Hopkinson v. State

• Citation: 704 P.2d 1323
• Decision Date: 23 August 1985
• Docket Number: No. 85-132,85-132
• Parties: Mark A. HOPKINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1323

704 P.2d 1323

Mark A. HOPKINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-132.

Supreme Court of Wyoming.

Aug. 23, 1985.

Leonard D. Munker, State Public Defender, and Martin J. McClain, Appellate Counsel Wyo. Public Defender Program, for appellant.

Allen C. Johnson, Senior Asst. Atty. Gen., for appellee.

Before THOMAS, C.J., ROSE and CARDINE, JJ., RAPER, J., Retired, and JOHNSON, D.J.

PER CURIAM.

This is the fifth time appellant Mark A. Hopkinson has been to this Court seeking to vacate his convictions or death sentence. For future reference, the instant appeal will be known as Hopkinson V. Citations to previous appeals and proceedings are Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) [Hopkinson I ]; Hopkinson v. State, Wyo., 664 P.2d 43, cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) [Hopkinson II]; Hopkinson v. State, Wyo., 679 P.2d 1008, cert. denied 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984) [Hopkinson III]; and State ex rel. Hopkinson v. District Court, Teton County, Wyo., 696 P.2d 54 (1985) (petition for writ of certiorari mailed June 11, 1985) [Hopkinson IV]. The facts of appellant's guilt and culpability for four murders and the aggravating circumstances justifying the death sentence for the murder of Jeff Green, along with supporting references to the record, can be found in considerable detail in those cases.

In the last appeal, Hopkinson IV, this Court affirmed the district court's denial of post-conviction relief and directed the trial judge by appropriate proceedings, "to set a new date for appellant's execution." The trial judge set a date for proceedings to fix a new date for execution. The proceedings for fixing a new date of execution were held on the 17th day of May, 1985. At those proceedings, appellant's counsel orally argued a written motion for reduction of sentence pursuant to Rule 36, W.R.Cr.P., ¹ which had been filed on May 13, 1985. The motion was denied in open court at such proceedings. The district judge set the date of execution for June 18, 1985.

The district judge, also in open court, denied an oral motion for stay of execution, "pending any further appellate work we intend to do in this case." The State was directed to prepare the necessary instruments for the judge's signature. A written "Judgment and Sentence" and other orders to confirm the court's pronouncement of an execution date, denial of a reduction in sentence to life imprisonment, and the oral motion for stay of execution were filed with and entered by the clerk of court on May 23, 1985.

On May 30, 1985, appellant filed a timely notice of appeal from the order denying sentence reduction dated May 17, 1985, and the order denying stay of execution dated May 22, 1985 (these are the orders entered by the clerk of court on May 23, 1985). The record also shows that on May 23, 1985, appellant's counsel signed and mailed another motion for stay of execution. This motion was mailed on May 23, 1985, to the trial judge (not the clerk of court), and ultimately was apparently filed by the judge with the clerk of court on May 28, 1985. On May 28, 1985, the district court denied this stay by written order and the clerk of court entered the order on May 29, 1985. Neither this order nor the "Judgment and Sentence" has been appealed.

On June 7, 1985, appellant filed a motion in this Court for stay or for an order declaring the sentence of death void. On June 10, 1985, the State filed a memorandum brief in opposition to such motion. On June 12, 1985, this Court entered an order staying execution until 15 days after the mandate shall issue to the district court, which order also provided for an accelerated briefing schedule and set July 22, 1985, for oral argument.

The issues are:

1. Can the district court reduce a sentence of death to life imprisonment?

2. Is the fixing of a new date for execution in a death case, following a stay prompted by the appellate process, a "sentence" within the purview of Rules 33 and 36, W.R.Cr.P., and the word "sentenced" in § 7-13-907, W.S.? ²

3. Should this Court fix a date of execution at this time?

4. Should the district court have stayed the execution?

5. Should the trial judge be removed because of bias and prejudice? ³

We will affirm the district court's denial of reduction of sentence and stay execution until disposition of appellant's petition for certiorari pending before the Supreme Court of the United States. This action does not vacate this Court's order staying execution until a specified day after the mandate shall issue to the district court, if the petition for certiorari is denied prior to that date. We will, however, modify that June 12, 1985, stay order to 30 days, rather than 15 days.

I

This Court has held that the denial of a motion for sentence reduction is a final appealable order. Williams v. State, Wyo., 692 P.2d 233 (1984); Fortin v. State, Wyo., 622 P.2d 418 (1981); Jones v. State, Wyo., 602 P.2d 378 (1979); Montez v. State, Wyo., 592 P.2d 1153 (1979). It was on this basis that the June 12, 1985, order of this Court staying execution was entered. Rule 2.11.1, W.R.A.P., provides that "[a] sentence of death shall be stayed pending appeal." We will hold that the district court did not err in denying the motion for sentence reduction, because it was without jurisdiction to do so under the circumstances of this case.

Generally, the trial court may fix a punishment within "the limits prescribed by law." Section 6-10-104, W.S. For a first-degree murder conviction, § 6-2-102(f), W.S., specifically provides that "[w]here a recommendation of death is made [by the jury], the court shall sentence the defendant to death." (Bracketed material added.) Creation of a specific mode of exercising a power excludes all others and where a special provision is made by statute, it prevails over the general. The Town of Worland v. Odell and Johnson, 79 Wyo. 1, 329 P.2d 797 (1958). "Shall" indicates a mandatory intent. Mayland v. State, Wyo., 568 P.2d 897 (1977). The clear, mandatory language leaves no discretion with the trial judge to reduce the penalty of death to life imprisonment. Courts have no right to make law contrary to mandatory statutes of the legislature. Thomson v. Wyoming In-Stream Flow Committee, Wyo., 651 P.2d 778 (1982).

Under the facts, circumstances and law of this case, Rule 36, supra note 1, as a court rule, cannot override the legislature's direction. In Hopkinson II, 664 P.2d at 50-57, this Court considered an issue raised by appellant that Wyoming's statutory death penalty provisions were unconstitutional in that they usurped the supervisory and rulemaking power of the Wyoming Supreme Court. We there held that punishment for crime is within the exclusive jurisdiction of the legislature. We also traced the history of the rulemaking power of the Wyoming Supreme Court and concluded that we cannot change the jurisdiction of the courts. We went on to hold that the jury system of determining whether the penalty for first-degree murder shall be death or life imprisonment is something more than procedure and is substantive law with which we cannot interfere. It is an integral part of the total constitutionally approved sentencing structure prescribed by the Wyoming state legislature, in compliance with guidelines established by the Supreme Court of the United States. See also Osborn v. State, Wyo., 672 P.2d 777 (1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984).

This Court held in Hopkinson I, 632 P.2d at 153, that "the [district] judge has no ability to overrule the jury's determination, short of finding, as a matter of law, the evidence insufficient to support the jury's conclusion." See also page 155. At page 156, it was noted that Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), approved a similar sentencing procedure which provided the trial judge was bound by the jury's recommended sentence. The trial judge and this Court have never found the evidence insufficient, as a matter of law, to support the jury's verdict recommending the death sentence. To the contrary, both have consistently found the evidence sufficient.

The Supreme Court of New Mexico has held that under a statute providing that where a recommendation of death is made by a jury the court shall sentence the defendant to death, the trial court cannot later modify it under a rule providing for sentence reduction similar in pertinent respects to Rule 36, supra note 1. State v. Guzman, 102 N.M. 558, 698 P.2d 428 (1985).

We agree with the district judge and conclude and hold that a district judge has no jurisdiction to reduce a death sentence under Rule 36, W.R.Cr.P., adopted by this Court, because to do so would be in direct conflict with the legislative mandate, under the facts and background of the case now before us. We do not deny the district court's authority to set aside an illegal or illegally imposed death sentence within the terms of Rule 36, supra note 1, but that is not the case here.

By § 6-2-103(e), W.S., the legislature directed that:

"(e) The [supreme] court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, may:

"(i) Affirm the sentence of death;

"(ii) Set the sentence aside and impose a sentence of life imprisonment; or

"(iii) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel."

It is thus clear that even though a district court does not have authority to do so, this Court may, under the provisions of subsection (e)(ii) above, set aside the death sentence and impose life imprisonment, but we have never discovered any justification in any of the Hopkinson cases...