Olsen v. State, No. 98-62.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: GOLDEN, Justice.
• Citation: 2003 WY 46,67 P.3d 536
• Parties: Martin J. OLSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 14 April 2003
• Docket Number: No. 98-62.

67 P.3d 536
2003 WY 46

Martin J. OLSEN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff)

No. 98-62.

Supreme Court of Wyoming.

April 14, 2003.

67 P.3d 545

Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Assistant Public Defender; Karl Linde, Assistant Public Defender; T. Alan Elrod, Assistant Public Defender; Marion Yoder, Senior Assistant Public Defender, Representing Appellant. Argument by Ms. Domonkos and Mr. Elrod

William U. Hill, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker-Musick, Assistant Attorney General, Representing Appellee. Argument by Ms. Baker-Musick.

Before GOLDEN, LEHMAN¹, MACY, Ret., and TAYLOR, Ret., JJ.

TABLE OF CONTENTS

Opening..........................................................................ss 1-3 Facts I. The Murders.........................................................................s 4 II. Events Leading Up To and Subsequent To the Murders..........................ss 5-11 III. Prosecution's Case .........................................................ss 12-13 IV. Defense Case................................................................ss 14-17 V. Closing Arguments...........................................................ss 18-21 VI. Sentencing Phase ...........................................................ss 22-56 Discussion I. Standard of Review..........................................................s 57 II. Guilt Phase A. Special Prosecutor......................................................ss 58-63 B. Prospective Jurors......................................................ss 64-68 C. Ineffective Assistance of Trial Counsel.................................s 69 1. Counsel's Admission of Guilt.......................................ss 70-76 2. Impeachment Evidence...............................................ss 77-82 3. Change of Venue....................................................ss 83-84 D. Sufficiency of the Evidence of Premeditation...........................ss 85-87 E. Summary................................................................s 88 III. Sentencing Phase A. Constitutionality of Wyoming's Death Penalty Statute...................s 89 1. Background of Federal Precedent...................................ss 90-95 2. Weighing/Nonweighing Distinction..................................ss 96-102 3. Summary.................................................................s 103 B. Statutory Interpretation...............................................ss 104-105 C. Aggravating Circumstances..............................................ss 106-109 1. Atrocious or Cruel Aggravating Circumstance........................ss 110-119

67 P.3d 546

2. Great Risk of Death Aggravating Circumstance......................ss 120-123 3. Purpose of Avoiding or Preventing a Lawful Arrest Aggravating Circumstance......................................................ss 124-128 4. Premeditated Felony Murder Aggravating Circumstance...............ss 129-130 5. Summary...........................................................ss 131-132 D. Mitigating Circumstances .............................................s 133 1. Law of Mitigating Circumstances...................................ss 134-142 2. Burden of Proof...................................................ss 143-145 3. Failure to Instruct on Mitigating Circumstance of Duress..........s 146 4. Adequacy of the Verdict Form .....................................ss 147-149 5. Summary...........................................................s 150 E. Role of Victim Impact and Mercy Plea Evidence 1. Admissibility of Victim Impact Evidence...........................ss 151-176 2. Exclusion of Mitigating Evidence of Plea for Mercy................ss 177-182 F. Jury Instructions 1. Comment on Right to Silence in Psychiatric Evaluation Instruction.......................................................ss 183-186 2. Consideration of Counsel's Argument in Sentencing Decision........ss 187-188 3. Instruction in Response to Jury Question About Parole.............ss 189-194 G. Sentencing Phase Jurors...............................................s 195 1. Second Jury.......................................................ss 196-198 2. Replacement Juror.................................................ss 199-201 3. Selection of Alternate Juror......................................ss 202-210 H. Lethal Injection is Cruel and Unusual Punishment......................ss 211-213 I. Repeal of Statutory Proportionality Review..................................ss 214-218 IV. Appellate Review............................................................ss 219-221 Appendix A Appendix B

GOLDEN, Justice.

[s 1] In accordance with Wyo. Stat. Ann. § 6-2-103(a) (Michie 1997), this is an appeal from convictions of capital murder charged under Wyo. Stat. Ann. § 6-2-101(a) (Michie 1997) and sentences of death imposed under Wyo. Stat. Ann. § 6-2-102 (Michie 1997), following a jury trial and sentencing proceedings. Martin J. Olsen (Olsen) was charged with and convicted of murdering three victims during a robbery at a bar in Worland, Wyoming. On appeal, with respect to his capital murder convictions and sentences, he enumerates twenty-five errors under the various headings of constitutional issues, instruction issues addressing the sentencing phase, additional issues addressing the sentencing phase, trial phase issues, and punishment issues. The statements of the issues submitted by Olsen and the State are attached as Appendix A to this opinion. In addition to considering the specific errors enumerated by Olsen, this court has also considered the punishment. Wyo. Stat. Ann. § 6-2-103(c) (Michie 1997). With regard to the sentences, this court has considered (1) whether the jury imposed the sentences of death under the influence of passion, prejudice or any other arbitrary factor and (2) whether the jury's finding of aggravating circumstances and mitigating circumstances is supported by the evidence. Wyo. Stat. Ann. § 6-2-103(d)(i) and (ii) (Michie 1997).

[s 2] We find no constitutional errors and find no errors in the guilt phase of Olsen's trial. Therefore, we affirm Olsen's convictions of capital/first degree murder and robbery. We do find error, however, in the sentencing phase of Olsen's trial in the following matters: (1) insufficient evidence to support the jury's finding of the aggravating circumstance that the murders were especially atrocious or cruel, being unnecessarily torturous to the victims; (2) insufficient evidence to support the jury's finding of the aggravating circumstance that Olsen knowingly created a great risk of death to two or more persons; (3) improper jury instructions on the law of mitigating circumstances, the decision-making process, the mitigating circumstance of duress, Olsen's parole status if he received life sentences, and the verdict form; and (4) the introduction of victim impact evidence and a plea of mercy. Consequently, we set aside Olsen's sentence of death and remand for a new sentencing hearing

67 P.3d 547

to be conducted with a new jury impaneled for that purpose. Wyo. Stat. Ann. § 6-2-103(e)(iii) (Michie 1997)

[s 3] From this court's study of death penalty jurisprudence, this court acutely appreciates that a capital case, by its very nature, requires of a reviewing court the most meticulous and thoughtful consideration and deliberation of the issues presented. In fulfilling that requirement in this case, the members of this court have had divergent views concerning the resolution of some of the many difficult issues presented and have expended substantial amounts of time working through those divergent views to achieve agreement on the resolution and the reasoning supporting the resolution of these issues. In light of the requirement of meticulous and thoughtful consideration and deliberation, the working through of divergent views to achieve agreement on resolution of issues, the unique set of appellate responsibilities conferred by the legislature upon this court, the errors enumerated in this appeal, the parties' extensive briefing of the issues underlying these enumerated errors, and the caution that the punishment of death is different, Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring), this court has taken considerable time to reach its decision in this case and in another capital case submitted for review after this one and which is also decided today. See Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 WL 1870319. Although the time to reach decision has been considerable, it has been necessary and unavoidable for the reasons stated.

FACTS

I. The Murders

[s 4] On the night of January 20, 1997, sometime between 11:00 p.m. and midnight, Olsen entered the Little Chief Bar in Worland. He instructed two patrons to lie down on the floor and robbed the bar. After having the bartender also lay face down on the floor, he shot all three in the back of the head, firing a fourth shot seconds later when it appeared that one victim was not dead. He left the bar, went to a convenience store and pumped gas into his pickup. He chatted with the store clerk until asked if he knew why the police were active in the area. At this question, he became agitated, left, and went home and packed. Before he left his home, he confessed the murders to his mother and then fled in his vehicle. After he left, his mother called the police, told them Olsen was involved, and within a few hours, Olsen was apprehended. He was advised of his rights, and spent much of the rest of the day confessing the murders to police. Several of these confessions were recorded on audiotape and videotape.

II. Events Leading Up To and Subsequent To the Murders

[s 5] At approximately 4:15 p.m. on the day of the murder, Olsen's mother...