Sam v. State, S-16-0168.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: FOX, Justice.
• Citation: 401 P.3d 834
• Parties: Phillip SAM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 24 August 2017
• Docket Number: S-16-0168.

401 P.3d 834

Phillip SAM, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-16-0168.

Supreme Court of Wyoming.

August 24, 2017
Rehearing Denied September 26, 2017

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

¶1] Phillip Sam was 16 years old when he arranged to meet a group of teens at a park in Cheyenne, Wyoming, armed himself with his mother's boyfriend's .40 caliber pistol, and went to the park to wait for the rival group to arrive. As the group approached, Mr. Sam stepped out from behind a tree and shot repeatedly in the group's direction. Two young men were injured—one fled and the other fell to the ground. Mr. Sam approached the fallen youth and shot him in the head, a shot which resulted in the youth's death. A jury found Mr. Sam guilty of one count of first-degree murder, one count of aggravated

[401 P.3d 841

assault and battery, and ten counts of attempted aggravated assault and battery.

¶2] Mr. Sam raises numerous issues on appeal. We conclude that: the district court did not abuse its discretion when it denied the motion to transfer his case to juvenile court; although there were some errors in the jury instructions, they were not prejudicial; although the prosecutor's victim impact arguments were improper, they were not prejudicial; there was sufficient evidence to support the attempted aggravated assault charges despite the fact there was no evidence he intended to shoot any particular individual; the sentence imposed on Mr. Sam exceeds the limits imposed by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Bear Cloud v. State , 2014 WY 113, 334 P.3d 132 (Wyo. 2014) ( Bear Cloud III ); the aggregate sentence does not deprive the parole board of its statutory authority to consider parole of juveniles after 25 years; and Mr. Sam's sentences for first-degree murder and aggravated assault do not violate double jeopardy. We affirm in part, and reverse in part and remand for resentencing.

ISSUES

[¶3] The parties use different techniques, but generally agree these are the issues raised in this appeal:

I. Did the district court abuse its discretion when it denied the motion to transfer the proceedings to juvenile court?

A. Was Mr. Sam's statutory right to cross-examine witnesses violated?

B. Did the district court properly assess the facilities available to juveniles?

C. Did the district court properly weigh the likelihood of rehabilitation?

II. Did the district court improperly instruct the jury when it:

A. Failed to remove a corrected instruction from the official instruction packet?

B. Failed to define "attempt"?

C. Gave the incorrect definition of "malice"?

D. Gave the definition of "reckless" rather than the definition of "enhanced recklessness"?

E. Gave the incorrect inference of malice instruction?

F. Gave incomplete and incorrect self-defense instructions?

III. Did the prosecutor commit misconduct when he made victim impact arguments in his closing argument?

IV. Was there sufficient evidence to support Mr. Sam's convictions for aggravated assault, even though there was no evidence that he intended to harm any particular individual?

V. Is the sentence imposed upon Mr. Sam excessive because it:

A. Violates the Eighth Amendment because it is a de facto life without parole sentence?

B. Deprives the parole board of its statutory authority to consider parole of a juvenile after 25 years?

C. Violates the constitutional prohibition against double jeopardy because it sentences Mr. Sam for both the murder and the aggravated assault of the same victim?

FACTS

[¶4] Mr. Sam had ongoing conflict with a rival youth group, which escalated on October 4 and into the early hours of October 5, 2014. The afternoon of the 4th, Mr. Sam stole a .40 caliber S&W semi-automatic pistol from his mother's boyfriend. Later, he had several communications with members of the rival group about setting up a fight. He made sure the group was primed to fight when he went out to the mall where they were watching a movie, located one of their cars, and broke its mirror and slashed its tires. Mr. Sam then went to hang out at his friend Timber Strange's house. He took out the gun to show his friends and "said that he was going to kill someone that night."

[¶5] When the car's owner discovered the damage, one of the rival group, Damian Brennand, immediately called Mr. Sam, believing he was "the only known person who would have done it," and "told him ... he needed his ass beat," and that he was going to bring a gun to the park to shoot Mr. Sam.

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Later, one member of the group called Mr. Sam back to say they "couldn't get their hands on a gun. They couldn't find one," but they wanted to meet him and fight. Mr. Sam changed the location of the encounter to Martin Luther King Park and went there with five friends. Mr. Sam took the pistol, and he and Timber Strange sat in a pavilion for about 15 minutes. Mr. Strange testified:

I had asked him if this was actually what he wanted to do, if he actually wanted to do this.

Q. [Prosecutor] And by this, what did you mean?

A. As in hurt people and potentially kill somebody.

Q. And what did he say?

A. He had said, yeah, that he had felt that he needed to do it.

¶6] When one of their friends called to tell them the rival group was approaching, Mr. Sam and Mr. Strange, who had bandanas on their faces, moved to stand between some trees. As the group of 12 youths approached, the two stepped out from the trees and Mr. Sam shot repeatedly. One bullet grazed Damian Brennand's arm, and another struck Tyler Burns in the chest. Mr. Burns fell to the ground. Mr. Sam approached Mr. Burns, who said "no" three or four times, and Mr. Sam shot him through his hand and head. Mr. Burns died as a result. The other 10 members of the rival group were not injured. Mr. Sam was 16 years old.

[¶7] Mr. Sam was charged on October 7, 2014, with 12 counts of aggravated assault and battery with a deadly weapon, and one count of first-degree murder.¹ On October 28, 2014, he filed a motion to transfer his case to juvenile court, pursuant to Wyo. Stat. Ann. § 14-6-237(g). The district court entered its order denying transfer on March 17, 2015. Mr. Sam filed a petition for review of that decision, which this Court denied on November 4, 2015. (The current appeal was docketed on July 1, 2016, when Mr. Sam was 18 years old.)

[¶8] After a six-day trial, the jury returned a verdict of guilty on all counts. Mr. Sam filed a motion for a new trial, arguing that the jury instruction on "malice" in first-degree murder was incorrect under Johnson v. State , 2015 WY 118, 356 P.3d 767 (Wyo. 2015), which was published after the Sam trial. In addition, at the district court's request, the parties briefed the question of whether it was necessary to define " ‘attempt’ as it may apply to the various counts of Aggravated Assault and Battery." After a hearing on the two issues, the district court denied the new trial motion.

[¶9] Mr. Sam was sentenced to life for the first-degree murder charge. He could be eligible for parole after 25 years on that sentence because he was under 18 at the time of the crime. Wyo. Stat. Ann. § 6-10-301(c) (LexisNexis 2017). He was sentenced to 9 to 10 years on each of the aggravated assault charges, which the district court bunched into three concurrent terms to be served consecutively—the sentence is life + 9-10 x 3, or, without counting good time, parole eligibility for Mr. Sam in 52 years (25 + 27), when he would be 70 years old.

DISCUSSION

I. The district court did not abuse its discretion when it denied the motion to transfer proceedings to juvenile court

[¶10] The State has the burden of persuasion in transfer motions, JB v. State , 2013 WY 85, ¶ 10, 305 P.3d 1137, 1141 (Wyo. 2013), and we review such decisions for an abuse of discretion. Hansen v. State , 904 P.2d 811, 824 (Wyo. 1995). The district court conducted a three-day transfer hearing, and issued a comprehensive Order Denying Motion to Transfer Proceedings to Juvenile Court, in which it analyzed the statutory factors to be considered by the judge in deciding whether a child should be tried in juvenile court or district court. They are:

(i) The seriousness of the alleged offense to the community and whether the protection of the community required waiver;

(ii) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

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(iii) Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted;

(iv) The desirability of trial and disposition of the entire offense in one (1) court when the juvenile's associates in the alleged offense are adults who will be charged with a crime;

(v) The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living;

(vi) The record and previous history of

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