Hopkinson v. State

• Decision Date: 03 April 1984
• Docket Number: No. 83-208,83-208
• Parties: Mark A. HOPKINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1008

679 P.2d 1008

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

No. 83-208.

Supreme Court of Wyoming.

April 3, 1984.

Leonard D. Munker, State Public Defender, and Muriel J. Smith, Nogalis, Ariz., for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Edward P. Moriarity, Sp. Asst. Atty. Gen., for appellee.

Before THOMAS, ROSE and CARDINE, JJ., RAPER, J., Retired, and SAWYER, District Judge.

RAPER, Justice, Retired.

Appellant was tried by jury in 1979 and found guilty of four first-degree murders and two conspiracies as charged. He was sentenced, upon recommendation of the jury, to life imprisonment on three of the murders, but sentenced to death for the first-degree murder of Jeff Green. The court on its own, it not being a jury decision, sentenced appellant on the guilty verdicts with respect to the conspiracies. On appeal, 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) (Hopkinson I ), this court affirmed the guilty verdicts and life sentences on three of the murders and the sentences for the conspiracies as well. While also affirming the guilty finding, this court reversed the death sentence and remanded the case for a new sentencing trial as to the murder of Jeff Green. The sentencing phase was accordingly retried, and a jury again recommended the death sentence for the first-degree murder of Jeff Green. Appellant was sentenced to be executed. This court affirmed the death sentence in Hopkinson v. The facts are thoroughly documented in Hopkinson I and Hopkinson II and need no reiteration. There was found to be no reasonable doubt as to appellant's guilt on all counts and the death penalty was justified as appropriate to all the circumstances, within the applicable law.

State, Wyo., 664 P.2d 43 (1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (Hopkinson II ).

On July 1, 1983, appellant filed in the district court a motion for new trial. A motion for new trial is provided for by Rule 34, W.R.Cr.P. ¹ Supplemental to the motion for new trial, various other motions were also filed. The trial judge denied all motions on September 14, 1983. Appellant appeals from the denial of the motion for new trial and here states as issues:

1. "Whether the Honorable Robert B. Ranck abused his discretion in not granting the Motion for a New Trial."

2. "Whether the Honorable Robert B. Ranck abused his discretion by not setting a hearing on the Motion for a New Trial."

3. "Whether the prosecution's intimidation, concealment and surprise tactics deprived Hopkinson of his right to a fair trial under both the federal and state constitutions."

4. "Whether the Honorable Robert B. Ranck abused his discretion when he failed to remove the special prosecutors from all phases of the Hopkinson case."

5. "Whether the Honorable Robert B. Ranck abused his discretion when he failed to recuse himself on all matters relating to the Motion for a New Trial."

We are now ready to discuss the current proceeding, which we will as required designate "Hopkinson III" for convenience.

We will affirm.

I

Appellant's motion for new trial filed with the district court states as reasons in support "1. New Evidence" and "2. Further Prosecution Tactics." The appellant agrees that in order to prevail where the motion is based on newly discovered evidence, the movant must satisfy the court:

" * * * (1) That the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz., speaking to facts in relation to which there was evidence at the trial. [Citations.]" (Footnote omitted.) Opie v. State, Wyo., 422 P.2d 84, 85 (1967), followed in Salaz v. State, Wyo., 561 P.2d 238, 242 (1977), and approved most recently in Grable v. State, Wyo., 664 P.2d 531, 533 (1983).

Those found guilty of crime and sentenced never grow weary in seeking new trials on the ground of newly discovered evidence, but motions founded on that ground are not favored by the courts and are viewed with great caution. 3 Wright, Federal Practice and Procedure: Criminal 2d § 557 (1982), in discussing Rule 33, F.R.Cr.P., couched in the same pertinent language as Rule 34, W.R.Cr.P. Federal cases decided Grable v. State, supra, and the precedent there cited stand for the established proposition that in Wyoming it is clearly within the sound discretion of the district court to either grant or deny a new trial based upon newly discovered evidence, and the district court does not abuse its discretion if it could reasonably conclude as it did. The burden is upon the movant to establish his right to a new trial. Salaz v. State, supra.

under the rule are, therefore, persuasive. Grable v. State, supra.

With impressive citation of authority, this court in Grable v. State, supra at 533, has also approved the so-called "Berry rule":

" ' * * * The newly discovered evidence must be more than impeaching or cumulative; it must be material to the issues involved; it must be such as would probably produce an acquittal; and a new trial is not warranted by evidence which, with reasonable diligence, could have been discovered and produced at trial. * * * ' United States v. Allen, 554 F.2d 398, 403 (10th Cir.1977), cert. denied 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)."

With those general principles of law applying to new trials, we move along to a consideration of what the appellant presents to support his claim that a new trial should have been granted.

First, the appellant asserts that while he knew about the existence of various tapes of recorded telephone conversations, he only learned of the possible location of some eight or nine tapes from reading this court's opinion in Hopkinson II. This is gross misrepresentation.

By way of review with respect to the tapes, we will summarize from Hopkinson II, 664 P.2d at 80-81. While the trial of the penalty phase was on appeal and following oral argument, appellant filed in this court a pro se "Motion of Proof, for Consideration in Showing Palin [sic] Error Existed, Which Was Not Properly Shown in Briefs or Argument." He complained that a taped telephone conversation should have been admitted into evidence. The question of the tape arose during an in-chambers conference. We have now again reviewed the transcript of proceedings in that regard. (Hopkinson II--Vol. X, pp. 787-799) ² At page 788, it is disclosed that the trial judge for the record stated, "[n]ow, we're in chambers with counsel and the defendant and Mr. Bussart." (Emphasis added.) The tape was then in appellant's counsel's hands, who explained that it had been picked up by appellant's mother from his Salt Lake City room, turned over by her to appellant's brother, who turned it over to Mr. Van Sciver, appellant's trial counsel during the trial of Hopkinson I. From what appears in the transcript of the conference, the tape was of a recording made surreptitiously by appellant. It was of a conversation between the deceased, Jeff Green, and Green's attorney, Bussart. Appellant's counsel stated to the trial judge: "This is one of nine. The others were taken and were offered to be resold to Mark [Hopkinson]." (Emphasis added.) Mr. Moriarity, one of the prosecutors, asked, "[b]y whom? Can you say?" Appellant's counsel replied, "I can't say. I don't know. He [referring to appellant] doesn't know. He thinks it was possibly Taylor or possibly Green himself." Mr. Moriarity replied, "I got a copy of this tape from George Zunker." (Emphasis added.) George Zunker was appellant's counsel in United States v. Hopkinson, infra.

There is nothing in the transcript which would indicate that the State had any knowledge of the existence or whereabouts In any event, it is obvious that if there are other tapes, they are not new evidence but old evidence of which only the appellant--not the State--had knowledge before the trial of Hopkinson I. He must produce them. The burden of establishing grounds for a new trial is upon appellant. Salaz v. State, supra. There is no showing that appellant has shown due diligence in locating the tape of which he had knowledge. United States v. Siviglia, 686 F.2d 832 (10th Cir.1981), cert. denied 461 U.S. 918, 103 S.Ct. 1902, 77 L.Ed.2d 289 (1983). Appellant's version is fanciful. United States v. Oliver, 683 F.2d 224 (7th Cir.1982).

of any of the tapes nor, according to its brief filed in this appeal, does it have any present knowledge of the whereabouts of any tapes, except the one that was the subject matter of the chambers conference. The only reference to there being other tapes was made by appellant's counsel and in appellant's presence. The knowledge of appellant's counsel that there were other tapes, if in fact there were, could only have come from appellant. An interesting observation is that the transcript of the tape recording attached to appellant's pro se motion in Hopkinson II and appellant's motion for new trial in the appeal now before us is entitled "Transcript of Million Sellers Vol. 4 (Side A)," which may indicate the existence of other tapes, of which the one produced in chambers in Hopkinson II is tape number four. That tape was found by appellant's mother in his room.

Next, there are a number of affidavits attached to appellant's motion for new trial which appellant claims present new evidence.

There are two James Harrison affidavits which infer that Mike Hickey, a State witness who had testified in Hopkinson I that he was hired by appellant to blow up the Vehar residence and did in fact throw dynamite into the basement causing the deaths of its three occupants, had as a friend discussed with Harrison, Hickey's part in the...