Sen v. State

• Decision Date: 24 April 2013
• Docket Number: No. S–11–0151.,S–11–0151.
• Citation: 301 P.3d 106
• Parties: Dharminder Vir SEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

301 P.3d 106

Dharminder Vir SEN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0151.

Supreme Court of Wyoming.

April 24, 2013.

Unconstitutional as Applied

West's Wyo.Stat.Ann. §§ 6–10–301(c), 7–13–402(a)

[301 P.3d 110]

Representing Appellant: Diane E. Courselle, Director, and Samantha Lind, Cally Lund, Brian Quinn, and Joanne Sweeney, Student Interns, Defender Aid Program, University of Wyoming College of Law. Argument by Ms. Lind and Ms. Sweeney.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Daraie and Mr. Pope.

Before KITE, C.J., and GOLDEN,^*HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Dharminder Sen, was convicted of first-degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Robert Ernst after breaking into Mr. Ernst's home with Wyatt Bear Cloud and Dennis Poitra, Jr.¹ He challenges his convictions on a number of grounds, and contends that his sentence of life without the possibility of parole is unconstitutional under the United States Supreme Court's recent decision in Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We affirm Sen's convictions. However, in light of the decision in Miller v. Alabama, and our recent decision in Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo.2013)( Bear Cloud II ), we agree that Sen's sentence for first-degree felony murder was issued pursuant to a sentencing scheme that violated the Eighth Amendment's prohibition against cruel and unusual punishment. As a result, we vacate Sen's sentence of life without the possibility of parole. Further, because Sen's sentence of life without the possibility of parole may have impacted the sentencing decisions with respect to his conspiracy and aggravated burglary convictions, we vacate those sentences and remand for resentencing on all counts.

ISSUES

[¶ 2] Sen presents six issues, which we discuss in the following order:

1. Did the trial court abuse its discretion when it failed to grant Dhar Sen's motion to transfer his case to juvenile court, where the court did not meticulously consider the evidence, made inadequate findings, and made serious mistakes weighing the relevant factors?

2. Did the trial court err when it denied Dhar Sen's motion to suppress his confession where the confession was involuntary as the product of coercion and failure to knowingly and intelligently waive his right to an attorney?

3. Did the trial court err when it found that the gunshot residue kit obtained without a warrant was admissible at trial?

4. Whether excluding expert testimony by Dr. Marie Banich, offered for the purpose of calling into question the specific intent element of aggravated burglary (and felony murder), violated Dhar Sen's Sixth Amendment right to present a defense?

[301 P.3d 111]

5. Whether Dhar Sen was denied effective assistance of counsel due to his attorney's failure to investigate and failure to raise significant issues at sentencing?

6. Whether a sentence of life imprisonment without the possibility of parole or commutation, for a homicide committed at the immature age of 15, violates Dhar Sen's constitutional protection against cruel and unusual punishment under the United States and Wyoming Constitutions?

The State phrases the issues in a substantially similar manner.

FACTS

[¶ 3] On the evening of August 25, 2009, Sen, Wyatt Bear Cloud, and Dennis Poitra, Jr., met at Bear Cloud's residence in Sheridan, Wyoming and planned a series of armed burglaries. While at Bear Cloud's residence, they gathered materials to carry out the burglaries. The materials consisted of a map, a knife, a two-by-four, dark clothing, bandannas, flashlights, and a gun that Sen and Bear Cloud had stolen from a pickup several days earlier. In the early morning hours of August 26, Sen, Bear Cloud, and Poitra entered the home of Robert and Linda Ernst with the intent to steal items from the home. After searching several rooms in the house, Sen obtained the gun from Poitra in order to induce the Ernsts to open a safe located in the basement. After waking Mr. Ernst, Sen yelled at him and then shot him three times, killing him. The three then fled back to Bear Cloud's residence.

[¶ 4] Following an investigation, Sen was charged with first-degree felony murder, in violation of Wyo. Stat. Ann. § 6–2–101(a) (LexisNexis 2009), conspiracy to commit aggravated burglary, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–3–301(a) and (c)(i), and aggravated burglary, in violation of Wyo. Stat. Ann. § 6–3–301(a) and (c)(i). On October 27, 2009, he pled “not guilty” to the charged offenses. Two months later, Sen filed a motion to transfer the case to juvenile court. He claimed that his lack of maturity and his prospects for rehabilitation weighed in favor of transfer. The district court denied the motion after holding a hearing at which it received testimony relating to cognitive development of teenagers generally, documentation of Sen's psychological evaluations, and testimony regarding the details of the alleged crimes.

[¶ 5] Prior to trial, Sen also submitted several motions to suppress evidence, two of which are relevant to the issues raised in this appeal. In the first motion, Sen sought to suppress statements made during a custodial interrogation. He asserted that his confession to the alleged crimes was the product of unlawful coercion. In the other motion, Sen urged the district court to suppress evidence obtained from a gunshot residue test. He claimed that administration of the test during his interrogation constituted an unreasonable warrantless search. After a hearing, the district court denied the motions.

[¶ 6] At a status hearing held on April 6, 2010, the district court allowed Sen to supplement his “not guilty” plea with a plea of “not guilty by reason of mental impairment or deficiency.” As a result, the court ordered a mental evaluation pursuant to Wyo. Stat. Ann. § 7–11–304(d) to determine Sen's mental capacity at the time of the alleged offenses. An examiner from the State Hospital determined that Sen met the criteria for diagnoses of depressive, anxiety, and conduct disorders, but concluded that there was “no demonstrable link between his mental health problems and his capacity to appreciate the wrongfulness of his behavior or conform his conduct to the requirements of the law.”

[¶ 7] After learning that Sen planned to introduce expert testimony at trial relating to the cognitive capacity of teenagers, the State filed a motion in limine to exclude the evidence. The State contended that the proposed expert testimony would be irrelevant because a “diminished capacity” defense is not recognized in Wyoming. The district court heard argument on the motion, but deferred ruling until the defense presented further details regarding the proposed testimony. The court readdressed the issue during trial and, after receiving an offer of proof from the defense, determined that the proposed testimony was inadmissible.

[301 P.3d 112]

[¶ 8] At the conclusion of the trial, the jury found Sen guilty of each of the charged offenses. The court sentenced Sen to life imprisonment without parole for the first-degree felony murder conviction, 20 to 25 years imprisonment for the aggravated burglary conviction, to be served consecutively to the life sentence, and 20 to 25 years imprisonment for the conspiracy to commit aggravated burglary conviction, to be served consecutively to the other two sentences. Sen timely filed this appeal. While the appeal was pending, the United States Supreme Court issued its decision in Miller v. Alabama, which held that mandatory life without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments. In light of that decision, we granted Sen's request for supplemental briefing on the constitutionality of his sentence. Additional facts will be set forth as necessary in our discussion of the issues.

DISCUSSION I. Motion to Transfer to Juvenile Court

[¶ 9] In his first challenge to his convictions, Sen contends the district court erred in denying his motion to transfer the case to juvenile court. Pursuant to Wyo. Stat. Ann. § 14–6–203(f)(iv), cases in which the defendant is a minor who has reached the age of fourteen and has been charged with a violent felony may originally be commenced either in the juvenile court or in the district court. If a case is commenced in district court, the court may order a transfer hearing to determine if the matter should be transferred to juvenile court. Wyo. Stat. Ann. § 14–6–237(a). We review the ruling on a motion to transfer for an abuse of discretion. Rubio v. State, 939 P.2d 238, 241 (Wyo.1997).

[¶ 10] The factors to be considered by a judge in determining whether to transfer a case to juvenile court are set forth in Wyo. Stat. Ann. § 14–6–237(b):

(b) The court shall order the matter transferred to the appropriate court for prosecution if after the transfer hearing it finds that proper reason therefor exists. The determinative factors to be considered by the judge in deciding whether the juvenile court's jurisdiction over such offenses will be waived are the following:

(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;

(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...