Hopkinson v. Shillinger, C90-249.

• Citation: 781 F. Supp. 737
• Decision Date: 18 December 1991
• Docket Number: No. C90-249.,C90-249.
• Parties: Mark A. HOPKINSON, Petitioner, v. Duane SHILLINGER, Respondent, and the Attorney General of the State of Wyoming, Additional Respondent.
• Court: U.S. District Court — District of Wyoming

781 F. Supp. 737

Mark A. HOPKINSON, Petitioner, v. Duane SHILLINGER, Respondent, and the Attorney General of the State of Wyoming, Additional Respondent.

No. C90-249.

United States District Court, D. Wyoming.

December 18, 1991.

COPYRIGHT MATERIAL OMITTED

Leonard D. Munker, State Public Defender, Cheyenne, Wyo., Martin J. McClain, Columbia, Mo., Norman A. Newlon, Cheyenne, Wyo., Barbara L. Lauer, Asst. Public Defender, Laramie, Wyo., for Hopkinson.

John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., D. Michael Pauling, Asst. Atty. Gen., Cheyenne, Wyo., for Atty. Gen.

MEMORANDUM OPINION AND ORDER

MATSCH, Judge.^*

This is the second petition for a writ of habeas corpus filed in this court by Mark A. Hopkinson, claiming constitutional error in his convictions of four counts of first degree murder and two counts of conspiracy at a trial in September, 1979, and a sentence to death. Three of the murder convictions were for the deaths of Vincent Vehar, Beverly Vehar and John Vehar, resulting from the bombing of their home on August 7, 1977. The fourth murder conviction was for the killing of Jeffrey Lynn Green on May 18, 1979. The death penalty was imposed for the murder of Jeffrey Green.

The Supreme Court of Wyoming affirmed the convictions but reversed the initial death penalty determination in Hopkinson v. State, ("Hopkinson I") 632 P.2d 79 (Wyo.1981). A second penalty phase trial was held in May, 1982, again resulting in a penalty of death for the murder of Jeffrey Green. That death sentence was affirmed in Hopkinson v. State, ("Hopkinson II"), 664 P.2d 43 (Wyo.1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). The petitioner filed a motion for new trial, which was denied. See Hopkinson v. State, ("Hopkinson III"), 679 P.2d 1008 (Wyo.), cert. denied, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). Thereafter, Hopkinson filed a petition for a writ of habeas corpus in the Wyoming Supreme Court which was denied. State, ex rel. Hopkinson v. District Court, ("Hopkinson IV"), 696 P.2d 54 (Wyo.), cert. denied, 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985). In Hopkinson v. State, ("Hopkinson V"), 704 P.2d 1323 (Wyo.), cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985), the Wyoming Supreme Court affirmed the denial of a sentence reduction and other challenges to the petitioner's sentence. Hopkinson filed a second habeas petition which was denied in Hopkinson v. State, ("Hopkinson VI"), 708 P.2d 46 (Wyo. 1985). Hopkinson filed a request for transcripts of grand jury proceedings which was denied by the district court and affirmed by the state supreme court in Hopkinson v. State, ("Hopkinson VII"), 709 P.2d 406 (Wyo.1985).

Hopkinson's first federal habeas corpus petition under 28 U.S.C. § 2254 was denied in Hopkinson v. Shillinger, ("Hopkinson VIII"), 645 F.Supp. 374 (D.Wyo.1986), supp. opinion, 648 F.Supp. 141 (D.Wyo. 1986). The Tenth Circuit Court of Appeals affirmed on all grounds except it questioned whether there may have been exculpatory evidence revealed in the investigation by a state grand jury of the Vehar and Green murders conducted after the trial. The Tenth Circuit ordered the district court to review, in camera, all of the post-trial grand jury transcripts to determine if they contained any exculpatory information. Hopkinson v. Shillinger, ("Hopkinson IX"), 866 F.2d 1185, 1221 (10th Cir.1989). The Court of Appeals granted rehearing en banc on the Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) issue in the case and again affirmed. See Hopkinson v. Shillinger, ("Hopkinson X"), 888 F.2d 1286 (10th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990). After complying with the order of remand, the district court found that the transcripts of testimony before the grand jury in post trial proceedings did not contain any withheld exculpatory material. Saffels, J., Memorandum and Order, August 15, 1989, p. 2. That order was affirmed by order of the Tenth Circuit. Logan, J., Order, December 1, 1989, p. 2.

On September 10, 1990, petitioner filed his third habeas corpus petition in the Wyoming Supreme Court. That court denied the petition on September 21, 1990. Hopkinson v. State, ("Hopkinson XI"), 798 P.2d 1186 (Wyo.1990).

On September 21, 1990, Hopkinson filed this petition for writ of habeas corpus raising five claims of constitutional error. The petitioner contends that the second penalty phase court failed to instruct the jury appropriately on the factual prerequisites required for two of the aggravating circumstances found by the jury: that the murder of Jeffrey Green was "heinous, atrocious, or cruel" and that the murder was committed for pecuniary gain. The challenge to the instructions concerning the "heinous, atrocious, or cruel" circumstance was considered and rejected in Hopkinson VIII, 645 F.Supp. at 402; see also Hopkinson IX, 866 F.2d at 1214-17, and therefore must be dismissed under Rule 9(b) of the Rules Governing Section 2254 Cases. The petitioner's claim regarding the pecuniary gain circumstance was considered and rejected by the Wyoming Supreme Court in Hopkinson II, 664 P.2d at 74. It is dismissed here as legally insufficient under Rule 4 of the applicable rules. The petitioner also argues that the second penalty phase court improperly allowed victim impact evidence, and that Wyoming's selection of lethal injection as the method of execution of a death sentence violates his right to due process and will subject him to cruel and unusual punishment. These claims are also legally insufficient and are dismissed under Rule 4 of the governing rules.

There are two remaining claims to be considered by this court. The first is the petitioner's claim that the second penalty phase jury was precluded from adequately considering mitigating circumstances in imposing petitioner's death sentence in violation of the Eighth Amendment to the United States Constitution under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). This issue was raised for the first time in Hopkinson XI, 798 P.2d 1186. The Wyoming Supreme Court rejected the argument, concluding, without explanation, that these cases were distinguishable and not applicable. The second is the petitioner's claim that he was denied due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on the cumulative effect of allegedly exculpatory evidence withheld by the prosecution. While a similar claim was considered and rejected in Hopkinson VIII and Hopkinson IX, additional information was discovered by the petitioner since the first federal habeas petition was filed.

The Jury Instruction Issue

At the second penalty phase trial, the jury was instructed that the verdict must be unanimous and must represent the considered judgment of each juror. Jury Instruction # 5 read as follows:

INSTRUCTION NO. 5

In determining which penalty is to be imposed on the defendant you shall consider the evidence which has been presented to you. You shall consider, take into account and be guided by the following circumstances if applicable:

The first such circumstances are called "aggravating circumstances" and in this case are limited to the following:

1. The murder was committed by a person under sentence of imprisonment.

2. The defendant was previously convicted of another murder in the first degree.

3. The murder was committed for the purpose of avoiding or preventing a lawful arrest.

4. The murder was committed for pecuniary gain.

5. The murder was especially heinous, atrocious or cruel.

The other circumstances are called "mitigating circumstances." They are as follows:

1. The defendant has no significant history of prior criminal activity.

2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.

3. The victim was a participant in the defendant's conduct, or consented to the act.

4. The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.

5. The defendant acted under extreme duress or under the substantial domination of another person.

6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

7. The age of the defendant at the time of the crime.

8. Any other circumstances deemed to be mitigating.

The jury was told that aggravating circumstances must be found beyond a reasonable doubt, but that mitigating circumstances need not be proved beyond a reasonable doubt. The verdict form called for a "yes" or "no" response to each of the aggravating and mitigating circumstances listed in Instruction # 5. The court in its instructions and on the verdict form permitted the jury to find other mitigating circumstances.

During deliberations, the jury sent the following note to the court:

Questions to the court

1. Will you require a copy of "findings and recommendations of sentence" from each juror?

2. Does the jury have to be unanimous as to findings of fact for each aggravating or mitigating circumstance?

Note: We recognize a death verdict requires a unanimous vote and only one aggravating circumstance is required; is it possible for different jurors to feel strongly about different circumstances as the basis for their decision?

The court and counsel discussed the note in the presence of the defendant. All agreed that the law required unanimous findings. The defendant and his counsel did not object to the following response from the court:

Each juror was furnished with a copy of the findings and recommendation of sentence merely for their

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