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Full Opinion
TABLE OF CONTENTS
Opening.¶¶ 1-3
Facts
I.The Murders.¶ 4
II.Events Leading Up To and Subsequent To the Murders.¶¶ 5-11
III. Prosecution’s Case .¶¶ 12-13
IV. Defense Case.¶¶ 14-17
V. Closing Arguments.1¶ 18-21
VI. Sentencing Phase.¶¶ 22-56
Discussion
I.Standard of Review..¶ 57
II. Guilt Phase
A. Special Prosecutor.¶¶ 58-63
B. Prospective Jurors.¶¶ 64-68
C. Ineffective Assistance of Trial Counsel.¶ 69
1. Counsel’s Admission of Guilt.¶¶ 70-76
2. Impeachment Evidence.¶¶ 77-82
3. Change of Venue.¶¶ 83-84
D. Sufficiency of the Evidence of Premeditation.¶¶ 85-87
E. Summary...¶ 88
III. Sentencing Phase
A. Constitutionality of Wyoming’s Death Penalty Statute.¶ 89
1. Background of Federal Precedent.¶¶ 90-95
• 2. Weighing/Nonweighing Distinction. ¶¶ 96-102
3. Summary.¶ 103
B. Statutory Interpretation.¶¶ 104-105
C. Aggravating Circumstances.¶¶ 106-109
1. Atrocious or Cruel Aggravating Circumstance.¶¶ 110-119
*546 2. Great Risk of Death Aggravating Cireumstance .............. T1 120-123
8. Purpose of Avoiding or Preventing a Lawful Arrest Aggravating
CiPCUMStAMG@ ..... ..... lll. alla ea a aka ek ea ak ea ea ea ae es T1 124-128
4. Premeditated Felony Murder Aggravating Circumstance ...... 11 129-130
5. Summary rr erk kere ek kee e kakes 131-132
D. Mltlgatmg CiPCUMStAM@@S ..... else reer r ekke e ere kakes 1 183
Law of Mitigating Cireumstances ........................... 1T 134-142
2. Burden of Proof .ll keke kk ake kala eal ee es T1 148-145
3. Failure to Instruct on Mitigating Cireumstance of Duress ........... 1 146
4. Adequacy of the Verdiet Form ............................. T1 147-149
B. BUMIM@FY................. .ll kar k aaa eae e aa e ee aas e e aa e ea ees [ 150
E. Role of Victim Impact and Merey Plea Evidence
1. Admissibility of Victim Impact Evidence ..................... T1 151-176
2. Exelusion of Mitigating Evidence of Plea for Mercy ........... TT 177-182
F. Jury Instructions
1. Comment on Right to Silence in Psychiatric Evaluation
InStrUCtOM lll saka e eva e kaa eek ea aa eka} TT 183-186
2. Consideration of Counsel's Argument in Sentencing Decision ... 1% 187-188
3. Instruction in Response to Jury Question About Parole ........ TT 189-194
G. Sentencing Phase JUPOPS elsa kre kkk aa e kaa eke} 1195
1. Second JUFY ks ekke sere es klk elke es T1 196-198
2. Replacement JuroP lle kk lll. .s T1 199-201
8. Selection of Alternate Juror ................................ T1 202-210
H. Lethal Injection is Cruel and Unusual Punishment ................. 11 211-213
I. Repeal of Statutory Proportionality Review ............................. 11 214-218
IV. Appellate Review. leke reer reer eee kare kkk a kes 11 219-221
Appendix A
Appendix B
[T1] In accordance with Wyo. Stat. Ann. § 6-2-108(a) (Michie 1997), this is an appeal from convictions of capital murder charged under Wyo. Stat. Ann. § 6-2-101(a) (Michie 1997) and sentences of death imposed under Wyo. Stat. Ann. § 6-2-102 (Michie 1997), following a jury trial and sentencing proceedings. Martin J. Olsen (Olsen) was charged with and convicted of murdering three vie-tims during a robbery at a bar in Worland, Wyoming. On appeal, with respect to his capital murder convictions and sentences, he enumerates twenty-five errors under the various headings of constitutional issues, instruction issues addressing the sentencing phase, additional issues addressing the sentencing phase, trial phase issues, and punishment issues. The statements of the issues submitted by Olsen and the State are attached as Appendix A to this opinion. In addition to considering the specific errors enumerated by Olsen, this court has also considered the punishment. Wyo. Stat. Aun. § 6-2-108(c) (Michie 1997). With regard to the sentences, this court has considered (1) whether the jury imposed the sentences of death under the influence of passion, preju-
dice or any other arbitrary factor and (2) whether the jury's finding of aggravating cireumstances and mitigating cireumstances is supported by the evidence. Wyo. Stat. Ann. § 6-2-103(d)G) and () (Michie 1997).
[T2] We find no constitutional errors and find no errors in the guilt phase of Olsen's trial. Therefore, we affirm Olsen's convie-tions of capital/first degree murder and robbery. We do find error, however, in the sentencing phase of Olsen's trial in the following matters: (1) insufficient evidence to support the jury's finding of the aggravating cireumstance that the murders were especially atrocious or cruel, being unnecessarily torturous to the victims; (2) insufficient evidence to support the jury's finding of the aggravating cireumstance that Olsen knowingly created a great risk of death to two or more persons; (8) improper jury instructions on the law of mitigating cireumstances, the decision-making process, the mitigating circumstance of duress, Olsen's parole status if he received life sentences, and the verdict form; and (4) the introduction of victim impact evidence and a plea of merey. Consequently, we set aside Olsen's sentence of death and remand for a new sentencing hear-
*547 ing to be conducted with a new jury impaneled for that purpose. Wyo. Stat. Ann. § 6-2-108(e)(iii) (Michie 1997).
[T 3] From this court's study of death penalty jurisprudence, this court acutely appreciates that a capital case, by its very nature, requires of a reviewing court the most meticulous and thoughtful consideration and deliberation of the issues presented. In fulfilling that requirement in this case, the members of this court have had divergent views concerning the resolution of some of the many difficult issues presented and have expended substantial amounts of time working through those divergent views to achieve agreement on the resolution and the reasoning supporting the resolution of these issues. In light of the requirement of meticulous and thoughtful consideration and deliberation, the working through of divergent views to achieve agreement on resolution of issues, the unique set of appellate responsibilities conferred by the legislature upon this court, the errors enumerated in this appeal, the parties' extensive briefing of the issues underlying these enumerated errors, and the caution that the punishment of death is different, Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring), this court has taken considerable time to reach its decision in this case and in another capital case submitted for review after this one and which is also decided today. See Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 WL 1870319. Although the time to reach decision has been considerable, it has been necessary and unavoidable for the reasons stated.
FACTS
I. The Murders
[14] On the night of January 20, 1997, sometime between 11:00 p.m. and midnight, Olsen entered the Little Chief Bar in Wor-land. He instructed two patrons to lie down on the floor and robbed the bar. After having the bartender also lay face down on the floor, he shot all three in the back of the head, firing a fourth shot seconds later when it appeared that one victim was not dead. He left the bar, went to a convenience store and pumped gas into his pickup. He chatted with the store clerk until asked if he knew why the police were active in the area. At this question, he became agitated, left, and went home and packed. Before he left his home, he confessed the murders to his mother and then fled in his vehicle. After he left, his mother called the police, told them Olsen was involved, and within a few hours, Olsen was apprehended. He was advised of his rights, and spent much of the rest of the day confessing the murders to police. Several of these confessions were recorded on audiotape and videotape.
II Events Leading Up To and Subsequent To the Murders
[T 5] At approximately 4:15 p.m. on the day of the murder, Olsen's mother contacted him at RJ's Saloon where he had been drinking and requested he return home. Olsen left the bar, went home, had dinner, and left home again at 6:30 p.m. to play dart games for a dart league team. Between 7:00 p.m. and 9:00 p.m., Olsen and three others played darts at the American Legion where he consumed five or six beers. The group moved on to the Rendezvous for an hour and drank at least two more beers. By 10:00 p.m., Olsen was back at RJ's playing pool and continuing to drink. He was seen leaving RJ's around 11:80 p.m. A few minutes before midnight, Olsen pumped gas into his truck at a convenience store, paid for snacks and a coke with a fifty-dollar bill, and conducted a friendly conversation with the store clerk for several minutes, telling her that he was going to Colorado where the temperature was 56 degrees. A register receipt from that store indicated the purchase occurred at 11:54 p.m. The clerk could smell alcohol on his breath, but did not notice any drunken behavior, until, after seeing numerous police cars driving by during the evening, she asked Olsen if he knew what the cops were doing. The clerk testified that at that point, Olsen "couldn't say 56 degrees" and he then went to the door, apparently agitated, turned around, said "Yes, I have been drinking," and walked out the door. Olsen went home at a few minutes after midnight, parked in the alley, and entered a doorway that opened *548 directly to his room and locked the door that opened to the rest of the house.
[1 6] Testifying as a witness for the State, Olsen's mother described the following events. Hearing him return and lock his door, his mother became concerned, and knocked on his bedroom door. He joined her in another part of the house, and the two talked until about 12:85 a.m. She returned to bed, but became aware that Olsen was packing, and arose to confront him. She saw a gun and, at that point, Olsen confessed to her he had killed three people, claiming that years earlier, while in the Marine Corps, he had accumulated a $70,000 gambling debt and still owed $17,000. He claimed that over the years, he had been constantly harassed for the money and, several years before, his fiancé had been killed because of the debt. He further claimed that he believed he had seen the man sent to collect the gambling debt in town and followed him into the Little Chief Bar, shot him, and shot what he de-seribed as two innocent people. Olsen told his mother that this man was involved in the death of his fiancé and Olsen believed that the man would try to kill Olsen's ex-wife and daughter. Olsen finished packing, loaded his truck with his belongings and the murder weapon, returned to his mother and talked about his options of either running or turning himself in. Olsen told her his third option was to kill her and his father. When she responded that he would not do that, he said there was a fourth option to which Mrs. Olsen did not respond. Olsen told his mother he was going to Colorado, and left. He called her a few minutes later on his cell phone, reporting that the police had apparently found the bodies of his victims. Mrs. Olsen, a police dispatcher, then contacted police and turned in her son.
[T7] The State's direct examination of Mrs. Olsen at trial disclosed that in 1990 she had learned that her son had been engaged to a girl who had died in a car accident. She had run a driver's license check on Olsen's fiancé that indicated that the license had expired and not been renewed. In her continued direct examination, Mrs. Olsen disclosed that on the night of the murders she believed Olsen was intoxicated, agitated, and was slurring his speech. She also disclosed during her direct examination, that in March of 1993, Olsen suffered an aneurysm that she believed changed his disposition. On the night of the murders, Olsen had taken a relatively new drug to control seizures. Apparently, Olsen's heavy drinking after his aneurysm ruptured had caused him to suffer seizures.
[1 8] A customer discovered the three bodies at the Little Chief Bar at 12:05 a.m. and reported the discovery to the police. The police were investigating the crime when Mrs. Olsen reported to police that her son had confessed committing the crime to her. Worland police issued a teletype identifying Olsen as the suspect in the triple homicide and describing his vehicle. Instead of heading to Colorado, as he had told his mother, Olsen traveled east. At 4:20 am., he was spotted as he drove through Buffalo, Wyoming. The officer followed him for a considerable distance as other officers positioned themselves for an arrest, and did not notice erratic driving by Olsen, but did notice Olsen was driving slowly and drifting onto the shoulder of the highway, both of which are indicators of drunk driving. Olsen was stopped and arrested without incident. A gun, later identified as the murder weapon, was in plain view in Olsen's vehicle The arresting officer read Olsen his Miranda rights, placed him in the back of the patrol car and waited at the arrest site for the arrival of an agent from the Wyoming Division of Criminal Investigation (DCI). During the half-hour wait, he and Olsen engaged in a conversation that the officer recorded on an audiocassette. Olsen repeated his gambling debt story and stated he had shot three people in the head.
[T9] Olsen was taken to Buffalo and interrogated by DCI Agent Kevin Hughes during the drive. That recorded interview was conducted at 5:10 a.m. and Olsen again repeated his gambling debt story. During a recorded interview conducted at 7:05 a.m. at the Buffalo judicial center, Olsen claimed that he did not remember confessing to his mother or telling the gambling debt story, continued to admit that he had shot three people in the back of the head, but now explained that his *549 motive for killing them was fright and intoxication. During a recorded interview conducted at 8:40 a.m., Olsen detailed his actions before the robbery, stating that he had parked on the side street of the Little Chief Bar, had locked his vehicle to prevent the stealing of his cell phone, entered the bar and observed the two customers and one bartender, proceeded directly to the restroom and, after using it, returned to the bar with his gun drawn. He placed the two male customers on the floor on their stomachs. He ordered the bartender to place money in a sack and then placed her on the floor next to the two customers. He then shot each of them in the back of the head, firing three shots. He claimed that he had not planned the robbery, did not remember the actual shootings, and had no motive for the murders other than drunkenness. Agent Hughes testified that, on the afternoon of the January 21, he returned Olsen to Worland. During that drive, Olsen provided more details in an unrecorded conversation. Olsen told Hughes that when he ordered the bartender to give him all the money, she "bitched at him, and said, 'you are not going to get away with this'" Other than this statement, none of the three victims resisted him in any way. Hughes testified that Olsen told him during this unrecorded statement that the bartender's words seared him as he realized that the people could identify him, and he shot them. Olsen also told Hughes that he needed money because he was two months behind on his child support and because the rings were going out in his pickup. Olsen stated that after the robbery and before entering the convenience store, he had placed part of the robbery money in his wallet and part of it in the sun visor of his vehicle and used a $50 bill to pay for gasoline, coke and snacks at the store.
[1 10] The arresting officer, a certified In-toximeter operator, gave Olsen two Intoxime-ter tests, one at 7:83 a.m. which read .063 alcohol concentration, and another at 7:84 which read .061 alcohol concentration. Olsen consented to blood and urine tests that were conducted at 9:00 a.m. on the morning of January 21. Olsen's truck was towed to Buffalo and searched after a warrant issued later that morning. Olsen was videotaped between 11:00 a.m. and 1:80 p.m. on the day of January 21 identifying the money stolen and other items found in his truck. Later that afternoon, Olsen requested a lawyer, and the interrogations ceased.
[T11] Counsel was appointed to defend Olsen, and charges were filed. The State filed notice that it would seek the death penalty. Pretrial rulings permitted the state prosecutor to have the assistance of a United States attorney at trial. Hearings were held on Olsen's motion to suppress his statements to police and the evidence seized from his truck on grounds that he was too intoxicated to have voluntarily consented to the search. That motion was denied. Olsen also moved to suppress statements made on the afternoon of January 21 following equivocal statements about needing an attorney. That motion was also denied when the trial court found that all questioning ceased after Olsen explicitly requested an attorney. Before trial, Olsen's mental health was examined by doctors, including a Dr. Gummow, who indicated that Olsen suffered from brain damage. The State filed a pretrial motion demanding to know whether Olsen would be changing his plea of not guilty to a plea of not guilty by reason of mental defect. During the hearing on the motion, defense counsel did not change the plea but reserved the right to do so should an expected final report indicate the necessity. Ultimately, Olsen did not change his plea.
III. Prosecution's Case
[712] Appointed defense counsel filed numerous pretrial motions concerning both the guilt and sentencing phases of the trial, and several hearings were conducted in July and August. Defense counsel secured a continuing objection to the denial of its motions. Pretrial rulings rejected the idea of separate juries for the bifurcated proceeding, and on August 25, 1997, voir dire began that incorporated death qualification of the panel. Voir dire lasted four days. Voir dire ended when defense counsel agreed to fewer peremptory challenges; the trial court did not record the parties' peremptory challenges.
*550 [118] At trial, other than the witnesses who testified about Olsen's actions before the murders, the prosecution presented the testimony of investigating officers at the crime scene; Olsen's mother about her son's actions and statements that night; a witness claiming to have seen Olsen observing the Little Chief Bar days before the robbery; and Olsen's recorded interviews with the arresting officer and DCI agents. Forensic evidence established that all three victims had been found in a prone, face-down position and shot at least once in the back of the head. All had died from gunshot wounds. There were indications that one victim had attempted to get up and was shot a second time, meaning that Olsen had fired a total of four shots. Another victim had a foot imprint on his back, indicating that Olsen may have braced himself during the shootings. Diagrams of the bar were displayed, and the prosecution later argued that they showed that Olsen had threaded his way through tables and chairs to reach the victims, although before doing so he was standing by a sliding glass door exit. The bartender's teenage daughter had been asleep in the home attached to her mother's work establishment and testified that she heard three loud noises in rapid succession followed by a fourth noise a few seconds later between 11:15 p.m. and midnight. The murder weapon, money from the robbery, and receipts dated between January 6th and 8th were recovered from Olsen's vehicle after his arrest. The bartender, Emma McCoid, was thirty-six years old when she died. The customers killed that night were Kyle Baum-starck, twenty-six years old, and Arthur Taylor, forty-seven years old.
IV. Defense Case
[T 14] During his voir dire opening statements, defense counsel told the prospective juror panel that Olsen admitted his guilt, and the single issue before them was whether he had committed first degree murder or second degree murder. Defense counsel explained that intoxication was a defense to first degree murder, and he intended to show that Olsen did not premeditate the murders. In pretrial rulings, the trial court indicated that it intended to qualify forty-five prospective jurors and permit each side fifteen perempto-ries. On August 29, thirty-five jurors had been qualified and both sides agreed to fore-go additional voir dire and exercise ten peremptory challenges. Olsen is on record as approving this strategy.
[T 15] Through eross-examination of State witnesses, the defense established that Olsen had been drinking heavily the day of the robbery and murders, and, despite his many confessions, did not admit planning either the robbery or the murders. It was established that after Olsen left the last bar before the crime, he had nothing else to drink, showing that his intoxication level remained high almost eight hours since he had last had a drink. He had consistently claimed that his only motive was fright and intoxication. After the State rested, the defense moved for judgment of acquittal which the trial court denied.
[116] The defense presented witnesses who testified that on the night of the crime Olsen's eyes were strange and he was very intoxicated. The defense introduced dart game score sheets, which the State conceded in closing arguments indicated that Olsen did not play very well that night. Other witnesses testified they had observed Olsen drinking far more than what prosecution witnesses had observed; and another defense witness testified to seeing Olsen driving erratically on the night of the crime. The defense presented a forensic toxicologist, extrapolating that, based on Olsen's level of intoxication over seven hours after his last drink, his level of intoxication at the time of the erime could have been as high as .37 and was probably no lower than .106. This expert explained the correlation between levels of intoxication and effect on cognitive ability. Before the defense presented its final witness, Olsen, the trial judge, and counsel met out of the presence of the jury and recorded Olsen's waiving his right to testify. At that time, defense counsel placed on the record Olsen's concern that Dr. Gummow had not been called to testify during the defense's case-in-chief and his statement that he agreed with the decision not to call her during the guilt phase of his trial.
*551 [117] The last defense witness, Olsen's mother, testified to establish that on the days he had been observed watching the Little Chief Bar, he was in Colorado. The defense rested, and the State did not offer any rebuttal evidence. Before closing arguments and out of the presence of the jury, Olsen, counsel, and the trial judge met to record defense objections to a number of jury instructions.
V. Closing Arguments
[118] The instructions were read to the jury and included instructions on first degree murder, felony murder, second degree murder, aggravated robbery, simple robbery, and larceny. The State delivered its closing argument, explaining the verdict form and the lesser included offenses. In its theory of the case, the State argued to the jury that the issue really is, "was it done on purpose, purposely, the act done intentionally or deliberately, and not accidentally." The State argued that, in the time period immediately preceding the robbery and during the robbery, Olsen's actions were a series of deliberate acts that proved the robbery and murders were premeditated, and not the result of a "drunken, drug-crazed, brain-damaged guy." It also argued that the manner in which Olsen carried out the murders proved premeditation, rather than accident. In addressing the defense's forensic toxicology evidence, the State pointed out that the defense expert had not personally observed Olsen's behavior that night, and the observations of those who had personally observed it did not support the expert's conclusions that Olsen did not know what he was doing that night or was incapable of forming intent. The State argued that Olsen's gambling debt story and other actions when confronted by his mother and police were not indicative of intoxication or alcoholic amnesia, but showed that Olsen remembered what had happened that night and consciously decided to deal with it and provide an explanation for his behavior.
[T 19] In its closing argument, the defense contended that the eyewitness testimony established that Olsen was intoxicated on the night of the crime. Regarding the eyewitness who claimed to have seen Olsen suspiciously observing the Little Chief Bar days before the robbery, the defense pointed out that his story was inconsistent between his police interview and his testimony, pointed out that the vehicles he described Olsen sitting in did not exist, argued that the motel and pawn shop receipts and Mrs. Olsen's testimony established that Olsen was in Colorado on the dates he was allegedly seen, and argued that the witness had not seen Olsen. Moving to the forensic toxicologist's testimony concerning the effect of alcohol on a person, defense counsel noted that Olsen's actions and statements that night were consistent with someone who behaved as though very intoxicated and whose behavior changed with sobriety. Under the defense's theory, Olsen told his gambling debt story while very intoxicated and, after sobering for many hours, forgot about it in a manner consistent with the expert's testimony. The defense also pointed out that the jury had been instructed that intoxication can negate specific intent, and because the unrefuted expert testimony established Olsen's intoxication level, the State had not proved Olsen's intent be-youd a reasonable doubt. The defense ended by asking the jury for a verdict of second degree murder.
[120] In a very brief rebuttal, the State reminded the jury that the defense's expert made assumptions which did not preclude them from deciding that Olsen formed the specific intent to kill. The State also reminded the jury that later that same night when Olsen was just as intoxicated, Olsen considered killing his parents and made the decision that he would not do so.
[121] The trial judge then had three names selected from the jury to serve as alternates. The remaining jurors retired to deliberate, ultimately returning a verdict finding Olsen guilty of three counts of premeditated, first degree murder, three counts of first degree felony murder, and one count of aggravated robbery. The jury was polled, confirmed their verdict, and was then excused for the weekend with instructions to return the following Monday prepared for sequestration.
VIL Sentencing Phase
[1 22] The sentencing phase began with an opening instruction to the jurors, explaining *552 their duty in a death penalty sentencing hearing. In its opening statement, the State touched upon the gravity of the jury's task, and then discussed the five statutory aggravating circumstances it would prove beyond a reasonable doubt:
1) Olsen knowingly created a great risk of death to two or more people;
2) the murders were committed for the purpose of avoiding or preventing a lawful arrest;
3) the murders were especially atrocious or cruel, being unnecessarily torturous to the victims;
4) Olsen poses a substantial and continuing threat of future dangerousness or is likely to commit continued acts of eriminal violence; and
5) Olsen committed first degree murder while engaged in committing a robbery.
The State informed the jury that the law required it to consider the nature of the crime and the individual characteristics of Olsen and arrive at a moral decision of whether the penalty should be life imprisonment or death.
[1 23] In its opening statement, the defense also spoke to the jury concerning the moral aspect of its decision. Previewing its mitigating evidence, defense counsel discussed Olsen's brain malformation that had existed since birth, and how, during the malformation's development, it had deprived areas of Olsen's brain of blood. Defense counsel stated that an expert neurologist, a neuropsy-chologist, and a psychiatrist would discuss the brain malformation and its various effects such as causing Olsen's intellectual level to decline during school, and altering his behavior in his late teens until the aneurysm ruptured in 1998. The defense evidence would show that after the rupture, the brain injury and Olsen's alcoholism and depression prevented him from having the capacity to conform his conduct to the requirements of the law. Defense counsel stated that he would present other statutory mitigating cireum-stances for the jury's consideration.
[124] During the State's case-in-chief of the sentencing phase, witnesses described Olsen's previous misconduct involving guns. Olsen's former brother-in-law testified that in 1996 Olsen had stolen several items from him, including a rifle and a handgun that was identified as the murder weapon. A former bartender testified that in 1995, Olsen showed her a handgun and pointed it at her. She became angry and ordered him to put it away and leave the bar, which he did. She did not report the incident to police and admitted that she did not like Olsen because he had made sexual advances to her. Another witness testified that in 1990, he and Olsen had become involved in a physical altercation. Olsen got in his car and pointed a handgun at him but put the weapon down when the witness told him to. The witness pulled O1 sen from the car and struck him a couple of times. Olsen then got back in his car and left. The witness did not report the incident to police and volunteered the information shortly before jury selection.
[T 25] The sheriff of Sheridan County testified that Olsen had been arrested for impersonating a federal officer and possession of a handgun without a permit in May of 1991. Olsen was playing pool in a bar wearing a large gun in a shoulder holster and had told a bartender that he was a federal agent and, later, a DCI agent. The manager called police, and Olsen was arrested. The next witness testified that, six years earlier, he and Olsen belonged to a shooting club whose members would shoot pistols on Wednesday afternoons. On at least two occasions after Olsen became upset at missing shots, and when others teased him, he threatened to shoot them. Those threatened confiscated his gun. Everyone involved had drunk about a six-pack of beer each, and the gun was never pointed at anyone. The witness considered Olsen a loyal, but strange, friend who had very few friends. Another witness testified that six years earlier an intoxicated Olsen disrupted a party after a wedding by fighting with the witness. Olsen was asked to leave because he was wearing a gun in a holster and made remarks that he could shoot somebody at any time. He did not remove the gun during the fight, and it was taken away from him.
[126] During testimony, the trial court learned that a juror's father had died and *553 released that juror from sequestration. The trial court proposed to select a juror from one of the alternates at the end of the sentencing phase. The defense objected because the alternate had not been part of the guilt phase deliberations and objected to the court's proposed method of selection. The court released the juror from sequestration, denied Olsen's motion for a mistrial, and following closing arguments, selected an alternate juror by a lottery system.
[127] Testimony resumed, and the State called DCI agent, Hughes. He testified that in unrecorded conversations with Olsen, Olsen told him that, after the robbery and murders, he planned to kill any officer who tried to stop him, but when he saw five or six converge on him, he surrendered. In Hughes' opinion, it was an irrational and ridiculous statement from a suspect who was otherwise cooperative. Hughes testified that Olsen stated later that same day, that he did not remember making that statement and, on numerous occasions, Olsen claimed that he did not remember saying something that he had said a little while previously. Hughes believed Olsen was sincere in his belief that he did not remember.
[128] The State next called the director for the Victims of Violence Center who read a statement from the mother of victim Emma McCoid, identified photographs of the three victims, and then read a statement about victim Art Taylor prepared by his ex-wife. Victim Kyle Baumstarek's mother then read a statement that she had prepared.
[129] The State called a Marine officer to testify that Olsen had been court-martialed while in the Marines and escaped from the brig. Defense cross-examination revealed that the brig was not guarded, and, although the Marines had brigs which operated like a jail, Olsen was not placed in one. The next State witness testified that Olsen was never at the brig, but confined to a barracks, and Olsen's escape consisted of him going out of his bedroom window to a hotel where he met a girl, and was found watching TV.
[T 30] Because of scheduling problems, the court allowed the defense to interrupt the State's case-in-chief on two occasions. Defense counsel called Olsen's father who testified that he left when Olsen was three when he and Olsen's mother divorced; he saw OIl-sen twice after the divoree; had his parental rights terminated when Olsen was eight years old; and had no further contact with his son until Olsen was twenty-two. Olsen's mother remarried, and Olsen and his sister were adopted by his stepfather. His family now also included one half-sister, who is afflicted with cerebral palsy, and three stepsi-blings. Olsen's stepfather described Olsen as a happy, good child, never in legal trouble, who onee saved his sister's life, but became an alcoholic after joining the Marines. Later, after Olsen suffered the aneurysm, he observed him to stammer, slur his speech and saw a change in his demeanor. Although medical doctors advised Olsen against drinking, Olsen's alcoholism actually worsened, and one time he was drinking so heavily he suffered a seizure and required medical attention. His stepfather witnessed that he was very depressed, was impulsive, self-destructive and violent, and his marriage ended in an acrimonious divorcee. On cross-examination, the State pointed out that the stepfather had previously stated to DCI agents that, as a child, Olsen was a perfectionist, frequently frustrated. He did not remember stating that Olsen's temper disappeared after the ruptured aneurysm.
[131] Olsen's grandfather described O1-sen's close relationship with his grandparents and the care he gave them when they were ill. Next, the defense called the mitigation specialist, Mary Goody, who read an affidavit from a friend who served with Olsen in the Marines, and who was now a campus police officer. The friend deseribed Olsen as a heavy drinker, immature, self-destructive, unstable and often depressed. He believed that Olsen had personality and mental health issues that caused problems from which this friend and others tried to protect Olsen. He described Olsen as a loyal friend. Another friend who served in the Marines with Olsen beginning in 1988 agreed that he was a good, loyal friend, often unstable and depressed, and when drinking, was irrational, impulsive and would act without thinking. This friend described several instances when Olsen's self-destructive behavior was outrageous, *554 such as throwing his car keys after an accident, and breaking the windshield and kicking out lights and the fender of his own car after receiving a traffic ticket.
[132] The defense presented several experts. Dr. Charles McMahon, a neurology expert, had performed an MRI sean and an electroencephalogram on Olsen and examined other CT and MRI scans and medical reports performed on Olsen since 1998. These computer-generated medical diagnostic images indicated an arteriovenous malformation (AVM), a congenital, organic condition, abnormal because it causes Steal's Syndrome by draining blood from an artery to a vein without supplying any useful part of the brain that the blood vessel would normally supply. Dr. McMahon testified that AVM can impair cognitive functions of the brain if the adjacent area of the brain cannot function properly because it has been deprived of blood. He produced medical reports showing that Olsen's AVM rupture and hemorrhaging basically caused a stroke, and the jury was shown the 1998 CT seans depicting brain injury.
[1 33] The evidence revealed that, immediately after the rupture, Olsen was comatose and required a surgical procedure to remove the AVM. He was hospitalized for several weeks, suffered extensive loss of the right side of his body, could not speak and had emotional control problems in the hospital. Before rehabilitation was cut short by lack of insurance, Olsen received speech, physical, and occupational therapies and was seen by a psychiatrist and a psychologist. He was not allowed to drive or be alone with his daughter. The hemorrhaging and AVM permanently injured Olsen's brain. The part of his brain that was injured, the corpus callosum, is the structure that carries messages from one hemisphere to the other.
[T 34] As part of his neurological examination, Dr. McMahon tested Olsen for concrete thinking abilities and determined that Olsen performed deficiently because of permanent injuries to the brain. The State's eross-examination revealed the possibility that Olsen's deficient performance was due to chronic alcoholism. Dr. McMahon believes that an I.Q. greater than seventy is normal intelligence but did not test Olsen's intelligence. He stated that an AVM can be diagnosed before rupture because it causes mental deficits before bursting.
[135] The next defense expert, Dr. Linda Gummow, a psychologist specializing in neu-ropsychology, with publications on stroke, cognitive rehabilitation, and the effects of injury on behavior, gave Olsen neuropsycho-logical examinations in February and August of 1997. Reviewing other tests, Dr. Gum-mow learned that Olsen suffered a steady decline in overall ability beginning in his early elementary years, a gradual decline through his high school years with a sharper decline after the AVM rupture. School records indicated that Olsen had no behavioral problems, was a cooperative, motivated and good student and did not have any legal difficulties. Gummow determined that the decline was primarily due to the AVM brain injury becoming symptomatic as the brain was injured from abnormal circulation and oxygen deprivation over a period of years. She also identified external factors such as Olsen's moving from Portland, Oregon, to Worland as contributing to the decline. Test scores in August improved, and Gummow attributed this to alcoholism recovery. She determined that Olsen suffered from severe depression and anxiety, attributable to the brain injury and alcohol.
[186] Dr. Gummow testified that Olsen's first problems involving the legal system occurred in the military. The Marine Corps identified him as an alcoholic with a death wish. At that time, his personality and demeanor began to change from cheerful and witty to the beginnings of a loner with bad judgment and unpredictably physically violent. She believed that external factors and the increasingly symptomatic AVM caused the change.
[137] After the rupture, Olsen's aleoholism, reckless behavior, numerous accidents, and mood swings continued. After the rupture, no further reports that Olsen was a witty, cheerful, and bright person were found. Instead, Olsen was observed to be a quiet, reserved person, difficult to communicate with and viewed by some people as scary. She found reports that Olsen did not *555 understand that he generated fear and did not always remember his actions. Aleohol began to dominate his life, affecting him in ways already impacted by the AVM and its rupture.
[T 38] Dr. Gummow testified that individuals with brain injuries are more prone to accidents. Olsen was in numerous car accidents, rollovers, broadside accidents, and industrial accidents. Dr. Gummow listed a number of stresses Olsen was experiencing at the time of the crime. Because of these and the brain injury that was affecting him throughout, it was her opinion that he was suffering from extreme mental or emotional disturbance. She also classified the brain injury itself as a mental or emotional disturbance that impacted judgment and caused impulsivity and explosive anger. She testified she believed that on the night of the murders, he realized the criminality of what he was doing, but duress caused him to be unable to conform his conduct to the requirements of the law. She also believed that Olsen was no longer dangerous because alcohol had been removed from his life.
[139] Upon cross-examination, the State established that Olsen's reading and math seores had not changed since the military, indicated individual seores that did not show a trend of decline, and pointed to scores that were high for anti-social behavior, anger, passive-aggressiveness, and some type of borderline schizophrenia. Olsen had admitted to Dr. Gummow that he remembered shooting the victims. Dr. Gummow did not know if Olsen could have conformed his conduct to the requirements of the law if he had seen a police officer before the shootings. She did not base her opinion on the facts of this case, although she believed some are consistent with her opinion. Concerning her opinion that Olsen exhibited features of hemispheric disconnection syndrome, an inability to integrate experience with emotion, inability to plan and synthesize cognitive information, and inability to plan and organize, Dr. Gummow conceded that she had not considered Olsen's prior misconduct with weapons. The State also questioned Dr. Gummow as to whether she had rendered other opinions in court cases without having relevant facts.
[ 40] Upon redirect, Dr. Gummow provided further information regarding other court cases, clarifying that a judge had decided differently about another defendant's competency to stand trial. She stated that Olsen does not have an anti-social personality, and discounted the notion that Olsen's memory of the events of that night indicates that he is lying when he does not remember some parts of it.
[T41] The defense's next expert witness, Dr. William S. Logan, a medical doctor and a forensic psychiatrist, examined Olsen in June of 1997. Dr. Logan testified that he reviewed Olsen's history and found that he had an astounding number of accidents, heavy alcohol consumption, and shortly after suffering the AVM rupture, began engaging in reckless, impulsive behavior. Dr. Logan described the many different ways that Olsen's life deteriorated after the AVM rupture. He concurred with Dr. Gummow's opinion that Olsen's brain injury caused his thinking to be divorced from his emotions; becoming overwhelmed emotionally and unable to coordinate that with problem-solving. He stated that Olsen has neither an anti-social personality nor a narcissistic personality.
[T 42] In Dr. Logan's opinion, there was no question that Olsen had planned the robbery of the Little Chief Bar; however, drinking, depression, and the head injury caused him to be under the influence of extreme mental or emotional disturbance at the time of the homicides. He agreed with Dr. Gummow that Olsen knew that what he was doing on the night of the murders was wrong, agreed that at one level, Olsen had control of his behavior that night, but did not have control of his behavior in terms of using some kind of judgment or in reacting in a more rational way to his desperation. Dr. Logan believed Olsen presented no future danger. Olsen's former employer testified that he was a good employee. Olsen made a statement in allocution, and the defense's final witness was O-sen's mother, who made a plea for his life.
[1 48] In rebuttal, the State presented its own forensic psychiatrist, Dr. Breck LeBe-gue. The defense objected to his expert *556 testimony because he had not examined O-sen. This expert testified that the most reliable test of how brain-damaged someone is following an AVM rupture is comparing demonstrated abilities before and demonstrated abilities afterwards, and opined that poor performance on a test cannot alone lead to a diagnosis of brain abnormality. On defense counsel's cross-examination, Dr. LeBegue stated that he was not board certified in neuropsychology, but conceded that, as a psychologist, he administered tests to evaluate and conceded that a number of tests listed by defense were standard neuropsy-chological tests.
[T 44] Next, the State presented Dr. Marcus Einhorn, a psychologist. The defense objected to his expert testimony because he was not board-certified in neuropsychology. This expert testified only to the fact that poor performance on the Halstead Reitan battery test might not be attributable to brain damage. On cross-examination, the defense simply asked if he were testifying about one test and asked nothing further.
[145] The State then called Dr. Stephen Golding, a forensic psychologist. The defense objected to him because he was not an expert in neuropsychology. He testified that a "gap," ie., whether a mental deficit impacted abilities at a particular