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Olsen v. State4/14/2003
victim was shot. This set of facts does not establish any intentional infliction of mental torture that proves beyond a reasonable doubt the murders were "especially atrocious or cruel, being unnecessarily torturous to the victim." The facts of Hopkinson II establish the extreme degree of physical torture contemplated by the statutory language. In that case, the evidence was that, before death, the murder victim, while tied down, received over 140 burns on his body, including his eyes; five knife cuts on his neck and breasts; a bullet wound; bludgeoning; and extreme physical torture that could only have been intentionally inflicted over several hours. The facts of Walton discussed earlier establish the extreme degree of mental torture contemplated by Wyoming's statutory language. In comparison, the evidence of this case establishes a degree of mental anguish that, while significant, is not sufficient to be atrocious by proof beyond a reasonable doubt. Were we to decide otherwise, we would not be upholding the clear legislative intent to limit Wyoming's death penalty to the most culpable of murderers.
2. Great Risk of Death Aggravating Circumstance
[ ] We next consider Olsen's challenge to the aggravating circumstance that he "knowingly created a great risk of death to two or more persons." We have upheld application of this factor in Engberg v. State, 686 P.2d 541(Wyo. 1984), finding:
The testimony in this case further demonstrated beyond a reasonable doubt that Engberg seriously endangered the lives of Kay Otto and other persons present in the parking lot at the time of the robbery and murder, as well as that of his victim, Vernon Rogers. In shooting errantly at persons in parked vehicles in the lot, Engberg manifested an utter disregard for lives of innocent persons. This evidence demonstrated beyond a reasonable doubt that Engberg knowingly created a great risk of death to two or more persons. Id. at 557.
[ ] The State did not present any evidence or suggest that there were other bystanders involved who were threatened with grave harm as Olsen shot his intended victims. In applying this aggravating circumstance to Olsen, the State argued its basis was the harm inflicted upon the victims of his crime in a multiple homicide. The State defends its application by referring us to decisions in the jurisdictions of Oklahoma, Louisiana, and Mississippi, providing an interpretation that "where there is more than one victim, where they are in the same building, room, or place, and within the same time frame, their killing may be said to have created a great risk of death to two or more persons." In contrast, Arizona has limited similar language to "those factual situations where a grave risk of death has been created which threatens persons other than the intended victims." Arizona v. Tison, 633 P.2d 335, 351 (Ariz. 1981).
[ ] The State's contention that the legislature intended the death penalty to apply to multiple homicide comports neither with the plain language of the statutory circumstance because the legislature could easily have included "multiple homicide" language, nor with an intent to restrict use of the death penalty to the most culpable of murderers. States that have included multiple homicide as an aggravating circumstance do so in addition to the inclusion of the aggravating circumstance of creating a great risk of death to others, and they use explicit, plain language. Ariz. Rev. Stat. Ann. § 13-703(F)(8) (2001); *fn6 Cal. Penal Code § 190.2(a)(3) (1999); *fn7 Colo. Rev. Stat. Ann. § 16-11-103(5)(l) (2000); *fn8 Idaho Code § 19-2515(h)(2) (1997). *fn9
[ ] Strictly construing the Wyoming statute, we do not find that the statutory language of this aggravatin
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