Flores v. State , 1977 Wyo. LEXIS 287 ( 1977 )

GUTHRIE, Chief Justice.

This is an appeal from a conviction of first degree murder in violation of Subsections (a) and (b)(i) of § 6-54, W.S.1957,1975 Cum.Supp.

Defendant pleaded not guilty and not guilty by reason of mental illness or deficiency, and upon trial the jury found defendant guilty as charged and exacted the death penalty. Since the sentence was imposed, this court has held that the statute applying this penalty was unconstitutional, Kennedy v. State, Wyo., 559 P.2d 1014, and the State concedes in this appeal that this sentence cannot stand and would necessitate a remand for resentencing, which removes this contention from the area of discussion.

This trial was conducted in conformity with § 7-242.5(a), W.S.1957, 1975 Cum. Supp., and was bifurcated as therein provided with no objection by the defendant. However, after the trial and prior to' argument of this case, we had decided the case of Sanchez v. State, Wyo., 567 P.2d 270; and based upon our holding therein appellant filed a supplemental brief, asserting this holding was applicable to the instant case and that appellant must be granted a new trial by virtue thereof. This raises for us the question of the retroactive application of Sanchez to pending cases, which question has not been determined by this court.

The problem of whether a decision holding a law unconstitutional should be applied retroactively or only prospectively has occasioned much discussion and filled many pages of the appellate reports. These express various views and apply various rules. We had earlier said that a state court of last resort may itself determine whether such decision should be applied prospectively or retroactively, Ostwald v. State, Wyo., 538 P.2d 1298, 1302, relying upon Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.

This oft-repeated rule does, however, have certain limitations. When the basis of the holding that a statute is unconstitutional involves the imposition of a wrongful burden of proof upon a defendant, such determination cannot be freely made. The North Carolina Supreme Court, in State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, refused to give the case of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, retroactive effect, which case held that a defendant was deprived of due process if an improper burden of proof was exacted by a statute. The North Carolina court placed some evident reliance upon the longstanding use of their rule and the devastating impact upon the administration of justice. The United States Supreme Court granted a writ of certiorari upon the single question of whether this holding should be applied retroactively. In its disposal of this appeal, in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (decided June 17, 1977), the Supreme Court reversed the North Carolina court and held that Mullaney should be retroactively applied. The Court said, at 97 S.Ct. 2345:

“ * * * But we have never deviated from the rule stated in Ivan V. that ‘ “[where] the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.’” * * *”

Where the purpose served by the ruling would be to “substantially improve the accuracy of the factfinding process at trial” a retroactive application of such decision is mandated, United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 1046, 28 L.Ed.2d 434, and particularly the concurring opinion of Justice Brennan, p. 1047; V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659; State v. Monroe, Iowa, 236 N.W.2d 24, 38.

The Supreme Court of the United States, in its disposition of eases which involve the retroactive application of constitutional rules, has decided them on a case-to-case basis dependent upon the factual situation presented, and has recognized that a court may make such rulings prospective when exigencies of the situation require, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199:

« * * * rpjjg crjter¡a guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. ‘[T]he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.’ Johnson, [v. New Jersey] supra [384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882], at 728, 86 S.Ct. at 1778.”

The first of these criteria is foremost, Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 1036, 22 L.Ed.2d 248; United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374, on remand 9 Cir., 523 F.2d 1382; and Hankerson v. North Carolina, supra, demonstrates that reliance cannot be made upon the last two of such criteria if the decision involves the prevention of the application of a wrongful presumption against the defendant, which violates certain basic requirements in respect to the burden of proof.

This court has never had the occasion to decide the question of the retroactive or prospective application of a constitutional decision insofar as it applies to cases tried prior to the decision but not finally determined by this court. Although quite extensive exploration of areas and rules generally applicable hereto was made in the case of Ostwald v. State, supra, that case involved a collateral attack upon a judgment and sentence and therefore has no direct application, but we should not ignore the expressions therein contained. In Ostwald we did recognize and approve the rule that a criminal defendant should receive “the benefit and effect of a change of law while a case is on direct review,” 538 P.2d at 1303. We do not suggest that this is to be given universal application because it may well be dependent upon the basis of the constitutional finding as evidenced by the preceding authority. However, the views expressed in Ostwald are entirely consistent with our disposal of this case.

Our decision in this case must be based upon “the purpose to be served by the new standards,” and whether it was directed at an aspect of the criminal trial which substantially impaired the truth-finding function, United States v. Peltier, supra, 95 S.Ct. at 2318; Hankerson v. North Carolina, supra; United States v. United States Coin and Currency, supra; V. v. City of New York, supra; and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Sanchez comes clearly within these guidelines in its holding that § 7-242.5(a) is unconstitutional because it inhibits the truth-finding function and thereby violates the defendant’s right to the fair trial which due process of law requires. We there explained that the statutory procedure permitted the introduction of evidence by the prosecution, which coupled with the statutory presumption of mental responsibility resulted in a finding of guilty after the initial stage of the trial and before the defendant had any opportunity to present evidence of lack of mental responsibility. Specifically Sanchez notes that a defendant’s sanity is “an integral part of a determination that he is guilty of the alleged offense”; and further, that it served “only to create an artificial procedural atmosphere, within which the criminal defendant has no idea of how to proceed in asserting his defense,” 567 P.2d at 278. It is clearly evident,, without discussion, that this decision was directed at “the imperative of judicial integrity,”¹ and to avoid a substantial impairment of the fact-finding function.

We cannot make a disposal of this case by casting upon the defendant the burden of objecting at the time of the trial because, as suggested in Sanchez, 567 P.2d at 280, we will not consider the fact that the defendant had not objected to the introduction of evidence during the first phase because of “the confusion inherent in this statutory procedure” and the lack of standards upon which to base either objections or rulings thereon.

We therefore hold that the decision in Sanchez must be applied retroactively to all cases not finally decided and in which the bifurcated procedure provided by this unconstitutional statute was employed, and that defendant’s conviction must be set aside and the case remanded for a new trial.

We find no reason to address the remaining issues presented in this appeal inasmuch as they will probably not arise in a new trial.

Reversed and remanded.

1 . This phrase appears in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669.