Hopkinson v. State, 85-215

• Decision Date: 25 October 1985
• Docket Number: No. 85-215,85-215
• Citation: 708 P.2d 46
• Parties: Mark A. HOPKINSON, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

Page 46

708 P.2d 46

Mark A. HOPKINSON, Petitioner, v. The STATE of Wyoming, Respondent.

No. 85-215.

Supreme Court of Wyoming.

Oct. 25, 1985.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

THOMAS, Chief Justice.

The Court having considered Petitioner's Petition for Writ of Habeas Corpus finds that it should be denied for the following reasons:

1. This Court has decided the question of whether Petitioner could be charged and tried as a principal in Wyoming for accessorial acts taking place in another state. Hopkinson v. State, Wyo., 632 P.2d 79, 97-100 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) (Hopkinson I ). In use of the word "overboard" the Court was referring to dicta of Goldsmith v. Cheney, Wyo., 468 P.2d 813 (1970). Goldsmith involved prosecution of an accessory committing accessorial acts in Wyoming to a murder which took place in Nevada. This Court only needed to decide whether he could be prosecuted in Wyoming and did hold that he could be but unnecessarily added as dicta, he could be prosecuted "only there." This Court had never before until Hopkinson decided the case of an accessory acting in that role in another state being prosecuted for a murder taking place in Wyoming. This Court was not required to decide the question in Goldsmith that was decided in Hopkinson and in such case the use of dicta in Goldsmith is a nullity. Felske v. State, Wyo., 706 P.2d 257 (1985). Hopkinson I is the law of this state on the question never before decided by this Court, and the courts of this state had jurisdiction in Hopkinson I to entertain the prosecution. Petitioner's ex post facto theory even if the law, which we need not decide, is inapplicable to this case. The question is res judicata.

2. We find Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), inapplicable. While the Petitioner has never before raised the question of the prosecutor in argument shifting from the jury to the Wyoming Supreme Court the responsibility for determining the appropriateness of a death sentence and we could dispose of it on procedural grounds, we do not. The retrial of the penalty phase was had following Hopkinson I in which this Court affirmed the guilt phase but reversed the death sentence and sent it back for that purpose.

The Petitioner has taken out of the context of the whole trial and closing arguments in particular in Hopkinson v. State, Wyo., 664 P.2d 43, cert. denied --- U.S ----, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (Hopkinson II ), a statement he mistakenly believes shifted the responsibility for determining the appropriateness of the death sentence from the jury to this Court. A majority of the United States Supreme Court in Caldwell, in considering the concurring opinion of Justice O'Connor, did not hold that all references to the appellate process in death cases are error. The majority opinion of four does not include Justice O'Connor on that point, who made it clear that it is proper to permit the accurate instruction of jurors on the sentencing procedure including the existence and limited nature of appellate review in favor of a policy of jury education.

It must be kept in mind that the jury in Hopkinson II did not have a guilt finding function. When the trial opened, the trial judge explained to them that the case (Hopkinson I ) had been to the Wyoming Supreme Court and it had upheld the guilty aspect but that the sentencing phase had to be retried in the sentencing and that they were there for that purpose. The jury therefore knew that it was there for that purpose because of error in the previous trial. The court cautioned the jurors that the narrative was simply a summary of events taken from the Wyoming Supreme Court's opinion in Hopkinson I. The jurors were entitled to an instruction on their function in a bifurcated death case in which they were not the jurors who heard the guilt phase. They were fully aware and had to be that the Supreme Court could by review overturn a jury's verdict.

The prosecution in closing was not using his argument to lull the jury into believing that if the jury made a mistake, the Wyoming Supreme Court would find and correct it and thus assume the responsibility for the death sentence.

We notice the vast difference of the language used by the prosecutor and the trial judge in Caldwell and that used by the prosecution and trial judge in Hopkinson II. In Caldwell, the prosecutor argued ...