Full opinion text
MEMORANDUM AND ORDER SAFFELS, District Judge, Sitting by Designation. Petitioner has before this court a petition for writ of habeas corpus. Petitioner was found guilty of four counts of first degree murder and two counts of conspiracy and judgment was entered on September 27, 1979. He was sentenced on the murder counts, upon recommendation of the jury, to life imprisonment for the three murders of the Vehar family and sentenced to death for the murder of Jeff Green. The Wyoming Supreme Court in Hopkinson v. State (Hopkinson I), 632 P.2d 79 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), affirmed the convictions but set aside the death sentence, remanding to the trial court for a new sentencing trial. After a second penalty hearing, the sentence of death was reimposed on May 27,1982. The Wyoming Supreme Court affirmed in Hopkinson v. State (Hopkinson II), 664 P.2d 43 (Wyo. 1983) , cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Subsequently, petitioner filed a motion for new trial, which denial was upheld in Hopkinson v. State (Hopkinson III), 679 P.2d 1008 (Wyo. 1984) , cert, denied, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). In State, ex rel. Hopkinson v. District Court (Hopkinson IV), 696 P.2d 54 (Wyo.1985), cert. denied, — U.S. —, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985), the Wyoming Supreme Court affirmed the trial court’s dismissal of plaintiff’s consolidated petition for post-conviction relief and writ of habeas corpus. Thereafter in Hopkinson v. State (Hopkinson V), 704 P.2d 1323 (Wyo.1985), the Wyoming Supreme Court affirmed the district court’s denial of sentence reduction along with its denial of other challenges pertaining to petitioner’s sentence. A petition for writ of habeas corpus was thereafter filed and denied in Hopkinson v. State (Hopkinson VI), 708 P.2d 46 (Wyo.1985). Finally, in Hopkinson v. State (Hopkinson VII), 709 P.2d 406 (Wyo.1985), the Wyoming Supreme Court affirmed the district court’s denial of petitioner’s request for grand jury proceedings. The general factual background surrounding this case has been set forth in Hopkinson I and Hopkinson II and need not be restated here. The court will specifically consider the record and relevant factual concerns herein as they may relate to the particular issue at hand. As a preliminary matter, petitioner has certain motions outstanding. Petitioner’s motion for discovery will be discussed infra. His motion to expand the record has to a certain extent been ruled on, as the court has allowed numerous exhibits and affidavits to become part of the record. The motion for evidentiary hearing shall be denied as the court has determined the record provides a sufficient basis for decision. As to petitioner’s motion pursuant to 28 U.S.C. § 2254, Rule 6, the court finds that no good cause exists for the granting of this motion. The court would note that the state courts have dealt exhaustively with the issues raised by petitioner herein. The court is well aware of the standards surrounding 28 U.S.C. § 2254(d) concerning the presumption of correctness regarding state court determinations, particularly in light of the recent United States Supreme Court case of Miller v. Fenton, — U.S. —, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Throughout the discussion of the legal issues involved herein, the court independently reviewed the record and reached its own conclusions on the majority of the issues, although pursuant to § 2254(d), the state court findings can be afforded a presumption of correctness. A. EX POST FACTO Petitioner in issue No. I of his petition argues that the Wyoming court lacked jurisdiction to try him on charges of aiding and abetting when the accessorial acts did not occur in Wyoming. Petitioner asserts that the decision of the Wyoming Supreme Court in Hopkinson I, 632 P.2d 79, relating to this issue, effectively changed the law of the state and should not have been given retroactive application. Petitioner therefore asserts that the ex post facto clause of the United States. Constitution, Article I, § 10 was violated in this instance. This argument concerns petitioner’s prosecution for the murder of Jeff Green which occurred in Wyoming while petitioner was incarcerated in California. Petitioner was charged as an accessory before the fact for this murder. Of particular concern to petitioner is the Wyoming Supreme Court’s ruling in Hopkinson I, 632 P.2d 79, which found the language of an earlier case, Goldsmith v. Cheney, 468 P.2d 813 (Wyo. 1970) to be overly broad. In that case, Goldsmith was arrested in Wyoming upon a fugitive warrant issued from Nevada for a murder which occurred there. The murder charge was eventually dropped and upon Goldsmith’s return to Wyoming, he was charged as an accessory before the fact to murder. The relevant statute, Wyoming Statute § 6-14 (1957) provided: Accessory before the fact. — Every person who shall aid or abet in the commission of any felony, or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed, shall be deemed an accessory before the fact, and may be indicted, informed against, tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted or indicted or informed against; and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal. Goldsmith argued that the language “any felony” referred only to felonies committed in Wyoming. The Wyoming Supreme Court concluded that: By decisions of this Nation’s courts in cases dealing with felonies in which the preparations occurred in one state and the actual felony in another, it has been held, consistent with the common law rule, that absent a statute which provides otherwise an accessory before the fact may be tried where the accessorial act took place and only there____ Goldsmith, 468 P.2d at 816. In Hopkinson I, 639 P.2d 79, the Wyoming Supreme Court evaluating the language of Wyoming Statute § 6-1-114 (1977), which remained unchanged from Wyoming Statute § 6-14 (1957), found that the statutory language “tried and convicted in the same manner as if he were a principal” grants Wyoming jurisdiction if the felony occurred in Wyoming regardless of where the accessorial acts took place. Finding the language of Goldsmith v. Cheney to be unduly broad, the Wyoming Supreme Court read the rule of Goldsmith to mean that Wyoming has jurisdiction over an accessory before the fact if any accessorial acts occur in Wyoming. The court held that Wyoming has jurisdiction to try an accessory before the fact if the underlying crime occurred within the boundaries of the state. In the instant case, petitioner argues that in Hopkinson I, the Wyoming Supreme Court changed the interpretation of the statute defining an accessory before the fact and applied this change in an ex post facto fashion. Petitioner does not claim error in the Wyoming Supreme Court’s jurisdictional conclusion, but argues only that said ruling was improperly given retroactive effect. The United States Supreme Court first discussed the ex post facto prohibition in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). In that case, the court declared ex post facto laws to include: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Id., 3 U.S. at 390. The ex post facto clause “was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925) (citations omitted). A procedural change that may work to a defendant’s disadvantage is not ex post facto. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), reh’g denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977). Whether an alteration of procedure will be found to be ex post facto is a matter of degree. Beazell, 269 U.S. 167, 46 S.Ct. 68. The ex post facto clause is “directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts.” Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915). However, the principle upon which the ex post facto clause is based, that persons have a right to fair warning of that conduct which gives rise to criminal penalties, is fundamental and is protected against judicial action by the due process clause of the fifth amendment. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). A court may not unforeseeably enlarge the application of a criminal statute. Id. See also Borne v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In Bowie, the court found that an unforeseeable and retroactive judicial expansion of narrow and precise statutory language deprived a defendant of his right of fair warning regarding what conduct would be deemed criminal. The fact that the statutory language in issue was “narrow and precise” was an important factor in the court's decision. See Marks, 430 U.S. 188, 97 S.Ct. 990. In the instant case, the statutory language in question does not define any particular conduct as criminal but only provides that an accessory before the fact shall be treated in the same manner as a principal. The language is not by itself narrow and precise or limiting. The dicta in the Goldsmith opinion is what petitioner relies on as the limiting factor. This court cannot conclude that the reasoning of the Wyoming Supreme Court in Hopkinson I, 632 P.2d 79 was unforeseeable given the language of the statute in question. Additionally, the statute and case law in question are more of a procedural rather than a substantive nature. See Post v. United States, 161 U.S. 583, 16 S.Ct. 611, 40 L.Ed. 816 (1896) (statute requiring criminal proceedings to take place in a district which it created is not a matter of substantive law, but is a matter of jurisdiction and procedure). The prescribing of a different mode of procedure and the abolition of courts and the creation of new ones which leave untouched all the substantive protections which are then existing does not fall within the proscriptions of the ex post facto clause. Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894). The ruling of the court in Hopkinson I, 632 P.2d 79 did not make as criminal an act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence and did not deprive petitioner of any substantial right or immunity which he possessed at the time of the commission of the offense charged. See Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901). An act which “only includes the place of the commission of the offense within a particular jurisdictional district, and subjects the accused to trial in that district rather than in the court of some other jurisdictional district established by the government against whose laws the offense was committed” does not alter a defendant’s situation in respect to his offense or its consequences. Cook v. United States, 138 U.S. 157, 183, 11 S.Ct. 268, 275, 34 L.Ed. 906 (1891). Evaluating the record and the relevant law, the court herein finds that the decision of the Wyoming Supreme Court in Hopkinson I, 632 P.2d 79 restricting the Goldsmith holding did not violate the ex post facto clause of the United States Constitution and the portion of petitioner’s petition relating to this argument shall be dismissed. B. DEATH-QUALIFIED JURORS The court will now consider petitioner’s arguments numbered II and III as there is some overlap of these issues. In argument II, petitioner asserts that the prosecution’s exclusion of jurors with reservations about the death penalty denied him his right to a jury constituting a representative cross-section of the community and resulted in the selection of a jury which was prosecution-prone. Petitioner asserts, in argument III, that the death-qualifying process used by the prosecution was prejudicial in that it predisposed the jury into believing petitioner was guilty and thus likely to be sentenced to death. The United States Supreme Court effectively resolved these issues in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Lockhart considered the question of whether the Constitution prohibited the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial. The Court found that exclusion of a group defined solely in terms of shared attitudes does not contravene the objectives of the fair cross-section requirement and such groups are not viewed as “distinctive groups” for fair cross-section purposes. Id., at —, 106 S.Ct. at 1764-65. Recognizing that an impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts, the Court rejected the argument that the death-qualifying process violates a defendant’s constitutional right to an impartial jury. The Court noted that the Constitution does not require a certain mix of individual viewpoints on a Elaborating further, the Court stat-jury, ed: in our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. Id. at —, 106 S.Ct. at 1770. Lockhart did not specifically address the issue petitioner raises herein pertaining to the death-qualifying process as being prejudicial by predisposing the jury into believing guilt, but the court finds this issue to be within the ambit of the Court’s discussion of an impartial jury. This court has carefully reviewed the record, in particular, the comments of the Special Prosecutor to which petitioner refers in his petition and finds that when read in their proper context, these comments and questions cannot be found to prejudice the jury. The first specific portions to which petitioner objects is the reference by the Special Prosecutor as the death penalty being “an ultimate punishment ... [f]or an ultimate crime.” The questioned dialogue reads as follows: MR. SPENCE: What do you think about the death penalty, Ms. Calhoun? MS. CALHOUN: Well, I feel in our society that we live in we must have punishment of some sort. MR. SPENCE: An ultimate punishment? MS. CALHOUN: Right. MR. SPENCE: For an ultimate crime? MS. CALHOUN: Right. (Tr. Yol. I, p. 225). MR. SPENCE: In this case the defendant is charged with 4 counts of murder, as I think you know by now. MR. KIRKPATRICK: Yes. MR. SPENCE: Which is the ultimate crime and in this case the State is asking for the ultimate penalty. How do you feel about that? MR. KIRKPATRICK: I feel it’s a law that is not pleasant to impose on someone but if it has to be done I could do it. MR. SPENCE: Would you do it if you felt it justified? MR. KIRKPATRICK: Yes, sir. (Tr. Vol. II, p. 433). When read in proper context, these statements cannot be viewed as prejudicial. Petitioner also specifically objects to the prosecution's questioning of certain jurors which petitioner views as assuming his guilt. For example: MR. SPENCE: Mr. Emrick, on the death penalty you have heard us talking about that. Do you have any conscious objection to the death penalty? MR. EMRICK: No, I don’t. MR. SPENCE: And in this case in the event the aggravated circumstances, the bad, outweigh the good would you have any hesitancy to do your duty and return a verdict that would involve the death penalty? MR. EMRICK: I would support the law. MR. SPENCE: If the law required you to do that, to return the death penalty, would you do it? MR. EMRICK: Yes. (Tr. Vol. I, p. 234). MR. SPENCE: Yes. Now, how do you feel about the death penalty? MR. WALL: I feel that it’s wrong for one person or a group of persons to take another’s life, but I think — you asked me how I feel? MR. SPENCE: Yes. And I’m listening. MR. WALL: I’m trying. MR. SPENCE: You’re trying to get those two hooked up together? MR. WALL: Not necessarily together. MR. SPENCE: Now, let’s do this and I see you’re able to do this. Let’s kind of project yourself, if you would, a month down the line. You’re in the jury room. You’re now required to vote. You’re in the second part of the trial. The issue is whether this man should die or not. MR. WALL: Yes. MR. SPENCE: You have heard the testimony; you have weighed the circumstances and you have concluded that the aggravating circumstances outweigh the mitigating. The bad outweighs the good. Can you picture yourself there? MR. WALL: Yes, sir, I think I can. MR. SPENCE: How would you vote? MR. WALL: You’re speaking of the penalty phase? MR. SPENCE: Yes. MR. WALL: I would vote for the death penalty if that was the case. (Tr. Vol. II, p. 393-4). The court cannot deem these questions to be prejudicial and finds them to be within the proper scope of voir dire in this case. The Special Prosecutor did not overstep his bounds in these and the other instances cited by petitioner in his petition. The very nature of questions pertaining to the death penalty assumes that the jury has already rendered a guilty verdict in a hypothetical situation. There was nothing so inherently prejudicial as to pose an unacceptable threat to petitioner’s right to a fair trial. See Holbrook v. Flynn, — U.S. —, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). The questions and comments referred to were proper. It follows that issues No. II and III of the petition shall be dismissed. C. SEVERANCE & OTHER BAD ACTS AFFECTING THE RIGHT TO A FAIR TRIAL Petitioner argues in issue V of his petition that his right to a fundamentally fair trial was violated by the joinder of several unrelated charges in one trial and by the introduction of irrelevant bad acts and crimes allegedly committed by him. Specifically, petitioner asserts that joining the charges of conspiring with Jim Taylor to kill Vincent Vehar, conspiring with Mike Hickey to kill William Roitz, aiding and abetting Mike Hickey in the murders of Vincent, Beverly and John Vehar and aiding and abetting unknown killers in the death of Jeff Green was “prejudicial on its face, in that it caused Petitioner to be placed on trial for being a bad man.” Petitioner asserts that this joinder had a snowballing effect and was fundamentally unfair. After careful review, the court cannot conclude that the joinder of these charges in one action was fundamentally unfair and violated petitioner’s due process rights. Rule 11, Wyoming Rules of Criminal Procedure provides for joinder of offenses when they “are of the same or similar character or are based on the same act or transaction, or on two (2) or more acts or transactions connected together or constituting part of a common scheme or plan.” Rule 13, Wyoming Rules of Criminal Procedure provides in pertinent part: If it appears that a defendant or the state is prejudiced by a joinder of offenses ... in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. These rules emanate from the Federal Rules of Criminal Procedure and precedent from the federal courts is given great weight. See Dobbins v. State, 483 P.2d 255 (Wyo.1971). One prime consideration in determining prejudicial effect of joinder is whether evidence relating to the similar offenses charged would be admissible in the separate trial of each offense. Id. at 259. The decision to sever is discretionary with the trial court and a decision to deny severance will not be disturbed absent an abuse of discretion. United States v. Dickey, 736 F.2d 571 (10th Cir. 1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). To find an abuse of discretion, the reviewing court must find that the joinder caused either actual or threatened deprivation of one’s right to a fair trial. Id. A defendant bears a heavy burden of showing real prejudice to his case and must show more than that he would have had a better chance of acquittal with separate trials. United States v. Howard, 751 F.2d 336 (10th Cir. 1984), cert. denied, — U.S. —, 105 S.Ct. 3507, 87 L.Ed.2d 638 (1985). Petitioner has failed to meet his heavy burden to establish that the trial court abused its discretion by denying severance, thus resulting in a deprivation of his right to a fair trial. The essence of his argument seems to be that his chances for acquittal would have been greater had he been tried separately for the several counts. The trial court did not abuse its discretion by joinder of all charges in one action. The charges were so intertwined that evidence admissible for the conspiracy counts would also have been admissible for the Vehar murders. Further, the evidence pertaining to the conspiracies and Vehar murders would likewise be admissible in a trial concerning the murder of Jeff Green. Even if separate trials were conducted, the facts surrounding these separate counts were such that they must be raised for purposes of motive or intent. Defendant was not deprived of his constitutional right to a fair trial because of the joinder of all charges against him in one action. Petitioner’s other arguments relating to his denial of a fundamentally fair trial concerns the admission into evidence of other misconduct. The instances to which petitioner refers are the beating of J.R. Goo, a member of the sewer board, (Tr. Vol. IV, p. 205-206, 214; Tr. Vol. XIV, p. 1786, 1932); an attempt to bribe a board member, (Tr. Vol. IV, p. 258); a fight between Mark and Joe Hopkinson and Frank Roitz, (Tr. Vol. V, p. 392-399; Tr. Vol. VI, p. 656-7); possession of marijuana (Tr. Vol. IX, p. 927, 920); placing bets with Hap Russell (Tr. Vol. XI, p. 1341, 1344), and the Mariscal trial in which it was alleged that petitioner sent Jeff Green with a dynamite bomb to blow up the car of an attorney in Arizona in order to collect a debt (Tr. Vol. VIII, p. 1355-1372). Other instances to which petitioner objects include testimony by Roger Coursey that petitioner had the ability to have someone hurt (Tr. Vol. V, p. 590); testimony by Mike Hickey that he was afraid of petitioner, that he was wearing a bullet-proof vest and that petitioner was hauling drugs (Tr. Vol. VIII, p. 1228-9), along with references that petitioner was said to have wanted Jamey Hysell dead for once giving a statement against him (Tr. Vol. IX, p. 943), and that petitioner was said to “hang out” with a “con man” named Richard Taylor (Tr. Vol. XII, p. 1611). The instances concerning the beating of J.R. Goo were introduced during evidence for the purpose of explanation of why a sewer board meeting had to be canceled. The testimony of the witness did not connect petitioner with the beating although the prosecution in closing did infer such a connection. Counsel at trial did not object to such inferences and the jury was instructed that comments of counsel were not to be considered as evidence. The court must review under plain-error standards where counsel has failed to object in the proceedings below. See United States v. Devons, 764 F.2d 1349 (10th Cir.1985). Plain error has been defined as error so obvious or otherwise seriously affecting the fairness, integrity or public reputation of the judicial proceeding and as “error so ‘plain’ the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Id. at 1353 (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584,1592, 71 L.Ed.2d 816 (1982)). The court cannot find these comments to amount to plain error. The evidence concerning the attempt to bribe a board member was not objected to at trial and does not arise to the level of plain error. Further, this evidence was relevant in terms of laying the background and intensity surrounding the dispute between petitioner and the sewer board, thus contributing to petitioner's animosity toward Vincent Vehar. References to the fight between the Hopkinsons and Frank Roitz were not improperly admitted as it pertained to petitioner’s motive to kill Vincent Vehar, who was the attorney representing Mr. Roitz and advising him to press charges against petitioner. This was admitted in conformance with Rule 404(b), Wyoming Rules of Evidence, providing that evidence of other crimes, wrongs or acts is not admissible to prove character but may be offered for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. The jury was further advised by the court that such evidence was presented for this limited purpose. The evidence pertaining to petitioner’s trial for the possession of marijuana was not objected to and was used for the purpose of establishing a time frame for conversations occurring between Jeff Green and his attorney, Donley Linford. Likewise, the testimony from Hap Russell that petitioner made a few bets with him was not objected to and was offered as a means of establishing the relationship which existed between petitioner and Mr. Russell. The court cannot conclude that petitioner was so prejudiced by these references as to make them rise to the level of plain error. The references made to the Maris-cal trial were objected to but were properly admitted by the trial court. The evidence introduced regarding the Mariscal matter included a description of the dynamite bomb involved therein as well as the part played by Jeff Green concerning the matter. This evidence had relevance in that it went toward proving motive regarding Jeff Green’s death and toward proving identity concerning the dynamite bomb used in the bombing of the Vehar home. Guidelines in determining whether evidence of other crimes or acts should be admitted have been stated as follows: The evidence (1) must tend to establish intent, knowledge, motive, identity, or absence of mistake or accident; (2) must also be so related to the charged offense that it serves to establish intent, knowledge, motive, identity, or absence of mistake or accident; and (3) must have real probative value, not just possible worth. United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). The evidence concerning the Mariscal matter had distinct probative value pertaining to the crimes for which petitioner was charged in the instant case and its probative value far outweighed the risk of unfair prejudice. The testimony by Roger Coursey concerning petitioner’s ability to have someone hurt was generally objected to at trial in that counsel took the position that all material concerning “loose idle talk which is purely a collateral matter” be stricken (Tr. Vol. V, p. 577). The trial court overruled the objection in that Mr Coursey was allowed to testify concerning petitioner’s statments that “if he needed someone ripped off forceably or otherwise”, (Tr. Vol. V, p. 579) petitioner would be able to have it done for him. This evidence was probative in that Jeff Green was identified as someone who could transport drugs for petitioner, thus exemplifying petitioner’s control over Green near the period of time concerning the Mariscal incident. Further, the statement had relevance in that it was an admission by petitioner concerning his capabilities for causing harm. As such, it was properly admitted. The testimony by Mike Hickey concerning his fear of petitioner, his wearing of a bullet-proof vest, and his comment that the petitioner was hauling drugs was not objected to at trial. This testimony was relevant concerning the relation between Mr. Hickey and petitioner and its admission does not amount to plain error. The testimony by Jeff Green, which was read into the court record in this case, concerning petitioner’s statement that he wanted Jamey Hysell dead for giving a statement against him, was not specifically objected to at trial but defense counsel did object to the reading of the transcript as inadmissible hearsay. The jury was instructed that the testimony was not offered to prove the truth of the facts stated therein. The admission of this statement did not affect petitioner’s right to a fair trial and was relevant considering the circumstances of the Vehar bombing and the murder of Jeff Green after he had testified against petitioner. The statement that petitioner was said to hang out with a con man named Richard Taylor was not directly relevant to the issues involved at trial; however, the court cannot conclude that petitioner was prejudiced by the statement. The testimony pertained to a person associated with petitioner in 1971 and played a minor part in the overall trial. Viewing the trial as a whole, the testimony was of minimal significance. The instances and statements to which petitioner refers were properly admitted or were of such a nature so as not to have deprived him of a fundamentally fair trial. Petitioner’s due process rights were not violated on these grounds, accordingly, issue V of his petition must be dismissed. D. DENIAL OF IMPEACHMENT THROUGH POLYGRAPH EXAMINATION RESULTS In issue No. IX of the petition, petitioner argues that his due process rights were violated when the trial court refused to allow him to impeach the testimony of Mike Hickey through evidence of a polygraph examination which Hickey had previously taken. Mr. Hickey was the person who, at the direction of petitioner, placed the bomb in the Vehar home. Mr. Hickey was also responsible for the murder of fifteen-year old Kelly Wyckhuyse. The prosecution theorized that petitioner knew of the Wyckhuyse murder and used this knowledge to manipulate Hickey and further sought to protect Hickey from prosecution by providing him with an alibi and by inducing the County Attorney to drop the Wyckhuyse murder charges against Hickey. Petitioner sought to introduce evidence concerning Mr. Hickey’s passage of a polygraph examination as an explanation of why the murder charges against him were dismissed. Petitioner sought to introduce this evidence if Hickey testified concerning why the charges against him were dismissed (Tr. Vol. VII, p. 1049). The court has carefully reviewed the record and finds that at no time did Hickey speculate as to why charges against him were dismissed. Related testimony concerned the later accusation against Jamey Hysell as being Kelly Wyckhuyse’s murderer and the part petitioner played in the manufacturing of this story. The trial court properly refused to admit the results of Hickey’s polygraph examination. The Wyoming rule regarding polygraph examinations was discussed in Cullin v. State, 565 P.2d 445 (Wyo.1977). Therein it was stated that results of a polygraph examination could be admitted into evidence where the parties had previously stipulated to the admission and there is some test of reasonable reliability. Id. at 457. In the instant case, no stipulation was made concerning the admissibility of Mike Hickey’s polygraph examination. Further, there is nothing in the record which would indicate its reliability. The prosecution did not inquire of Mr. Hickey why the charges against him were dismissed nor did defense counsel question him concerning whether he ever took such an examination. The trial court offered the defense the option of inquiring of Mr. Hickey whether he had ever taken a polygraph examination should the defense feel such questioning might become necessary, thus letting the jury draw its own conclusion. This court fails to see how petitioner was prejudiced in any way by the trial court’s proper exclusion of this evidence. No error was committed and petitioner’s due process rights were not violated. Issue No. IX of the petition shall be dismissed. E. PROSECUTOR’S COMMENTS ON CREDIBILITY AND FACTS NOT IN EVIDENCE In issue No. X of his petition, petitioner argues that comments made by the prosecutor throughout trial and particularly in voir dire, the opening statement, and the closing argument, were comments on credibility and facts not in evidence, thus rendering petitioner’s trial fundamentally unfair. A prosecutor is permitted to prosecute with earnestness and vigor, however, he is not at liberty to strike foul blows. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). A prosecutor breaches his duty to refrain from overzealous conduct when commenting on the defendant’s guilt and offering unsolicited personal views on the evidence. Id. The primary question is whether the comments made by the prosecutor were so prejudicial as to deprive a defendant of his sixth amendment right to a fair trial. United States v. Dickey, 736 F.2d 571. If a constitutional violation is established, the government can only prevail if it proves beyond a reasonable doubt that the defendant would have been convicted absent the prosecutor’s unconstitutional remarks. United States ex rel. Burke v. Greer, 756 F.2d 1295 (7th Cir.1985). The government must demonstrate by more than circumstantial evidence that the defendant is guilty. Id. The case against the defendant must be “overwhelming” in order to apply the harmless error rule. Id. at 1302. Petitioner asserts that the prosecutor vouched for the credibility of the state’s witnesses and expressed his own opinion throughout the course of his closing argument. Petitioner further asserts that the prosecutor expressly stated that he had access to information outside the record. In particular, petitioner objects to the prosecutor’s references to members of his support staff who did not testify at trial. The court has carefully reviewed the record and cannot agree that the references to which petitioner complains created the inference that the prosecution had access to other information verifying defendant’s guilt. Nor can the court conclude that the prosecutor was expressing his personal opinion and vouching for the credibility of the state’s witnesses. The court cannot view the prosecutor’s statements in a vacuum. See United States v. Young, 105 S.Ct. 1038. Upon review of the entire record, the court cannot conclude that the remarks of the prosecution denied petitioner of his right to a fair trial as guaranteed by the sixth amendment. The puteóse of closing argument is to allow the parties an opportunity to offer to the jury ways of viewing the significance of the evidence. Browder v. State, 639 P.2d 889 (Wyo.1982). Remarks of a prosecutor which are fairly anchored to the facts and do not divert the jury from its sworn duty to decide the issue of innocence or guilt based on the evidence and the instructions of the court have been held to be proper. United States v. Shelton, 736 F.2d 1397 (10th Cir.1984), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 119 (1984). The court finds the remarks of the prosecutor to fall within authorized bounds. In a case where both sides argue vigorously and aggressively, the prosecutor’s closing argument “need not be confined to such detached exposition as would be appropriate in a lecture.” United States v. Dickey, 736 F.2d at 596 (citing United States v. Bishop, 534 F.2d 214, 220 (10th Cir.1976) quoting United States v. Isaacs, 493 F.2d 1124, 1164 (7th Cir.1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974)). Regarding petitioners references to the prosecutor’s statements concerning defendant’s allegations that the prosecution prostituted itself, the court would note that these comments were in response to an attack upon the prosecution made by defendant. A prosecutor is given considerable latitude in responding to an argument raised by his opponent. United States v. Dickey, 736 F.2d at 596. The remarks by the prosecutor under all the circumstances did not constitute error. Although “invited responses” are not favored, in this instance the prosecution was attacked by defense counsel and the responding comments were an attempt to “right the scales.” See United States v. Young, 105 S.Ct. 1038. The statement by the prosecutor pertaining to the fact that he did not interrupt defense counsel because he wanted him to have a fair opportunity to present his whole story and he hoped that counsel would extend to him the same courtesy did put petitioner’s counsel in a tenuous position in front of the jury. However, counsel did not object to this statement when made and the court cannot conclude that the statement was so prejudicial as to constitute plain-error. Petitioner also objects to the prosecution’s references to the defendant’s opening statement and the inferences that he failed to produce any evidence to support his claims. The jury was properly instructed that the petitioner was under no duty to produce any evidence. Further, the statements of the prosecution pertaining to this matter were not prejudicial. During the course of the long trial, the prosecutor’s comments were an attempt to summarize the evidence as opposed to the claims of opposing counsel. The court cannot conclude that these remarks were a direct or indirect comment on petitioner’s failure to testify. In summary, the prosecution’s closing argument was sufficiently tied to the facts, did not invade the province of the jury, and did not violate petitioner’s right to a fair trial. Although an instruction is not always curative, the jury was properly instructed in this case that arguments by the parties are not to be viewed as evidence in the case. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). It follows that issue No. X of the petition shall be dismissed. F. SUFFICIENCY OF THE EVIDENCE Petitioner asserts in argument No. XI of his petition that there was insufficient evidence to support his convictions. Petitioner asserts that the jury had to resort to speculation in order to convict on all six counts, but particularly in reference to the Green homicide. The correct constitutional standard to be applied in a case such as this 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.” Pilon v. Bordenkircher, 444 U.S. 1, 2, 100 S.Ct. 7, 8, 62 L.Ed.2d 1 (1979) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The evidence presented at trial surrounding the murder of Jeff Green was set forth in Hopkinson I, 632 P.2d 79, 148-149 as follows: As to Hopkinson’s involvement in the Jeff Green murder, the evidence which was adduced at trial included the facts that (1) Jeff Green knew of and was willing to testify about various crimes— including the Wyckhuyse murder, the Mariscal matter, and the conspiracy to murder Vehar — all of which circumstantially evinced Hopkinson’s motive to silence Green; (2) Hopkinson had not only threatened Green personally, but also told Jennifer Larchick in March of 1979 that he was “going to get Jeff” (Tr. Vol. XI, p. 1219); (3) once imprisoned, Hopkinson discovered through phone calls to Jennifer that Green was talking to prosecutors investigating the Vehar bombing (Tr. Vol. XI, pp. 1224-1226); (4) Hap Russell visited Hopkinson in prison and, according to Russell’s testimony, agreed to arrange to buy, for twenty thousand dollars, perjured testimony to be used to get Mark out of jail (Tr; Vol. XII, p. 1419); (5) Hopkinson called Larchick requesting her to send a photo of Green to Russell, which she eventually did (Tr. Vol. XI, pp. 1228-1237); (6) Russell, meanwhile, contacted several individuals in Salt Lake City in reference to the job Hopkinson wanted done, gave them Green’s photo and became involved in large money transactions with them (Tr. Vol. XII, pp. 1485, 1500); (7) in the middle of May of 1979, Green went to his grandmother’s funeral in Iowa (Tr. Vol. X, p. 1052); (8) at this time, Hopkinson again commenced calling Larchick daily in order to check on Green’s whereabouts and see if Jennifer would watch for cars with Utah license plates (Tr. Vol. XI, p. 1240); (9) Larchick informed Hopkinson that the grand jury investigating the Vehar bombing would be starting and that she was subpoenaed to testify on May 24th (Tr. Vol. XI, p. 1242); (10) Gréen turned up missing May 18th (Tr. Vol. X, pp. 1061-1062); (11) on the same day that Larchick informed him Green was missing, Hopkinson called Kristi King and requested that she allow him to deposit some money in her bank account (Tr. Vol. XII, p. 1629); (12) after she agreed, on May 21st King received word that fifteen thousand dollars had been deposited in her account (Id.); (13) meanwhile, Green was found dead on the 20th and on the same day Larchick informed Hopkinson of this fact (Tr. Vol. XI, p. 1245); (14) on May 22nd, King received a phone call from a man who identified himself as “Joe” and demanded that she deliver to him the money, which he claimed should have been twenty thousand dollars, that Hopkinson had sent her (Tr. Vol. XII, p. 1634); (15) the man also claimed to have gotten her unlisted phone number from Hopkinson (Tr. Vol. XII, pp. 1617, 1645); (16) King spoke to Hopkinson who begged her to give the money to Joe but when she refused told her to send the money on to his brother, Scott (Tr. Vol. XII, p. 1648); (17) King did send the money to Scott (Id.); (18) the day before Green was abducted, Hopkinson attempted to locate a welder (Tr. Vol. XI, p. 1243); (19) a welder may have been used to heat the metal object with which Green’s killers burned him before his death (Tr. Vol. X, p. 1163); and (20) Hopkinson had stated once that he had the ability to arrange to have “individuals fucked-up bodily for life.” (Tr. Vol. V, p. 590). Though Russell claimed that the various money transfers were to buy perjured testimony, there was sufficient circumstantial evidence to impugn this assertion. Thus, because of the conflict in evidence, the jury was entitled to reject that part of his testimony as an attempt to protect himself from a murder charge. Montez v. State, Wyo.1974, 527 P.2d 1330. The record adequately supports the facts as set forth above by the Wyoming Supreme Court. Petitioner asserts that the Wyoming Court never considered other explanations for the set of facts previously summarized. Petitioner asserts that the court did not consider that Jeff Green had only hearsay information against petitioner, that Hickey was the only person posing a threat to petitioner concerning the Vehar murders, that Green had a substantial criminal past and as a result there were many who would consider him a threat, and that the prosecutor warned petitioner’s counsel to be leery of any favorable witnesses because petitioner had in fact been seeking to buy perjured testimony in the Mariscal matter. This court cannot agree with petitioner’s assertions that the facts supporting the charge for the murder of Jeff Green were flimsey and too insufficient to go to jury. Although the evidence against petitioner was circumstantial, it was more than sufficient to support the charge pertaining to the Green murder. A conviction may be based on circumstantial evidence. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781. Petitioner cites Rodriguez v. State, 711 P.2d 410 (Wyo.1985) for the proposition that the Wyoming Supreme Court did not consider evidence in conflict with the state’s evidence and did not satisfy constitutional requirements. Therefore, petitioner asserts the finding of the Wyoming Supreme Court that the evidence was sufficient to support petitioner’s convictions should not be entitled to a presumption of correctness. In Rodriguez, the Wyoming Supreme Court discussed the standard of review for the sufficiency of the evidence. The court stated that: When insufficiency of the evidence is argued, we examine and accept as true the evidence favorable to the prosecution leaving out of consideration entirely the evidence favorable to the defendant in conflict therewith, and give the evidence of the prosecution every favorable inference which may be reasonably and fairly drawn therefrom. Id. at 415-416. In a concurring opinion, Chief Justice Thomas clarified that the better way to articulate the standard of review is that “we review all the evidence in the light most favorable to the prosecution. As a practical matter we would do exactly what we do now.” Id. at 416. (Emphasis in original.) In the instant case, there is nothing in the record which would indicate that the Wyoming Supreme Court did not consider all of the evidence in the light most favorable to the prosecution. The record adequately supports a basis for conviction of petitioner on all counts with which he was charged. This is particularly true when considering the evidence presented in the light most favorable to the prosecution and when considering whether any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Petitioner’s assertions concerning other possible explanations for the circumstances surrounding him and Jeff Green are not well-grounded with factual support and are highly speculative. As such, they do not withstand critical review. Issue No. XI of the petition shall be dismissed. G. AGGRAVATING CIRCUMSTANCES Petitioner in issue No. XII of his petition argues that the trial court committed constitutional error in the submission of certain aggravating circumstances to the jury. There are three basic contentions to this argument. First, petitioner argues that resubmission of aggravating circumstances found nonexistent by a previous jury violated the double jeopardy clause of both the United States and the Wyoming Constitutions. Second, petitioner argues that the submission to the jury of the “purpose of avoiding or preventing a lawful arrest” aggravating circumstance violated his eighth and fourteenth amendment rights. Finally, petitioner asserts that submission to the jury of the “heinous-atrocious or cruel” aggravating circumstance likewise violated his eighth and fourteenth amendment rights. The court will first consider petitioner’s argument concerning double jeopardy caused by the resubmission of certain aggravating circumstances to the second sentencing jury. In petitioner’s first sentencing proceeding, the jury found four aggravating circumstances applicable to the murder of Jeff Green. The jury, however, failed to find that the Green murder was committed for purposes of avoiding or preventing a lawful arrest or that the murder was committed for pecuniary gain. See Hopkinson I, 632 P.2d at 167-68. Upon the resentencing trial, the jury was asked to consider the existence of five statutory aggravating circumstances, including the two aggravating circumstances mentioned above. Petitioner asserts that this resubmission violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The double jeopardy clause prohibits the retrial of a defendant for a crime for which he has been acquitted. See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The Double Jeopardy Clause does not create an absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919). Where a death penalty sentencing proceeding resembles a trial, the double jeopardy clause will apply where a defendant has been previously “acquitted” on the imposition of that penalty. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The court in Bullington equated the imposition of a life sentence in the first sentencing proceeding to an acquittal of the defendant on the death penalty for purposes of reconvietion. See also Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). The issue to be decided in the case at bar concerns the effect to be given to a jury’s findings against the application of particular aggravating circumstances, while concluding the death penalty to be applicable for other enumerated statutory reasons. The United States Supreme Court shed some light on this issue in Poland v. Arizona, — U.S. —, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, the Court was faced with the issue of whether the double jeopardy clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty. A brief history of the facts surrounding Poland is helpful. The petitioners therein were convicted of first-degree murder. The trial judge then sat as sentencer in a separate proceeding and found that the “especially heinous, cruel, or depraved” aggravating circumstance was present but rejected the “pecuniary gain” aggravating circumstance ruling that it applied only in cases involving contract killings. Petitioners were thereafter sentenced to death. On appeal, the Arizona Supreme Court found the evidence insufficient to support a finding of the “especially heinous, cruel or depraved” aggravating circumstance but ruled that the “pecuniary gain” aggravating circumstance was not limited to situations involving contract killings. At the second sentencing hearing, the prosecution presented additional evidence and argument that the “pecuniary gain” and “especially heinous, cruel, or depraved” aggravating factors were present. A third aggravating circumstance was also alleged at that time, that being a previous felony conviction involving the use or threat of violence on another person. The trial judge thereafter found all aggravating circumstances present and resentenced petitioners to death. Petitioners in Poland argued that the Arizona Supreme Court’s finding of insufficient evidence on the “especially heinous, cruel or depraved” aggravating circumstance amounted to an acquittal of the death penalty. Implicitly, they argued that the trial judge likewise acquitted them of the “pecuniary gain” aggravating circumstance. The Court rejected these arguments and reasoned that under Bullington, 451 U.S. 430, 101 S.Ct. 1852 and Rumsey, 467 U.S. 203, 104 S.Ct. 2305, the relevant inquiry is deciding whether the prosecution has not proved its case for the death penalty and has therefore “acquitted” petitioners from the imposition of that penalty. Poland, 106 S.Ct. at 1755. The Court found that petitioners had failed to establish such an acquittal as to the death penalty. The Court stated: We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has “decided that the prosecution has not proved its case” that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance. Aggravating circumstances are not separate penalties or offenses, but are “standards to guide the making of [the] choice” between the alternative verdicts of death and life imprisonment. Thus, under Arizona’s capital sentencing scheme, the judge’s finding of any particular aggravating circumstance does not of itself “convict” a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not “acquit” a defendant (i.e., preclude the death penalty). It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding. Arizona v. Rumsey. Id. at 1755. (Emphasis in original). The Court found that the concern with protecting the finality of acquittals was not implicated in a case where the defendant has already been sentenced to death as there is no cause to shield the defendant from further litigation. Also, a rule requiring a reviewing court to ignore evidence in the record supporting an alternate aggravating circumstance previously rejected would force an entry of a death penalty acquittal even though the reviewing court is of the opinion that the state has proved its case. The court summarized its holding as follows: We hold, therefore, that the trial judge’s rejection of the “pecuniary gain” aggravating circumstance in this case was not an “acquittal” of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty “acquittal” by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the “clean slate” rule applied. Id. at 1756. The Poland decision clarifies that the resubmission to the jury of the “purposes of avoiding or preventing a lawful arrest” and the “pecuniary gain” aggravating circumstances in the instant case did not violate the double jeopardy clause as there was no acquittal on the death penalty. The court would note that in Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.1982), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982), the Ninth Circuit Court of Appeals had previously reached a similar result when considering a like issue. The court finds that the double jeopardy clause was not violated in this instance as petitioner was not acquitted of the death penalty for the murder of Jeff Green; therefore, resubmission of aggravating circumstances to the jury was proper. Petitioner’s second contention under this section concerns the submission to the jury of the “purpose of avoiding or preventing a lawful arrest” aggravating circumstance. Petitioner asserts that there was insufficient evidence to support this aggravating circumstance as he was already incarcerated at the time of Jeff Green’s murder. Petitioner asserts that this aggravating circumstance cannot be equated to mean murder for the purpose of avoiding a conviction because penal statutes are to be strictly construed. Thus, petitioner argues, the tender of this aggravating circumstance to the jury amounted to submission of a non-statutory aggravating factor. In support of this argument, petitioner points to the Utah death penalty statute, Utah Code Ann., § 76-5-202(l)(e) (1953) which provides as an aggravating circumstance: “The homicide was committed for the purpose of avoiding or preventing an arrest by a peace officer acting under color of legal authority or for the purpose of effecting an escape from lawful custody.” Petitioner asserts this provision is indistinguishable from Wyo.Stat. § 6-4-102(h)(v) (1977) which provides: “The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” It is apparent that the language of the Utah statute is much more restrictive than that used in the provision in question here. The Utah statute has a further provision which states: “The homicide was committed for the purpose of preventing a witness from testifying or a person from providing evidence, or a person from participating in any legal proceedings or official investigation.” Utah Code Ann., § 76-5-202(l)(h) (1953). The Wyoming statute has no comparable provision. Petitioner argues that the lack of a comparable provision indicates that the Wyoming legislation did not intend such a provision to apply as an aggravating factor in a capital case. This argument is of questionable relevance and is based on an assumption by petitioner. It is equally plausible to assume that by omitting such a provision and using broader language in Wyo.Stat. § 6-4-102(h)(v), the legislature intended for that provision to encompass both situations. Petitioner also asserts that Wyo. Stat. § 6-4-102(h)(v) is unconstitutional, vague and over broad and further that Instruction No. 5 provided by the trial court to the jury failed to properly channel the jury’s sentencing decision. The jury was instructed as to aggravating and mitigating circumstances in Instruction No. 5 as follows: In determining which penalty is to be imposed on the defendant, you shall consider the evidence which has been presented to you. You shall consider, take into account and be guided by the following circumstances if applicable: The first such circumstances are called “aggravating circumstances” and in this case are limited to the following:” 1. The murder was committed by a person under sentence of imprisonment. 2. The defendant was previously convicted of another murder in the first degree. 3. The murder was committed for the purpose of avoiding or preventing a lawful arrest. 4. The murder was committed for pecuniary gain. 5. The murder was especially heinous, atrocious or cruel. The other circumstances are called “mitigating circumstances.” They are as follows: 1. The defendant has no significant history of prior criminal activity. 2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. 3. The victim was a participant in the defendant’s conduct, or consented to the act. 4. The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor. 5. The defendant acted under extreme duress or under the substantial domination of another person. 6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. 7. The age of the defendant at the time of the crime. 8. Any other circumstances deemed to be mitigating. (Case No. 747, Vol. V, p. 695.) The court finds that the above-quoted instruction properly informed the jury concerning the statutory factors to consider in determining the appropriateness of the death penally. As to petitioner’s argument concerning vagueness, it is well established that the penalty of death is not to be imposed in an arbitrary and capricious manner. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh’g denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972). A capital sentencing scheme must provide a “meaningful