Osborn v. State, 5825

Citation672 P.2d 777
Decision Date28 October 1983
Docket NumberNo. 5825,5825
PartiesKevin Winston OSBORN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, signed the brief on behalf of appellant. Mr. Munker appeared in oral argument.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., and Roger Fransen, Legal Intern, signed the brief on behalf of appellee. Mr. Johnson appeared in oral argument.

Before ROONEY, C.J., and RAPER *, THOMAS, ROSE, and BROWN, JJ.

RAPER, Justice, Retired.

The appellant entered pleas of guilty to three counts on an information charging him with conspiracy to commit the crime of aggravated robbery in violation of § 6-1-203, W.S.1977, Cum.Supp.1981 1, aggravated robbery in violation of § 6-4-402, W.S.1977 2, and while in perpetration of an aggravated robbery killing of another human being, Jimmy Ray O'Briant, in violation of § 6-4-101, W.S.1977 3, all of which crimes were alleged to have been committed on May 14, 1982, in Uinta County, Wyoming. In addition, appellant was charged with and entered pleas of guilty to three counts of a separate information charging him with the crimes of aiding and abetting murder in the first degree of Audrey Ditmars in violation of § 6-4-101 and § 6-1-114, W.S.1977 4, attempted first degree murder of Dale Moore in violation of § 6-1-201(a)(i) and § 6-1 Prior to arraignment of appellant on the charge of murdering Jimmy Ray O'Briant, the State gave notice that it would seek the death penalty for that felony murder. The foregoing sentencing to prison terms took place before the trial of appellant in the sentencing phase of the felony murder of Jimmy Ray O'Briant. 7 Following the sentencing trial for the felony murder of O'Briant, conducted without a jury before the district judge, appellant was sentenced to death and judgment was entered accordingly. Execution was stayed pending appeal.

-204, W.S.1977, Cum.Supp.1981 5, and aggravated robbery of Dale Moore in violation of § 6-4-402, W.S.1977 6, all of which crimes were alleged to have been committed on the 15th day of May, 1982, in Sweetwater County, Wyoming. A change of venue to Sweetwater County for the Uinta County crimes was consented to by the appellant. On the Uinta County charges, other than the felony murder, appellant was sentenced to not less than 45 nor more than 50 years on the charge of conspiracy to commit aggravated robbery of Jimmy Ray O'Briant, not less than 45 nor more than 50 years on the charge of aggravated robbery of Jimmy Ray O'Briant, to be served concurrently but consecutive to the sentences handed down on the Sweetwater County charges. On the Sweetwater County charges, the appellant was sentenced to life for the felony murder of Audrey Ditmars, life for the attempted murder of Dale Moore, and not less than 45 nor more than 50 years for the aggravated robbery of Dale Moore, all to be served consecutively.

Appellant presents as issues for our consideration on appeal:

"1. Whether the trial court erred in denying Appellant's pre-sentence motion to withdraw his guilty plea in a death penalty case.

"2. The proportionality argument--whether Appellant was denied due process and equal protection.

"3. Whether Appellant was afforded effective assistance of counsel.

"4. Whether the Wyoming death penalty provisions are unconstitutional in that they usurp the supervisory and rule-making power of the Supreme Court and expand its jurisdiction in violation of the Wyoming Constitution."

This court must go further. Section 6-4-103, W.S.1977, provides in pertinent part:

"(c) The supreme court of Wyoming shall consider the punishment as well as any errors enumerated by way of appeal.

"(d) With regard to the sentence, the court shall determine if:

"(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 "(iii) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

"(e) The court shall include in its decision a reference to those similar cases which it took into consideration. * * *"

We will affirm the sentence of death and the other sentences imposed by the district judge.

NARRATIVE

What ensues in this part is a composite from the testimony and exhibits adduced at the sentencing hearing, including a transcript of the arraignment proceeding at which appellant entered pleas of guilty to all charges. On April 16, 1979, appellant was sentenced in an Alabama circuit court to a fifteen-year and a five-year term to run concurrently for robbery and grand larceny respectively. He was committed to the Staton Correctional Institution, Wetumpka, Alabama. He was placed on a work program which permitted him to walk out of the prison gates to a penitentiary facility which provided chicken and eggs for the institution. While on that program, it was discovered by prison authorities that there was a hold on him for another offense from another state. This deprived him of eligibility for the outside work privilege and apparently loss of good time. He was, therefore, advised that he was confined inside the prison walls or fence. It seems the word did not get to gate guards on the next morning shift, so, on November 21, 1980, he went on through as usual and kept on going. He thereupon became an escapee.

Appellant then wandered from place to place and, as far as the record discloses, his only gainful employment consisted of odd jobs here and there with two to three weeks on a fishing boat off the coast of Florida. After that, he bought a motorcycle and again took to the road. In Oklahoma City he met up with Willard Teel, an escaped convict from the Texas prison system. At some point, a U-Haul truck was rented, and appellant and Teel drove west.

The pair then journeyed to northern California. Somewhere on Highway 101 they picked up Terry Green and Ellen Hopkins who were hitchhiking together and going nowhere in particular. Green had a criminal record and Hopkins had been arrested in New Orleans for prostitution. The foursome peregrinated across the western states into Wyoming on Interstate Highway 80, arriving in Evanston, Uinta County, on the evening of May 14, 1982.

Then there began a nightmarish course of terror for the victims of this quartet. They drove into the parking area of a motel. Hopkins went in to register, in that the stolen credit card in their possession bore a woman's name. While she was checking in at the motel desk, the other three waited in the truck cab.

While the trio was sitting there, an individual, later identified as Jimmy Ray O'Briant, came staggering by, obviously in a drunken condition on the way to his room. They then conceived a plan of robbery.

The scheme was that Hopkins would pose as a hooker, get into O'Briant's room, engage him in the attractions of that trade, arrange to leave the door ajar and the other three would burst into the room, overcome him, and strip him and the room of his money and belongings. Evanston at that time was a booming center of activity because of the rich discovery of oil in the surrounding area known as the Overthrust Belt. The robbers expected their prey to have bulging pockets due to the inflated salaries of oil field workers in the vicinity.

The scheme was carried out. Hopkins called O'Briant's room, told him she had seen him come in, thought he might be lonely because she was, and maybe they could spend the evening together. After being invited over to his room, they talked for awhile about horses and oil wells. She, according to plan, was able to leave the door slightly open. Eventually the lights in the room went off.

Then the door was opened, the lights were flipped on and the three "barged" into the room. O'Briant was on the bed wearing only a shirt. Hopkins was sitting on After taking $58.20, the only money they could find on O'Briant, appellant took his eyeglasses and boots. They beat a hasty departure, picking up their own gear, throwing it into the truck and took off again onto Interstate 80 heading east with appellant driving.

the edge of the bed. Green indignantly wanted to know what O'Briant was doing in bed with his sister. After this ruse, the protestations of O'Briant were subdued and his feet were tied together and his hands were tied together as well. While Green was trying to knock out O'Briant with his fists, Teel was ransacking the room. Appellant became impatient with Green's failure to render O'Briant unconscious so he picked up one of O'Briant's boots and, holding it with both hands, struck him several times on the temples, with such tremendous force that blood squirted to the ceiling.

O'Briant, left unconscious on the bed, was not found until about 1:30 p.m. the next day, in a coma. He was transported to a Salt Lake City, Utah, hospital where he died two and one-half months later on July 30, 1982, never regaining consciousness. The immediate cause of death was suppurative bronchopneumonia due to and as a consequence of craniocerebral injuries.

The testimony of the Utah state medical examiner, a forensic pathologist who supervised the autopsy, was that in his opinion O'Briant more precisely died of "suppurative bronchopneumonia, secondary to blunt force injury to the head." The point of injury was on the right side of the head. A large defect--about 2 1/2 inches in diameter--of the skull was just above the ear. As a result of the blows, the skull was fractured, with bone fragments driven into the brain area. During the process of treatment, the scalp was incised in...

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