Mark A. HOPKINSON, Appellant (Defendant),

v.

STATE of Wyoming, Appellee (Plaintiff).

No. 5268.

Supreme Court of Wyoming.

July 2, 1981.

Rehearing Denied Aug. 21, 1981.

Edward K. Brass and Robert Van Sciver (argued), Salt Lake City, Utah, signed the briefs, for appellant.

Gerald A. Stack, Deputy Atty. Gen., Bruce A. Salzburg, Senior Asst. Atty. Gen. (argued), Mary B. Guthrie, Asst. Atty. Gen., Edward P. Moriarity, Sp. Asst. Atty. Gen. (argued), and Brian E. Thiede, Law Clerk, Cheyenne, Wyo., signed the briefs for appellee.

Before ROSE, C. J. > (FN*), McCLINTOCK > (FN**), RAPER (FN***), and THOMAS, JJ., and SAWYER, D. J. (FN****)

RAPER, Justice.

INTRODUCTION

In September of 1979, appellant was tried by a jury and convicted on four counts of first-degree murder and two counts of conspiracy. Those six counts, of a fourteen count grand jury indictment, charged:

1. "That Mark A. Hopkinson on or about the 7th day of August, 1977, in the County of Uinta, State of Wyoming, did wilfully, unlawfully, purposely, feloniously and with premeditated malice kill a human being, namely Vincent Vehar in violation of the provisions of > Section 6-4-101(a)(b) Wyoming Statutes Annotated, 1977, Republished Edition, previously cited as Section 6-54.1(a)(b), Wyoming Statutes, 1957 as amended, by aiding, abetting, counseling, encouraging, hiring, commanding and otherwise procuring such murder to be committed during a period beginning in December of 1976 and continuing up to and including August 7, 1977, in violation of the provisions of Section 6-1-114 Wyoming Statutes Annotated, 1977, Republished Edition, previously cited as Section 6-14, Wyoming Statutes 1957 as amended, and contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Wyoming.

"Such murder was committed with aggravating circumstances which mandate the death penalty as specified in the provisions of > Section 6-4-102(h) Wyoming Statutes Annotated, 1977, Republished Edition, and previously cited as Section 6-54.2(h), Wyoming Statutes 1957 as amended, as follows:

"(1) The murder was committed by a person, namely Mark A. Hopkinson, who was under sentence of imprisonment.

"(2) The defendant, Mark A. Hopkinson knowingly created a great risk of death to two or more persons, namely the risk of death to the entire Vehar family from the bombing of their home.

"(3) The murder was committed while the defendant was engaged in the discharge of a destructive device or bomb.

"(4) The murder was committed for pecuniary gain.

"(5) The murder was especially heinous, atrocious and cruel."

2. (Same as (1) except charged the murder of Beverly Vehar with same aggravating circumstances alleged.)

3. (Same as (1) except charged the murder of John Vehar with same aggravating circumstances alleged.)

4. "That Mark A. Hopkinson on or about the 18th day of May, 1979, and in the County of Uinta, State of Wyoming, did wilfully, unlawfully, purposely, feloniously and with premeditated malice kill a human being, namely Jeffrey Lynn Green, contrary to the provisions of > Section 6-4-101(a)(b) Wyoming Statutes Annotated, 1977, Republished Edition, by aiding, abetting, counseling, encouraging, hiring, commanding, and otherwise procuring such murder to be committed, in violation of the provisions of Section 6-1-114, Wyoming Statutes Annotated, 1977, Republished Edition, and contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Wyoming.

"Such murder was committed with aggravating circumstances which mandate the death penalty as specified in the provisions of > Section 6-4-102(h) Wyoming Statutes Annotated, 1977 Republished Edition as follows:

"(1) The murder was committed for the purpose of avoiding or preventing the lawful arrest of Mark A. Hopkinson relating to the murders of Vincent, Beverly and John Vehar.

"(2) The murder was committed for the purpose of avoiding or preventing the lawful arrest of Michael Jack Hickey relating to the murders of Vincent, Beverly and John Vehar and Kellie (Kelly) Marie Wyckhuyse.

"(3) The murder was committed for pecuniary gain.

"(4) The murder was especially heinous, atrocious and cruel.

"(5) The murder was committed by a person, namely Mark A. Hopkinson, while the said Mark A. Hopkinson was under a sentence of imprisonment."

5. "Mark A. Hopkinson, a person, on or about the months of November, 1976, through March, 1977, and in the County of Uinta, State of Wyoming, did unlawfully, willfully and feloniously conspire with another person, namely Harold James Taylor, to commit a felony in the State of Wyoming, namely the murder in the first degree of Vincent Vehar as is made unlawful by the provisions of Section 6-54(a) and (b), Wyoming Statutes 1957 as amended and one or more of such persons did an act or acts within the State of Wyoming to effect the object of the conspiracy, including that Mark A. Hopkinson paid money to Harold James Taylor and Harold James Taylor accepted such money to undertake the felony, that Harold James Taylor selected the location to commit such felony, that Harold James Taylor selected the weapon, namely a shotgun, with which to commit such felony, and that Harold James Taylor waited outside the office of Vincent Vehar in order to obtain a shot and to shoot Vincent Vehar, in violation of the provisions of Section 6-16.1, Wyoming Statutes 1957 as amended and currently cited as 6-1-117, Wyoming Statutes Annotated, 1977 Republished Edition, and contrary to the form of the statute in such case made and

provided and against the peace and dignity of the State of Wyoming."

6. "Mark A. Hopkinson, a person, on or about the months of March and April, 1977, and in the County of Uinta, State of Wyoming, did unlawfully, willfully and feloniously conspire with another person, namely Michael J. Hickey, to commit a felony in the State of Wyoming, namely murder in the first degree of William Roitz, as was made unlawful by the provisions of Section 6-54 (a) and (b), Wyoming Statutes 1957, as amended, and one or more of such persons did an act or acts within the State of Wyoming to effect the object of the conspiracy, including that Mark A. Hopkinson gave a .357 magnum revolver to Michael J. Hickey with which to commit such felony, that Michael J. Hickey purchased bullets for such revolver, that Mark A. Hopkinson pointed out to Michael J. Hickey how and where such felony could be committed, and Mark A. Hopkinson offered to pay money to Michael J. Hickey for the commission of such felony by Michael J. Hickey, in violation of the provisions of Section 6-16.1, Wyoming Statutes 1957, as amended, and currently cited as Section 6-1-117, Wyoming Statutes Annotated, 1977 Republished Edition, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

A presentence hearing was conducted under > s 6-4-102, W.S.1977, > (FN1) to determine whether appellant should be sentenced to

death or life imprisonment. Following the recommendation by the jury that the death sentence be imposed for his murder of Jeff Green, the district court, bound by that finding, did in fact order appellant executed. In all cases in which the death penalty is given, the judgment of conviction and sentence of death are subject to automatic review under > s 6-4-103, W.S.1977. > (FN2) We are required by law to specifically consider whether:

"(i) The sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;

"(ii) The evidence supports the jury's or judge's finding of an aggravating circumstance as enumerated in W.S. 6-54.2 (s 6-4-102) and a lack of sufficient mitigating circumstances which outweigh the aggravating circumstances;

"(iii) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

In addition, we must consider appellant's allegations of error in the conduct of the trial and the presentence hearing, as well as Wyoming's jurisdiction to try the appellant for the Jeff Green homicide, an issue raised by this court. We do not ordinarily retain record references in the published version of an opinion but do so in this case to expedite any further review which might be undertaken.

We will affirm the convictions but reverse the death sentence as to the murder of Jeff Green and remand for new trial on the penalty only.

ISSUES

The issues raised by this appeal will be dealt with in the following order:

I Whether Wyoming has jurisdiction to charge the appellant in the murder of Jeff Green as an accessory before the fact; > (FN3)

II Whether the joinder of the six charges was proper; > (FN4)

III Whether the failure of Judge Brown to voluntarily disqualify himself denied appellant any constitutionally mandated due process or equal protection;

IV Whether there was prosecutorial error during the voir dire of the prospective jurors;

V Whether the opening statement of the prosecutor was improper;

VI Whether character evidence of the victims was improperly admitted;

VII Whether character evidence of the appellant was improperly admitted;

VIII Whether hearsay was improperly admitted;

IX Whether exculpatory polygraph evidence was improperly excluded;

X Whether the trial judge abused his discretion when he permitted the admission of photographs, charts, slides, and testimony depicting the torture of Jeff Green prior to his death;

XI Whether admission of a photographic identification of Mike Hickey, by a witness who was identified as the man who had given him a ride the night of the Vehar bombing, was error;

XII Whether the prosecutor committed reversible error when he called a witness who exercised his Fifth Amendment rights and the prosecutor had, prior to calling the witness, reason to suspect that the witness would in fact invoke his Fifth Amendment rights;

XIII Whether the refusal of the State's witnesses to discuss their testimony with the appellant's counsel was improper;

XIV Whether the prosecution's closing argument in the guilt phase of the trial was improper;

XV Whether the evidence was insufficient to support a conviction of the two conspiracy counts;

XVI Whether the evidence was insufficient to support a conviction of the Jeff Green homicide;

XVII Whether the Wyoming death penalty statute is unconstitutional;

XVIII Whether the conduct of the jury selection was improper for a capital case;

XIX Whether the prosecution's closing argument in the penalty phase of the trial was improper;

XX Whether the instructions given the jury in the penalty phase were inadequate to satisfy the constitutional standards imposed by the U.S. Supreme Court;

XXI Whether the imposition of death is proper under > s 6-4-103, W.S. 1977. > (FN5)

NARRATIVE

The facts of this case present one of the most bizarre stories in the judicial history of the State of Wyoming. The complex and skillfully connected evidentiary chain of events began with the return of Mark Hopkinson to his native home in the Bridger Valley area of southwest Wyoming sometime in 1975. He had earlier left the Valley after accepting a football scholarship to the University of Arizona. While away he was convicted on charges of delivering controlled substances in 1971. (T.Vol.XV, p. 1993) It was shortly after his release from a federal prison that he reappeared in Wyoming.

During the latter part of 1975, Mr. Hopkinson became embroiled in two legal disputes in which Vincent Vehar, an attorney, assumed something of an adversary role. The first dispute arose basically between two families, the Hopkinsons and the Roitzes, over water rights. In 1974, Joe Hopkinson, Mark's father, began doing ground work for a trailer court and covered up a ditch carrying water to the Roitzes. The Roitzes consulted Mr. Vehar and, as a result, filed a lawsuit against Joe Hopkinson. (T.Vol.V, p. 389) It was shortly after a judgment was entered in the Roitzes' favor that Mark Hopkinson returned to the Valley. Mark not only assumed control over the development of the trailer court, but also sought to have that judgment reversed on appeal. > (FN6) (T.Vol.IV, p. 170)

In April 1976, Mark visited the Roitzes and asked them if they, together without any attorneys, could work out a settlement. When the Roitzes refused, Mark warned them that he could construct the trailer court in such a manner so as to make life miserable for them. (T.Vol.V, p. 391) On May 6, 1976, Mark revisited the Roitzes and attacked 55-year-old Frank Roitz. After Mark was pulled away from Frank, Mark's father, Joe, armed with a hammer, arrived at the scene. The two men together then beat upon Frank Roitz. (T.Vol.V, p. 396) When the fracas was finally over, the Roitzes consulted with Mr. Vehar and decided to talk to the county attorney about pressing charges; however, the county attorney was Jim Phillips, the individual who had been hired by Mark to appeal the judgment granting the Roitzes the water rights. Mr. Phillips, acting in his official capacity, refused to file any charges in the matter.

Meanwhile, the other dispute in which Vincent Vehar and Mark Hopkinson were pitted against each other had begun to brew. In 1975, Joe Hopkinson had approached the Fort Bridger Sewer and Water Board, a client of Mr. Vehar, to see if he could get the proposed trailer court annexed to the sewer district. It was his desire to hook up to the district for the usual $100 charged as the initial hookup fee. Before any official action could be taken, the Board was presented with a petition, signed by 95% of the district's membership, seeking to raise the fee. (T.Vol.IV, p. 257) The Board conducted several public meetings in order to determine what it should charge to hook up the trailer court. After extensive negotiations between Mark's attorney, Mr. Phillips, and the District's attorney, Mr. Vehar, a contract was entered into on March 13, 1976, providing for the annexation of the Hopkinson property to the district and requiring the payment of a hookup fee of $300 per trailer.

Once the hookup had been completed, Mark announced that it was his intention not to pay the contract price. During the ensuing struggle in which the Board tried to force Mark to pay, various board members received threats from Mark. This resulted

in the filing of a suit on January 28, 1977, by Mr. Vehar on behalf of the Board. The complaint filed not only sought to force Mark to pay the money due under the contract but also requested $50,000 in exemplary damages because of the threats made against the Board members.

It was during 1976 that Mark first hired Jeff Green as a carpenter to work on various projects he had going. Jeff in turn introduced Mark to his friends, Mike Hickey, an admitted alcoholic, and Jamey Hysell. Along with these friends, Jeff had engaged in several larcenies and burglaries in the area.

In June of 1976, Jamey Hysell was arrested for possession of marijuana as a result of a statement made to the authorities by Kelly Wyckhuyse, a fifteen-year-old girl with whom Jamey had spent a night at his place. In retaliation, Jamey plotted with Mike Hickey to murder her. In accordance with their plan Hickey picked Kelly up on June 27, 1976, and took her to an isolated spot in the country where he was to meet Hysell. Because Hickey had already informed Kelly of their plan to kill her, when Hysell failed to show, he struck her on the head with a rock, thus killing her. He then cut out her "privates" to take to Hysell as proof that the job was done and buried her remains. > (FN7)

Late in 1976, Mark Hopkinson first approached Harold James Taylor about "doing a job for him." During the course of their numerous conversations, Hopkinson explained that the job involved working over a gentleman in Evanston, Wyoming. An arrangement was made whereby in exchange for $200 Mr. Taylor agreed to perform the job. Hopkinson then offered Taylor photographs of Vincent Vehar, the intended victim, and explained that he was a lawyer who lived in Evanston. Before the job could be done, Mark came back to Taylor and stated that his people wanted Vincent Vehar killed. Taylor agreed to this but upped his price to $600; he received this money on December 19, 1976. (T.Vol.VI, p. 708) Shortly thereafter Taylor announced that he would not murder Vincent Vehar.

In March or April of 1977, Mark had a conversation with Kenny Near, a past president of the Sewer Board. During their talk Mark offered Near about $2,000 for testimony that the Sewer Board was acting in a vindictive manner towards the Hopkinsons. However, Mr. Near refused the offer. (T.Vol.IV, pp. 254-258)

Mark Hopkinson then turned to Jeff Green and Mike Hickey for ideas as to how to get rid of Vincent Vehar. Several plans were suggested, but none of them were carried through. It was also during this time period that Mark Hopkinson first learned that Mike Hickey had the previous summer killed Kelly Wyckhuyse.

On April 4, 1977, Jeff Green was caught with a bomb in his possession when he was stopped in Utah for speeding while driving Mark Hopkinson's car. He was on his way to Arizona in order to plant the bomb in George Mariscal's car on behalf of Hopkinson. When Mark was informed of Green's plight, he drove to Utah with Hickey and bailed Green out. Hopkinson thereafter refused to further discuss his plans for Vincent Vehar with Jeff Green.

It was during the next four months that Hopkinson asked Mike Hickey about various ideas to either kill William Roitz or Vincent Vehar. Hopkinson promised Hickey $2,000 plus expenses and help in covering up the Wyckhuyse murder, if he would take care of one of these two men. Hopkinson and Hickey made several trips to various locations in the area in order to plan how the murder should be executed. Finally, by the end of July, Hopkinson had concluded that it was Vehar who should be killed and that the best way to do it was to toss a bomb through a basement window of the Vehar home.

Hopkinson received notice during the first week in August that he would be deposed by Vehar in connection with the sewer board's lawsuit on August 9, 1977.

On Saturday, August 6, when Hopkinson saw Hickey at approximately 6:00 P.M., he ordered him to bomb the Vehar home that night. Hickey then went to the local bar where he stayed until approximately 1:30 A.M. He was then driven out into the country for a liaison with a woman whom he had met at the bar. Afterwards, he returned to the bar at approximately 2:30 A.M. in order to pick up his vehicle. Very drunk he drove home; once there, he discovered that the girl friend with whom he lived had not returned. He then finally decided to go do the job as Hopkinson had demanded.

He was seen by a highway patrolman who was investigating an accident on the Interstate heading toward Evanston, approximately 30 miles away, at 2:45 A.M. He arrived in Evanston and cased the Vehar home. After making sure it was safe, he threw the bomb in the basement window and departed. At approximately 3:35 A.M., the Vehar home exploded. On his way back to the Valley, Hickey picked up a hitchhiker. The hitchhiker testified that this must have occurred sometime between 3:30 and 4:00 A.M. Around 4:30 A.M., Hickey found his girl friend and they returned home.

After the Vehar bombing, Hopkinson decided it would be a good idea if he and Hickey were not seen together. As a result, Hickey saw very little of Hopkinson and was never paid the $2,000 that had been agreed upon.

Hickey visited California during the fall; while he was away things began to unravel. Jamey Hysell, at whose command Mike Hickey had killed Kelly Wyckhuyse, was questioned by the police about several larcenies. As leverage, he told them about Kelly's murder. Since Hickey had shown Hysell where the body was, Hysell was able to take authorities to the grave site where the body was found. Hysell also implicated Hickey and Green in several of the small burglaries. The police tracked Hickey down in California and asked him about his involvement in these matters. At the time he denied any connection whatsoever but promised to return to Wyoming shortly. After his arrival back in the state he was charged in the Wyckhuyse murder.

In order to save Hickey, Hopkinson came up with a plan whereby Hickey, Green and Hopkinson would all tell stories implicating Hysell. Eventually this led to the dropping of the murder charges against Hickey and the indictment of Hysell for the murder of Kelly Wyckhuyse. Nonetheless, Hickey did go to prison on burglary charges in the spring of 1978.

It was before and during Jamey Hysell's trial for the murder of Kelly Wyckhuyse in July of 1978 that Jeff Green broke down and decided to tell the truth. He first implicated Hopkinson and Hickey in the Vehar matter and then later, out of fear that Hysell may be put to death, confessed that his statements incriminating Hysell were lies, and that, in fact, Hickey had committed the murder. Green also expressed fears about the repercussions that might befall him as a result of his betrayal of Hopkinson. Green's testimony led to the dismissal of the charges against Hysell. The news of Green's testimony hit the newspapers shortly thereafter. It was at this time that Hopkinson promised Green's sister that he would get Jeff.

In March of 1979, Hopkinson and Hickey were tried in the United States District Court in Cheyenne on federal charges arising out of Green's April 1977 attempt to place a bomb in Mariscal's car. After Jeff Green had testified against him in the trial, Mark Hopkinson also promised Jennifer Larchick that he would get Jeff. T.Vol.XI, p. 1220) As a result of the trial, Hopkinson, but not Hickey, was convicted, sentenced and confined to the federal minimum security facility in Lompoc, California. > (FN8)

At Lompoc Hopkinson had unlimited access to the telephone. Once there he began

making numerous telephone calls. > (FN9) He called a former roommate from Salt Lake City, Hap Russell, in order to have him visit at Lompoc. According to Russell, during the resulting visit they conspired to suborn perjured testimony in connection with the Mariscal conviction; however, the State argued that in fact what was taking place was the planning of the murder of Jeff Green.

Hopkinson also telephoned Jennifer Larchick numerous times and begged her to send a photo of Jeff Green to Hap Russell. When Jennifer balked at this, Hap Russell came up to see Jennifer in order to convince her to send the photo. Finally she agreed and sent a photo cut from a high school yearbook to Russell on April 24, 1979. Jennifer did not again talk to Hopkinson until May 16.

Meanwhile Hap had contacted John Suesata, a man of an admittedly dubious reputation in Salt Lake City. During their meetings several thousand dollars changed hands.

Early in May of 1979 Hopkinson began phoning an ex-girl friend, Kristi King. After several phone calls, he asked her if she would be willing to hide some money in her bank account for him; to this she agreed.

On May 16 Mark called Jennifer Larchick and asked about Jeff Green's whereabouts. He called again on the 17th making the same inquiry. In the meantime, Jeff Green

had gone to Iowa in order to attend the funeral of his grandmother. He and his mother returned the night of the 17th, and on the morning of the 18th he disappeared in the company of two men. Mark Hopkinson once again called Jennifer Larchick to inquire about Jeff Green on May 19th. On May 20, Jeff Green's mutilated body was found, two days before the scheduled opening of the grand jury's investigation into the Vehar bombing. Later in that day Mark Hopkinson made his last call to Jennifer. She advised him that Jeff was dead.

On May 21st, $15,000 turned up in Kristi King's bank account. The next day Kristi King received a phone call from someone who identified himself as Joe. He asked Kristi if she had received the $20,000 in her bank account yet and became upset when she said no. He then indicated that he would meet her at the airport in order to receive what she had gotten.

When Mark Hopkinson next called Kristi on the 25th of May, she demanded to know what was going on and told him she was going to send the money back to his mother; Mark replied, "No, send it back to Scott." (T.Vol.XII, p. 1647) Immediately after this Kristi sent Scott, Mark's brother, three cashier's checks for $5,000 each via registered mail.

Mike Hickey, when called to testify before the grand jury convened in Uinta County in the latter part of May, 1979, broke down and confessed not only to the Wyckhuyse killing but also to the Vehar bombing. In a plea bargain arrangement Hickey agreed to turn State's evidence against Mark Hopkinson in the Vehar case in return for a twenty-year sentence for the murder of Kelly Wyckhuyse.

Mark Hopkinson was then indicted for, among other crimes, the murders of the Vehars and Jeff Green, and brought a trial on September 3, 1979. The appellant elected to produce no evidence on his own behalf and rested at the close of the State's evidence after moving for a judgment of acquittal, which was overruled. After the jury returned their finding of guilt on all six charges, they were asked to deliberate as to whether the death penalty should be imposed on the four murder convictions. The jury returned a recommendation of life imprisonment for the three Vehar counts but death for the murder of Green. Bound by that recommendation, the district court sentenced Mark Hopkinson to two terms of seven and one-half to ten years imprisonment to be served consecutively for the conspiracy convictions, three consecutive terms of life imprisonment for the Vehar killings and to death for the Green murder.

Other facts will be developed when necessary in the disposition of the multiple issues. The reference to other facts in the disposition of the issues will flesh out the bare facts just related.

DISCUSSION AND HOLDINGS ON ISSUES

I

…

II

As his first issue, appellant challenges the propriety of the district court's refusal to sever the Green murder count and try it separately. He concedes that the initial joinder was proper under Rule 11, W.R.Cr.P., > (FN10) but contends that since prejudice to him was shown under Rule 13, W.R.Cr.P., the district court abused its discretion by denying the numerous motions for severance.

> [4] Rule 13 provides:

"If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance, the court may order the prosecuting attorney to deliver to the count for inspection in camera any statements or confessions made by the defendant which the state intends to introduce in evidence at the trial."

This rule was discussed in > Dobbins v. State, Wyo.1971, 483 P.2d 255. There, this court stated:

" * * * as a general proposition * * * there is always a possibility of prejudice resulting from a joinder of similar offenses and care must be taken at the initial stage of the proceedings to guard against such a possibility. In doing so one of the prime considerations is whether or not evidence relating to the similar offenses charged would be admissible in the separate trial of each offense. * * *

" * * * (I)t is well established that the grant or denial of severance is a matter of discretion with the trial court and will not be reversed except for clear abuse of such discretion. > Gornick v. United States, 10 Cir., 320 F.2d 325, 326; > Walton v. United States, 10 Cir., 334 F.2d 343, 347; certiorari denied > Comley v. United States, 379 U.S. 991, 85 S.Ct. 706, 13 L.Ed.2d 612, and > Chow v. United States, 379 U.S. 991, > 85 S.Ct. 707, 13 L.Ed.2d 612; > Sullins v. United States, 10 Cir., 389 F.2d 985, 989. * * * It is also the rule that on a motion for severance the burden is on the movant to present facts demonstrating that prejudice will result from a joint trial, which in effect would be a denial of a fair trial. > United States v. Wolfson, S.D.N.Y., 289 F.Supp. 903, 908; > United States v. Steel, S.D.N.Y., 38 F.R.D. 421, 423. * * * "

Thus, under Dobbins, in order to determine whether a defendant is prejudiced by the joinder the trial judge must ascertain whether all of the evidence admissible in a joint trial would be admissible in separate trials on each of the charges; if it would be, then there is no prejudice. Also see, > Tabor v. State, Wyo.1980, 616 P.2d 1282, which upheld the Dobbins approach.

> [5] > [6] It is well established that deference is given to a trial judge's rulings as to the admissibility of evidence; as long as there is some reasonable basis for his conclusions, this court will not second-guess him on appeal. > Daellenbach v. State, Wyo.1977, 562 P.2d 679. Since at the core of a motion for severance appears the question of admissibility, the same standard of review for the trial court's finding on the severance issue should logically be applied. Thus, we conclude that the burden is upon the appellant to show that there was no reasonable basis for the trial judge to deny the motion for severance.

In his brief:

"The appellant concedes that the joinder of the Taylor-Vehar and Hickey-Roitz conspiracies to the Vehar deaths was proper. The motive that the State outlined to explain the death of the Vehars was tied to problems the appellant had had with a local sewer board. The State theorized that it was necessary for Mr. Hopkinson to intimidate or subjugate the board. In order to accomplish his goal, it was said that Mr. Hopkinson had Mr. Vehar, the board's attorney, murdered and the method used also claimed the lives of John and Mrs. Vehar. The conspiracies were properly joined to the Vehar counts because the conspiracies were designed to accomplish the same goal, the death of Mr. Vehar or the death of the sewer board's president, Roitz. * * * " (Appellant's brief p. 9)

We agree with appellant. All the evidence admissible in a trial only for the conspiracy counts would have been admissible in a trial solely for the Vehar murders and vice versa. As > Rule 404(b), W.R.E. provides:

"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

It is the appellant's contention, however, that error occurred when the trial judge refused to sever the Green count for a separate trial. He argues:

"Prejudice was inherent in the very nature of the cases. The Vehar case was marked by the testimony of the supposed killer who had confessed and supplied the prosecution with all of the details of the killing. The Green case was a weak case of circumstantial evidence, as the lower Court seemed to note at Transcript, Vol. IX, p. 899. It was 'proven' by a series of phone calls, some threats, and exchanges of money and a photo of Green. The danger to the appellant was that the jury would conclude that if he had something to do with the Vehar deaths, then it follows that the circumstantial evidence on Green, though weak, must be true. This danger would have been obviated by severance.

"Additional prejudice to the defendant was caused by the admission of some evidence on the Vehar counts which would have had no place in a separate Green trial, and vice versa. It is difficult for the appellant to perceive how, for example, evidence of the sewer board disputes, the fight with Frank Roitz, the Hopkinson-Roitz feud, the Taylor-Vehar conspiracy, or J. R. Goos' (Goo's) beating would have any relevance or admissibility in a separate Green trial, as it is equally difficult to understand how the Russell and Sueseta (Suesata) transactions and Green's role as the 'star witness' in the Mariscal trial would have had any bearing on the issues in a separate trial on the Vehar counts.

"Here it has been shown that most of the evidence of the Vehar counts would not have been admissible in the Green case, and vice versa. The plain prejudice to the appellant was amplified by its failure to prove the alleged basis for joinder, that Green had some knowledge of the Vehar deaths. The denial of severance was an abuse of discretion under these circumstances and a new trial on severed counts must be ordered." (Appellant's brief, pp. 12-14)

> [7] Appellant is in reality making two contentions here. First, he disputes that all of the evidence admissible on the Vehar counts would be relevant and hence admissible in a trial conducted solely on the Green count. Second, he argues that even if relevant, some of the evidence would be inadmissible as unduly prejudicial under > Rule 403, W.R.E. which provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

As to appellant's first argument, all of the evidence establishing his guilt on the Vehar counts would have been relevant in a separate trial on the Green murder. Again, > Rule 404(b), W.R.E. allows the admission of evidence of other crimes if offered to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Also see, > Elliott v. State, Wyo.1979, 600 P.2d 1044, 1048. In this case, because of Green's knowledge of information, which either directly or indirectly implicated the appellant in the Vehar murders, proof of those murders constituted circumstantial evidence of a motive to silence Green.

Appellant disputes that there was any evidence that Green had any damaging knowledge of the Vehar bombing. However, in the transcript of Jeff Green's testimony at Jamey Hysell's trial, which was admitted into evidence in this case, the following transpired when Green was questioned

by Mr. Lancaster, the County Attorney:

"Q. Will you tell the Court what Mark Hopkinson's attitude was toward Vincent Vehar, if he ever made any threats on him or made any attempts through hiring somebody to kill him?

"A. Mark Hopkinson hated Vincent Vehar with a severe passion and he had hired I was trying to think of the guy's name. Oh, he hired Jim Taylor to shoot Vincent Vehar, but it was never carried out.

"Q. Was there an attempt made to your knowledge?

"A. Yes.

"Q. Will you describe that?

"A. Mark had told me that Jim had was standing outside the door of Vincent Vehar's office with a shotgun, ready to shoot him as he came out the door, but he came out with somebody else and he was unable to complete it.

"Q. Did Mr. Hopkinson state with any frequency that he wanted to kill Vincent Vehar?

"A. Yes. He did.

"Q. How frequently would he discuss it?

"A. Well, for a few months, he would talk about it every time I saw him.

"Q. Was this shortly before August (sic) 7, 1977?

"A. Yes. It was.

"Q. What were your impressions upon hearing that the Vehar family had been blown up?

"A. I was I had thought that Mark had the job done and I believed that he was responsible for it, but I never did know for sure." (T.Vol.XI, pp. 947-948)

This certainly establishes that Green did have damning knowledge.

Further, the State argued to the jury that the appellant wanted to silence Green in the Wyckhuyse matter in order to protect Hickey and prevent him from being placed in a position where he may be inclined to turn State's evidence against Hopkinson in the Vehar bombing. Hickey, in his testimony, admitted that Green knew that he had killed Kelly Wyckhuyse when the following exchange occurred on direct examination by Mr. Spence:

"Q. So would you tell the ladies and gentlemen of the jury the names of the people who knew you had killed Kelly Wyckuse (Wyckhuyse)?

"MR. VAN SCIVER: Not the names that he thinks now, the names of the people he may have told.

"Q. (By Mr. Spence) That's correct.

"A. Jamey Hysell, Forest Green and Jeff Green and Mark Hopkinson." (T.Vol.VI, p. 803)

Green's knowledge of Hickey's involvement with the Wyckhuyse murder placed Hopkinson in jeopardy since Hickey, if exposed, may have desired to use his knowledge of the Vehar matter as leverage in negotiations for a plea bargain. As a result of this, all the evidence which would establish that Hopkinson in fact ordered Hickey to bomb the Vehars is relevant as to one of Hopkinson's motives in killing Jeff Green protection for his weak link, Mike Hickey. This includes evidence of the sewer board dispute, the fight with Frank Roitz, the Hopkinson-Roitz feud, the Taylor-Vehar conspiracy (which Green had knowledge of), the Kenny Near bribe, the Hickey-Roitz conspiracy, or J. R. Goo's beating; all of which appellant acknowledged was relevant on the Vehar counts.

> [8] The evidence establishing Hopkinson's involvement in the Green murder would have been relevant in a trial solely upon the Vehar bombing. Subsequent activity in order to prevent detection of a crime is relevant circumstantial evidence of guilt. > Jones v. State, Wyo.1977, 568 P.2d 837, 845. Here, Hopkinson's involvement in the elimination of the threat Green posed was circumstantial evidence of his guilt in the Vehar matter.

We find no merit in appellant's contention that even if the direct evidence of each murder was relevant as circumstantial evidence of the other murders, the danger of prejudice outweighed the probative value. In order to warrant reversal under Rule

403, supra, the probative value of the evidence must either be slight or none at all. > Key v. State, Wyo.1980, 616 P.2d 774. Here, the probative value of the evidence was substantial.

The conclusion we then reach is that there was no error in the trial court's refusal to sever the Green count.

…

VII

Appellant's seventh contention is that he was prejudiced by "an astounding litany of irrelevant bad acts and crimes allegedly committed by the appellant." Appellant's discussion of the record is misleading:

"First was the beating of J. R. Goo, a member of the sewer board (Transcript, Vol. IV, pp. 205-206, 214), which the county attorney said was done on the order of the defendant to scare the sewer board (Transcript, Vol XIV, pp. 1786, 1932). Next was an alleged attempt to bribe a board member (Transcript, Vol. V, p. 258). A fight in which Mark and Joe Hopkinson and Frank Roitz were involved followed (Transcript, Vol. V, pp. 392-399). Roger Coursey testified that in a conversation with Hopkinson, the appellant said if Coursey knew anyone who had large quantities of money, he could obtain it by violence or nonviolence. 'Hopkinson could have someone ripped-off, fucked up bodily for life, fucked up a little bit, or not hurt them at all,' (Transcript, Vol. V, p. 590). Dorothy Price referred again to Frank Roitz being beaten up and put in the hospital 'by Mark,' (Transcript, Vol. VI, pp. 656-657). Mike Hickey testified that he was presently afraid of Hopkinson, that he was wearing a bullet-proof vest while testifying, and that Hopkinson was hauling drugs (Transcript, Vol. VIII, pp. 1228-1229). Much testimony referred to the so-called Mariscal trial, a trial in which it was alleged that Hopkinson sent Green with a two-stick dynamite bomb to blow up the car of an attorney in Arizona in order to collect a debt (Transcript, Vol. VIII, pp. 1355-1372). Hopkinson was said to want Jamey Hysell 'dead' for once giving a statement against him (Transcript, Vol. IX, p. 943). References were made to Hopkinson standing trial for possession of marijuana (Transcript, Vol. IX, pp. 927, 929). Hopkinson placed four bets with his friend Hap Russell, a bookie, which is an illegal activity in Utah (Transcript, Vol. XI, pp. 1341, 1344). Finally, Hopkinson was said to 'hang out' with a 'con man' named Richard Taylor (Transcript, Vol. XII, p. 1611).

"This list by no means exhausts the bad acts and prior crimes of the defendant which were admitted as evidence in the trial. The other acts were omitted from the list because their admissibility was questionable. There can be no question that the statements which were admitted had no place in this trial. Virtually all were admitted over objection as tending to show motive, opportunity, intent, lack of mistake, identity, modus operandi, and/or common scheme or plan. (See Transcript, Vol. V, p. 397 for example.)"

The beating of J. R. Goo, as discussed on pages 205-206, 214 of Vol. IV of the transcript, was mentioned only as a reference point to another incident. Because of Goo's injuries a sewer board meeting was canceled, and this in turn led to a verbal exchange between the board's chairman and Mark Hopkinson. The "county attorney (Phillips)" never testified that the beating was done on the appellant's order. However, the prosecutor in his closing remarks to the jury in the guilt phase did make such an assertion, (T.Vol.XIV, p. 1786) though in the penalty phase he merely referred to Jim Goo's fear of being beaten up, (T.Vol.XIV, p. 1932) a matter to which Mr. Goo had testified (T.Vol.V, p. 365). The propriety of the prosecutor's closing argument will be discussed infra.

On page 258 of Vol. IV of the transcript, Ken Near testified to an offer made by Mark Hopkinson to purchase testimony in connection with his dispute with the sewer board. No objection was made to the receipt of this evidence under > Rule 404, W.R.E.

On page 1223 on redirect after appellant's counsel had asked Hickey, "You are not

afraid of Mark are you?" (T.Vol.VIII, p. 1227), Hickey testified that it was his fear of Mark Hopkinson that caused him to join the witness protection program. He further stated he had obtained and was wearing a bullet-proof vest. No objection was made by defense counsel.

Again on redirect, after appellant's counsel had asked Hickey if he knew Green "was muling drugs," (T.Vol.VIII, p. 1221), Hickey was asked "What have you heard in your entire life relative to hauling drugs?" His response was "Nothing except that Mark Hopkinson hauled drugs * * *." (T.Vol.VIII, p. 1228) No objection was made that this was impermissible testimony.

While on the witness stand Donley Linford, Jeff Green's attorney, testified to various conversations he had with Jeff. When asked to describe when these conversations occurred, Mr. Linford stated on page 927 of Vol. IX of the transcript:

"A. When we were in Cheyenne at the time of the trial on the possession of marihuana on Mark, there were conversations with Jeff when Bill Blair was there and Leonard Hysell."

Then on page 929, while discussing conversations between Mr. Linford and Mark Hopkinson, the following exchange occurred between the prosecutor and Mr. Linford:

"Q. What was going on in Cheyenne at that time?

"A. Mark's trial.

"Q. Mark's which trial?

"A. For the possession of marihuana."

No objection was made to any of this testimony as evidence of irrelevant collateral misconduct.

On page 1341 of Vol. XI of the transcript, Hap Russell, a former roommate of Hopkinson's, admitted to being a bookie. Whereupon the following discussion occurred between Mr. Russell and the prosecutor:

"Q. Thank you. Did Mr. Hopkinson place bets with you?

"A. Yes, he did.

"Q. How often?

"A. I can tell you exactly how many times. Four times."

No objection was made by defense counsel to the receipt of this testimony.

On page 1610 of Vol. XII of the transcript Kristi King was asked by the prosecutor if she knew a man by the name of Richard Taylor. After Ms. King indicated she did, the following exchange occurred on pages 1610-1611:

"Q. Can the jury hear her? And what do you know about Richard Taylor just in a general way?

"A. Well, I heard things about him that

"MR. VAN SCIVER: Well, I'll object to what she heard.

"MR. SPENCE: Well, that's how reputation is established.

"THE COURT: That's overruled. Go ahead.

"A. I just heard him described in different ways as a con-man.

"Q. (By Mr. Spence) A con-man?

"A. Yes.

"Q. Now, can you tell me whether or not there came a time when you were going with Mark Hopkinson that he became involved with Richard Taylor?

"A. Yes.

"Q. And when was that? During the period of time that you were going together?

"A. You want the year?

"Q. Yes.

"A. Probably 1971."

No objection was made to the testimony that it concerned irrelevant collateral misconduct.

> [22] As previously stated, failure to timely interpose an objection constitutes a waiver unless the misconduct is so flagrant as to constitute plain error. Since the alleged errors just discussed were not objected to during the trial, in order to warrant reversal, appellant must establish that the alleged error was plain error. This includes adequately demonstrating that there was a transgression of a clear and unequivocal rule of law and that prejudice to appellant resulted. Appellant has not established that here; it is not clear that the evidence

was inadmissible on any basis. First, the testimony discussing J. R. Goo's beating did not attribute the beating to Mark Hopkinson. Second, the attempted bribe of Ken Near may have been relevant to demonstrate how desperate Mark Hopkinson was to win the lawsuit filed against him by Vincent Vehar and the lengths he would go to attain his ends. Mike Hickey's testimony may have been admissible to rebut inferences attempted to be drawn by defense counsel during the cross-examination of Hickey. Donley Linford's statements that Mark was on trial for possession of marijuana appears to have been given only as a time-frame reference; if defense counsel was afraid the jury would use it for more, he should have asked for a limiting instruction. Hap Russell's acknowledgment that Mark had placed bets with him may have been merely foundational, as it was elicited in an attempt to depict Russell's and Hopkinson's relationship. Finally, we recognize Kristi King's testimony that Hopkinson associated with a con man by the name of Richard Taylor was of questionable relevance. However, because of the remoteness in time from the incidents in question and the relative unimportance of it in the overall trial, we must conclude that the appellant has failed to demonstrate that he was prejudiced by it in any way.

Appellant challenges other testimony as improperly including references to irrelevant bad acts attributable to him; however, to these appellant did object at trial. On pages 392-399 of Vol. V of the transcript, Arlene Sweat testified about a fight she witnessed between her father, Frank Roitz, and Mark and Joe Hopkinson. She stated that during the fight Joe Hopkinson beat upon Mr. Roitz with a hammer. She also identified a photograph taken of her father following the incident, which was then placed in evidence. On page 398, defense counsel objected that the testimony and the photograph involved was irrelevant collateral misconduct and therefore inadmissible; the court overruled the objection. Later more testimony concerning this incident was elicited from Dorothy Price. (T.Vol.VI, pp. 656, 657).

Roger Coursey, a former special agent for the State of Wyoming, testified that during the course of his undercover work he became acquainted with Mark Hopkinson. On page 590 of Vol. V of the transcript he stated that Mark Hopinson had told him that:

" * * * if we (Coursey and whoever) wanted someone ripped-off that he (Hopkinson) could have it done and we could have these individuals fucked up bodily for life or we could just fuck them up a little bit or not hurt them at all."

An objection had been generally made to Coursey's testimony; as to this statement it had been overruled.

During the course of the trial numerous references were made to the Mariscal matter. The record is replete with the argument by appellant that all discussion of the case should be excluded; however the trial court overruled appellant's objections.

In discussing the propriety of the admission of this evidence, attention should be directed to > Rule 404, W.R.E. which reads:

"(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

"(1) Character of Accused. Evidence of an pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

"(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

"(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.)

> [23] The rule operates only to ban the use of character evidence to prove that behavior was in conformity therewith on a particular occasion. This is made abundantly clear by language in sub-rule (b) to the effect that evidence may be admissible for other purposes. See > Sanville v. State, Wyo. 1979, 593 P.2d 1340, 1345; > Kwallek v. State, Wyo. 1979, 596 P.2d 1372, 1377.

> [24] One of the possible uses of evidence of misconduct specifically recognized by the rule is if the evidence tends to establish motive. See 2 Louisell and Mueller, Federal Evidence, s 140, pp. 122-123. The altercation occurring between Frank Roitz and Mark and Joe Hopkinson was argued by the State as being admissible as going to show that Hopkinson had a motive to get rid of Vincent Vehar, Roitz's attorney who advocated filing charges in the matter. On this basis the judge overruled appellant's objection.

It is well established that deference is given to a trial judge's determinations upon the admissibility of evidence. As long as there is a legitimate basis for his conclusions, this court will uphold the trial court's rulings. > Daellenbach v. State, Wyo. 1977, 562 P.2d 679. In this case the evidence did show that because of the incident the animosity between Vincent Vehar and Mark Hopkinson continued to grow, thus there was a legitimate basis for the trial judge's determination.

> [25] When evidence is admitted under > Rule 404(b) consideration must be given to the question of whether the danger of unfair prejudice is too great and thus mandates that the evidence not be received under > Rule 403, W.R.E. > (FN21) See 2 Louisell and Mueller, Federal Evidence, s 140, pp. 114-115. In this particular instance, the risk of prejudice was relatively small since in fact it was Mark's father who had actually beaten on Mr. Roitz with a hammer. Therefore we cannot conclude that the trial judge erred in admitting this evidence.

> [26] Roger Coursey's testimony concerning Hopkinson's statements to him, really does not involve > Rule 404, supra, at all. It was not character evidence or evidence of a bad act committed by the defendant. It was evidence of an assertion by Hopkinson of his ability to arrange accidents thus, an admission. As such, it was clearly admissible.

> [27] We cannot conclude that there was no legitimate basis for the trial court's determination as to all evidence in the Mariscal matter. First, Jeff Green's testimony against Hopkinson in that case went towards establishing Hopkinson's motive to kill him; a proper purpose under > Rule 404(b), supra. Second, the use of the same dynamite for both the Mariscal and Vehar bombs went towards establishing identity. See 2 Louisell and Mueller, Federal Evidence, s 140, p. 144. That is, by showing the involvement of Hopkinson in the Mariscal bombing plan and then the fact that dynamite from the same source was used to bomb the Vehar's house, establishes such a relationship between the two cases that it adds further evidence of Hopkinson's involvement in both bombings. It was admissible in that it tended to prove a material fact, > State v. Lindsay, 1957, 77 Wyo. 410, 317 P.2d 506, appellant's connection with the Vehar bombing. Of course the evidence did "prejudice" appellant in the sense that it was properly admissible as parts of a web of circumstantial evidence pointing to guilt. But the key is whether it unfairly prejudiced appellant. That is, would the danger that the jury may misuse the evidence and convict appellant because of the collateral

misconduct outweigh the relevancy of the evidence. Since we cannot conclude that the danger of misuse of the evidence was sufficiently great so as to outweigh its probative value and warrant the reversal of the trial court, we uphold its ruling to admit the evidence.

> [28] One further note, in connection with > Rule 404(b), supra, is that numerous jurisdictions have read it as not limiting the uses of evidence of collateral misconduct to those enumerated; those listed in the rule are merely provided as examples. > State v. Bain, Mont. 1978, 575 P.2d 919; > State v. Daniels, Utah 1978, 584 P.2d 880; > McMichael v. State, 1978, 94 Nev. 184, 577 P.2d 398. In particular there has been a recognition of a most fitting exception where the collateral misconduct amounts to what has been termed "an inseparable part of the whole deed." > (FN22) See 2 Louisell and Mueller, Federal Evidence, s 140, pp. 123-125. We recognize the validity of the exception particularly in this case due to its complexity and the inability of a jury to adequately understand what and why something happened on a particular date without having the whole story to consider.

> [29] Finally, appellant also contends that a statement alleging that Hopkinson had said he wanted Jamey Hysell dead was erroneously admitted into evidence. The statement was made by Jeff Green and came into evidence when a transcript of his testimony was read into evidence. No objection was made to this particular statement. However an objection had been made that the transcript was inadmissible hearsay, and as a result the trial court had instructed the jury that the testimony was not offered to prove that the facts stated were true, but merely to show that the statements were made by Green. The hearsay issue will be discussed infra.

Further, this was not evidence of collateral misconduct, it was a statement that Mark Hopkinson wanted Jamey Hysell dead because he had signed a statement that claimed Hopkinson had picked up dynamite from him. (T.Vol.IX, p. 943) Ignoring the hearsay problem for the moment, this evidence was relevant to show how desperate Mark was to cover up any connection between him and the dynamite used in the Vehar bombing and fitted into a pattern of conduct related to the Vehar deaths by dynamite. It also went to show how Hopkinson handled obstacles. It constituted another link in the chain of proof and tended to prove the dynamite issue. > Horn v. State, 1903, 12 Wyo. 80, 73 P. 705. Thus, we find no error under > Rule 404, supra.

…

XVI

> [66] > [67] The sixteenth issue also entails a sufficiency of the evidence question; however here the appellant challenges his conviction of murdering Jeff Green. As previously stated, after reviewing the evidence in the light most favorable to the verdict, in order for appellant to prevail we must conclude that a reasonable mind could not believe him guilty beyond a reasonable doubt. McCarty v. State, supra; Jones v. State, supra. Proof of each element of a crime may be established by either direct or circumstantial evidence. > Dryden v. State, Wyo.1975, 535 P.2d 483. It is the jury's function to weigh the value of such evidence and draw such reasonable inferences as it sees fit. > Cloman v. State, Wyo.1978, 574 P.2d 410. We will overturn a jury's verdict only where the jury has acted unreasonably in the performance of this role.

> [68] As to Hopkinson's involvement in the Jeff Green murder, the evidence which was adduced at trial included the facts that (1) Jeff Green knew of and was willing to testify about various crimes including the Wyckhuyse murder, the Mariscal matter, and the conspiracy to murder Vehar all of which circumstantially evinced Hopkinson's motive to silence Green; (2) Hopkinson had

not only threatened Green personally but also told Jennifer Larchick in March of 1979 that he was "going to get Jeff" (T. Vol. XI, p. 1219); (3) once imprisoned, Hopkinson discovered through phone calls to Jennifer that Green was talking to prosecutors investigating the Vehar bombing (T. Vol. XI, pp. 1224-1226); (4) Hap Russell visited Hopkinson in prison and, according to Russell's testimony, agreed to arrange to buy, for twenty thousand dollars, perjured testimony to be used to get Mark out of jail (T. Vol. XII, p. 1419); (5) Hopkinson called Larchick requesting her to send a photo of Green to Russell, which she eventually did (T. Vol. XI, pp. 1228-1237); (6) Russell, meanwhile, contacted several individuals in Salt Lake City in reference to the job Hopkinson wanted done, gave them Green's photo and became involved in large money transactions with them (T. Vol. XII, pp. 1485, 1500); (7) in the middle of May of 1979 Green went to his grandmother's funeral in Iowa (T. Vol. X, p. 1052); (8) at this time Hopkinson again commenced calling Larchick daily in order to check on Green's whereabouts and see if Jennifer would watch for cars with Utah license plates (T. Vol. XI, p. 1240); (9) Larchick informed Hopkinson that the grand jury investigating the Vehar bombing would be starting and that she was subpoenaed to testify on May 24th (T. Vol. XI, p. 1242); (10) Green turned up missing May 18th (T. Vol. X, pp. 1061-1062); (11) on the same day that Larchick informed him Green was missing, Hopkinson called Kristi King and requested that she allow him to deposit some money in her bank account (T. Vol. XII, p. 1629); (12) after she agreed, on May 21st King received word that fifteen thousand dollars had been deposited in her account (Id.); (13) meanwhile, Green was found dead on the 20th and on the same day Larchick informed Hopkinson of this fact (T. Vol. XI, p. 1245); (14) on May 22nd, King received a phone call from a man who identified himself as "Joe" and demanded that she deliver to him the money, which he claimed should have been twenty thousand dollars, that Hopkinson had sent her (T. Vol. XII, p. 1634); (15) the man also claimed to have gotten her unlisted phone number from Hopkinson (T. Vol. XII, pp. 1617, 1645); (16) King spoke to Hopkinson who begged her to give the money to Joe but when she refused told her to send the money on to his brother, Scott (T. Vol. XII, p. 1648); (17) King did send the money to Scott (Id.); (18) the day before Green was abducted Hopkinson attempted to locate a welder (T. Vol. XI, p. 1243); (19) a welder may have been used to heat the metal object with which Green's killers burned him before his death (T. Vol. X, p. 1163); and (20) Hopkinson had stated once that he had the ability to arrange to have "individuals fucked-up bodily for life." (T. Vol. V, p. 590).

Though Russell claimed that the various money transfers were to buy perjured testimony, there was sufficient circumstantial evidence to impugn this assertion. Thus, because of the conflict in evidence, the jury was entitled to reject that part of his testimony as an attempt to protect himself from a murder charge. > Montez v. State, Wyo.1974, 527 P.2d 1330.

Admittedly this evidence only circumstantially implicated Hopkinson in the murder of Green. However evidence is not reduced in value merely because it is circumstantial in nature. > McCarty v. State, supra at 786. As was stated in > Wells v. State, Wyo.1980, 613 P.2d 201, 202:

"* * * The law makes no distinction between direct and circumstantial evidence and only requires that the jury, before convicting a defendant, be satisfied of the defendant's guilt beyond a reasonable doubt from all the evidence in the case. Circumstantial evidence has both standing and stature. (Citation)"

We conclude that based on the evidence presented in this case, the jury could have reasonably concluded that Hopkinson was guilty beyond reasonable doubt. The appellant received a fair trial in every respect as to all crimes charged.

…