Engberg v. State

• Decision Date: 27 June 1984
• Docket Number: No. 83-29,83-29
• Parties: Roy Lee ENGBERG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 541

686 P.2d 541

Roy Lee ENGBERG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-29.

Supreme Court of Wyoming.

June 27, 1984.

Rehearing Denied Aug. 13, 1984.

Certiorari Denied Dec. 3, 1984.

Leonard D. Munker, State Public Defender; Sylvia Lee Hackl, Appellate Counsel; John Doidge, Student Intern; Bonnie Fransen, Student Intern; and Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division; and John Renneisen, Sr. Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

THOMAS, Justice.

Once again this court is called upon to perform the somber duty of reviewing a capital sentence imposed by a jury in a first-degree murder case to determine whether it is justified under the law. The appellant also was convicted of armed robbery. The issues posed and argued by the appellant encompass his contentions that individual voir dire is constitutionally required in a capital case; the State should not selectively use peremptory challenges in such a case; there is insufficient evidence of intent to kill in this case; the jury was improperly permitted to consider that the murder was committed in the course of a robbery and for pecuniary gain as separate aggravating circumstances; and the imposition of the death penalty is excessive and disproportionate to the penalty imposed in similar cases. Our examination of the record and the law persuades us that there is no error with respect to any of the claims made by the appellant, and no other error exists in the record of these proceedings which requires reversal. We affirm the convictions and the judgment and sentences.

The specific issues articulated by the appellant are:

"1. Whether Appellant was denied his constitutionally-guaranteed right to a fair trial by an impartial jury through the trial court's refusal to permit individual voir dire and the State's selective use of peremptory challenges to create a 'death-qualified' jury.

"2. Whether the trial court erred in denying Appellant's motion for judgment of acquittal, new trial and arrest of judgment, since insufficient evidence of intent to kill existed to justify imposition of the death penalty.

"3. Whether the jury improperly considered as separate aggravating circumstances that the murder was committed (1) in the course of a robbery and (2) for pecuniary gain, which consideration impaired the required weighing of aggravating and mitigating circumstances and mandates that the death penalty be vacated.

"4. Whether the imposition of the death penalty is excessive and disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

On December 22, 1981, Vernon Rogers and his sister, Kay Otto, were employed by Wells Fargo Company in the operation of an armored van on a pick-up and delivery route. At approximately noon on that day they went to the Buttrey-Osco Store in the Mountain Plaza Shopping Center in Casper, Wyoming, to deliver cash and change and to receive cash, food stamps, checks and other receipts from the store for delivery to a bank. They did pick up in the store a bag containing these several items in the amount of $13,400, of which approximately $4,200 was cash. When they left the store Vernon Rogers was shot and killed.

Rogers was walking in front of Otto, who was carrying the transaction bag, as they exited the store through double sliding doors on its west side. As they passed the second sliding door, a Caucasian male, wearing a distinctive dark orange ski cap and a brown leather jacket, pulled a revolver from concealment, said to Vernon Rogers "Hey," and shot him. When Otto attempted to flee into the store, she stumbled and fell. The assailant caught up with her between the two sliding doors and repeatedly demanded that she turn over the transaction bag. Ultimately he took it from her and escaped on foot in a westerly direction through the parking lot. He fired at least one additional shot in the direction of a witness, apparently to discourage any possible pursuit. Vernon Rogers died at the scene. His heart and right lung were pierced by a single .38 caliber bullet.

The only factual issue at the trial of this case was the identity of the perpetrator. The appellant conceded that the crime had been committed substantially as the witnesses described it. A customer who had left the store just prior to the murder and robbery and observed Engberg standing near the exit, a store employee who was on his way to lunch and was in his truck in the parking lot at the time of the crime, and Kay Otto all identified Engberg as the perpetrator of these crimes. The record discloses that they were satisfied with their identification even though there were significant discrepancies in the original identifying data they furnished to the Casper Police Department. The store employee apparently was the intended target of the shot that the appellant fired as he was fleeing from the scene.

In addition to the eyewitness testimony the State relied upon circumstantial evidence. The appellant was residing in Casper with his family, and they lived in a mobile home some two miles from the crime scene. The appellant was unemployed and out of money. He had collected his last paycheck from his work as a house painter on November 14, 1981, and he still owed his former employer $200, which had been advanced to him early in November of 1981. His wife had qualified for AFDC assistance during the early part of November 1981. His rent of $100 per week on the mobile home was a week in arrears, and the appellant and his wife had been pawning various items in a Casper pawn shop, with the most recent transaction, on December 17, 1981, being an eleven-dollar loan on a circular saw and drill.

Sometime before 1:00 p.m. on December 22, 1981, the appellant's wife paid the past-due rent on the mobile home and the next week's rent in advance, a total of $200. On that same day the appellant left Casper with his family. No one was advised of their departure, and the mobile home was abandoned. Late that afternoon the appellant purchased a used automobile in Rawlins, Wyoming, for $1550, which he paid with fourteen one-hundred-dollar bills and three fifty-dollar bills. He did not trade in his 1970 Plymouth sedan, and actually made the purchase in a fictitious name, which was different from the fictitious name under which he had been living in Casper. The following morning the appellant's wife, also employing a fictitious name, arranged to have the 1970 Plymouth towed to a local garage for repairs. Neither appellant nor his wife made any further contact with the garage about that vehicle in which the family traveled from Casper to Rawlins.

Police officers discovered in a pocket of a vest found in the mobile home a round of .38 caliber ammunition of the kind that an expert testified had killed Vernon Rogers. In the vehicle abandoned in Rawlins an empty box for the same ammunition was discovered. Five more rounds were discovered in the appellant's motel room in Las Vegas, where he ultimately was arrested, and one of those was of the exact type that the expert testified had killed Vernon Rogers. When the 1975 Plymouth Fury, which was purchased in Rawlins, Wyoming, was searched, an orangish multi-colored ski cap and a brown lightweight jacket, which resembled those worn by the assailant, were discovered. After the appellant's arrest the transaction bag with the cash taken from it was found by two Wyoming residents who were returning from Denver, Colorado, with their families. It was located at a site which the appellant would have passed in traveling from Rawlins, Wyoming, to Salt Lake City, Utah. The appellant and his wife at various times had pawned a .38 caliber revolver. An expert witness testified that the round which killed Vernon Rogers could have been fired from a revolver of the type which the appellant and his wife had from time to time pawned. The murder weapon never was recovered.

On January 6, 1982, the appellant was charged by a criminal complaint in the County Court of Natrona County, Wyoming, with two counts of first-degree murder of Vernon Rogers, in violation of § 6-4-101(a), W.S.1977. ¹ Count I charged premeditated murder of Vernon Rogers, and Count II charged the felony murder of Vernon Rogers in the perpetration of a robbery. In Count III the appellant was charged with the armed robbery of Kay Otto in violation of § 6-4-402, W.S.1977. ² A criminal warrant was issued based upon the complaint, and it was executed on March 3, 1982.

The preliminary hearing for the appellant was held on March 18, 1982. He then was bound over for trial in the District Court of the Seventh Judicial District in Natrona County, Wyoming.

The Information was filed in the district court on March 22, 1982, and it charged the same offenses as had been included in the criminal complaint. The appellant was arraigned on March 23, 1982, and he entered pleas of not guilty to all three counts. On April 12, 1982, the appellant filed a series of motions in the district court. One of those was a motion for change of venue, which was granted on October 29, 1982, and the case was tried in Converse County, Wyoming. On September 24, 1982, a Motion for Individual Voir Dire was filed by the appellant in which the only specific claim made was that it was necessary because of extreme pretrial publicity, and that it would be impossible to question jurors individually in front of the entire panel without poisoning the panel as to the past nature of the defendant as reflected in a particular newspaper article. This was followed by a motion on October 1, 1982, filed by the State of Wyoming for individual voir dire examination which was limited to the death-qualifying portion of the jury selection process. The respective motions for individual voir dire...