Hopkinson v. Shillinger
| Decision Date | 14 October 1986 |
| Docket Number | Civ. A. No. C85-0483-S. |
| Parties | Mark A. HOPKINSON, Petitioner, v. Duane SHILLINGER and the Attorney General of the State of Wyoming, Respondent. |
| Court | U.S. District Court — District of Wyoming |
Leonard D. Munker, Cheyenne, Wyo., for petitioner.
A.G. McClintock, Wyoming Atty. Gen., Richard Stacy, U.S. Atty., Cheyenne, Wyo., for respondent.
This matter is before the court on petitioner's motion for reconsideration of the Court's Memorandum and Order filed on August 4, 1986, 645 F.Supp. 374, dismissing the petition for writ of habeas corpus. Other than an unsupported narration of what petitioner contends took place, the petitioner has raised only a few grounds for reconsideration. Alternatively, the petitioner requests an evidentiary hearing to exonerate himself. The court will address each of the petitioner's arguments in order.
The first argument relates to the court's finding that the prosecution's failure to provide Appendix K to the defense prior to trial should be considered reversible error. The petitioner contends that instead of affirming, the court should have ordered full disclosure of all documentation regarding the matters mentioned in Appendix K. The court must disagree.
As stated in its Memorandum and Order dated August 4, 1986, after reviewing the exhibit in light of the petitioner's assertions, the court concludes that this evidence would not have affected the outcome of the trial. The court specifically stated that the court could not stretch the significance of Appendix K in light of the abundance of evidence existing at trial to confirm petitioner's guilt. The court notes that the record before it in making its ruling on August 4, 1986, was substantial and comprehensive. In reviewing the record before it at that time, the court could not conclude that Appendix K would have created a reasonable probability that the result at trial would have been different. The court has again reviewed Appendix K and finds that in light of the substantial amount of evidence against the petitioner, as evidenced by the record, that the petitioner's right of due process was not violated by the court's ruling. In conclusion, under the standards enumerated in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (U.S.1985), the court finds that Appendix K was not material to the outcome of the trial, in that there was not a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 3382.
The second argument raised by the petitioner relates to the Alcohol, Tobacco and Firearm reports which were attached to the grand jury testimony of Jim Taylor. Petitioner claims the reports were exculpatory in that they impeached the trial testimony of Jim Taylor. The petitioner contends that these ATF reports are just as significant as the grand jury transcript of Jim Taylor, the suppression of which this court indicated would have been reversible error. The court must disagree. After reviewing the ATF reports, the court finds that the statements made on those reports would not have affected the outcome of the trial, especially in light of the fact that the defense did have the grand jury testimony of Mr. Taylor prior to trial. The court is aware that the ATF reports would fall within the ambit of No. 2 of petitioner's pre-trial motions requesting statements by any person exculpating the defendant or statements which could be used for impeaching a witness.
Upon a review of the ATF reports, the court finds that the reports, when read together, do not exculpate Hopkinson or impeach Taylor. On July 20, 1978, Harold Jim Taylor gave his statement to a special agent of the Department of Alcohol, Tobacco and Firearms, which stated that Mark Hopkinson at no time offered Mr. Taylor any money to intimidate, shoot or bomb Vince Vehar. On July 25, 1978, however, Taylor contacted the ATF office and said that he had not told the truth on July 20th because he feared for the life of his children. He recanted his earlier statement saying that in December of 1976, Mark Hopkinson offered him $800 to beat up an attorney, Vincent Vehar, in Evanston.
Clearly, the failure of the prosecution to provide these ATF reports to the defense prior to trial cannot be found to be reversible error. The court finds that the strength of the petitioner's argument is negated by the fact that the defense had the grand jury testimony and used said grand jury transcript in cross-examination of Harold Taylor at trial. The court therefore finds that the failure of the prosecution to give said ATF reports to the petitioner prior to trial was not of sufficient significance to deprive the petitioner of due process. The court also finds that the court's review of the petitioner's pre-trial motion for exculpatory material and extensive examination of the evidence in the record and submitted on review, supports the court's ruling that there was no good cause which existed to warrant the granting of an in camera inspection of all other grand jury material or to authorize a "fishing expedition."
The petitioner's motion for reconsideration also addresses the hearsay evidence of Dorothy Price. The petitioner contends that the decision in Delaware v. Van Arsdall, ___ U.S. ___, 106 S.Ct. 1431, 89 L.Ed.2d 674 (U.S.1986) mandates that the hearsay evidence of Dorothy Price, along with the failure of the prosecution to disclose Appendix K, should be considered to be equivalent to the admission of perjured testimony. As such, petitioner contends that it would have had significant impact on the outcome of the trial.
Upon a review of Dorothy Price's testimony and Appendix K, the court finds that the contents of the two taken together are not equivalent to the admission of perjured testimony. While the court recognizes that Appendix K could have been used to go to the weight of Dorothy Price's testimony, the inherent vagueness of her statement in light of all the other corroborating evidence pertaining to Mr. Vehar's fear of the petitioner, dictates that the error was harmless.
Even if the court would go one step further and find that the failure of the prosecution to disclose Appendix K taken with the testimony of Dorothy Price was to be considered perjured testimony, under the factors enunciated in Delaware v. Van Arsdall, the error would still be considered harmless. In Delaware v. Van Arsdall, the United States Supreme Court held that the improper denial of a defendant's opportunity to impeach a witness for bias is subject to the harmless-error analysis. Under that analysis, the key inquiry is whether, "assuming that the damaging potential of the cross-examination were fully realized, a review in court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. at ___, 106 S.Ct. at 1437.
The Supreme Court enunciated the factors to be considered in making said determination. These factors include: the importance of the witnesses' testimony in the prosecution's case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; the extent of cross-examination otherwise permitted; and, of course, the overall strength of the prosecution's case. Id. The court finds that Dorothy Price's testimony was not crucial to the prosecution's case in light of all of the other corroborating evidence. The court further finds that the overall strength of the prosecution's case supports a finding that the error was harmless beyond a reasonable doubt.
The petitioner also contends that based on the court's earlier finding that petitioner had not exhausted his state remedies, petitioner should be given the option of dismissing the entire petition without prejudice and going back into state court or waiving the issue not exhausted. The court finds this argument to be meritless. In its Memorandum and Order filed on August 4, 1986, the court found that Issue No. XIX was moot because the manner of execution in Wyoming has been changed to legal injection since petitioner's second sentencing hearing. Thus petitioner's assertion that the court's refusal to permit him the opportunity to present evidence of the cruelty of the manner of...
To continue reading
Request your trial
-
Hopkinson v. Shillinger
...the Freedom of Information Act, 5 U.S.C. Sec. 552. The district court denied Hopkinson's motions for reconsideration. Hopkinson v. Shillinger, 648 F.Supp. 141 (D.Wyo.1986). The odyssey of this case began in Wyoming state court in 1979 where Hopkinson was tried and convicted on four counts o......
-
Hence v. Smith
...person besides Gallagher may have ordered Sommers' killing does not negate petitioner's guilt in this matter. In Hopkinson v. Shillinger, 648 F.Supp. 141, 143 (D.Wyo.1986); aff'd 866 F.2d 1185 (10th Cir.1989); cert. den. 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990), the U.S. Distri......
-
State v. Fain
... ... As a general rule, results of polygraph examinations are inadmissible absent a stipulation by both parties. Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986) reh'g den. 648 F.Supp. 141; Wilkie v. State, 715 P.2d 1199 (Alaska Ct.App.1986); State v. Sanford, 237 ... ...
-
Pena v. State
...Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Hopkinson v. Shillinger, 648 F.Supp. 141 (D.Wyo.1986), aff'd in part and rev'd in part 866 F.2d 1185 (10th Cir.1989); Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986). The cour......