Mark A. HOPKINSON, a/k/a Mark Allen Hopkinson, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff), 664 P.2d 43

RAPER, Justice. In Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), this court affirmed the convictions of the appellant for conspiracy and first degree murder of four victims but reversed the death penalty sentence and remanded the case to the district court for a new sentencing trial by a jury to determine whether the appellant should be sentenced to death or life imprisonment for the murder of Jeff Green. The new trial on the death penalty issue only was held, and as a result appellant was sentenced to death.

In the appeal now before us the issues, as formulated by the appellant, are: “1. Whether the . Wyoming death penalty provisions are unconstitutional in that they usurp the supervisory and rule-making power of the Supreme Court and expand its jurisdiction in violation of the Wyoming Constitution. “2. Whether it is speculation to infer that Mark Hopkinson intended or had knowledge of the aggravating circumstances surrounding the death of Jeff Green. “3. Whether the admission into evidence of non-statutory aggravating circumstances violated Appellant’s rights to due process of law. “4.

The proportionality argument— whether Appellant was denied due process and equal protection. “5. Whether the death penalty provisions violate

Article 1,

Section 15 of the Wyoming Constitution. “6. Whether there was any evidence of waiver of the attorney/client privilege which would allow an attorney to testify against a former client in the penalty phase of a capital case. “7. Whether reversal is required if an aggravating circumstance used as a basis for imposing the death penalty is found to be invalid. “8. The double jeopardy argument— whether the consideration by the jury of evidence concerning the Vehar deaths, and the submission to the jury of those aggravating circumstances deemed inapplicable in the first penalty hearing, violated Appellant’s constitutional protection against double jeopardy. “9. Whether

Section 6-4-102(h)(vii) of the 1977 Wyoming Statutes is unconstitutional. “10. Whether the trial court erred in refusing Defendant’s Proposed Instruction A and in denying to the jury the opportunity to pass on the issue of due process. “11. Whether Appellant was afforded effective assistance of counsel. “12. Whether the prosecution has used the Uinta County grand jury improperly as an investigative tool. “13. Whether

Section 6-4-103 abrogated the plain error rule of appellate review. “14. Whether a jury is properly involved in resentencing in a death penalty case.” To those fourteen, we add three more issues required to be answered by § 6-4-103(

d) and (e), W.S.1977: 15. Was the sentence of death imposed under the influence of passion, prejudice, or any other arbitrary factor? 16. Does the evidence support the jury’s findings of aggravating circumstances enumerated in § 6-4-102, W.S.1977 and a lack of sufficient mitigating circumstances which outweigh the aggravating circumstances? 17.

Was the sentence of death excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, to include a reference to those similar cases taken into consideration? (This is an approach different from that contemplated by appellant’s issue 4.) We will affirm the death penalty imposed by the district court. NARRATIVE A review of the facts surrounding the crimes of which appellant was convicted may be found in Hopkinson v. State, supra, pp. 93-97. We will just restate them with some brevity at this point.

As a result of litigation between appellant and his family versus some of their neighbors over water rights and the Fort Bridger Sewer and Water Board in Uinta County, appellant developed a dislike for Vincent Vehar, an Evanston lawyer who represented appellant’s adversaries in those disputes. These disputes had reached violent proportions. Appellant first tried, in 1976, to hire for $600, Harold James Taylor to kill Vehar as he was leaving his office, but Taylor backed out. Appellant then turned to his friends Jeff Green and Mike Hickey for ideas on how to get rid of Vehar.

Hickey was a young alcoholic whom the appellant knew had murdered a fifteen-year-old girl, Kelly Wyckhuyse. The appellant had long discussions with Green on how to get rid of Vehar. During this planning period, appellant engaged Green to drive to Arizona to plant a bomb in the automobile of one Mariscal by way of a persuasive measure to force payment of money allegedly owed by Mariscal to appellant. Green, while enroute to Arizona, was caught speeding in Utah. When arrested on April 4, 1977, he was driving appellant’s Lincoln Continental Mark IV and the bomb was discovered.

Appellant and Hickey drove to Utah where they bailed Green out of jail. Since Green was hot, appellant no longer discussed with him plans to kill Vehar. Thereafter appellant promised Hickey $2,000 plus expenses and help in covering up Hickey’s murder of a young girl by the name of Wyckhuyse, to kill Vehar. After much scheming on the method, it was decided that the best way was to toss a bomb through the basement window of the Vehar residence in Evanston. Appellant received notice in early August 1977, that his deposition in the sewer board’s lawsuit would be taken on August 9, 1977.

On August 6, appellant ordered Hickey to blow up the Vehar home that night; Hickey did. Vehar, his wife and one son were killed by the explosion — another son was seriously injured. Hickey and a Jamey Hysell, previous to the Vehar bombing, had plotted together to kill the Wyckhuyse girl because she had implicated Hysell on a marijuana charge. Hickey was to pick her up and then Hysell was to meet them in an isolated spot and together they would kill her. After Hickey picked her up and drove to the appointed place, he told her their plan.

However, Hysell did not show up, and Hickey, having revealed their intentions, went ahead and killed her by hitting her on the head with a rock. He cut out her privates as proof of her death to show Hysell and buried the rest of her body. After the Vehar bombing, Hickey went to California. While Hickey was gone, Hysell was picked up by police for questioning about some larcenies. Hysell, by way of distraction from his own crimes, informed on Hickey by disclosing the Wyckhuyse murder and took authorities to the grave site, previously pointed out to him by Hickey. The body was recovered.

After questioning, Hickey was charged with the girl’s murder. In order to rescue Hickey and avoid the conviction of the Vehar murders, appellant, Jeff Green and Hickey concocted stories which pointed to Hysell. Charges of the Wyckhuyse murder against Hickey were dropped and Hysell was charged. During Hysell’s trial, Jeff Green broke down. He implicated appellant and Hickey in the Ve-har bombing, confessed that his testimony incriminating Hysell was not the truth and that Hickey had murdered the Wyckhuyse girl. Green’s testimony led to dismissal of the charges against Hysell and extensive media publicity.

Appellant promised Green’s sister that he would get Jeff for that. In March 1979, appellant and Hickey were tried in the United States District Court on federal charges relating to transportation and possession of explosives arising out of Green’s aborted attempt to place a bomb in Mariscal’s car. As an unindicted conspirator, Jeff Green testified as to appellant’s involvement. Hickey was acquitted. Appellant was convicted and sentenced and confined in a federal prison facility at Lom-poc, California for not only those offenses but also parole violation on the previous federal drug violations.

On appeal, that judgment and sentence was affirmed after the first 1979 trial in the case now before us. United States v. Hopkinson, 631 F.2d 665 (10th Cir.1980), cert. denied 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 620 (1981). At Lompoc, appellant had unlimited access to a telephone from which he made at least 114 calls over a period of 51 days between April 8 and May 29, 1979. These calls were traced and, through the testimony of the witnesses called, the State was able to establish a plan to murder Jeff Green. Appellant raised and paid to hired killers, through a series of transactions, some $15,000.

He arranged by phone the procurement of a photo of Jeff Green cut from a high school year book to identify Green for his murderers whose identities to this date, if known, have not been revealed. Some of the calls made on May 16, 17, 19, and 20 by appellant were to inquire about Green’s whereabouts. On the May 20th call, he was advised that Green was dead, his mutilated body having been found on that day. On May 21, $15,000 showed up in the account of one of the witnesses, Kristi King. The next day a “Joe” inquired of her whether $20,000 had showed up in her account.

She refused to have anything to do with it and protested to appellant. At appellant’s request, she sent the money to appellant’s brother, Scott Hopkinson. Hickey testified in the first trial of appellant as to appellant’s participation with him in the Vehar murders. In exchange for Hickey’s testimony relating to the Vehar murders, a plea bargain was entered into whereby Hickey was granted complete immunity from prosecution pertaining to the Vehar murders and a plea of second degree murder was accepted for the murder of the Wyckhuyse girl.

He was sentenced to a term of 20-21 years on the State of Wyoming charge for killing Wyckhuyse, to run concurrently with a sentence of 20 years Hickey had received on a federal charge. As set out in Hopkinson v. State, supra, there are many more facts supporting the convictions of appellant. Additional facts will be presented during our discussion of the issues. The new jury did not have the benefit of hearing the evidence produced during the guilt phase.

In order to appropriately deal with the sentence phase, it was necessary that the new jury be familiarized with most of the circumstances surrounding the various murders, all of which bear a relationship to each other. That was done through live testimony, introduction into evidence of excerpts from the transcript of the first trial and exhibits. I Appellant’s first issue is unique and asks: are the Wyoming death penalty provisions unconstitutional in that they usurp the supervisory and rule-making power of the supreme court and expand its jurisdiction in violation of the Wyoming Constitution?

Significantly, this issue was not raised in the district court. We will not ordinarily consider the unconstitutionality of a statute if the question is not raised in the trial court, Nickelson v. People, Wyo., 607 P.2d 904 (1980); Knudson v. Hilzer, Wyo., 551 P.2d 680 (1976), or any constitutional question for that matter, Nisonger v. State, Wyo., 581 P.2d 1094 (1978); Apodaca v. State, Wyo., 571 P.2d 603 (1977), unless plain error is thereby present, Edwards v. State, Wyo., 577 P.2d 1380 (1978).

Not even all errors of constitutional dimension justify reversal under the plain-error doctrine which should only be applied where the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Hays v. State, Wyo., 522 P.2d 1004 (1974); Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Only because this is a death penalty case do we explore the question.

This court is sensitive to its posture when it views the carefully protected doctrine of separation of powers in the democratic form of government which we enjoy and such as exists nationally and in this state.

Section 1, Art. 2, Wyoming Constitution preserves that concept: “The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.” This court has approved the proposition that the power to determine what acts are crimes, and the punishment for prohibited acts belongs to the legislative branch as an absolute, exclusive and inherent power not shared with the courts.

Sorenson v. State, Wyo., 604 P.2d 1031 (1979). We have, on more than one other occasion, held that punishment for crime is within the province of the legislature. Stambaugh v. State, Wyo., 613 P.2d 1237 (1980); Chavez v. State, Wyo., 604 P.2d 1341 (1979), cert, denied 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980); Hicklin v. State, Wyo., 535 P.2d 743, 79 A.L.R.3d 1050 (1975). While a town ordinance was the subject matter of Town of Green River v.

Bunger, 50 Wyo. 52, 58 P.2d 456 (1936), appeal dismissed 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854, reh. denied 300 U.S. 688, 57 S.Ct. 752, 81 L.Ed. 889 (1937), this court in citing Lawton v. Steele, 152 U.S. 133, 143, 14 S.Ct. 499, 503, 38 L.Ed. 385 (1894), observed that the power of the legislature to declare acts unlawful along with all the incidents of a criminal offense is unlimited except insofar as it is restrained by constitutional provisions and guarantees.

Section 37, Art. 1, Wyoming Constitution declares that “[t]he State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.” In our previous opinion, we at length reviewed the ongoing struggle that took place in the Supreme Court of the United States to reach constitutionally acceptable “standards to guide and control the exercise of discretion by the sentencing authority in its determination of the propriety of the application of the death sentence, or the alternative of a term of life imprisonment.” Kennedy v.

State, Wyo., 559 P.2d 1014 (1977), as quoted in Hopkinson v. State, supra at 152. The statutory scheme eventually adopted by the Wyoming State Legislature and under which appellant was sentenced was patterned after portions of the Georgia and Florida statutes which received approval in Gregg v. Georgia, 428 U.S. 153, 428 U.S. 227, 96 S.Ct. 2909, 96 S.Ct. 2971, 49 L.Ed.2d 859, 49 L.Ed.2d 904, reh. denied 429 U.S. 875, 97 S.Ct. 197, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976) and Proffitt v.

Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh. denied 429 U.S. 875, 97 S.Ct. 197, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976) respectively. We approved the Wyoming system in Hopkinson v. State, supra. The point we make is that the Wyoming Legislature in providing for the death penalty as a sentence in the case of first degree murder was “restrained by [federal] constitutional provisions and guarantees.” This necessitated incorporating into the death penalty sentence constitutional restraints as a condition to its availability.

We do not consider that to be an encroachment upon our rule-making power, but only an incident to the police power of the legislature to legislate a sentencing system. We should briefly examine the history of rule making by this court. Until 1947, it was apparently taken for granted that the rules of procedure in the courts of this state would be and were prescribed by the legislature. There was a Code of Civil Procedure, § 3-101 et seq., W.C.S.1945 and a Code of Criminal Procedure, § 10-101, et seq., W.C.S.1945. In 1947 the legislature, by ch. 53, Session Laws of Wyoming, 1947, passed

an act authorizing the Supreme Court of Wyoming to adopt rules governing practice and procedure in all courts of this state. These provisions are now §§ 5-2-114 through 5-2-117, W.S.1977. This court, on September 23,1947, did appoint the committee as provided by § 4 of the Act to revise the rules and forms governing pleadings, practice and procedure in the courts of this state to conform them to the federal rules of procedure insofar as might be deemed practicable.

The committee drifted along practically inactive through departures and resignations until, on October 9, 1956, it was reactivated with additional new members, including the author of this opinion. Within the memory of some of those presently on this court, there was opposition to giving up code practice and adopting the innovative procedures of the federal rules. Nevertheless, on July 2, 1957, by order of this court, the Wyoming Rules of Civil Procedure, patterned after the Federal Rules of Civil Procedure, were adopted. Statutes in conflict listed by

section number were declared superseded by Rule 87, W.R.C.P. Thereafter a subcommittee of the permanent rules committee was appointed and on November 21, 1968, by order of this court, the Wyoming Rules of Criminal Procedure, patterned after the Federal Rules of Criminal Procedure, were adopted. Statutes in conflict listed by

section number were, by Rule 56, W.R.Cr.P., declared superseded. This court has never previously considered, nor has it been inclined to decide, what would be no more than an academic question as to whether it had the inherent right to adopt rules of procedure without the blessing of the legislature.

It should be noted that § 2 of the 1947 Act, now § 5-2-115, W.S.1977, provides that “[s]uch rules shall neither abridge, enlarge nor modify the substantive rights of any person nor the jurisdiction of any of the courts nor change the provisions of any statute of limitations.” This court has recognized that it is not always easy to distinguish between procedure and substance in that these terms are not mathematically exact. In State, ex rel. Frederick v.

District Court of Fifth Judicial District In and For County of Big Horn, Wyo., 399 P.2d 583, 585, 12 A.L.R.3d 1 (1965), this court recognized that substantive law includes those principles which fix and declare the primary rights of individuals as respect their persons and property, and procedure provides the method of enforcing those rights created by substantive law.

We hold that the system of determining whether the penalty for first degree murder shall be death or life imprisonment is something more than procedure and is substantive law circumscribing the personal rights of the accused as pronounced by the Supreme Court of the United States by which the legislature is bound. The appellant asserts that the legislature has in some way encroached upon powers belonging to the Wyoming Supreme Court in violation of § 1, Art. 2, Wyoming Constitution, supra, because of the enactment of §§ 6 — 4-102(

g) and 6-4-103, W.S.1977. For several reasons we will hold that we do not construe the action of the legislature as exercising any powers belonging to this court. With respect to the automatic appeal, we find from the record that the appellant filed a timely notice of appeal (R. 20) pursuant to Rules 2.01 and 2.02, Wyoming Rules of Appellate Procedure, and did not depend upon the automatic appeal feature of § 6-4 — 103(a), supra fn. 3.

Nor do the provisions of § 6-4-103(e)(i), (ii), and (iii), supra fn. 3, vary from Rule 1.04, W.R.A.P. which provides: “A judgment rendered or final order made by a district court may be reversed in whole or in part, vacated or modified by the Supreme Court for errors appearing on the record.” (Emphasis added.) And, of course, in the absence of error, we may always affirm. It is nothing new to reverse and remand for further proceedings a part of the final judgment of a district court where it is divisible, as here. Sorenson v. State, supra, 604 P.2d 1031; Martinez v. State, 80 Wyo. 325, 342 P.2d 227 (1959).

When this court is presented with a constitutionally based challenge to a statute, it presumes the statute constitutional. Any doubt must be resolved in favor of constitutionality. Before we strike it down we must find that it clearly violates some constitutional principle, state or federal. State v. Laude, Wyo., 654 P.2d 1223 (1982); Thomson v. Wyoming In-Stream Flow Committee, Wyo., 651 P.2d 778 (1982); Nickelson v. People, supra, 607 P.2d 904; Washakie County School District No. One v. Herschler, Wyo., 606 P.2d 310, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980); Sanchez v.

State, Wyo., 567 P.2d 270 (1977). The Supreme Court of the United States has said that, even when a serious doubt of constitutionality is present, courts should “ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). The most important reason for holding that §§ 6-4-102(

g) and 6-4-103 are constitutional is that they are an important and necessary part of the total sentencing structure. In that regard, the opinion of Justices Stewart, Powell and Stevens in Gregg v. Georgia, supra, 428 U.S. at 198, 96 S.Ct. at 2937, in announcing the judgment of the Uourt said: “As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State’s Supreme Court.

That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. § 27 — 2537(c) (Supp.1975). “In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant.

Moreover, to guard further against a situation comparable to that presented in Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)], the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman.

No longer should there be ‘no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ 408 U.S., at 313 [92 S.Ct. at 2764] (WHITE, J., concurring).” Again, 428 U.S. at page 204, 96 S.Ct. at 2939, the Court explained: “Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants.

The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ § 27-2537(c)(3) (Supp.1975). * * *” Then at page 206, 96 S.Ct. at 2940, the Court went on to say: “The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty.

In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.

If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.” Finally, at page 207, 96 S.Ct. at 2941, the Court said: “ * * * In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.” The concurring opinion of Justice White, with whom Chief Justice Burger and Justice Rehnquist joined, also stressed the state supreme court review of the death penalty as “[a]n important aspect of the new Georgia legislative scheme * * *.” (Emphasis added.) In Proffitt v.

Florida, supra, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, the Court, in approving the Florida death penalty statutes, called attention to the provision § 921.141(4), F.S.A., by stating that this automatic review provision is designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. While the provision is not structured in the same fashion as that of Georgia, it was held by the United States Supreme Court that the manner in which the Florida Supreme Court reviews each death sentence does ensure similar results in similar cases, citing State v.

Dixon, Fla., 283 So.2d 1, 10 (1973). The certiorari petition in Proffitt asserted that such a skimpy provision made the role of the state supreme court necessarily subjective and unpredictable. The United States Supreme Court responded to that by stating: “ * * * While it may be true that that court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary.

In fact, it is apparent that the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e.g., Alford v. State, 307 So.2d [433], at 445; Alvord v. State, 322 So.2d [533], at 540-541. By following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v.

Georgia, ante [428 U.S.], at 204-206 [96 S.Ct. at 2939-41]. And any suggestion that the Florida court engages in only cursory or rubber-stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it. * * * ” Id., 428 U.S. at 258-259, 96 S.Ct. at 2969. We conclude and hold that the action of the Wyoming State Legislature in specifying the nature of our review does not purport to take away any of our powers or jurisdiction. The judicial function of making the requisite determinations on review are left to this court.

It would be something else if the legislature enacted a statute whereby the legislature would review the trial proceedings; it then would be exercising powers properly belonging to the courts. We consider the challenged statutory sections to be a proper exercise of legislative power to provide for the sentencing of convicted first degree murders. This does not mean that under the Wyoming Rules of Criminal Procedure we could not conduct the same review as that directed by the legislature.

If we disregarded the legislative directions, we would still be required to conduct a review within the standards set out in Gregg and Proffitt, as did the Supreme Court of Florida. We will not reconsider the holding in Hopkinson v. State, supra, with respect to the admissibility of hearsay evidence. We exhaustively discussed the subject in its applicability to not only the guilt but the penalty phase, 632 P.2d 79 at

Part VIII, pp. 127-137. There is no need for repetition; but, as a remainder, § 6-4-102(c), W.S. 1977, pertaining to the sentencing hearing provides: “The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (

h) and (

j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible.” We consider this part of the sentencing conditions within the power and authority of the legislature.

We find by the record that extensive notice of the evidence, whether hearsay or not, the prosecution proposed to produce at the sentencing hearing was given by the State to the appellant. We also find that for the most

part it was admissible under the exceptions to the hearsay rule and not excluded by those rules, all as set out in our previous opinion. As said in Gregg, 428 U.S. at 189-190, 96 S.Ct. at 2932: “It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that ‘[f]or the determination of sentences, justice generally requires * * * that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania ex rel. Sullivan v.

Ashe, 302 U.S. 51, 55 [58 S.Ct. 59, 60, 82 L.Ed. 43] (1937). See also Williams v. Oklahoma, 358 U.S. 576, 585 [79 S.Ct. 421, 426, 3 L.Ed.2d 516] (1959); Williams v. New York, 337 U.S. [241], at 247 [69 S.Ct. 1079, at 1083, 93 L.Ed. 1337 (1949)]. Otherwise, ‘the system cannot function in a consistent and a rational manner.’ American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(a), Commentary, p. 201 (App. Draft 1968).

See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent. Draft No. 2, 1954). “The cited studies assumed that the trial judge would be the sentencing authority.

If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision. “Jury sentencing has been considered desirable in capital cases in order ‘to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect “the evolving standards of decency that mark the progress of a maturing society.” ’ * * * ” (Footnotes omitted.) It was essential that the jury have the information it received as a part of its sentencing function under the conditions of the sentencing structure which we hold was a proper legislative power.

II As to his second issue presented, appellant asserts that “ * * * it is speculation to infer that Mark Hopkinson intended or had knowledge of the aggravating circumstances surrounding the death of Jeff Green.” He argues that it is difficult to conceive the sufficiency of evidence in substantial quan-turn to determine: one, the murder was committed for the purpose of avoiding or preventing a lawful arrest; two, the murder was committed for pecuniary gain; and three, the murder was especially heinous, atrocious or cruel, all as found by the jury.

These are three out of the five aggravating circumstances the jury found to exist. The jury was instructed that aggravating circumstances must be found beyond a reasonable doubt. It is observed that the trial judge heeded the admonition of our opinion in the first appeal that any statutory aggravating circumstance unsupported by evidence should not be submitted for consideration by the jury, i.e., § 6 — 4—102(h)(iii), (iv), and (viii), fn. 7. The claim of appellant under this issue is that the evidence is insufficient under the standard set by Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). The standard is there articulated to be: “After Winship [In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)] the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.

But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Woodby v. INS, 385 U.S. [276], at 282, 87 S.Ct. [483], at 486 [17 L.Ed.2d 362] (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356], at 362, 92 S.Ct. [1620], at 1624-1625 [32 L.Ed.2d 152].

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review ail of the evidence is to be considered in the light most favorable to the prosecution.

The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis in original and footnotes omitted.) 99 S.Ct. at 2788-2789. Applying that standard, then, to the three aggravating circumstances, we find them more than supported by the evidence. Preliminary to a short review of the evidence, we first must dispose of any question about Enmund v. Florida, -U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

In that ease, the United States Supreme Court held that under the circumstances there, the imposition of the death penalty was inconsistent with the Eighth and Fourteenth Amendments. In that case the aider and abettor to a felony (robbery) did not himself kill, attempt to kill or intend that a killing take place or that lethal force be employed in the commission of a robbery. He was a lookout and driver of the getaway car several hundred yards from where the crime was committed and where the killing was done by accomplices. The case before us is considerably different from the Enmund facts.

In the appeal before us the evidence is that the first degree murder of Green was planned by appellant, he intended that the killing take place, he arranged for hired trigger-men to do the execution and intended that torture and lethal force be utilized. From the beginning the underlying felony is premeditated murder. The rule of Enmund, therefore, for our purposes, is that in order to justify the death penalty for one who does not do the actual killing, there must be present an intent that a killing will take place or that lethal force will be employed. The jury found such intent, and we cannot disagree.

Using the standard heretofore set out from Jackson, supra, there was substantial evidence that the murder of Jeff Green was for the purpose of. avoiding or preventing a lawful arrest. The testimony of Green in the aborted Mariscal bombing case was recounted. In that episode Green was a key witness who provided evidence of some of the circumstances connecting the appellant with the dynamite used in the bombing of the Vehar home. The bomb he was carrying when arrested in Utah had appellant’s fingerprints on it and Green had testified about it and disclosed to investigators where the bomb had come from.

He had knowledge of appellant’s arrangement with Hickey whereby the latter would toss a bomb into the Vehar home and thus was able to and did materially assist in untangling what was a long-time mystery as to the murderer or murderers of the Vehars. He may have even been the one holding the key to unlock the indispensable missing parts. There was evidence of threats made by appellant on the life of Green.

The telephone activity by appellant to acquire a picture of Green, along with keeping track of Green’s activities, was in evidence, all of which took place shortly before Green’s scheduled appearance before a grand jury investigating the Vehar murders. The climax was, of course, the murder of Green and the condition of his body evidencing a methodical manner in which it was accomplished, designed to elicit information of what Green knew, what he would testify about to the grand jury, and culminating in a gunshot wound into his head thereby silencing him from testifying.

This line of direct and circumstantial evidence established for the jury beyond a reasonable doubt the aggravating circumstance of murder to avoid or prevent a lawful arrest. A rational juror could come to that conclusion when viewing the evidence in the light most favorable to the prosecution. There was substantial evidence present from the testimony of Kristi King revealing the attempts to use her to transfer $15,000 actually placed into her possession from and to various people.

This would establish for the jury beyond a reasonable doubt within the Jackson standards that the murder was committed for pecuniary gain, appellant furnishing the funds to hired killers in exchange for Green’s torture and death. The extensive evidence relating to the aggravating circumstance that the murder was especially atrocious, heinous and cruel, is of the most convincing nature.

The evidence of threats against Green and others, the evidence of the character and disposition of appellant to take care of persons with violence, weapons and explosives, and his inquiry about the availability of welding equipment, laid a foundation for the capability of appellant to cause the horrible torture of Green which took place. The photographs of Green’s body are expressive even beyond the words of the testimony of the pathologist who detailed for the jury the various brutal wounds inflicted before Green’s being put to death.

The testimony was that there were some 140 burns on the body of Green such as would be caused by cigarette burns and hot metal, thus connecting the welder which could be used as a heating tool. One of Green’s eyes was burned out, there was an ugly burn behind one of Green’s ears, explained by the pathologist to be an especially sensitive area. There were cuts on the throat and chest. There were bruises on his body consistent with having been caused by kicking with a boot or by striking with a baseball bat or hammer.

There were abrasions on Green’s body probably caused by his being bound by ropes and resulting from an agonizing struggle during the torture. This evidence explained this to have been consciousless or pitiless far beyond the normal murder, Hopkinson v. State, supra, which crime, of course by its nature, is possessed of some of the elements of being heinous, atrocious and cruel. But this one was “especially” so within the meaning of the statutory language. Any rational juror could reach this conclusion beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution.

Ill The appellant claims that the admission into evidence of non-statutory aggravating circumstances violated appellant’s rights to due process of law.

Section 6-4-102(h), W.S.1977, supra, fn. 7, provides that “[a]ggravating circumstances are limited to the following.” The allegedly non-statutory aggravating circumstances as conceived by appellant are contained in various remarks made by the prosecutor in his opening statement that the death penalty is justified on the basis of community survival and that evidence would be introduced to show appellant’s “propensity for violence.” The argument goes on to maintain that evidence was introduced to demonstrate such propensity and that finally in closing argument, the prosecutor reiterated the need for community survival and appellant’s propensity for violence.

This court observed in the first Hopkinson opinion that § 6-4-102(h), supra, fn. 7, specifically limits the aggravating circumstances to those listed. 632 P.2d at 157. It was also there recognized that we must not compromise the weighing process between permissible aggravating circumstances and mitigating circumstances. The scales must not be tipped by impermissible factors leaving us in a quandary as to what the jury would have done had impermissible factors not been present. 632 P.2d at 170-172. The appellant cites us to Brown v. State, Fla., 381 So.2d 690 (1980).

We accept the proposition that improper aggravating circumstances cannot go into the calculus of the decision of the sentencing authority. In Brown, it is interesting to see that the Florida Supreme Court did not reverse the death sentence though an improper aggravating circumstance was present. The court reasoned that ample other statutory aggravating circumstances existed to convince it that the weighing process was not endangered even in the presence of a mitigating circumstance (age — 23 years — of the felon).

The court further held that it must test for reasoned judgment in the sentencing process, rather than “a mechanical tabulation to arrive at a net sum.” It is noted that the Florida statute, § 921.141(5), F.S.A. (Supp.1982), opens with: “Aggravating circumstances shall be limited to the following,” only slightly different than that of Wyoming’s § 6-4-102(h), supra, fn. 7. The other case cited to us by appellant is Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981).

There, on the application for writ of habeas corpus, the situation was that the Florida trial court in a death case had received evidence of a non-statutory aggravating circumstance and instructed the jury, in pertinent part: “In considering aggravating circumstances, you shall consider all factors which are aggravating, including, but not limited to, the following * * The Florida Supreme Court affirmed Henry’s conviction and sentence. The federal court disagreed with the Florida Supreme Court and held that the jury instruction contravened Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972), constitutionally directing that jury discretion in capital sentencing be sufficiently guided so as to avoid arbitrary and selective imposition of the death penalty. Failure of guidance increased the risk that the death penalty would be imposed in an arbitrary and capricious manner. However, the same instruction as that given in Henry was not given in this case.

The trial judge in the case before us instructed the jury that the aggravating circumstances “in this case are limited to the following.” (Emphasis added.) See fn. 7 for the jury’s verdict form.

In that connection the trial judge gave jury Instruction No. 7: “If you do not find that one or more sufficient aggravating circumstances exist as previously instructed, you should sign the verdict recommending life imprisonment. “If, on the other hand, you find one or more of the sufficient aggravating circumstances set forth in these instructions, then in order to find that the death penalty is justified, you must find that the aggravating circumstances outweigh any mitigating circumstances found to exist. “In making this determination you must use your reasoned judgment.

You must weigh the mitigating circumstances against the aggravating circumstances and in so doing to consider the following: “1. No numerical weight is assigned to any of the mitigating or aggravating circumstances. “2. The enumeration of the aggravating and mitigating circumstances does not indicate the weight to be given to any such circumstance. “3. One mitigating circumstance may be of such a nature as to outweigh one or more aggravating circumstance. “4.

One aggravating circumstance may be of such a nature as to outweigh one or more mitigating circumstance.” The instructions forcefully and with clarity limited the jury to only a consideration of the aggravating circumstances listed, and there is no indication that they found any other aggravating circumstance. The instructions clearly channeled the jury into only a consideration of permissible aggravating circumstances. The appellant’s objection goes to the opening statement and the closing argument of the prosecutor.

The jury, through Instruction No. 1, was warned that any statement made by counsel in its presence concerning the facts of the case must not be regarded as evidence. When objections were made by appellant’s counsel during the course of the opening statement and argument of the counsel, the jury was again reminded of this admonition. Further, the jury was directed, through Instruction No. 2, that the ease be governed solely by the evidence in determining the questions before it.

There was much evidence of threats made by the appellant to various persons against Green prior to his scheduled grand jury appearance; there was evidence of the threats made by the appellant against members of the sewer board; and there was evidence of threats made by appellant against Vincent Vehar as a result of the sewer board litigation. All of this evidence was part and parcel of the total picture.

All of it was introductory and relevant to the eventual murder of Jeff Green to avoid or prevent appellant’s arrest, as well as to the motive of appellant in engineering the especially atrocious, heinous and cruel aggravating circumstances. As so emphatically explained in Gregg and Proffitt, the jury must be fully informed of all the pertinent facts in order to adequately exercise the trust of discretion placed upon it. The State must have some leeway in giving the whole story to the jury. The prosecution was only doing what it was authorized to do by § 6-4 — 102(c), W.S.1977: “(

c) The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (

h) and (

j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible.” The statute was meticulously followed in lengthy notice of the evidence in aggravation the State planned to and did produce.

The community survival theme of argument was one used by the prosecution in its closing argument during the penalty phase of the first trial. See 632 P.2d at 160-166. This court explained there and we repeat it here: “Prosecutors cannot and should not be muzzled. It must be kept in mind that the prosecuting attorney is a representative of the State whose obligation is to govern impartially, whose aim is not that it win a case but that justice be done. It is his mission that guilt shall not escape or innocence suffer. He is duty bound to prosecute with earnestness and vigor.

While he may strike hard blows, he is not free to strike foul ones. Singer v. United States, 1965, 380 U.S. 24, 85 S.Ct. 783, 791, 13 L.Ed.2d 630; Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 633, 79 L.Ed. 1314.” 632 P.2d at 166. No foul blows were struck.

IV The appellant raises as an issue what he refers to as “[t]he proportionality argument — whether Appellant was denied due process and equal protection.” He relates the not less than 20 nor more than 21 years sentence given Mike Hickey for the murder of Kelly Wyckhuyse as a part of a plea bargain arrangement to the death sentence given Hopkinson. (R.Vol. X pp. 853-854) Appellant concludes that the sentence of appellant should be measured against that of Mike Hickey on equal protection and due process grounds. The agreement was that Hickey be given immunity from prosecution for his

part in the bombing of the Vehar home and murder of the Vehars and other crimes “ * * * except the Kelly Wyckhuyse murder for which no immunity of any kind is offered or granted; and should said Michael J. Hickey wish to plead guilty to the Kelly Wyck-huyse murder charge as principal or accessory, the Court will accept a plea of second degree murder with a sentence of not less than twenty (20) years nor more than twenty-one (21) years.” The agreement was signed by Hickey, Hickey’s attorney, the special prosecutor for Uinta County and the district judge.

This agreement was read into the record for the benefit of the jury at the penalty hearing now before us. The record also discloses that as a result of the plea bargain, five crimes were solved and convictions obtained: the Wyckhuyse homicide, the three Vehar homicides, and the conspiracy between Mark Hopkinson and Mike Hickey to murder William Roitz, a member of the sewer board.

The appellant accuses the district judge of improper behavior for participating in the plea bargain which was struck, citing what appears to be from the Approved Draft, 1968, ABA’s Minimum Standards for the Administration of Criminal Justice, Standards Relating to Pleas of Guilty, § “3.3(

a) The trial judge should not participate in plea discussions.” Counsel have apparently not acquainted themselves with the provisions relating to Pleas of Guilty, approved by the ABA House of Delegates, February 12,1979, ch. 14 (Little, Brown and Company 2nd ed. 1980). The stringent provision cited has been deleted. Standard 14-3.3 now permits a limited role for the trial judge. He may indicate what charge or sentence concessions would be acceptable.

The final approved standard 14-1.8, in regard to consideration of a plea of guilty in final disposition, provides that “ * * * [i]t is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere when consistent with the protection of the public * * * when there is substantial evidence to establish that: # * * * * * “(iv) the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.” (Emphasis added.) The comments to the standard, 14-1.8, supra, p. 14-49, point out that consideration has been given to the contingency that those defendants, as a class who plead guilty because of one of the considerations listed in 14-1.8(a)(

i) through (iv), will receive more favorable treatment than the class of defendants who stand trial and are convicted, but “[bjeeause each of the foregoing considerations is related to legitimate objectives of the criminal law, this disparity in treatment is in no sense unfair or inconsistent with the goal of uniformity in sentencing.” The idea is that under such circumstances the one who goes to trial receives excessive punishment. We add two thoughts. It is not unconstitutional for the State to extend a benefit to a defendant who pleads guilty and who in turn extends a substantial benefit to the State. Brady v.

United States, 397 U.S. 742, 750-753, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970). The argument of appellant is not unlike one advanced by petitioner Gregg that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute or to plea bargain with.

The Court, 428 U.S. at 199, 96 S.Ct. at 2937, declared that the existence of these discretionary stages is not determinative, but the specific individual convicted of a capital offense must be separately dealt with in the decision to impose the death penalty; there is nothing unconstitutional about affording mercy to an individual defendant. In other words, leniency in one case does not invalidate the death penalty in others.

Justice White in his concurring opinion discussed this aspect, 428 U.S. at 224-226, 96 S.Ct. at 2948-2949, where he declined to interfere with the manner in which Georgia chose to enforce its laws on the basis of a charge of lack of faith in its system. Accomplices in crime need not be sentenced alike; a sentence should be patterned to the individual defendant. Beaulieu v. State, Wyo., 608 P.2d 275 (1980); Daellenbach v. State, Wyo., 562 P.2d 679 (1977).

The second closing determination disposi-tive of this issue is that Mike Hickey was not a principal or aider and abettor or conspirator with the appellant in the murder of Jeff Green. It should be pointed out that, at a later point, we will separately dispatch our statutory responsibility under § 6 — 4—103(d)(iii) and (e), W.S.1977, to determine if the sentence of death is disproportionate to the penalty imposed in similar eases and to make reference to those cases we take into consideration. V We have at length dealt in Hopkinson v.

State, supra at 149-157, with the constitutionality of Wyoming’s death penalty statutes under the Eighth Amendment to the United States Constitution and § 14, Art. 1, Wyoming Constitution, the latter containing near identical language as that in the Eighth Amendment. We found and held them constitutional as to those provisions.

Appellant now claims their unconstitutionality under § 15, Art. 1, Wyoming Constitution: “The penal code shall be framed on the humane principles of reformation and prevention.” By their silence, the majority in the previous opinion rejected the stance of the dissent to the previous opinion of the majority, Hopkinson v. State, supra, that § 15, Art. 1 in any way modifies § 14, Art. 1. We have heretofore, in

Part II of this opinion, pointed out the heavy burden assumed by one who would seek to overcome the presumption of constitutionality which a legislative enactment enjoys. We have held that the death penalty is neither cruel nor unusual under § 14, Art. 1. We have held that life may be taken by due process of law under § 6, Art. 1, Wyoming Constitution and that due process of law contemplates the careful adherence to the statutory procedure structured to avoid arbitrary and capricious action by a jury as the sentencing authority in the case of first degree murder.

We consider that we are giving effect to § 15, Art. 1 and the penal code by including the death penalty as framed on the humane principles of reformation and prevention.

As pointed out in Gregg, 428 U.S. at 170-176, 96 S.Ct. at 2923-2926, cruel and unusual punishment as contemplated in the constitutional sense proscribes torture and other barbarous methods but “ ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” (Emphasis added.) The Court went on to say that the punishment may not involve the unnecessary and wanton infliction of pain or be grossly out of proportion to the enormity of the crime. “We may not require the legislature to select the least severe penalty possible as long as the penalty selected is not cruelly inhumane or disproportionate to crime involved. * * * [T]he constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards.” (Emphasis added.) All of the foregoing paragraph from Gregg represents our views of §§ 14 and 15, Art. 1, of the Wyoming Constitution.

We would consider the death penalty inhumane if administered in the same fashion as the murder of Jeff Green. They must be read together. Neither prohibits the death penalty. Wyoming as a state has never been without the death penalty except as noted in the next paragraph. It carried forward the territorial capital crime of murder.

Section 1, ch. 35, Session Laws of Wyoming, 1890, First State Legislature. It was picked up in the Revised Statutes of Wyoming,

Section 1, ch. 87, Session Laws of Wyoming 1915, authorized the jury to qualify their verdict by adding “without capital punishment” in which event the sentence was life imprisonment. By § 1, ch.' 136, Session Laws of Wyoming 1973, the legislature attempted to conform to Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, but failed. This court held the legislative effort unconstitutional on January 27, 1977. Kennedy v. State, Wyo., 559 P.2d 1014 (1977).

On February 28, 1977, the Governor approved § 1, ch. 122, Session Laws of Wyoming 1977, our current death penalty statutes under which appellant was sentenced. Wyoming has only been without the death penalty for a period of one month since statehood. This legislative

interpretation of the constitution is entitled to great weight, though not binding on this court. Coronado Oil Co. v. Grieves, Wyo., 603 P.2d 406 (1979); State ex rel. Irvine v. Brooks, 14 Wyo. 393, 418, 84 P. 488, 6 L.R.A.N.S. 750, 7 A & E Ann.Cas. 1108 (1906). The legislature, representing the people of this state, has retained a legitimate interest in the death penalty, and we defer to its wisdom in that regard in the absence of any express prohibition of the death penalty. VI This issue raised by appellant involves the attorney-client privilege.

The county and prosecuting attorney in Wyoming, as a public officer, is authorized to privately practice the civil law. Appellant claims that when the county and prosecuting attorney represents in his private practice a person who becomes a criminal defendant, the prosecutor’s lips are sealed forever as to any and all relationships between them, whether or not it involved private or public business. We must keep the relationship as it appears in context in this case and not in the broad sweeping terms advocated by the appellant. In order to do that, some detail of the facts is essential. James E.

Phillips, the then county and prosecuting attorney, became acquainted with appellant when employed by the latter in the handling of three matters. One was a petition to the Fort Bridger Sewer District for annexation of the trailer park for sewer service, which appellant was constructing; another a divorce case; and finally an appeal to the Wyoming Supreme Court in a civil ditch case which was settled. Phillips was actually, in the latter, representing appellant’s parents.

Two families, the Sweats and Roitzes, complained to him as a county prosecutor about a fight they had with appellant and which they wanted him to prosecute. Appellant approached him about the same fight seeking to have the Sweat and Roitz families prosecuted. The sheriff was asked to investigate with the result that all prosecution was declined for what appeared to be an unmeritorious feud between families. Later, the sewer board sued appellant for fees for the sewer hookup and appellant approached Phillips and requested that he represent him in the case.

Phillips read the complaint, a matter of public record which was in evidence in this case, and outlined its contents for the jury. One of the counts of the complaint alleged that appellant had conducted a campaign to discredit and frighten the sewer board with some suggested “Vegas connections” to get the board to reduce its sewer hookup fees. Phillips refused to privately represent appellant because of the implications arising from the Sweat/Roitz complaints and because a conflict of interest seemed apparent because of that, some festering criminal aspects and the public status of the sewer board.

All of the foregoing events occurred before the Vehar murders. Upon that occurrence, a grand jury was convened to investigate the occurrence. Phillips was the prosecutor presenting evidence to that body. The same grand jury upon the basis of evidence presented by Phillips as prosecutor returned an indictment against Mike Hickey for the murder of Kelly Wyckhuyse. Appellant approached Phillips several times thereafter demanding that he dismiss the indictment against Hickey. During one of those occasions, appellant stepped toward Mr.

Phillips’ desk where he had a picture of his wife and family, handled the photograph, and indicated that it would be terrible if anything were to happen; it was a nice looking family; it would be terrible if anything happened to his wife, or his family, or with respect to his new home which was being built. Phillips became concerned.

In his testimony, Phillips admitted that the threat had some influence on his later decision to drop the charges against Hickey, though Hickey’s attorney had presented him with evidence, including the testimony of Jeff Green (for which appellant had arranged) that Jamey Hysell murdered the Wyckhuyse girl. In fact the trial against Hysell was underway when Jeff Green broke down and admitted that his testimony was a fabrication. At this point in Phillips’ testimony, a transcript in evidence of an in-chambers proceeding with Jeff Green was reviewed for the jury.

During the course of that in-chambers proceeding Jeff Green indicated that he was under pressure by the appellant and if he testified against appellant, appellant would go to any lengths to get rid of him. Green stated that appellant had told him of other persons, including an FBI agent, whom he had eliminated. Jeff Green was emphatic that he believed appellant had done those things and that was why he was afraid. Phillips as prosecutor was present and observed Green make these statements.

Phillips testified from the trial transcript and his recollection that during the course of the Hysell trial Jeff Green implicated the appellant and Mike Hickey in the Vehar bombing. Jeff Green’s testimony at the Hysell trial was that appellant had orchestrated Hickey’s testimony and Green’s testimony. Appellant even testified in the Hy-sell trial that Hysell had approached him to buy drugs and in order to establish his trustworthiness had told him that he had killed Kelly Wyckhuyse. On cross-examination, Phillips testified that on one occasion he had filed a complaint against Green for bribery.

Green had offered to fix up his basement if Phillips would drop some charges of burglary and receiving stolen property. On redirect, it was developed that this charge was later dropped, along with some others, as part of a written plea bargain agreement, Exh. 604, whereby Green agreed to testify in the Hy-sell trial and cooperate in the Vehar investigation. Green’s testimony in the Hysell trial was read into evidence whereby he disclosed the details of Hickey’s narrative to him of just how Hickey killed the Wyck-huyse girl and what he had done with the body. The appellant was present during these revelations.

It was after these disclosures that appellant worked out all the details to shift the blame from Hickey to Hysell. Green testified the reason appellant wanted Hysell charged was because Hysell had signed a statement that Green and appellant had tried to pick up some dynamite from Hysell and appellant wanted Hy-sell dead because of that knowledge. Eventually Hickey produced some dynamite for the bomb that was to be used to blow up the Mariscal car for appellant. It seems apparent from the record that the evidence is that appellant made no attorney-client disclosures to Phillips to which Phillips testified.

His testimony was entirely related to matters arising after he had terminated his attorney-client relationship with appellant and in the course of his duties as county prosecutor. Much of his testimony involved the identification and reading of documents and testimony arising out of the prosecution of Jamey Hysell.

Rule 501, W.R.E., provides: “Except as otherwise required by constitution or statute or by these or other rules promulgated by the Supreme Court of Wyoming, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in the light of reason and experience.” The Supreme Court of Wyoming has adopted for the government of the Wyoming State Bar the Code of Professional Responsibility of the ABA.

Canon 4 provides that “[a] lawyer should preserve the confidences and secrets of a client.” This same question came up in a different context during the first trial of this case. The prosecutor at that trial in his opening statement said that the evidence would show that Phillips had been threatened by appellant and would reveal the pressures brought to bear on Phillips by appellant. However, the trial judge would not permit the evidence because it was his reasoning that it fell within the attorney-client privilege.

This court was somewhat quizzical about the privilege going so far that a prosecutor must be the silent victim of threats against his family and property. We are now satisfied that an attorney is not forever within the bondage of a former client. The occasion for the threat against Phillips was not made to him in a matter in which he was an attorney for the appellant. It was made to him on an occasion when he was acting as an attorney for the State of Wyoming, and appellant was aware of that because he was seeking the dismissal of murder charges against Hickey.

Even if by any conceivable way it could be conjured up that an attorney-client relationship existed between appellant and Phillips at the time of the threats and demand for dismissal of the Hickey charges, there comes a time when a necessary exception comes into play. We find an acceptable doctrine in 2 Louisell and Mueller, Federal Evidence § 213, p. 578 (1978): “ * * * Society could hardly afford to protect the confidentiality of conversations with counsel which look toward commissions of crimes or frauds; to extend the privilege so far would be to make it cost too much.

Thus an important exception is made, and one which is encountered with increasing frequency in practice. “The exception comes into play when the client knowingly seeks to further a criminal or fraudulent endeavor through consultation with counsel. It is the client’s knowledge alone which counts; the exception may apply, and the privilege may be denied, regardless of the attorney’s understanding. In fact, since the client holds the privilege, the attorney’s understanding or intent should be immaterial.

As proposed-but-rejeeted Rule 503(d)(1) would have had it, the privilege would not apply where ‘the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.’ ” (Footnotes omitted). All of the statements or communications which Phillips attributed to appellant were made in the furtherance of criminal endeav- or. We hold appellant’s position on this issue to be completely without merit.

VII The appellant asserts that reversal is required if an aggravating circumstance used as a basis for imposing the death penalty is found to be invalid. He then proceeds to cite Zant v. Stephens, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222 (1982), in which the following sequence of events had occurred: 1. Stephens was convicted in a Georgia trial court of murder for which the death penalty was authorized. 2. In the sentencing phase, the jury found there to be three statutory aggravating circumstances and imposed the death penalty.

The Georgia statute provides for the death penalty if one of the listed aggravating circumstances is present. 3. The Georgia Supreme Court set aside one of the three aggravating circumstances but affirmed the death penalty stating the rule to be that the death sentence is not impaired because in Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), it upheld the death sentence where there was present only one aggravating circumstance. The Georgia Supreme Court had applied this rule in many death cases, Zant, supra fn. 2, 102 S.Ct. at 1857, but had never explained its rationale. 4.

The federal fifth circuit reversed a federal district court which had denied ha-beas corpus and set aside the death penalty. The Supreme Court granted certiorari. 5. Under a state statute the Georgia Supreme Court will decide questions of state law upon certification from the United States Supreme Court. Accordingly, the Court did certify the following question: “What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?” 102 S.Ct. at 1859.

We do not know at the moment what response the Georgia Supreme Court will make or what the United States Supreme Court’s decision will ultimately be in that case. Appellant merely here raises a question, drops the issue, and moves on to a next issue which he refers to as “the double jeopardy argument.” We do not know what that issue has to do with proof of aggravating circumstances not listed, and we will say now that we do not find that to be the case. All the facts presented are related to the statutory aggravating circumstances as a fact thereof.

This will be dealt with in more detail though it has already partly crept in. For this to be an issue which we must decide, we must hold that one or more of the aggravating circumstances have no validity in fact or in law. Our holding will eventually be that all aggravating circumstances are sustainable in fact and in law.

VIII By the eighth issue appellant argues that the consideration by the jury of evidence concerning the Vehar deaths and the submission to the jury of those aggravating circumstances deemed inapplicable in the first penalty hearing, violated appellant’s constitutional protection against double jeopardy. The Fifth Amendment to the Constitution of the United States, amongst other proscriptions, provides “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.” Through the Fourteenth Amendment, it is applicable to the states. Benton v.

Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Section 11, Art. 1, Wyoming Constitution also provides “ * * * nor shall any person be twice put in jeopardy for the same offense. * * * ” These provisions have the same meaning and are coextensive in application. Vigil v. State, Wyo., 563 P.2d 1344 (1977). In Vigil this court noted with approval, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), wherein it was capsulized that three protections were afforded: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction.

And it protects against multiple punishments for the same offense.” Appellant asks that since the State could not reprosecute appellant for the Vehar deaths since he was found guilty of those first degree homicides, and the convictions were affirmed, what conceivable purpose is served by introducing all the evidence of those homicides in the retrial of the sentencing phase.

It is appellant’s position that it was only necessary to establish the fact of convictions through introduction into evidence of the judgment and sentence reflecting the convictions for the murder of the three members of the Vehar family, which was done, in order to establish the statutory aggravating circumstance that “[t]he defendant was previously convicted of another murder in the first degree *

Section 6 — 4—102(h)(ii), supra. Were that to be done, the jury would not have the rest of the story. It cannot be emphasized enough that the murder of the poor little Wyckhuyse girl, as an example, had something to do with the mutilation murder of Jeff Green. The threats against the county prosecutor were part of the script of the Wyckhuyse drama which burst the bubble of mystery of who blew up the Vehar home, who was behind that, and why.

We can, and probably will more than we have already done, put together all the parts of an intricate formula justifying the death penalty beyond a reasonable doubt within every restriction of a statutory scheme designed to minimize the risk of wholly arbitrary and capricious action or action in a freakish manner. As explained in Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct. at 2932-2933: “It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner.

We have long recognized that ‘[f]or the determination of sentences, justice generally requires * * * that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ [Citations.] Otherwise, ‘the system cannot function in a consistent and a rational manner.’ [Citations.] 38 ” (Footnote omitted.) A significant feature of this case, perhaps different than will be seen in many instances, is that the crime of appellant for which the death penalty is sought and all of the circumstances leading up to it are part of a single bundle which lends itself to a complete picture that lays bare the character, propensities, and individual circumstances of the appellant as an offender.

The appellant claims that the submission of aggravating circumstances found not to exist in the first trial amounts to double jeopardy. At the first trial, the jury found the following statutory aggravating circumstances not applicable: “5. The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. “6. The murder was committed for pecuniary gain.” 632 P.2d at 168. In the second trial the jury found such circumstances to exist.

The principal reason is probably because the jury was inadequately instructed in the first trial, but we need not guess any further or even at all. In the first decision it was held that there could be a new trial on the issue of punishment under the provisions of § 6-4-102(g), W.S.1977. The explanation was that: “The guarantee against double jeopardy, secured by the Fifth Amendment to the Constitution of the United States and § 11,

Article 1, Wyoming Constitution, does not prohibit a remand to the trial court for a redetermination of sentence. United States v. DiFrancesco, 1980, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328. In death penalty cases the U.S. Supreme Court has authorized remanding for a resentencing hearing where the death penalty was imposed originally but because of some defect in the proceeding has been reversed on appeal. Estelle v. Smith, 1981, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359. Only where a judge or a jury refused to impose the death penalty in the first instance is a state barred from seeking it a second time.

Bullington v. Missouri, 1981, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. There can be no new penalty trial as to the Vehar murders in that the jury failed to impose the death penalty as to those crimes.” 632 P.2d at 172, fn. 46. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), pretty much settled the proposition that a defendant who procures a conviction and judgment against him to be set aside for an error of law, may be tried anew upon the same indictment for the same offense for which he had been convicted. In United States v.

Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), it was said: “While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.

In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest. The underlying purpose of permitting retrial is as much furthered by application of the rule to this case as it has been in cases previously decided.” 377 U.S. at 466, 84 S.Ct. at 1589. As pointed out in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), there is an exception to the allowance of a new trial. That is when a conviction is reversed because of an insufficiency of evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The Supreme Court of the United States in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), made a similar comparison to Burks v. United States, supra. The Missouri jury had returned a verdict of life imprisonment. The Supreme Court simply said that he could not, in the light of the sentencing procedures which have the hallmarks of a trial on guilt or innocence, be tried again with the risk of a sentence enhanced to death. Bull-ington is inapplicable in our case because the first jury did return the death sentence as to the Jeff Green murder.

Two juries have now found the appellant a suitable subject for the death penalty. We are unaware of any authority that, on retrial of a person following reversal, there is any restriction on the evidence that can be produced, or that a verdict of guilty cannot be found, or that all the incidents of a new trial including statutorily required findings cannot be pursued in every respect as though upon original trial, less, of course, the errors found in the first trial.

At one time the Wyoming statutes defined.a new trial as “a re-examination, in the same court of an issue of fact, after a verdict by a jury * * § 3-3401, W.C.S. 1945, but was superseded by the Wyoming Rules of Civil Procedure, Rule 87, W.R.C.P. That is consistent with Black’s Law Dictionary (5th ed. 1979). The issues of fact on retrial are the same as those in the original trial, including all the aggravating and mitigating circumstances. There is no such thing as an “acquittal” from an aggravating circumstance in the penalty phase. Knapp v. Cardwell, 667 F.2d 1253, 1263-1265 (9th Cir.1982). State v.

Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), cited by the dissent here, is a peculiar case. There, only one aggravating circumstance was submitted to the jury for consideration in the sentencing phase. The court held that particular aggravating circumstance to be improper (it was the underlying rape for felony murder), but it held that the aggravating circumstance that “[t]he capital felony was especially heinous, atrocious, or cruel” should have been the one submitted to the jury for consideration of the death penalty, because that circumstance surrounding the murder was just that.

Other statutory aggravating circumstances were also suggested as appropriate. The court then remanded the case for a new sentencing hearing. The dissent has taken from that case a discussion of double jeopardy as to aggravating circumstances which was engaged in by the court and completely unnecessary to its decision — as pure an example of dicta as can be found. It may be advisory to the lower courts of North Carolina, but it was expounded without citation of any applicable authority and apparently expressed as its own view. It is not ours. We reversed the death penalty in Hopkinson v.

State, supra, purely as a matter of law. The evidence is clear that Green was murdered to avoid the arrest of appellant for th

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