convict failure capital punishment in effort to eliminate juror one that the vote that Wyoming, attempting to do artic- aggravating mitigating circum which, ulating in a case in dictum be dealt with in the stances should admission, majority’s “we need not own State, Hopkinson way.’ same relying upon decide” issue and a dis- J., (Cardine, (Wyo.1990) P.2d senting quotation from opinion, the which right to dissenting). The a unanimous context, for au- dispute. is itself taken out of beyond Taylor v. verdict (Wyo.1980); thority justify see the dictum falls short of I, Wyo.Const. honesty. Art. It is essential my perception of intellectual § in proper accorded the that be purpose aspect only possible finding considering on structions opinion sup- is to furnish majority mitigating circumstances in a retrial court, Hop- port to which the the federal penalty phase felony of his murder petition pending kinson case is Majority opinion on the is conviction.” relief, aside post to set the sen- conviction capital affecting imposition of the sues Hopkinson That tence to in the case. death sentence, added). (emphasis eliminating the effect effort would have respectfully majority I remind the must in the two remain- the death sentence Wyoming that law not settled im- ing Wyoming cases in which was dissenting opinion in a what is articulated Already, posed by jury. there is evi- P.2d Hopkinson, other prosecutors are not dence the fact issue, majority case or matter. On in cases in seeking the death opinion Hopkinson, P.2d at might appropri- well sentence to death states: not believe they ate do because *91 arguments “6. The Petitioner’s earnest the execution. I rest judiciary permit will pen- in the error occurred second that aspect of the evidence that my case this the to alty trial instructions because government Wyoming enjoys a now relating mitigating to circum- the men, not laws. light Mary- in the stances Mills my concern I turn second about to land, S.Ct. case. One of most resolution of this McKoy jurisprudence in our is doctrines revered Carolina, 494 North Those matters that judicata. that of res (1990),fail adjudicated between the same have been record in persuasion because the finality. Nothing accorded parties are re- justified case not have this would fact be clear than the that these could more upon principle legal versal based this were before court identical issues cases, in those the cases articulated prior contrary to this case and decided and, the cir- distinguishable under are case, not the same but decision. this cumstances, required is Were the court not one, doctrine of deci- ap- a different stare to, appropriate, it be nor would degree As first murder in the suggest would the same result. sis of Wyoming Cardine said: should be death. Stat- Justice specifying utes have enacted death been “Perhaps will heard only a Cassandra injection punishment. lethal I am neglected to mourn rule of stare decisis, convinced now that this is an unwise day a when it is sad indeed but policy. are our within the same case declarations

subject unwilling to take us write, senting. seriously?” Jones v. how judicial can we (Wyo.1990), expect others to revision. seriously Cardine, J., State, 798 P.2d If we what take dis- are we or will ever walk on the face of this earth ly our focus “ * * * itself. ^[*] To arrive ought Every ^[*] to be on the person ^[*] a rational who ever walked ^[*] death ^[*] decision, penal ^[*] unique. There will be another is never sentence in this respect to the death With person. precious. that Life It is a thing like case, very that was we done have .the unique that gift that is so and wonderful vigorously protested Jones. so cheapen it by no mortal man should tak Furthermore, majority has reached ing it from another. It has been said way particularly result in a that that begets killing. The killing more we applying settled troublesome. Instead of kill, the more conditioned we become doctrine, in the case either law same under killing are so conditioned that no until we decisis, majority judicata res or stare Someday anymore. every one cares adopted judges has a rule selected recognize punish will court our land places other who have no commitment unusual, by killing as ment cruel and but serving people Wyoming the State today prepared accept we are not what one preferred has that rule over the someday pass.” Hopkin will come to adopted by Wyoming justices on previously 1192, Cardine, son, 798 P.2d at despite This is the fact this Court. done added). J., dissenting (emphasis that the decision the Court was scruti- Supreme Court nized the United States they are had These noble words. Would error under the Constitution vic- uttered to memorialize torture been subjected United States then tim, literally apart, an family blown have then is an federal review. What we robbery of an armed rather innocent victim adaptation of a rule under another state convicted, cold-blooded support of than constitution, dif- adopted by judges in the lose fact court should not killers. The state, imported has ferent been to be Rogers, Eng- killed Vernon that when he Wyoming Is substituted for solid law. berg escapee from Missouri protest question there that I must minimum secur- Department of Corrections by dissenting majority opin- result serving facility, he life ity where validity of the death sentence? ion on the degree murder in first sentence for justification ma- Perhaps real for the killing night watchman after fol- position captured in the jority best robbery. I an armed sub- connection with lowing: justify words do not mit noble and, seizing upon here instead of directly faced the awe- result

“Few of us *92 jurisdictions, other the justification fellow from deciding whether a some task control, hence, should, judicata of res should and the being days three rule human I re- capital imme- sentence should affirmed. I face that be by killed execution. be time, opin- decision, majority of the gret as that the drafter alone for the first diate sentencing phase by the feels that there sobering experiences ion on of life’s another personal in unfair and criticism out about who we has been find more which we do, indeed, death, dissenting opinion. I en- life feel this are and how we about feelings others, my power, relationships jus- deavor be attentive our hand, on court. the other tice, legislative the On law. The branch brothers and the in candor is es- the are situations which policy that there has decided as a matter as well as what we those tention to what we do as one of perceive I sential. say. situations. acceptance reflection demands the drafter Mature justification for is no There instances, that, many ac- proposition accept criticism majority opinion speak voluminously and more opinion is tions more majority A personal.

as used and, eloquently than words that can be when collegiate court product of a Consequently, opted I other them. by the describe consideration circulated least, Hopkin- court, or, complete quotation when omit the members of the last sentence son because the next to filed, longer any proprietary retains no light ring a hollow seems to me to have the drafter is concerned. aspect so far as upon the impact is of the of this decision product that an institutional It becomes penalty Wyoming. Lip is death service to opinion only by the court. The owned death constitutionality no the of the that has product of an institution meaning long has so as this court will corporate iden- no instead is a personality, but justifica- identity reach and to find technical stretch Certainly, this institutional tity. avoiding implementation. tion in serv- its the difficulties encompasses one of view, stretching my reaching and is collegiate that court. ing appellate on an and, that the present here to the extent committee deci- effort to articulate a case, it Hopkinson court acceptable to all now redecides way that sion there. is difficult and of the committee members stressful. proposi- I add to has said the what been mem- that it is clear that at least one omitted tion

Turning then to the reference to has read majority of the court’s now Hopkinson ber from the dissent material dissenting opinion. There can be no material reads: full text of that revisiting Hopkinson question that the directly the awe of us faced “Few have way is indeed to decide it in different deciding whether a fellow some task of I would like intentional and not accidental. hence, should, days being three human abrogation of the solution to the to offer a by I face that imme killed execution. but, Wyoming sentencing statute capital decision, time, the first alone for diate you have the saying goes, “When as the sobering experiences by of life’s another votes; votes, majority have the vote!” find out more about who we which we voted; capital punishment is they death, feel life and are and how we about Wyoming. That State of in the abolished others, power, jus relationships with our law, by in- required but result is not tice, legislative and the law. The branch policy, choice of reached as a stead it is policy that the has decided as a matter contrary to the one chosen policy that degree murder penalty for first legislature. Wyoming should be death. Stat State of specifying death been enacted utes have capital of the sentence An affirmance I injection punishment. am by lethal reasoning by proper justified clearly be can this is an unwise convinced now situations, Eng- In most authority. that, at this policy. I am convinced also issue, impropriety of sixteenth berg’s are history, in our these statutes time aggravating circumstances invoking as and, therefore, I the law. constitutional Engberg for murder commission obey support, an oath to have taken engaged in gain and while pecuniary and will honor defend the constitution relying robbery, after on commission So, Hopkin to the law.” oath. degree the first mur- robbery to invoke son, 798 P.2d at statute, controlled would be der concept of and the judicata of res the full text when this I aware of doctrine argument his sen- Engberg’s initially. I dissenting opinion prepared waiver. *93 in a manner which that, determined becoming attuned to aware tence also am Amend- line,” Eighth and Fourteenth colloquially call the “bottom violates what we of the United indeed, the Constitution pay at- ments to society, in our the citizens

171 (5th Cir.1986), cert. denied 481 argument is a combination of an 672 States U.S. 1042, 1985, 825, reh’g appeal, 107 S.Ct. 95 L.Ed.2d by this court on his direct rejected denied 1012, 3245, 483 U.S. 107 S.Ct. 97 he together with an issue which did not (1987). addition, L.Ed.2d 750 several raise, was addressed a dis- but which highest decisions in the courts of the Engberg, senting justice 686 P.2d 541. states, notably most the recent decision encouraged Engberg was to raise that is- Supreme Court of North Carolina in petition rehearing, for sue his v. Quesinberry, 228, 319 N.C. 354 denying petition stated: court’s order (1987), appeal remand 446 S.E.2d after upon “This case came on before the court 125, (1989), 325 N.C. 381 S.E.2d 681 cert. Rehearing filed herein the Petition for — judgment granted vacated U.S. appellant, Roy Engberg, Lee and the —, 1465, 110 S.Ct. 108 L.Ed.2d 603 court, having carefully considered the (1990), on remand 327 N.C. 480, 397 S.E.2d Rehearing being fully Petition for (1990), on remand 328 N.C. 288, 233 401 advised, petition finds that the does not (1991), 632 S.E.2d have held that it is im encompass any question or matter neces- proper statutorily overlapping to submit sary decision to correct a which has been aggravating jury circumstances to a in the court; seeks by the overlooked sentencing phase capital of a case. We point time in the first upon Supreme relied the rationale of the case; does not demonstrate a reasonable State v. Court of North Carolina found probability that the court arrived at an Oliver, 28, (1981), 302 N.C. 274 S.E.2d 183 conclusion; and erroneous that the Peti- 541, Engberg, deciding specifi denied; Rehearing tion for should be cally rejecting Supreme the view of the * * Engberg, therefore 686 Supreme Court of Florida. Since the Court added). (emphasis P.2d at 563 of North Carolina now has ruled a defini persuaded I am that cause exists to avoid way contrary holding tive which we procedural waiver because of recent cases adopted previously, I would address the Hop State ex rel. dealing this issue. Engberg’s merits sixteenth issue Court, v. County, kinson District Teton prior determine whether our conclusion cert. denied 474 (Wyo.1985), 696 P.2d 54 changed should or modified. be 865, 187, U.S. 106 S.Ct. 88 L.Ed.2d 155 constitutionally satisfactory procedure A Lockhart, (1985). Perry See also v. 656 imposing penalty requires the death 46, (E.D.Ark.1986) (“the F.Supp. 48 ‘novel specific assurance that the has made a ty’ pecuniary gain argument at the capital punishment determination that Perry’s pro time of trial was sufficient appropriate on the basis of the character of vide ‘cause’ for his failure to raise this the individual defendant and the circum Ross, question”); Reed v. 1, 104 U.S. Booth v. particular crime. stances of 2901, S.Ct. 82 L.Ed.2d 496, 2529, Maryland, U.S. 107 S.Ct. Subsequent to the decision of the court 440, 1056, reh’g denied L.Ed.2d U.S. Engberg, developed a division in the feder 31, (1987); Tison 108 S.Ct. 97 L.Ed.2d 820 question of al courts on the whether an Arizona, 137, 107 1676, 95 481 U.S. S.Ct. underlying felony could element be 921, reh’g denied 127, L.Ed.2d U.S. aggravating as an circumstance with used (1987); Zant v. 3201, 96 L.Ed.2d 688 upon Eighth infringing out Amendment Stephens, 462 U.S. 862, 2733, 103 S.Ct. of the United to the Constitution States. legislature’s selec L.Ed.2d Lockhart, (8th 754 F.2d 258 Collins aggravating tion of circumstances has been Cir.), cert. denied 474 U.S. 106 S.Ct. Supreme accepted by the United States Wilson v. But properly limiting jury’s L.Ed.2d discre Court ler, (5th Cir.1987), cert. de they per 813 F.2d 664 if the class of tion circumscribe nied capital punishment may 108 S.Ct. upon 484 U.S. sons whom imposed. Gregg Georgia, reh’g 428 U.S. (1976), 108 S.Ct. fol 96 S.Ct. Blackburn, reh’g denied Welcome lowing 793 F.2d *94 172 Hopkinson, certainly These did not See 632 crimes. factors

L.Ed.2d 158 criminality petition- from remove the the P.2d 79. “ * * * But, as er’s acts. was said Gardner jury’s impose discretion to [A] 349, 358, 1197, Florida, 430 U.S. 97 S.Ct. ‘suitably must di- sentence be the death 1204, [(1977)], 393 it ‘is of 51 L.Ed.2d minimize limited so as to the rected and the to importance vital defendant and wholly, arbitrary capricious risk of v, im- community that decision to the 153, Georgia, 428 U.S. action.’ Gregg be, pose appear sentence the death 2909, 2932, S.Ct. 49 L.Ed.2d [96 859] be, reason, rather than ca- on based Stewart, opinion (joint of Powell * * price or emotion.’ Stevens, JJ.); Booth, 502, “That There is no U.S. at 2532. cannot be said here. at S.Ct. case, in principled way distinguish this provisions of the Constitution penalty imposed, which death prohibit a from United do not state States many it was cases which punishment on individ- imposing capital an 420, Godfrey Georgia, not.” 446 U.S. single ag- of on the basis ual defendant 1759, 432-33, 100 S.Ct. 64 L.Ed.2d 398 circumstance, gravating long so as the cir- 919, cert. denied U.S. unconstitutionally vague.1 cumstance is not 180, 1778, reh’g S.Ct. 72 L.Ed.2d denied though aggravating an circumstance Even 2286, L.Ed.2d 1001, 456 U.S. 102 S.Ct. under may meet the constitutional standard (1982) (footnotes omitted). test, if the is so con- this circumstance applied, impo- requisite narrowing may also ac- vague it is strued that punishment complished by defining the elements of the capital sition will be set of Supreme crime. The Court of the United aside. Texas, 262, said in Jurek v. 428 U.S. States petitioner’s validity “Thus the 270-71, 2950, 2955-56, 96 S.Ct. whether, death sentences turns 875, (1976), reh’g U.S. light of the facts and circumstances 198, (1976): S.Ct. 50 L.Ed.2d 158 that he was convicted of murders adopted committing, Georgia Supreme Court “While Texas has not a list applied statutory aggravating can be said to have constitution- circumstances phrase justify imposi- ‘out- al existence of which can construction vile, Georgia rageously wantonly penalty or tion of the death as have or horrible * * * Florida, [they] narrowing its inhuman in that involved action ** depravity categories *.’ a death of mind We conclude murders peti- imposed answer be no. The sentence ever be serves must purpose. much tioner’s crimes cannot be said to have the same McGautha 183, 16, materially California, 402 U.S. 206 n. reflected consciousness 1454, 16, any person 1466 n. 28 L.Ed.2d 711 ‘depraved’ more than that of S.Ct. 201.6, guilty murder. His victims were Model Penal Code Com- § (Tent. 9, They instantaneously. pp. mem- ment 71-72 Draft No. killed were fact, 1959). family causing his who were him each five classes bers of af- Shortly capital trauma. murders made Texas stat- extreme emotional Georgia killings, acknowledged encompassed his re- ute is and Flor- ter he statutory heinous ida one more of their sponsibility and the nature his vague arbitrary pattern of aggravating is so with the result that a 1. If circumstance capital manner, permit impose punishment capricious sentencing like that uncon- found in a it will not "wanton and freakish” in Furman could occur.’ 428 U.S. stitutional Stephens, pass Zant v. constitutional muster. n. avoid n. 96 S.Ct. at 46. To flaw, 77 L.Ed.2d 235 aggravating cir- constitutional (1983); Gregg Georgia, 428 U.S. 96 S.Ct. genuinely must narrow the class cumstance (1976), reh’g denied 429 eligible persons death from the reasonably justify imposition of a must " * ** system more sentence on the defendant com- have standards so severe [A] ‘could pared guilty vague they adequately others of murder.” to chan- found would fail Zant, juries sentencing patterns U.S. at 103 S.Ct. at 2742. nel decision *95 aggravating committing circumstance of For exam- circumstances. aggravating single multiple murders in a consecutive jury the requires statute ple, the Texas persuades lying tal 483 U.S. Appeals son, scribed captured (1987).2 conclude gravating circumstance imposed state as to whether Welcome, therefore, tween Texas and My further reflection be aggravating circumstances that to focus on the whether ida, 428 cumstance before the death existence (1976)]. Thus, statute 9, Each tution a smaller class the crime.” course S.Ct. at defendant was an Otherwise, sentencing option Gregg Georgia, achieving punishment Supreme 96 S.Ct. at 2921 the 813 F.2d imposed. may felony committed for the ^[2960] requires situations. guilt at by mandatory of a that the United States requires 793 F.2d me not remove the crime was committed the time U.S. [242] death justification 107 S.Ct. may the determining that an element of the under- capital punishment should be Court of the United States particular at the statutes a So even statutory aggravating 2965, n. 6 the Fifth Circuit narrowing, principal penalty particularized nature of far as that —even of murders in Texas. the inmate of its commission. Cf. Sumner n. considered as an sentencing authority hire, at essence, the jury’s 9; upon other relied U.S. felony, the for our narrowly circum- 248-249, infliction stage to consider Proffitt consideration potentially is an available [49 of or whether capital difference be- 97 L.Ed.2d 56 jury find the at it said: however, two States is are similar. a upon in penalty may L.Ed.2d 913 adequately 165-166, n. penal the Texas concerned, whether it position in rulings Shuman, discretion Court of n. case. in Flor- —for 6, insti- capi- Wil- the the the cir- ag- I first the legislatively defined fail to fallacious. which States Court was the invoked to circumscribe The utilization of an capital punishment on the basis of all 462 U.S. at stances has been conclude sons of a beyond after the defendant has been found evidence without stance, although it Circuit which the State makes based on the class of all Zant v. death stance as a mitigating alized determination ing guilt imposition be considered.” tion finding only Statutory aggravating circumstances 677. stance course sentencing jury 2733, 2743-44, cumstances felony upon degree eligible capital capital process finding “genuinely the serves a reasonable penalty. present in of that Stephens, criticism levied Collins, the character of the individual murder was circumstances does conduct serves for 877, of the death offense. punishment part permits of this does not the stance order established, well transgressing the Consti- Appeals 103 S.Ct. which the conviction permissibly not But narrow 77 L.Ed.2d 235 murders, a duplicates of the the course Welcome, death 462 U.S. doubt, aggravating circum- aggravating aggravating as to make an individu fix finding the death If the premised, finally those instances stage weighing of life F.2d aggravating penalty. may penalty.” punishment. guilt eligible there of at 2742. This 862, 103 S.Ct. class of advance that of small 793 F.2d of the United 258, be the control the cull element determina one determin taken does imposed for circum circum- circum impose Such Eighth out of crime. guilty group Zant, finds, death per- the are cir the It I Zant; Bar- inclusion an element of tution the United States. “Louisiana’s Florida, 103 S.Ct. degree clay murder of crime of first Shuman, felony. though constitutionality of Even U.S. In Sumner v. Supreme statutory approach directly Court was not ad- imposi- permitted dressed, Supreme Nevada statute noted that the Court it is obvious that finding capital punishment upon tion of sequential evaluation of the aware aggravating single cumstance was an and that cir- circumstance same circumstance. underlying element Unit- Amendment the Constitution of the reh’g L.Ed.2d evidence ed States demands against the focus on his charac- defendant *96 crime. ter and the circumstances of the indicate, then, statutory that “Our cases Zant; 2529; Booth, 482 U.S. play a consti aggravating circumstances nothing inter- in Barclay. the There is these necessary at tutionally function justifies they pretations cir constitution that stage legislative definition: the eligible should be persons class of a rule that relevant evidence cumscribe the the constitu penalty. jury’s for the But consideration death excluded from the ignore require jury to simply tion does not the that sentencing phase the because in the possible aggravating factors other evidence the defendant’s also established among selecting, that process assuring guilt of the crime. Rather than actually class, will those defendants who action, this evi- arbitrary the utilization of impor is sentenced to death. What be possibility dence the serves to avoid stage tant at is an individ the selection capricious action. the basis ualized determination on state require does not a constitution the the the character individual against the presented to limit evidence Zant, 462 the crime.” circumstances of sentencing of a portion defendant in the (cita 878-79, 103 at S.Ct. at 2743-44 U.S. case, do so. capital may it choose to but omitted; emphasis tions and footnotes legislature In made a Wyoming, Zant. the added). may It the choice. limited evidence which aggravating circumstance single Since a de presented against considered be offense narrowly the can be used to define is to one of fendant to that which relevant constitutional, or, al- and be construed aggravating circum statutorily defined the may be ternatively, circumstance the same stances, any rele though permitted it even aggravating circum- as an characterized not it mitigating evidence whether or vant in con- jury the stance be considered statutorily de of the probative of one bearing on the all evidence nection with 6- mitigating circumstances. Section fined circum- “character of the individual and the 2-102(d), (June Hop Repl.); W.S.1977 crime,” per- I be stances of the cannot kinson, performing In this 632 P.2d 79. underlying an element of the suaded that function, doing exactly that jury is aggra- felony cannot be considered as indicated Supreme Court has which sentencing vating circumstance sentencing It is the classic must done. be Wyo- stage. In form of statute that imposing individualized function “[a]n ming of the adopted, has definition the basis of the character determination narrowing function with crime serves individual and circumstances capital respect to those instances which Zant, the crime.” though imposed. Even punishment be 2744.3 S.Ct. at ag- as an the same information invoked following convic- gravating circumstance upon the Engberg’s argument, based trial, simply tion, stage of the it at that Circuit, more be rule in the Fifth would narrow instances in to further serves jury at the persuasive duty if the capital punishment may be and sentencing simply count the stage imposed. justifica- is no should be There circumstances aggravating number sequential tion for contention that cir- any mitigating against the number of arbitrary simply results consideration Engberg, explained cumstances. We imposition. sentencing 541, however, P.2d that qualitative Wyoming stage analysis determining capital punish- In whether in- approved the Eighth we imposed, quantitative, not ment should be permits stage, essential the information sentenc- We note our statute would aggra- jury regarding be submitted as an ing crime hearing be conducted before a new jury to order for the purpose good vating impaneled cause exists. circumstance for that if sentencing perform function. sentencing adequately did serve at the If same (1) that the murder was explained circumstances: the trial court which struction of during robbery committed the course of a process should be jury how that pecuniary that it committed for considering the evidence accomplished. gain. Again, recognize Supreme I that the felony guilt underlying at the as to the changed posi has Court North Carolina only with jury is concerned stage, 183, Ques Oliver, tions from 274 S.E.2d proved certain facts have been whether Again, inberry, 354 S.E.2d 446. the uti beyond a reasonable doubt. When aggravating lization of both circumstances sen- presented at the same information is if would be more troublesome however, has stage, legislature tencing *97 quantitative jury analy performing that it jury additional discretion given the jury sis. Because the this state must At may deny capital punishment. use qualitative quantita invoke a rather than a trial, jury must focus point in the the factors, analysis aggravating tive of the proved, upon facts have been not whether significance any overlap the of the of those upon qualitative evaluation but substantially. factors is diminished Fur aggravating and light in the of other facts thermore, dissenting justice noted in The mitigating circumstances. inevitable robbery Quesinberry, the act of involves further the instances in result is to narrow the consideration of the actus reus while punishment will be the sen- capital which pecuniary gain circumstances considers tence. Perhaps the mens rea of the defendant. position of the Finally, the Fifth Circuit overlap imagined than real. In is more acknowledge signifi- simply fails to accord the individualized with determina mandatory appellate We cance of review. by Supreme requirement tion Court Hopkinson: explained States, Zant, the United 462 U.S. subject “A of death is to auto- sentence 2733, I note that the act of the rob S.Ct. must matic review this court. We bery on a circumstance of the focuses consider, only the errors enumerated not crime, robbery, reason for the whereas the by way appeal, but also whether pecuniary gain, that it was committed product arbitrary of an sentence was the focuses on the character of the defendant. factor, supports the find- the evidence relating The to the circumstances evidence fact, ings of the trier of and the sentence may overlap, the considerations are but disproportionate or when is excessive separate meaningful. similar In addition compared with cases. I the confidence of the ma- cannot share reversing underlying affirming or now, remand, jority “Engberg will conviction, may affirm the sentence we sentencing hearing given a at be lawful death, im- set aside the sentence and correctly consider life or which a can imprisonment, life pose a sentence of upon proper death instructions on law resentencing by the trial remand for and, impose penal- the death appropriate, if Hopkinson, 632 P.2d at 153. judge.” Majority opinion on the issues affect- ty.” capital determine that a duty It is our sentence, capital ing imposition of the arbitrary imposed in an sentence was may majority 13. It that the intended to discriminatory manner. United 2—103(e)(iii), language of invoke the § 6— recognized Supreme Court has States provides (Cum.Supp.1991), W.S.1977 strong meaningful appellate review as the sentence this court “[s]et determining capital factor in whether resentenc- aside and the case for remand adopted by statute a state punishment opinion, ing.” The last sentence E.g. Barclay, 463 U.S. constitutional. however, only “case remanded for provides 3418; Godfrey, opinion.” with this proceedings consistent 1759; Zant. likelihood of a new sentenc- my view high. The case is ten hearing conclude to abide our is not ing I also would old, prosecutor I must and think Engberg, years decision with tenacity per- possessed of unusual the claim that it was error to be respect to capital pursue sentence. aggravating severance jury to consider both allow the im- a conviction and state secured capital sentence position of affirmed were sentence

the conviction petition for a writ in 1984. A by this court Supreme was denied of certiorari capi- While the United States. Court appli- affirmed under tal sentence was rules, it now is set aside because cable place decid- interim someone in another is the modify Wyoming’s rules. How ed to understand, degree prosecutor confidence, capital sen- that if another will somewhere imposed, tence is someone change the rules while the not decide to subject review? new sentence effort be frustrated prosecutive would *98 For me it is doubtful it is now. again, as capital sen- again will face tence, philosophy of and the humanitarian majority be vindicated. will the conviction of

I affirm both would imposition degree murder and first sentence to death. death the sentence at in lawful and rational arrived manner, affirmed. it should be Bostwick, Helling Murane

Steven R. & Casper, appellant. for Mullikin, Larson R. Michael Mullikin of Jackson, Swift, appellee. & THOMAS, C.J., URBIGKIT, Before BERGER, Plumbing, Statt’s Statt d/b/a GOLDEN, CARDINE, JJ. MACY and (Defendant/Cross- Appellant Claimant), OPINION MACY, Justice. INCORPORATED,

TETON SHADOWS Wyoming corporation, Appellee Berger appeals from the Appellant Statt (Defendant/Cross-Claimant). awarding dam- judgment court’s district Incorpo- Appellee ages Teton Shadows No. 90-31. resulting from a fire a condomin- rated Supreme Wyoming. Court of project County. Berger in Teton ium stipulated that Teton Shad- Teton Shadows 5, 1991. Nov. $120,000. At the damages totaled ows’ trial, two-day conclusion of a bench found, alia, Ber- district court inter fire, and it ger’s negligence caused of Teton Shad- granted judgment favor $120,000.1 Berger does full ows Com- Mutual Insurance company, tain West Farm Bureau Moun- Teton Shadows’ insurance