Russell v. State, 90-225

Decision Date05 May 1993
Docket NumberNo. 90-225,90-225
Citation851 P.2d 1274
PartiesAlvin G. RUSSELL, III, a.k.a. Hap Russell, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael K. Shoumaker, Sheridan, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, and D. Michael Pauling, Sr. Asst. Attys. Gen. (research assistance by: Bryan A. Skoric and Eric R. Bellas, Prosecution Assistance Program, University of Wyoming, College of Law), for appellee.

Before MACY, C.J., and THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. (Retired).

THOMAS, Justice.

The most difficult issue in this case is whether a grant of immunity was, or was not, extended to Alvin G. (Hap) Russell, III (Russell). Almost equally troublesome is the jury selection process disclosed by the record, particularly relating to the examination of potential jurors for bias. As disclosed by the numerous issues raised in Russell's brief, quoted below, a number of questions are asserted that can be summarized as pre-arrest delay; violation of the constitutional right of confrontation; prosecutorial misconduct; ineffective assistance of counsel; and error in the admission of evidence. We hold the issue of immunity was not correctly addressed in a procedural context. The case must be reversed and remanded for a pre-trial hearing on the question of immunity and for a new trial if the result of the hearing should be that Russell was not granted immunity. We find no reversible error with respect to any of the other claims of error asserted by Russell.

In his Brief of Appellant, Russell sets forth the following issues:

1. Does a Wyoming prosecutor have the power to grant a witness immunity pursuant to the Wyoming Constitution and Statutes?

2. Does a Wyoming prosecutor have the power to grant a witness immunity pursuant to common law?

3. Was Alvin Russell granted immunity in 1979 in exchange for his testimony?

4. If the prosecutor lacked authority to grant immunity, is it misconduct to offer immunity as an inducement for Russell's testimony?

5. Was Russell's waiver of his right to remain silent voluntary because of inducement by the prosecutors?

6. Should Judge Ranck have assumed that Russell's waiver of his Fifth Amendment rights was voluntary?

7. Should the Appellant's conviction be reversed due to unconstitutional prearrest delay?

8. Did the testimony of Harold James Taylor violate Rule 804 and the Appellant's right to confrontation?

9. Was it misconduct for the prosecutor to represent both the state and federal governments?

10. Was it prosecutorial misconduct to misrepresent the immunity agreements?

11. Was it prosecutorial misconduct to violate the agreements of a prior prosecutor?

12. Was it prosecutorial misconduct to state a belief in the defendant's guilt during voir dire?

13. Was it prosecutorial misconduct to elicit an opinion concerning the defendant's guilt from an investigating officer?

14. Was Sanford Jorgenson ineffective counsel in failing to adequately assure that Russell was granted complete immunity before testifying?

15. Was Hershel Bullen ineffective by allowing Russell to testify at the Hopkinson trial without counsel?

16. Was Ron Yengich ineffective counsel by his failure to move for a change of venue?

17. Was Ron Yengich ineffective by his failure to call witnesses on the issue of immunity?

18. Was Ron Yengich ineffective for his failure to object to the testimony and court records of Hopkinson's conviction?

19. Was Ron Yengich ineffective for failure to investigate and call significant defense witnesses?

20. Did Judge Hamm force the defense to use peremptory challenges to remove clearly biased witnesses [jurors]?

21. Did Judge Hamm allow irrelevant testimony and prejudicial hearsay as "background" in violation of the Wyoming Rules of Evidence?

The State of Wyoming, as appellee, articulates the issues in this way:

I. What effect should be given to the alleged immunity agreements with Appellant?

II. Was a legitimate investigative delay of Appellant's prosecution harmless?

III. Were the statements of Harold James Taylor properly admitted?

IV. Was Appellant's case free from prosecutorial misconduct?

V. Did Appellant's various attorneys effectively represent him?

VI. Did voir dire provide Appellant with a fair and impartial jury?

VI. Was it unfair to properly admit at Appellant's trial background information relating to Mark Hopkinson?

On March 30, 1987, the State of Wyoming filed a criminal complaint charging Russell with aiding and abetting first-degree murder and conspiring to commit first-degree murder. These charges related to the torture and murder of Jeff Green, described in Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). The complaint traced certain of Russell's activities from mid-April, 1979 to just after Green's murder in May of 1979. It outlined numerous telephone conversations and one personal visit between Russell and Hopkinson, while Hopkinson was incarcerated at Lompoc Federal Corrections Institute; exchanges of money; meetings between Russell and various individuals implicated in Green's murder; and the acquisition by Russell of a photograph of Green. The State alleged the outlined events led to the ineluctable conclusion that Russell aided and abetted and conspired with Hopkinson and others to procure the death of Green. The theory of the State was contrary to Russell's explanation that he only agreed to obtain perjured testimony to discredit Green's testimony against Hopkinson in that he had no knowledge of a plan to murder Green.

After probable cause was determined and Russell was held for trial in the district court, he filed numerous preliminary motions. Those included a motion seeking dismissal of the charges on the ground that he had been granted immunity from prosecution for his involvement surrounding Green's death. The district court denied all of Russell's motions, without holding any evidentiary hearing on the question of immunity, and allowed the trial to go forward. Russell's trial commenced on June 12, 1990 and, on June 19, 1990, the jury returned a verdict finding him guilty of aiding and abetting first-degree murder and guilty of conspiracy to commit first-degree murder. Russell appeals from the judgment and sentence, pursuant to which he was sentenced to life imprisonment for aiding and abetting first-degree murder and a consecutive term of not less than eight, nor more than ten, years for conspiracy to commit first-degree murder.

The first six issues asserted by Russell focus on whether he was granted immunity from prosecution and the propriety of any such grant of immunity. We have recently held that a prosecuting attorney, solely by virtue of his office and in the absence of any statutory authorization, has no power to grant immunity to a witness. Hall v. State, 851 P.2d 1262 (Wyo.1993). 1 We went on to hold in Hall, however, that the absence of authority to extend immunity on the part of the prosecuting attorney does not result in the agreement being unenforceable. A defendant may seek enforcement of the immunity agreement because doing so is "the only appropriate relief within the dictates of due process." Hall (citing State v. Doe, 103 N.M. 178, 704 P.2d 432, 435 (1984)).

We outlined what we perceived to be appropriate procedural requirements for determining whether a defendant has received immunity from prosecution in the Hall opinion. We held a motion to dismiss premised on a grant of immunity must be addressed in a hearing prior to trial, in accordance with former Wyo.R.Crim.P. 16. At the hearing, the defendant must initially make a prima facie case demonstrating the grant of immunity. If the defendant succeeds in meeting that burden, the State then must establish, by a preponderance of the evidence, that no immunity actually was granted, or what effective limitations upon the grant of immunity were extant or, alternatively, that the defendant forfeited any immunity extended because of the defendant's breach of the agreement.

Following such a hearing, if the court permits the trial to go forward, the defendant still may choose to assert immunity as a defense at trial. The issue of immunity then would be tried as an affirmative defense and decided by the jury, using a special verdict form. In this instance, because the district court denied Russell's motion to dismiss on the ground of immunity without affording him the procedural protections described in Hall, we reverse the conviction and remand the case so that the appropriate procedural protections can be afforded.

Of the remaining fifteen errors asserted by Russell, the jury selection process employed by the district court is indeed distressing. The casual dismissal of possibilities of prejudice and bias expressed by potential jurors culminated in service by a juror who was the husband of a witness for the State. Russell did not object to the husband remaining on the jury at the trial, and he, therefore, must rely upon the doctrine of plain error. Gresham v. State, 708 P.2d 49 (Wyo.1985). The plain error doctrine should be applied sparingly and invoked only where the error seriously affects the fairness or integrity of judicial proceedings. Cutbirth v. State, 663 P.2d 888 (Wyo.1983); Gresham. The burden of establishing the plain error is assigned to Russell, as appellant. Gresham.

For a number of years, we have invoked a three-part test to determine whether plain error has been established:

In order for an alleged error to fall within this doctrine, specific minimum criteria must be met. It must be clear from the record, without resort to speculation or equivocal reference, exactly what occurred at trial. The proponent of the doctrine must demonstrate the existence of a clear and unequivocal rule of law; and the particular facts of the case must clearly and obviously, not just arguably, transgress that...

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  • Olsen v. State
    • United States
    • Wyoming Supreme Court
    • 14 Abril 2003
    ...the discretion of the trial court, and we do not reverse the exercise of discretion by a trial court absent clear abuse. Russell v. State, 851 P.2d 1274, 1278 (Wyo.1993). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a......
  • Allen v. State
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    • 2 Abril 2002
    ...sound discretion of the trial court, and we do not disturb those rulings on appeal absent a clear abuse of discretion. Russell v. State, 851 P.2d 1274, 1281 (Wyo.1993). "[T]he core of our inquiry must reach the question of reasonableness of the choice made by the trial court.' Vaughn v. Sta......
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    ...246 (1983) cases was not only reflected in the hearing which was held, but also in his conduct of the parallel trial, Russell v. State, 851 P.2d 1274 (Wyo.1993), which conviction is also subject to reversal. See Jones v. State, 777 P.2d 54 (Wyo.1989), followed by Jones v. State, 813 P.2d 62......
  • Kerns v. State
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    • 25 Junio 1996
    ...grounds as he was induced to incriminate himself as a result of an unauthorized promise. Hall, 851 P.2d at 1267; Russell v. State, 851 P.2d 1274, 1277-78 (Wyo.1993). Judicial decisions have recognized the difference between immunity grants and prosecutorial decisions not to prosecute a crim......
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