Harlow v. State, No. 99-58

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: GOLDEN, Justice.
• Citation: 70 P.3d 179,2003 WY 47
• Parties: James Martin HARLOW, Appellant (Defendant), v. The STATE Of Wyoming, Appellee (Plaintiff). James Martin Harlow, Appellant (Defendant), v. The State Of Wyoming, Appellee (Plaintiff). James Martin Harlow, Appellant (Defendant), v. The State Of Wyoming, Appellee (Plaintiff).
• Decision Date: 14 April 2003
• Docket Number: No. 99-60., No. 99-58, No. 99-59

70 P.3d 179
2003 WY 47

James Martin HARLOW, Appellant (Defendant),
v.
The STATE Of Wyoming, Appellee (Plaintiff).
James Martin Harlow, Appellant (Defendant),
v.
The State Of Wyoming, Appellee (Plaintiff).
James Martin Harlow, Appellant (Defendant),
v.
The State Of Wyoming, Appellee (Plaintiff)

Nos. 99-58, 99-59, 99-60.

Supreme Court of Wyoming.

April 14, 2003.

Rehearing Denied May 20, 2003.

Order Staying Execution of Sentence May 29, 2003.

70 P.3d 182

Tim Newcomb of Grant & Newcomb, Laramie, Wyoming, Representing Appellant

Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Hugh Kenny, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General, Representing Appellee. Argument by Ms. Baker.

Before GOLDEN, LEHMAN¹, and MACY (Retired), JJ., and SULLINS, D.J.

TABLE OF CONTENTS Opening ¶¶ 1-6 Issues ¶ 7 Facts ¶¶ 8-14 Discussion I. Voir Dire ¶¶ 15-24 II. Denial of Motion to Suppress ¶¶ 25-37

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III. Victim Impact Testimony ¶¶ 38-57 IV. Denial of Post-Trial Motions ¶¶ 58-68 V. Denial of Motion to Supplement Appellate Record ¶¶ 69-74 VI. Proportionality Contentions ¶¶ 75-82 VII. Constitutionality of Death Penalty Statute ¶ 83 VIII. Denial of Post-Trial Motions Regarding 1988 Murder Conviction ¶¶ 84-87 IX. Cumulative Error ¶¶ 88-90

Appendix A

Appendix B

GOLDEN, Justice.

[¶ 1] In accordance with Wyo. Stat. Ann. § 6-2-103 (Michie 1997), this is an appeal from convictions of capital murder charged under Wyo. Stat. Ann. § 6-2-101(a) (Michie 1997) and a sentence of death imposed under Wyo. Stat. Ann. § 6-2-102 (Michie 1997), following a jury trial and sentencing proceeding. James Martin Harlow, an inmate at the Wyoming State Penitentiary near Rawlins, Wyoming, was charged with and convicted of both premeditated murder and felony murder² in the killing of Corporal Wayne Martinez, a prison officer, during an effort by Harlow and two other prisoners to escape from the penitentiary.

[¶ 2] Harlow also was charged with and convicted of one count of attempting to escape from official detention and one count of conspiring to escape from official detention,³ but those charges are not involved in this appeal.

[¶ 3] The convictions of both premeditated murder and felony murder were merged for purposes of sentencing, and Harlow now appeals from those convictions and the sentence of death that was imposed by the jury. He enumerates thirteen errors in this appeal. The novel contentions he presents concern his claims of error in connection with jury voir dire; the admission of victim impact statements at the sentencing proceeding; and the application of principles of culpability and proportionality to a capital sentence in his case. He raises other issues relating to

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the admission into evidence of his recorded statement made to law enforcement investigators; the assistance given to the trial judge by a death penalty law clerk; the denial of a post-trial evidentiary hearing with respect to a convict who testified at trial; the constitutionality of the death penalty statute; and the denial of a motion to supplement the record with related records in connection with his prior conviction of murder

[¶ 4] In addition to considering the specific error asserted by Harlow, this court has also considered the punishment. § 6-2-103(c). With regard to the sentence, this court has considered (1) whether the jury imposed the sentence of death under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the jury's finding of an aggravating circumstance and mitigating circumstances is supported by the evidence. § 6-2-103(d)(i) and (ii).

[¶ 5] This court's review of Harlow's enumerated errors and the sentence in light of the entire record, the evidence, and the pertinent legal authority has failed to disclose any reversible error in connection with Harlow's trial and sentencing proceeding. This court, therefore, affirms the judgment and sentence entered in this case. We herewith remand this case to the trial court for the limited purposes of vacating the suspension of the sentence of death and setting of a specific date for execution of that sentence of death.

[¶ 6] From this court's study of death penalty jurisprudence, this court acutely appreciates that a capital case, by its very nature, requires of a reviewing court the most meticulous and thoughtful consideration and deliberation of the issues presented. In fulfilling that requirement in this case, the members of this court have had divergent views concerning the resolution of some of the many difficult issues presented and have expended substantial amounts of time working through those divergent views to achieve agreement on the resolution and the reasoning supporting the resolution of these issues. In light of the requirement of meticulous and thoughtful consideration and deliberation, the working through of divergent views to achieve agreement on resolution of issues, the unique set of appellate responsibilities conferred by the legislature upon this court, the errors enumerated in this appeal, the parties' extensive briefing of the issues underlying these enumerated errors, and the caution that the punishment of death is different, Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring), this court has taken considerable time to reach its decision in this case and in another capital case submitted for review before this one and which is also decided today. See Olsen v. State, 2003 WY 46, 67 P.3d 536 (2003). Although the time to reach decision has been considerable, it has been necessary and unavoidable for the reasons stated.

ISSUES

[¶ 7] This statement of the issues is found in Harlow's brief:

ISSUE ONE

Did the trial court violate Appellant's right to a fair trial and to due process of law under the 6th and 14th Amendments of the United States Constitution by conducting a constitutionally inadequate "challenge for cause" voir dire?

ISSUE TWO

Did the trial court violate Appellant's right to due process under the 14th Amendment of the United States Constitution when he was denied his state-created liberty interest in "challenges for cause" in a capital case?

ISSUE THREE

Did the trial court violate Appellant's right to due process and equal protection under the Wyoming Constitution when the trial court denied him his statutory right to challenge for cause any potential juror whose views would "prevent or substantially impair" consideration of a life sentence following a conviction for murder?

ISSUE FOUR

Did the admission at trial of Appellant's recorded statement, obtained in violation

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of his state-created liberty interest in the right to counsel, violate his 14th Amendment right to due process?

ISSUE FIVE

Did the admission at trial of Appellant's recorded statement, obtained in violation [of] his right to counsel upon request, violate his rights under Art. 1, §§ 2, 3, 6, and 7 rights of the Wyoming Constitution?

ISSUE SIX

Did the trial court violate Appellant's rights under the United States and Wyoming Constitutions in admitting victim impact statements at his capital sentencing?

ISSUE SEVEN

Did the denial of a requested evidentiary hearing regarding inmate Wayne Sanchez and Death Penalty Law Clerk Allen Johnson violate Appellant's rights under the United States and Wyoming Constitutions?

ISSUE EIGHT

Did this Court's reliance on the partial transcript in State v. Dowdell, while denying Appellant's motion for an evidentiary hearing regarding inmate Wayne Sanchez, violate his rights under the United States and Wyoming Constitutions?

ISSUE NINE

Did Allen Johnson's role during and his influence on Appellant's trial, while being supervised by this Court, violate Appellant's rights under the United States and Wyoming Constitutions?

ISSUE TEN

Did Appellant's sentence of death violate culpability and proportionality principles under the United States and Wyoming Constitutions?

ISSUE ELEVEN

Does the Wyoming death penalty statute violate the United States and Wyoming Constitutions?

ISSUE TWELVE

Did the denial of Appellant's motion to supplement the record with the related records in James Harlow v. Wyoming (Sup.Ct.# 98-276) and James Harlow v. Vance Everett (Sup.Ct.# 98-272), violate his rights under the United States and Wyoming Constitutions?

ISSUE THIRTEEN

Did cumulative error violate Appellant's right to due process?

This statement of the issues is found in the State's brief:

I. Whether the trial court conducted constitutionally and statutorily adequate voir dire?

II. Whether the trial court erred in refusing to suppress Appellant's statements to law enforcement?

III. Whether the trial court properly allowed victim impact statements to be read during the penalty phase?

IV. Whether Appellant has shown that the denial of an evidentiary hearing was improper?

V. Whether Appellant's death sentence is proportionate to his level of criminal culpability in the murder of Corporal Wayne Martinez?

VI. Whether Wyo. Stat. § 6-2-102 is unconstitutional?

VII. Whether the post-trial motions filed by Appellant in an effort to supplement the record in this appeal were properly denied?

VIII. Whether cumulative error deprived appellant of a fair trial?

FACTS

[¶ 8] On the morning of June 26, 1997, Harlow was a maximum-security inmate at the Wyoming State Penitentiary, as were Bryan Collins and Richard Dowdell. The three had decided to escape, and formed a plan to attack the officer in shift command, whom they believed would be a particular sergeant, kill him and commandeer a vehicle.

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Harlow knew that Dowdell and Collins were carrying homemade shanks, and because he believed those weapons were insufficient to accomplish their goal, he retrieved a knife that he had...