Met v. State

• Decision Date: 21 November 2016
• Docket Number: No. 20140522,20140522
• Citation: 388 P.3d 447,2016 UT 51
• Parties: Esar Met, Appellant, v. State of Utah, Appellee.
• Court: Utah Supreme Court

388 P.3d 447

2016 UT 51

Esar Met, Appellant,

v.State of Utah, Appellee.

No. 20140522

Supreme Court of Utah.

Filed November 21, 2016

Herschel Bullen, Salt Lake City, for appellant.

Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen., Salt Lake City, for appellee.

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Justice Durham, and Justice Himonas joined.

Justice Pearce, opinion of the Court:

¶1 Defendant Esar Met appeals his convictions on one count of aggravated murder, see UTAH CODE§ 76-5-202, and one count of child kidnapping, see UTAH CODE § 76-5-301.1, each a first degree felony. Met is currently serving two concurrent sentences of life in prison without parole for these convictions.

¶2 Met raises a panoply of issues on appeal. He challenges the constitutionality and the district court's application of Utah's noncapital aggravated murder sentencing statute, Utah Code section 76-3-207.7. He contends that the district court improperly ruled that the State could use a transcript of his police interview for impeachment purposes if he chose to testify. He also argues that the police violated the Fourth Amendment to the United States Constitution when they searched his apartment without a warrant and that all evidence stemming from the allegedly illegal search should have been suppressed. Met asks us to conclude that the district court improperly admitted two photographs of the victim, which he contends are prejudicially gruesome. He also argues that the district court erred by declining to merge his child kidnapping conviction with his aggravated murder conviction. Finally, he argues that his trial counsel provided constitutionally ineffective assistance by failing to pursue a mistrial motion related to the State's failure to test and preserve certain evidence.

¶3 We conclude (1) that Utah Code section 76-3-207.7 is not constitutionally deficient, (2) that the district court did not abuse its discretion with respect to the various evidentiary rulings Met challenges, although in reaching that decision we abandon our prior gloss on the Utah Rules of Evidence that had implemented a more stringent threshold for the admission of potentially gruesome photographs, (3) that the court did not err in declining to merge Met's convictions, and (4) that, even assuming Met's trial counsel provided ineffective assistance, counsel's performance did not prejudice Met. We therefore affirm Met's child kidnapping and aggravated murder convictions.

¶4 We conclude, however, that the district court erroneously treated life without parole as the presumptive sentence for Met's aggravated murder conviction. See UTAH CODE § 76-3-207.7 (2007). Accordingly, we remand the case for the limited purpose of permitting the district court to clarify what impact its misapprehension of the law had on its sentencing decision or for resentencing on the aggravated murder charge. Finally, we affirm the sentence of life in prison without parole for the child kidnapping conviction.

BACKGROUND

¶5 On March 31, 2008, seven-year-old Hser Ner Moo (Victim) was reported missing. The next day, she was found dead in the basement of a nearby apartment. Victim's body was badly injured, and there were indications that she had been sexually assaulted.

¶6 Victim and her family were refugees from Burma, now known as Myanmar. The Burmese civil war of the 1980s forced Victim's parents, who are ethnically Karen, to flee to a Thai refugee camp.¹ In 2007, Victim and her family were relocated from Thailand to the Salt Lake City apartment where they were living when Victim was killed.

¶7 In February 2008, Defendant Esar Met, also a Burmese refugee, was relocated to Salt Lake City and moved into the basement of an apartment in the same complex as Victim's family. Met, who was Burmese but not Karen, shared the apartment with four Karen roommates.

¶8 Met befriended Victim and her ten-year-old friend. The two girls would, on occasion, visit Met's apartment to play games and watch movies. Usually "other Karen kids" were also playing at the apartment when Victim was there, but on at least one occasion, Victim and her friend were alone with Met.

¶9 On March 31, 2008, Victim's father was at work, and her mother was at a dentist appointment. Victim's aunt testified that she last saw Victim around 1:00 p.m. A neighbor remembered seeing Victim walking in front of her apartment sometime between 11:30 a.m. and 1:00 p.m. traveling southbound in the direction of Met's apartment. A friend of Victim also testified that sometime after her "morning meal but [before her] afternoon meal," Victim came to her house to ask to play, but Victim's friend declined because she did not feel well.

¶10 Victim's mother returned from her appointment that afternoon and noticed that Victim was missing. Victim's family searched the apartment complex and the surrounding area for several hours. Sometime that evening, Victim's father went to Met's apartment and asked Met's roommates if they had seen Victim. The roommates responded that they had not. The police were contacted, and soon police officers and volunteers embarked on a large-scale search of the area.

¶11 On the evening of April 1, four FBI agents knocked on the door of Met's apartment. After the agents knocked for approximately ten minutes, one of Met's roommates answered. The agents identified themselves, indicated that they were searching for Victim, and asked if they could enter and search the apartment. One of the roommates indicated that the agents could search for Victim. Met's four roommates were in the apartment at the time, but Met was not.

¶12 Two agents began to search while two others stayed with the roommates. One of the roommates explained that Met resided in the apartment's basement. The roommate also volunteered that Met was not at home and that the roommates had not seen Met that day or the day before.

¶13 Agents first searched the three-level apartment's upstairs and main floors. The agents then proceeded to the basement, which could be accessed from the main floor by an open stairway that led to the basement's living room.² The basement consisted of a main room and three smaller rooms accessible from the main room: a bathroom, a furnace room, and a bedroom. The first agent to enter the basement testified,

I was the first one down the stairs. And I got to the bottom of the stairs ... and the wall there, as I recall, opens up from the floor as it goes down, so I could start to see into the room. But once I saw in the room, the first thing I noticed were these two larger brown spots.

....So at first ... I thought, well, that doesn't look good. But I thought well, maybe it could be some spilled substance or something, but it also, of course, struck me, that looks like dried blood.

... [Did] you notice anything else?

Yes, I noticed a couple of things. I noticed the—the bed. [The condition of the bed] didn't look normal to me. I also noticed other less prevalent blood spatters on the floor and blood drops. And then most significant to me, because it looked like blood, ... was over against [the] wall.

....

[The spots on the wall appeared to be] blood traveling, hitting the wall and then running straight down [the wall].

Two more agents confirmed what the first agent believed—that the spots on the carpet and wall appeared to be dried blood.

¶14 One agent left the basement to contact the coordinating police officer as two agents continued to search the basement. After a search of the bedroom uncovered no significant evidence, the agents made their way to the bathroom. An agent testified, "The [bathroom] door was a little bit ajar, not fully closed. So that's when I pushed it open. And as soon as I opened the door, I saw some blood splatter located immediately within the threshold walking to the bathroom." In the bathroom, an agent also discovered a plastic bag appearing "to be full of blood" and a pair of pink and black shoes that "[l]ooked like they belonged to a young girl." As the agent approached the bathroom's shower stall, he saw "the foot of a young person" and then, as he got closer, "the full body of a young female." The body was identified as Victim. She was wearing a pink jacket and pink skirt and was not wearing any underwear. "Her left wrist looked like it was broken in an awkward angle. And ... her legs were positioned at her sides to fit her in the shower basin." The agent testified that she was cold to the touch. An EMT later determined that she had been "deceased for some time."

¶15 After discovering Victim, the agents talked to Met's roommates. An agent testified that the roommates "seemed very calm" and acted "[t]he same way they had been during the entire time of the interview .... Nobody was visibly nervous or concerned or overly interested in what [the agents] were doing." When asked about Met, one of Met's roommates told the agents that he believed Met was at his cousin's house in Cottonwood Heights and provided a phone number.

¶16 The record contains little evidence regarding Met's whereabouts on March 31, 2008. Sometime that day, Met boarded a bus to his aunt's house in Cottonwood Heights. Met's uncle testified that he unexpectedly ran into Met around 3:00 p.m. on March 31 when the uncle boarded a bus to return to his house from work. The uncle invited Met to his house.³ That evening, Met received a phone call from one of Victim's neighbors asking whether he had taken Victim with him. Met apparently responded, "I didn't bring her with me" and "[S]he did not come with me." Met stayed the night of March 31 at his aunt's house. On April 1, the police arrested Met on suspicion of Victim's murder.

¶17 Officers drove Met to a police station where police interviewed him for more than two hours. The police engaged the assistance of someone they believed to be an FBI translator. However, the translator was neither from the FBI nor trained as a translator. Rather, he was an acquaintance of Victim's parents and Met's...