Olsen (Defendant) appealed a death sentence after a conviction on three counts of first-degree murder.
When the jury instructions regarding the consideration of evidence of mitigating circumstances do not correctly state the law, the death sentence must be set aside.
Defendant entered a bar to rob it. He had two patrons and the bartender lie on the floor and then he shot all three in the head. He fired a fourth shot when one of the victims appeared to still be alive. Defendant was found guilty of three counts of premeditated first-degree murder and three counts of first-degree felony murder. Defendant was sentenced to death and appealed, claiming that the jury was not correctly instructed on how to consider evidence of mitigating circumstances.
Is it reversible error when the jury instructions regarding the consideration of evidence of mitigating circumstances do not correctly state the law?
(Golden, J.) Yes. When the jury instructions regarding the consideration of evidence of mitigating circumstances do not correctly state the law, the death sentence must be set aside. The instructions regarding mitigating evidence were contradictory. It was not clear how the jury should consider evidence of mitigating circumstances that were not proven by a preponderance of the evidence. The jury must be able to consider and give effect to such evidence when imposing a sentence. The Wyoming death penalty statute intends for a jury to conduct a weighing of aggravating and mitigating circumstances and to consider the “substantiality and persuasiveness” of all circumstances instead of counting the number of aggravating or mitigating circumstances that have been proven. This weighing process is not a mechanical counting of tallies on each side. There were additional errors in the sentencing phase as well. The evidence that the murders were especially atrocious or cruel was insufficient. There was no evidence of physical or mental torture. Also, the evidence that Defendant knowingly created a great risk of death to two or more persons was insufficient. The evidence did not demonstrate a great risk of death to bystanders. Finally, the jury should have been told, in response to its question, that a sentence of life imprisonment does not allow for the possibility of parole. Reversed and remanded.
Decisions by the United States Supreme Court have significantly narrowed the discretion a jury has in sentencing defendants to death. Once a case is within these parameters, however, the jury has great discretion to choose a penalty other than death. Aggravating circumstances must be such that they would not apply to every convicted murderer, but only to a subset of those convicted of murder and the circumstance must not be one found to be unconstitutionally vague. In deciding whether to sentence a defendant to death, the jury must make an “individualized determination” on the basis of the defendant’s character and the circumstances of the crime.