Hopkinson v. Shillinger, 86-2571

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLOGAN
Citation866 F.2d 1185
Parties27 Fed. R. Evid. Serv. 919 Mark A. HOPKINSON, Petitioner-Appellant, v. Duane SHILLINGER, and the Attorney General of the State of Wyoming, Respondents-Appellees.
Docket NumberNo. 86-2571,86-2571
Decision Date23 January 1989

Page 1185

866 F.2d 1185
27 Fed. R. Evid. Serv. 919
Mark A. HOPKINSON, Petitioner-Appellant,
Duane SHILLINGER, and the Attorney General of the State of
Wyoming, Respondents-Appellees.
No. 86-2571.
United States Court of Appeals,
Tenth Circuit.
Jan. 23, 1989.
Rehearing Denied Dec. 1, 1989.

Page 1191

Daniel J. Sears, Denver, Colo. (Leonard D. Munker, Public Defender, and Martin J. McClain, Asst. Public Defender, State of Wyo., Cheyenne, Wyo., with him, on the briefs), for petitioner-appellant.

Terry L. Armitage, Asst. Atty. Gen. (Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., with him, on the brief), State of Wyo., Cheyenne, Wyo., for respondents-appellees.

Before LOGAN and ANDERSON, Circuit Judges, and CONWAY, District Judge. *

LOGAN, Circuit Judge, delivering the opinion of the Court as to Parts I through VII.


Mark A. Hopkinson appeals from the summary dismissal of his petition for a writ of habeas corpus in which he challenged

Page 1192

his convictions for first-degree murder and his sentence of death, Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986) (Hopkinson VIII ), and the summary denial of his motion to compel disclosure of certain FBI files, filed pursuant to 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 of first-degree murder and two counts of conspiracy to commit first-degree murder. The first three counts of murder arose out of his hiring Michael Hickey to bomb Vincent Vehar's home. That bombing killed Vehar, Vehar's wife and one of his sons; another son was injured in the blast but survived. The fourth murder count was for procuring the killing of Jeff Green. Hopkinson was sentenced to life imprisonment for each of the Vehar murders, and to death for the murder of Green. See Hopkinson v. State, 632 P.2d 79, 97 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) (Hopkinson I ). Hopkinson was also convicted in the same trial of conspiracy with Harold James Taylor to commit the first-degree murder of Vehar and conspiracy with Hickey to commit the first-degree murder of William Roitz.

Hopkinson appealed to the Wyoming Supreme Court, which affirmed each of the convictions but vacated the death sentence and ordered a new sentencing trial for the Green murder. Id. at 172. At the second sentencing trial, Hopkinson was again sentenced to death. He appealed to the Wyoming Supreme Court, which this time affirmed the sentence. Hopkinson v. State, 664 P.2d 43 (Wyo.), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (Hopkinson II ). He also filed a number of post-trial motions in the Wyoming courts, all of which have been denied. 1

Hopkinson presents the following arguments for invalidating his murder convictions: (1) the introduction of evidence of prior crimes, wrongs or bad acts denied him a fair trial; (2) the introduction of Green's and Vehar's out-of-court statements violated his constitutional rights to confrontation and cross-examination; (3) he was denied effective assistance of counsel; (4) prosecutorial misconduct in closing argument denied him a fair trial; (5) the trial atmosphere violated his due process rights; and (6) the prosecution's suppression of exculpatory evidence denied him due process.

Hopkinson argues that we should invalidate the death sentence imposed in the second sentencing proceeding on the following grounds: (1) the "especially heinous, atrocious or cruel" aggravating circumstance was applied unconstitutionally; (2) the prosecutor's argument violated the rule of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (3) the conduct of the penalty hearing permitted the jury to impose the death penalty in an arbitrary and capricious manner and violated his right to due process; (4) he was denied effective assistance of counsel;

Page 1193

(5) adverse publicity generated by the prosecutor shortly before the hearing denied him a fair trial; and (6) the prosecution's knowing use of false testimony violated due process.

Hopkinson also asserts that Wyoming's procedures for postconviction relief are invalid under the Fourteenth Amendment. Finally, he appeals the summary dismissal of his Freedom of Information Act request for certain FBI files.


The Facts

The following briefly summarizes the principal evidence produced by the prosecution at the guilt phase of Hopkinson's trial. Hopkinson did not testify at the trial, and, at his direction, the defense put on no evidence. VIII-M R. 1690-95.

A. The Vehar Murders

In December 1975, Hopkinson requested the Fort Bridger, Wyoming, Sewer and Water Board to annex a trailer court owned by his family, then under construction, to the Fort Bridger Sewer District and to hook the entire trailer court onto the district's sewer lines for the usual $100 hookup fee. VIII-D R. 96. Vincent Vehar, the board's attorney, advised the board that $100 was inadequate payment for connecting the entire trailer court onto the sewer. Id. at 97, 100-01. Before the board took any official action on the request, a petition which Vehar drafted, id. at 234-35, and which ninety-five percent of the district's membership signed, was presented to the board, requesting it to increase Hopkinson's connection fee. Id. at 235, 257-58. After conducting several public hearings, the board entered into a contract with Hopkinson providing for the annexation of his property to the district and requiring the payment of $300 for each trailer connected, for a total of $12,300. Id. at 106. Pursuant to the contract Hopkinson agreed to pay the connection fee in installments, id. at 115, and to pay a monthly service fee of $120, id. at 238.

Hopkinson connected the trailer court to the sewer but then refused to pay amounts owing under the contract. Id. at 199-200; VIII-E R. at 339-41. The board, represented by Vehar, decided to sue him. This lawsuit, filed on January 28, 1977, sought the $12,300 fee, plus additional monies for legal and engineering costs incurred in connecting the trailer park to the system. VIII-D R. at 115-17. The suit also sought $1,000 actual damages and $50,000 punitive damages for threats Hopkinson allegedly made against the board members to convince them to disavow the contract. Id. at 129. 2 Once the suit was filed, Vehar withdrew from the case because he anticipated being called as a witness. Id. at 105. His associate, John Troughton, replaced him. Id.

On August 1, 1977, the board met to discuss the lawsuit and to assist Troughton in preparing for Hopkinson's deposition. VIII-E R. 280-81. Hopkinson attended part of this meeting and repeatedly asked the board to fire Vehar and to submit the dispute to arbitration. Id. at 286-87, 301-02. The board decided, however, to maintain the lawsuit. On August 3, Troughton sent notice to Hopkinson's attorney that he would depose Hopkinson on August 9 in connection with the sewer board's lawsuit. VIII-D R. 118-21.

At approximately 3:35 a.m. on August 7, an explosion destroyed Vehar's home and killed Vehar, his wife, and his younger son. Another son, Tony, was injured in the blast but survived. An investigation by the federal Bureau of Alcohol, Tobacco and Firearms

Page 1194

revealed that a dynamite bomb caused the explosion. VIII-H R. 1326. A few days later, Hopkinson told a sewer board member, "I'm glad the old son-of-a-bitch [Vehar] is dead. If somebody wouldn't have done it, I would have done it myself." VIII-E R. 367.

Nearly two years later, in 1979, Michael Hickey confessed to bombing the Vehars' home. Testifying at trial under a grant of immunity, 3 Hickey stated that Hopkinson first asked him in early 1977 whether he would kill Vehar for $2,000 plus expenses. VIII-G R. at 916. Hopkinson knew at that time that Hickey had killed a local fifteen-year-old girl, Kelly Wyckhuyse. Id. at 913-15. Over a period of several months, the two discussed various methods of accomplishing Vehar's murder. Id. at 917-29. As the deposition in the sewer board case neared, Hickey testified that Hopkinson became "desperate," id. at 930, and decided that a dynamite explosion of Vehar's house would be the best way to kill Vehar, id. at 930-33, 971-72. Hickey agreed to bomb the house for the offered sum plus Hopkinson's help should Hickey be charged for Wyckhuyse's murder. Id. at 932. Hopkinson told Hickey that he did not care if the bomb killed everyone in the house, id. at 932, 971, 987, or if it killed half of Evanston, Wyoming, VIII-H R. 1231, so long as it killed Vehar.

On August 6, Hickey saw Hopkinson outside a clothing store Hopkinson operated. Hopkinson told him repeatedly that he wanted Vehar killed that night. VIII-G R. at 969-70, 976. Hickey went to a local bar that evening and stayed there until approximately 1:30 a.m. After the bar closed, he spent approximately an hour with a woman who had been at the bar. Id. at 1007. He then went to his girlfriend's house, id. at 1029-30; finding that she was not home, he left for Evanston, where Vehar lived.

Upon arriving in Evanston, he cased the Vehar home. Id. at 1015-18. He then threw a bomb, which contained approximately thirty sticks of dynamite, id. at 1071, into the basement of the house, id. at 1022-23. After throwing the bomb, Hickey immediately headed back to the Bridger Valley. In Hickey's words, he bombed the Vehar home that night because "Mark Hopkinson was going to pay me and he just kept after and kept after me, finally I just did it to get him off my back." Id. at 1034.

Hopkinson told Hickey that they should not be seen together after the bombing, so Hickey rarely went to see Hopkinson. VIII-H R. 1132-33; VIII-J R. 1023. Hickey did show up occasionally to collect for the killing, however. According to Hickey, Hopkinson...

To continue reading

Request your trial
178 practice notes
  • Frazier v. Mitchell, No. 1:98CV2098.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 5 Enero 2001
    ...other, and [were] in turn supported by other evidence," so they could be viewed as trustworthy. Id.; see also Hopkinson v. Shillinger, 866 F.2d 1185, 1201, rev'd on other grounds, 888 F.2d 1286 (10th Cir.1989) (victim's out-of-court statements, about which five other witnesses testified, th......
  • Richie v. Sirmons, No. 98-CV-482-TCK-SAJ.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • 21 Mayo 2008
    ...(10th Cir.1998). Petitioner attacks a proceeding collateral to his detention and not on the detention itself. Hopkinson v. Shillinger, 866 F.2d 1185, 1219 (10th Cir.1989), overruled on other grounds by Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). This Court's role ......
  • Cargle v. Mullin, No. 01-6027.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 27 Enero 2003
    ...689, 701-02 (6th Cir.2000) (quoting United States v. Bess, 593 F.2d 749, 754 (6th Cir.1979) (collecting cases)); Hopkinson v. Shillinger, 866 F.2d 1185, 1209 (10th Cir.) (such suggestions are "particularly egregious"), aff'd 888 F.2d 1286 (10th Cir. 1989) (en banc), overruling on other grou......
  • Hopkinson v. Shillinger, 86-2571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 24 Octubre 1989
    ...court on virtually all issues, and affirmed with one dissent on the subject matter of this en banc review. Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), reh'g granted, March 23, 1989. The court thereafter agreed to consider en banc whether certain remarks by the prosecutor in the ......
  • Request a trial to view additional results
173 cases
  • Holmes v. Marriott Corp., No. 4-92-CV-30004.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 31 Agosto 1993
    ...of stray remarks in the workplace." Id. at 280, 109 S.Ct. at 1806. 7 In Samarzia v. Clark County, 859 F.2d 88, 91 (9th Cir.1988), am., 866 F.2d 1185 (1989), the court held that supervisory and co-worker references to plaintiff as the "senile" intake officer constituted evidence of intention......
  • People v. Gonzalez, Nos. S004384
    • United States
    • United States State Supreme Court (California)
    • 3 Diciembre 1990
    ...v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116, 222 Cal.Rptr. 556.) The decision of the Tenth Circuit in Hopkinson v. Shillinger (1989) 866 F.2d 1185, 1220-1221, demonstrates the power of a court in somewhat similar circumstances to grant discovery despite the absence of a pending action. In......
  • Duvall v. Reynolds, Nos. 96-6329
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 10 Diciembre 1997
    ...outweighed by the prejudice flowing from its admission that the admission denies defendant due process of law." Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th At trial, the prosecution introduced evidence of Mr. Duvall's prior acts of violence towards Karla in order to rebut Mr. Duvall'......
  • Davis v. Roberts, No. 12-3075-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 7 Mayo 2014
    ...relief, as federal habeas courts do not address alleged errors of state law. Estelle, 502 U.S. at 67-68. See Hopkinson v. Shillinger, 866 F.2d 1185, 1218-19 (10th Cir. 1989).Evidentiary Hearing The court finds no need for an evidentiary hearing. ("[A]n evidentiary hearing is unnecessary if ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT