Hopkinson v. State
| Decision Date | 02 July 1981 |
| Docket Number | No. 5268,5268 |
| Citation | 632 P.2d 79 |
| Parties | Mark A. HOPKINSON, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Edward K. Brass and Robert Van Sciver (argued), Salt Lake City, Utah, signed the briefs, for appellant.
Gerald A. Stack, Deputy Atty. Gen., Bruce A. Salzburg, Senior Asst. Atty. Gen. (argued), Mary B. Guthrie, Asst. Atty. Gen., Edward P. Moriarity, Sp. Asst. Atty. Gen. (argued), and Brian E. Thiede, Law Clerk, Cheyenne, Wyo., signed the briefs for appellee.
Before ROSE, C. J. *, McCLINTOCK **, RAPER ***, and THOMAS, JJ., and SAWYER, D. J. ****
In September of 1979, appellant was tried by a jury and convicted on four counts of first-degree murder and two counts of conspiracy. Those six counts, of a fourteen count grand jury indictment, charged:
1. "That Mark A. Hopkinson on or about the 7th day of August, 1977, in the County of Uinta, State of Wyoming, did wilfully, unlawfully, purposely, feloniously and with premeditated malice kill a human being, namely Vincent Vehar in violation of the provisions of Section 6-4-101(a)(b) Wyoming Statutes Annotated, 1977, Republished Edition, previously cited as Section 6-54.1(a)(b), Wyoming Statutes, 1957 as amended, by aiding, abetting, counseling, encouraging, hiring, commanding and otherwise procuring such murder to be committed during a period beginning in December of 1976 and continuing up to and including August 7, 1977, in violation of the provisions of Section 6-1-114 Wyoming Statutes Annotated, 1977, Republished Edition, previously cited as Section 6-14, Wyoming Statutes 1957 as amended, and contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Wyoming.
2. (Same as (1) except charged the murder of Beverly Vehar with same aggravating circumstances alleged.)
3. (Same as (1) except charged the murder of John Vehar with same aggravating circumstances alleged.)
4. "That Mark A. Hopkinson on or about the 18th day of May, 1979, and in the County of Uinta, State of Wyoming, did wilfully, unlawfully, purposely, feloniously and with premeditated malice kill a human being, namely Jeffrey Lynn Green, contrary to the provisions of Section 6-4-101(a)(b) Wyoming Statutes Annotated, 1977, Republished Edition, by aiding, abetting, counseling, encouraging, hiring, commanding, and otherwise procuring such murder to be committed, in violation of the provisions of Section 6-1-114, Wyoming Statutes Annotated, 1977, Republished Edition, and contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Wyoming.
5. "Mark A. Hopkinson, a person, on or about the months of November, 1976, through March, 1977, and in the County of Uinta, State of Wyoming, did unlawfully, willfully and feloniously conspire with another person, namely Harold James Taylor, to commit a felony in the State of Wyoming, namely the murder in the first degree of Vincent Vehar as is made unlawful by the provisions of Section 6-54(a) and (b), Wyoming Statutes 1957 as amended and one or more of such persons did an act or acts within the State of Wyoming to effect the object of the conspiracy, including that Mark A. Hopkinson paid money to Harold James Taylor and Harold James Taylor accepted such money to undertake the felony, that Harold James Taylor selected the location to commit such felony, that Harold James Taylor selected the weapon, namely a shotgun, with which to commit such felony, and that Harold James Taylor waited outside the office of Vincent Vehar in order to obtain a shot and to shoot Vincent Vehar, in violation of the provisions of Section 6-16.1, Wyoming Statutes 1957 as amended and currently cited as 6-1-117, Wyoming Statutes Annotated, 1977 Republished Edition, and contrary to the form of the statute in such case made and 6. "Mark A. Hopkinson, a person, on or about the months of March and April, 1977, and in the County of Uinta, State of Wyoming, did unlawfully, willfully and feloniously conspire with another person, namely Michael J. Hickey, to commit a felony in the State of Wyoming, namely murder in the first degree of William Roitz, as was made unlawful by the provisions of Section 6-54 (a) and (b), Wyoming Statutes 1957, as amended, and one or more of such persons did an act or acts within the State of Wyoming to effect the object of the conspiracy, including that Mark A. Hopkinson gave a .357 magnum revolver to Michael J. Hickey with which to commit such felony, that Michael J. Hickey purchased bullets for such revolver, that Mark A. Hopkinson pointed out to Michael J. Hickey how and where such felony could be committed, and Mark A. Hopkinson offered to pay money to Michael J. Hickey for the commission of such felony by Michael J. Hickey, in violation of the provisions of Section 6-16.1, Wyoming Statutes 1957, as amended, and currently cited as Section 6-1-117, Wyoming Statutes Annotated, 1977 Republished Edition, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."
provided and against the peace and dignity of the State of Wyoming."
A presentence hearing was conducted under § 6-4-102, W.S.1977, 1 to determine whether appellant should be sentenced to "(i) The sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor "(ii) The evidence supports the jury's or judge's finding of an aggravating circumstance as enumerated in W.S. 6-54.2 (§ 6-4-102) and a lack of sufficient mitigating circumstances which outweigh the aggravating circumstances;
death or life imprisonment. Following the recommendation by the jury that the death sentence be imposed for his murder of Jeff Green, the district court, bound by that finding, did in fact order appellant executed. In all cases in which the death penalty is given, the judgment of conviction and sentence of death are subject to automatic review under § 6-4-103, W.S.1977. 2 We are required by law to specifically consider whether:
"(iii) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."
In addition, we must consider appellant's allegations of error in the conduct of the trial and the presentence hearing, as well as Wyoming's jurisdiction to try the appellant for the Jeff Green homicide, an issue raised by this court. We do not ordinarily retain record references in the published version of an opinion but do so in this case to expedite any further review which might be undertaken.
We will affirm the convictions but reverse the death sentence as to the murder of Jeff Green and remand for new trial on the penalty only.
The issues raised by this appeal will be dealt with in the following order:
I Whether Wyoming has jurisdiction to charge the appellant in the murder of Jeff Green as an accessory before the fact; 3
II Whether the joinder of the six charges was proper; 4
III Whether the failure of Judge Brown to voluntarily disqualify himself denied appellant any constitutionally mandated due process or equal protection;
IV Whether there was prosecutorial error during the voir dire of the prospective jurors;
V Whether the opening statement of the prosecutor was improper;
VI Whether character evidence of the victims was improperly admitted;
VII Whether character evidence of the appellant was improperly admitted;
VIII Whether hearsay was improperly admitted;
IX Whether exculpatory polygraph evidence was improperly excluded;
X Whether the trial judge abused his discretion when he permitted the admission of photographs, charts, slides, and testimony depicting the torture of Jeff Green prior to his death;
XI Whether admission of a photographic identification of Mike Hickey, by a witness who was identified as the man who had given him a ride the night of the Vehar bombing, was error;
XII Whether the prosecutor committed reversible error when he called a witness who exercised his Fifth Amendment rights and the prosecutor had, prior to calling the witness, reason to suspect that the witness would in fact invoke his Fifth Amendment rights;
XIII Whether the refusal of...
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