## Facts

- Martin J. Olsen robbed a bar after ordering two customers to lie on the floor.
- Olsen then ordered the bartender to lie down and shot and killed all three people.
- After leaving the bar, Olsen went to a nearby convenience store to buy gas but fled when the clerk mentioned police activity.
- Olsen was apprehended shortly thereafter and confessed.
- A jury convicted Olsen of three counts of premeditated first-degree murder, three counts of first-degree felony murder, and aggravated robbery.
- In a separate penalty phase under Wyoming’s capital-sentencing statute, Olsen presented mitigating circumstances.
- The trial court instructed the jury that it could, in its discretion, determine whether Olsen established mitigating circumstances.
- The jury found four aggravating circumstances, found no mitigating circumstances, and imposed a death sentence.
- During penalty deliberations, the jury asked about parole eligibility for a life sentence; the trial court did not clearly inform the jury that life imprisonment for capital murder meant no parole.

## Issues

1. Whether the penalty-phase instructions unlawfully limited or misstated the jury’s ability to consider and give effect to mitigating evidence by treating mitigation as discretionary and requiring “proof” before consideration.
2. Whether the instructions improperly framed the weighing of aggravating and mitigating circumstances as a numerical tally rather than a qualitative assessment.
3. Whether the evidence was sufficient to support the aggravating circumstances that the murders were “especially atrocious or cruel” and that Olsen “knowingly created a great risk of death to two or more persons.”
4. Whether the trial court committed reversible error in failing to clearly answer the jury’s parole-eligibility question in a capital sentencing proceeding.

## Decision

- The Wyoming Supreme Court affirmed the judgments of conviction.
- The court reversed the death sentence and remanded for a new sentencing hearing.
- The court held the mitigation instructions were contradictory and misstated the law by implying jurors could disregard mitigating evidence unless “proven” and by characterizing mitigation findings as discretionary.
- The court concluded the challenged aggravators were not supported by sufficient evidence:
  - “Especially atrocious or cruel” was not established because the record did not show physical or mental torture.
  - “Great risk of death to two or more persons” was not established because the evidence did not show a great risk to bystanders beyond the victims.
- The court faulted the trial court’s failure to clearly instruct, in response to the jury’s question, that a life sentence in this context did not permit parole.

## Legal Principles

- In a capital case, jury instructions must allow the sentencer to consider and give effect to all relevant mitigating evidence; instructions that misstate that function require the death sentence to be set aside.
- Wyoming’s capital-sentencing statute requires qualitative weighing of aggravating and mitigating circumstances based on their substantiality and persuasiveness, not a mechanical counting of how many circumstances exist on each side.
- Statutory aggravating circumstances must be supported by specific evidence and construed to meaningfully narrow death eligibility; they are not satisfied by labels or by multiple victims alone.
- When a capital-sentencing jury seeks clarification on parole eligibility, the court must provide an accurate answer where parole ineligibility is a legal consequence of the alternative sentence.

## Conclusion

The court upheld Olsen’s murder and robbery convictions but vacated the death sentence because the jury was incorrectly instructed on mitigating evidence and weighing, key aggravators lacked evidentiary support, and the jury was not clearly informed that a life sentence meant no parole, requiring a new penalty-phase proceeding.


Olsen v. State, 67 P.3d 536 (Wyo. 2003)