Engberg v. Meyer

Decision Date17 October 1991
Docket NumberNo. 87-15,87-15
Citation820 P.2d 70
PartiesRoy Lee ENGBERG, Appellant (Petitioner), v. Joseph B. MEYER, Attorney General of the State of Wyoming, and Duane Shillinger, Warden of the Wyoming State Penitentiary, Appellees (Respondents).
CourtWyoming Supreme Court

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, and Martin J. McClain, Deputy State Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., and John W. Renneisen, Deputy Atty. Gen., for appellees.


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

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

URBIGKIT, J., filed an opinion dissenting in part and concurring in part.

THOMAS, J., filed an opinion dissenting with respect to the reversal of the capital sentence, in which BROWN, C.J., Ret., joined.

In this appeal from the denial of post-conviction relief in a capital murder case, the issues divide, as does the pertinent statute, between those matters that affect the determination of guilt or innocence and those that impact the imposition of the capital sentence. Because of a division of the court with respect to the disposition of this case, with three justices agreeing that Roy Lee Engberg (Engberg) was lawfully convicted of first degree murder but one of those justices agreeing with the other two that the capital sentence should be set aside, the majority opinion of the court with respect to those issues affecting guilt THOMAS, Justice (on the question of guilt or innocence of first degree murder).

or innocence has been assigned to Justice Thomas and the majority opinion of the court with respect to the issues affecting the imposition of the capital sentence has been assigned to Justice Cardine.

The first function of the court in this appeal is to apply our rule of procedural waiver. Next, questions that could not be presented on direct appeal or for which cause exists to avoid procedural waiver must be examined for error of constitutional magnitude. With respect to the conviction of the crime of first degree murder, these questions include: failure of the prosecution to advise Engberg of a hypnotic session with a key witness; a claim of ineffective assistance of counsel on direct appeal (this issue requires that we afford incidental attention to two other contentions); a claim of cumulative error that was prejudicial to Engberg's right to a fair trial; a charge of conflict of interest because a member of the attorney general's legal staff had served as counsel for Engberg on his direct appeal; and a claim that this court has structured an unfair and constitutionally infirm process for seeking post-conviction relief. All but five of the claims asserted by Engberg as fatally affecting his conviction fall under the rule of procedural waiver. With respect to the others, we conclude that none serve as a ground for setting aside the conviction of first degree murder. We affirm the dismissal by the trial court of Engberg's petition for post-conviction relief insofar only as that dismissal relates to the propriety of his conviction.

Engberg was convicted, after a trial by jury, of the crimes of felony murder in violation of § 6-4-101(a), W.S.1977, and armed robbery in violation of § 6-4-402, W.S.1977. Following these findings of guilty, the jury received evidence with respect to whether capital punishment should be imposed and, in accordance with § 6-2-102, W.S.1977 (June 1983 Repl.), found five statutory aggravating circumstances and no statutory mitigating circumstances, but did determine, as a non-statutory mitigating circumstance, the fact that the crimes may have been induced by economic and family conditions. The jury then recommended capital punishment, which was imposed by the court pursuant to § 6-2-102(f), W.S.1977 (June 1983 Repl.). A sentence of twenty-five to thirty years was imposed for the aggravated robbery. Engberg appealed the judgment and sentence for these crimes, and this court affirmed. A more detailed statement of the facts underlying Engberg's conviction can be found in Engberg v. State, 686 P.2d 541 (Wyo.1984), cert. denied 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984).

After this court affirmed his convictions and denied his petition for rehearing, counsel was appointed for Engberg to assist him in presenting a petition for post-conviction relief. Engberg asserted twenty issues to the district court in support of his petition for rehearing. The State of Wyoming moved to dismiss the petition pursuant to Rule 12(b)(6), W.R.C.P. Following oral argument, the trial court entered a memorandum of findings of fact and conclusions of law explaining its decision to grant the State's motion. An order was entered in the district court dismissing Engberg's petition for post-conviction relief. This appeal is taken from that order.

For the sake of completeness, all of the issues asserted by Engberg are set forth in Appendix I to this opinion. Our examination of those issues convinces the court that all but six of them could, or should, have been raised on direct appeal, and no good cause is shown in this appeal for the failure to include them in the direct appeal. We have said:

" * * * This court has taken a disciplined approach to post-conviction relief, pointing out that it is not a substitute for the right of review upon appeal from a conviction nor is it to be treated as an appeal. Questions which may be raised by a motion for post-conviction relief are limited to those of constitutional magnitude which manifest a miscarriage of justice. Those issues which could have been presented on appeal are not open to This is a rule of procedural waiver very like that applied in the federal courts.

challenge by a motion for post-conviction relief because they are foreclosed by the doctrine of res judicata." Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988) (citations omitted).

" * * * [A] convicted person is foreclosed from raising in a post-conviction proceeding any claim of error which he could or should have presented on appeal unless he demonstrates good cause for not presenting the issue on appeal and actual prejudice arising from the failure to present it. This adoption of a rule parallel to the rule applied in the federal courts will facilitate in a material way the task of the federal courts in examining issues raised in federal post-conviction proceedings in which review is sought of a conviction in the State of Wyoming." Cutbirth, 751 P.2d at 1262.

This rule of procedural waiver is applicable to, and forecloses from direct consideration, the first issue and the third through the fifteenth issues set forth in the appendix.

The remaining issues as articulated by Engberg are:

"2. Whether the State's failure to disclose its use of hypnosis as means of enhancing Kay Otto's memory violated its ethical obligations and denied appellant his right to due process of law, his right of confrontation, and his right to effective assistance of counsel.

* * * * * *

"16. Whether appellant's right to be free from cruel and unusual punishment and to due process was violated by the jury's finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery when the robbery had already been used to elevate the crime to capital murder.

"17. Whether the cumulative nature of the error is such that, regardless of the harmlessness of any one error, together they prejudiced appellant's rights to due process, fundamental fairness, and a reliable determination that the death penalty should be imposed.

"18. Whether appellant was afforded effective assistance of counsel during his appeal to the Wyoming Supreme Court.

"19. Whether it was improper for the office of the Attorney General to represent the State in post-conviction proceedings to urge that an Assistant Attorney General's proper representation was a procedural bar to the issues raised in appellant's petition for post-conviction relief.

"20. Whether this Court's discussion and holding in prior cases with regard to petitions for post-conviction relief ignore the plain and obvious statutory language and establish a procedure which is violative of fundamental fairness due process and equal procedure and whether it has established a confusing and unworkable process wherein courts simply dismiss petitions for post-conviction relief to get rid of them."

The State of Wyoming styles these issues as arguments and, responding first to "Issue 20," states them as follows:

"I. Was there error in the procedures followed in the lower court on Engberg's petition for post-conviction relief?

* * * * * *

"VIII. Was Engberg deprived of a fair trial, due process or confrontation by the failure of the State to disclose Kay Otto's contact with a hypnotist?

* * * * * *

"XIII. Was the jury properly instructed as to statutory aggravating circumstances; was Engberg denied due process or subjected to cruel and unusual punishment?

"XIV. Did Engberg receive effective assistance of counsel on appeal?

"XV. Does the cumulative nature of any errors in this case warrant relief?

"XVI. Is the Attorney General's entire staff disqualified from post-conviction proceedings because one of Engberg's four attorneys on direct appeal has since become an Assistant Attorney General?"

Engberg urges with respect to these issues that error was committed during or after his direct appeal or that he has demonstrated good cause for not presenting the issues at that time. We agree that Issues 18, 19 and 20 quoted above could not have been raised on direct appeal. We conclude that good cause has been demonstrated to avoid the rule of procedural waiver with respect to Issues 2 and 16. As to the...

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