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Dharminder Vir Sen v. the State of Wyoming

April 24, 2013


Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN,* HILL, VOIGT, and BURKE, JJ. *Justice Golden retired effective September 30, 2012.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶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.*fn1 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.


[¶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?

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.


[¶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.

[¶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.


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 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 the juvenile, including previous contacts with the law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this court, or prior commitments to juvenile institutions;

(vii) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the juvenile court.

[¶11] Sen contends the district court abused its discretion in denying his transfer motion because the court failed to "meticulously examine the evidence" and made "serious mistakes in weighing the relevant factors." Although Sen acknowledges that there "is no dispute that this case involved a serious offense, and resulted in the death of Mr. Ernst," he asserts that the district court failed to consider that proceedings in juvenile court could offer meaningful community protection. Sen also claims that the court "significantly overemphasized the premeditation and willful" aspects of the offense. He acknowledges that he and his cohorts acquired deadly weapons, changed into dark clothing, and used a map to plan their criminal activities, but contends that "These are not actions reflecting a pre-meditated and carefully planned crime, these are actions of teens reacting spontaneously." According to Sen, the district court "could not have found that the actions of the defendant were willful or premeditated." Sen also asserts that "the court failed to consider that, because his character is not fully formed, Dhar has the innate potential for rehabilitation and change." Finally, Sen contends that the court "significantly over-emphasized the extent of [Sen's] record." He claims that "Because even the court thought there should have been more juvenile court intervention, it should have discounted the impact of [Sen's] priors and weighted this factor in favor of transfer[] to juvenile court."

[¶12] At the transfer hearing, the district court received documentary evidence and testimony relating to the nature of the alleged offenses, Sen's prior criminal record, Sen's cognitive capacity, and the brain development of juveniles generally. Dr. Marie Banich testified that maturation of the adolescent brain takes much longer than scientists had previously thought and that several "executive functions" are relatively underdeveloped in a teenager's brain, including the ability to plan behavior and appreciate consequences, the ability to control actions "internally instead of being distracted by outside influences," and the ability to process and evaluate risk. Sen also presented the testimony of Dr. Ronna Dillinger, who conducted a psychological evaluation for the transfer hearing. Her evaluation included a review of Sen's family history and childhood development, as well as an assessment under the "risk-sophistication-treatment inventory," which evaluates three domains of characteristics that are specifically tailored to assist the court in making a transfer decision. Those domains include an assessment of the defendant's future dangerousness, maturity level, and amenability to treatment. Dr. Dillinger testified that Sen scored in the "average" or "moderate" range in all three domains. Dr. Dillinger also testified that Sen's IQ was in the low average range. Finally, the district court also received testimony from Agent Chad Quarterman, the co-lead investigator of the murder, who described the facts relating to the planning and execution phases of the crime. His testimony noted Sen's agreement with his co-conspirators to participate in a burglary, the gathering of items to be used as weapons, Sen's effort to conceal his identity, the use of a map to plan the location of their criminal activity, and Sen's role in demanding the gun from Poitra and shooting the victim.

[¶13] In light of the testimony introduced at the transfer hearing, the district court concluded that the factors identified in Wyo. Stat. Ann. § 14-6-237(b) weighed against transfer of the case to juvenile court. With regard to the first factor, the court noted that first-degree murder "is the most serious in nature of all criminal offenses" and that the need for community protection was "very high." As to the second factor, the court stated that based on the facts alleged, "we have very aggressive, very violent, and significantly premeditated and willful criminal conduct attributable to the defendant in this case." After noting that the third factor also weighed against transfer because the alleged offense resulted in the death of Mr. Ernst, the court noted that the first three factors weighed "very heavily towards this case being in adult court." The district court found the fourth factor to be neutral. Addressing the fifth factor, the district court noted that Sen's lack of sophistication and maturity was a "key factor" for the defense. It acknowledged the testimony regarding juvenile brain development, as well as the testimony indicating that Sen had a low average IQ and an average degree of maturity for his age. However, the court also noted the sophistication necessary to the planning, preparation, and execution of the criminal actions which led to the killing of Mr. Ernst. With regard to the sixth factor, the court found that Sen's "significant" criminal history, which included violations for hit and run, flight to avoid arrest, shoplifting, unauthorized use of a motor vehicle, disorderly conduct, and disturbing the peace, demonstrated an "ongoing violation of law." Finally, in addressing the seventh factor, the court stated that it was "persuaded that there are some matters in this particular case that would attend to the rehabilitation possibilities" and that it had given those possibilities due consideration. After weighing all of the relevant factors, however, the court concluded that the case should remain in district court.

[¶14] The record shows that the district court thoroughly reviewed the evidence relating to each of the factors identified in Wyo. Stat. Ann. § 14-6-237(b), and gave due consideration to Sen's immaturity and potential for rehabilitation. Those factors, however, were outweighed by the factors relating to Sen's history of criminal conduct, and the nature and severity of the alleged offense. We find no basis to conclude that the district court made "serious mistakes in weighing the relevant factors," as Sen contends. Addressing a similar argument in Bear Cloud v. State, 2012 WY 16, ¶ 36, 275 P.3d 377, 392 (Wyo. 2012) (Bear Cloud I), we stated that While Bear Cloud may assert that the court should have weighed the evidence differently, that function belongs to the trial court and will not be disturbed absent an abuse of discretion. See Hansen v. State, 904 P.2d 811, 828 (Wyo. 1995). Quite frankly, it is hard to conceive that a district court would conclude that Bear Cloud's case would be better resolved in juvenile court given the particularly unique and egregious nature of the crimes involved.

(Emphasis in original.) Our observation in that case applies with greater force in the present appeal, considering the fact that it was Sen who shot and killed Mr. Ernst after demanding the murder weapon from Poitra. We find no abuse of discretion in the district court's decision to deny Sen's transfer motion.

II. Motion to Suppress Confession

[¶15] In his next issue, Sen claims that incriminating statements made during a custodial interrogation were involuntary and should not have been admitted at trial. A trial court's ruling on a defendant's motion to suppress a statement on the grounds that it was involuntary is reviewed de novo. Hannon v. State, 2004 WY 8, ¶ 12, 84 P.3d 320, 328 (Wyo. 2004). In conducting such a review, we defer to the trial court's findings of fact unless those findings are clearly erroneous. This Court considers the evidence in the light most favorable to the trial court's determination because the trial court has the opportunity to hear the evidence and to assess the credibility of witnesses. Id. When the defendant claims that his statements were involuntary, "it is the duty of an appellate court . . . 'to examine the entire record and make an independent determination of the ultimate issue of voluntariness.'" Id., ¶ 50, 84 P.3d at 339 (quoting Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976)).

[¶16] Before evaluating Sen's claim that his statements were involuntary, we set forth the relevant circumstances of his interrogation. At approximately 5:00 p.m. on the day of the shooting, Sen was detained in an interview room at the Sheridan Police Department, where he was interviewed by two DCI agents. At the beginning of the interview, Sen was advised of his Miranda rights verbally and in writing. The interview then continued:

AGENT: Do you know why you're here, Dhar?

SEN: I think I can guess why.

AGENT: Okay. Why don't you tell us?

SEN: I'm going to -- I'm going to stay silent.

AGENT: You're going to stay silent?

SEN: I'm just going to stay silent.

AGENT: So you're invoking your right? Is that what ...

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