Hopkinson v. State

• Decision Date: 27 May 1983
• Docket Number: No. 5733,5733
• Citation: 664 P.2d 43
• Parties: Mark A. HOPKINSON, a/k/a Mark Allen Hopkinson, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 43

664 P.2d 43

Mark A. HOPKINSON, a/k/a Mark Allen Hopkinson, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5733.

Supreme Court of Wyoming.

May 27, 1983.

Leonard D. Munker, State Public Defender (argued), and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

Edward P. Moriarity, Sp. Asst. Atty. Gen., argued, for appellee; Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Bruce A. Salzburg, Allen C. Johnson, Mary B. Guthrie, Senior Asst. Attys. Gen., and Sharon A. Lyman, Asst. Atty. Gen., on brief.

Before RAPER, THOMAS and ROSE ^*, JJ., and SAWYER and McEWAN, District Judges.

RAPER, Justice.

In 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), this court affirmed the convictions of the appellant for conspiracy and first degree murder of four victims but reversed the death penalty sentence and remanded the case to the district court for a new sentencing trial by a jury to determine whether the appellant should be sentenced to death or life imprisonment for the murder of Jeff Green. The new trial on the death penalty issue only was held, and as a result appellant was sentenced to death. In the appeal now before us the issues, as formulated by the appellant, are:

"1. Whether the Wyoming death penalty provisions are unconstitutional in that they usurp the supervisory and rule-making power of the Supreme Court and expand its jurisdiction in violation of the Wyoming Constitution.

"2. Whether it is speculation to infer that Mark Hopkinson intended or had knowledge of the aggravating circumstances surrounding the death of Jeff Green.

"3. Whether the admission into evidence of non-statutory aggravating circumstances violated Appellant's rights to due process of law.

"4. The proportionality argument--whether Appellant was denied due process and equal protection.

"5. Whether the death penalty provisions violate Article 1, Section 15 of the Wyoming Constitution.

"6. Whether there was any evidence of waiver of the attorney/client privilege which would allow an attorney to testify against a former client in the penalty phase of a capital case.

"7. Whether reversal is required if an aggravating circumstance used as a basis for imposing the death penalty is found to be invalid.

"8. The double jeopardy argument--whether the consideration by the jury of evidence concerning the Vehar deaths, and the submission to the jury of those aggravating circumstances deemed inapplicable in the first penalty hearing, violated Appellant's constitutional protection against double jeopardy.

"9. Whether Section 6-4-102(h)(vii) of the 1977 Wyoming Statutes is unconstitutional.

"10. Whether the trial court erred in refusing Defendant's Proposed Instruction A and in denying to the jury the opportunity to pass on the issue of due process.

"11. Whether Appellant was afforded effective assistance of counsel.

"12. Whether the prosecution has used the Uinta County grand jury improperly as an investigative tool.

"13. Whether Section 6-4-103 abrogated the plain error rule of appellate review.

"14. Whether a jury is properly involved in resentencing in a death penalty case."

To those fourteen, we add three more issues required to be answered by § 6-4-103(d) and (e), W.S.1977:

15. Was the sentence of death imposed under the influence of passion, prejudice, or any other arbitrary factor?

16. Does the evidence support the jury's findings of aggravating circumstances enumerated in § 6-4-102, W.S.1977 and a lack of sufficient mitigating circumstances which outweigh the aggravating circumstances?

17. Was the sentence of death excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, to include a reference to those similar cases taken into consideration? (This is an approach different from that contemplated by appellant's issue 4.)

We will affirm the death penalty imposed by the district court.

NARRATIVE

A review of the facts surrounding the crimes of which appellant was convicted may be found in Hopkinson v. State, supra, pp. 93-97. We will just restate them with some brevity at this point.

As a result of litigation between appellant and his family versus some of their neighbors over water rights and the Fort Bridger Sewer and Water Board in Uinta County, appellant developed a dislike for Vincent Vehar, an Evanston lawyer who represented appellant's adversaries in those disputes. These disputes had reached violent proportions. Appellant first tried, in 1976, to hire for $600, Harold James Taylor to kill Vehar as he was leaving his office, but Taylor backed out.

Appellant then turned to his friends Jeff Green and Mike Hickey for ideas on how to get rid of Vehar. Hickey was a young alcoholic whom the appellant knew had murdered a fifteen-year-old girl, Kelly Wyckhuyse. The appellant had long discussions with Green on how to get rid of Vehar.

During this planning period, appellant engaged Green to drive to Arizona to plant a bomb in the automobile of one Mariscal by way of a persuasive measure to force payment of money allegedly owed by Mariscal to appellant. Green, while enroute to Arizona, was caught speeding in Utah. When arrested on April 4, 1977, he was driving appellant's Lincoln Continental Mark IV and the bomb was discovered. Appellant and Hickey drove to Utah where they bailed Green out of jail. Since Green was hot, appellant no longer discussed with him plans to kill Vehar.

Thereafter appellant promised Hickey $2,000 plus expenses and help in covering up Hickey's murder of a young girl by the name of Wyckhuyse, to kill Vehar. After much scheming on the method, it was decided that the best way was to toss a bomb through the basement window of the Vehar residence in Evanston.

Appellant received notice in early August 1977, that his deposition in the sewer board's lawsuit would be taken on August 9, 1977. On August 6, appellant ordered Hickey to blow up the Vehar home that night; Hickey did. Vehar, his wife and one son were killed by the explosion--another son was seriously injured.

Hickey and a Jamey Hysell, previous to the Vehar bombing, had plotted together to kill the Wyckhuyse girl because she had implicated Hysell on a marijuana charge. Hickey was to pick her up and then Hysell was to meet them in an isolated spot and together they would kill her. After Hickey picked her up and drove to the appointed place, he told her their plan. However, Hysell did not show up, and Hickey, having revealed their intentions, went ahead and killed her by hitting her on the head with a rock. He cut out her privates as proof of her death to show Hysell and buried the rest of her body.

After the Vehar bombing, Hickey went to California. While Hickey was gone, Hysell was picked up by police for questioning about some larcenies. Hysell, by way of distraction from his own crimes, informed on Hickey by disclosing the Wyckhuyse murder and took authorities to the grave site, previously pointed out to him by Hickey. The body was recovered. After questioning, Hickey was charged with the girl's murder.

In order to rescue Hickey and avoid the conviction of the Vehar murders, appellant, Jeff Green and Hickey concocted stories which pointed to Hysell. Charges of the Wyckhuyse murder against Hickey were dropped and Hysell was charged. During Hysell's trial, Jeff Green broke down. He implicated appellant and Hickey in the Vehar bombing, confessed that his testimony incriminating Hysell was not the truth and that Hickey had murdered the Wyckhuyse girl. Green's testimony led to dismissal of the charges against Hysell and extensive media publicity. Appellant promised Green's sister that he would get Jeff for that.

In March 1979, appellant and Hickey were tried in the United States District Court on federal charges relating to transportation and possession of explosives arising out of Green's aborted attempt to place a bomb in Mariscal's car. As an unindicted conspirator, Jeff Green testified as to appellant's involvement. Hickey was acquitted. Appellant was convicted and sentenced and confined in a federal prison facility at Lompoc, California for not only those offenses but also parole violation on the previous federal drug violations. On appeal, that judgment and sentence was affirmed after the first 1979 trial in the case now before us. United States v. Hopkinson, 631 F.2d 665 (10th Cir.1980), cert. denied 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 620 (1981).

At Lompoc, appellant had unlimited access to a telephone from which he made at least 114 calls over a period of 51 days between April 8 and May 29, 1979. These calls were traced and, through the testimony of the witnesses called, the State was able to establish a plan to murder Jeff Green. Appellant raised and paid to hired killers, through a series of transactions, some $15,000. He arranged by phone the procurement of a photo of Jeff Green cut from a high school year book to identify Green for his murderers whose identities to this date, if known, have not been revealed. Some of the calls made on May 16, 17, 19, and 20 by appellant were to inquire about Green's whereabouts. On the May 20th call, he was advised that Green was dead, his mutilated body having been found on that day. On May 21, $15,000 showed up in the account of one of the witnesses, Kristi King. The next day a "Joe" inquired of her whether $20,000 had showed up in her account. She refused to have anything to do with it and protested to appellant. At appellant's request, she sent the money to appellant's brother, Scott Hopkinson.

Hickey testified in the first trial of appellant as to appellant's participation with him in the Vehar murders. In exchange for Hickey's testimony relating to the Vehar murders, a plea bargain was entered into whereby Hickey was granted complete immunity from prosecution pertaining to the Vehar...