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Sam v. State

Supreme Court of Wyoming

August 24, 2017

PHILLIP SAM, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          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.

          OPINION

          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 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 (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. 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;
(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.

Wyo. Stat. Ann. § 14-6-237(b) (LexisNexis 2017).

         [¶11] Mr. Sam challenges the decision to deny the transfer motion on three grounds: he contends that his confrontation rights were violated when a police detective was permitted to testify about the allegations against Mr. Sam based on what he had been told by witnesses; he contends that the district court was mistaken about the duration of facilities available to juveniles; and he argues that the district court ignored "uncontested" evidence that he presented a good likelihood of rehabilitation. We find that the district court correctly interpreted the statutes governing juvenile proceedings, and did not abuse its discretion.

         A. Mr. Sam's statutory right to cross-examine adverse witnesses was not violated

         [¶12] Mr. Sam argues that the district court violated Wyoming statutes and the confrontation clauses of the Wyoming and United States constitutions when it admitted statements of witnesses through the State's lead investigator, Detective Harper. Detective Harper testified regarding the nature of the allegations against Mr. Sam, based largely on interviews with Mr. Sam and other witnesses and the reports of other law enforcement officers.

         [¶13] Neither the confrontation clause nor the rules of evidence apply to juvenile transfer hearings. The confrontation clauses of the United States and Wyoming constitutions specifically refer to "criminal prosecutions." U.S. Const. amend. VI; Wyo. Const. art. 1, § 10. Juvenile proceedings are civil matters not criminal prosecutions. See Kent v. United States, 383 U.S. 541, 554 (1966); Brown v. State, 2017 WY 45, ¶ 22, 393 P.3d 1265, 1274 (Wyo. 2017). Further, the Wyoming Rules of Evidence do not apply to juvenile proceedings other than adjudicatory hearings. W.R.E. 1101(b)(3). Juvenile transfer hearings are not adjudicatory hearings, but determine which court is proper for the prosecution of the matter. Wyo. Stat. Ann. § 14-6-237(a) (LexisNexis 2017). As one court explained,

[the] constitutional guarantees arising from the question of admissibility of evidence at a trial on the merits do not apply to a preliminary jurisdictional hearing which simply determines whether the accused is to be tried in one court or another. Such a hearing is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. . . . Since the result of a preliminary judicial proceeding as involved herein does not adjudicate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial.

In Interest of B.T., 367 A.2d 887, 889 ( N.J.Super.Ct.App.Div. 1976); see also State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006).

         [¶14] The right to cross-examine witnesses at a juvenile transfer hearing is, however, a statutory right conferred by the Wyoming legislature. Wyo. Stat. Ann. § 14-6-223(b)(ii) (LexisNexis 2017). The Juvenile Justice Act provision governing transfer hearings states that transfer hearings "shall be conducted in conformity with W.S. 14-6-222 through 14-6-224 except there shall be no jury." Wyo. Stat. Ann. § 14-6-237(a). Wyo. Stat. Ann. § 14-6-223(b)(ii) provides that a "party to any proceeding under this act is entitled to . . . [c]onfront and cross-examine adverse witnesses." Thus, the question we must answer is whether the district court's admission of Detective Harper's testimony regarding the nature of the allegations against Mr. Sam violated Mr. Sam's statutory right to confront and cross-examine witnesses.

Statutory interpretation is a question of law which we review de novo. Crain v. State, 2009 WY 128, ¶ 8, 218 P.3d 934, 938 (Wyo. 2009). The plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary. Id. Where there is plain, unambiguous language used in a statute there is no room for construction, and a court may not look for and impose another meaning. Id. Where legislative intent is discernible a court should give effect to the "most likely, most reasonable, interpretation of the statute, given its design and purpose." Rodriguez v. Casey, 2002 WY 111, ¶ 20, 50 P.3d 323, 329 (Wyo. 2002).

Adekale v. State, 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015).

         [¶15] The State urges us to adopt a rule limiting this statutory right to confront witnesses at a juvenile transfer hearing to only those witnesses who appear at the hearing. We decline to do so. In most cases, the right to confront and cross-examine only the witness recounting the information of another person would serve little purpose. We will, however, look to the intent of the statute and its application in the context of juvenile transfer hearings. "[I]t is one of the surest indexes of a mature and developed jurisprudence . . . to remember that the statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Adekale, 2015 WY 30, ¶ 13, 344 P.3d at 765 (citations omitted).

         [¶16] Detective Harper's testimony went to the first three factors, which concern the nature of the "alleged offense." Wyo. Stat. Ann. § 14-6-237(b)(i-iii). When it weighs the factors for transfer, the district court makes no determination of the truth of the alleged offenses; that is of course to be determined by a jury after a trial. Probable cause had already been determined at the preliminary hearing and is not a consideration at a transfer hearing. See Wyo. Stat. Ann. § 14-6-237(b). Courts have held that when a finding of probable cause to believe the defendant committed the crime is not required in a transfer hearing, the determination of whether to transfer a juvenile to adult court may be based upon hearsay and "need not be tested by cross-examination and confrontation." Wolf v. State, 583 P.2d 1011, 1015 (Idaho 1978); see also State v. Limoz, 112 P.3d 745, 752 (Haw. Ct. App. 2005). A majority of jurisdictions, where probable cause that the juvenile committed the crime must be established during transfer hearings, allow hearsay testimony to establish probable cause.[2]

         [¶17] The purpose of cross-examination is to test "the believability of a witness and the truth of his testimony." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Because in a transfer hearing the district court only weighs the nature of the alleged offenses, and makes no determination of their truthfulness, cross-examination of those interviewed by a detective testifying regarding the nature of the charges has little "purpose or object to accomplish." Mr. Sam had the opportunity to confront and cross-examine Detective Harper regarding the nature of the allegations against him, and for purposes of the transfer hearing, the underlying witnesses were not "adverse witnesses." There was no need to evaluate the truth of the testimony of the underlying witnesses, and therefore no need to cross-examine them. Mr. Sam's statutory right to confront and cross-examine adverse witnesses was not violated when the district court allowed Detective Harper to testify regarding the allegations against Mr. Sam.

         B. The district court did not abuse its discretion when it assessed the rehabilitative facilities available to a juvenile

         [¶18] The district court's order accurately summarized the testimony of Dr. Wachtel, the forensic psychologist who testified that there was a "good likelihood" that Mr. Sam could be rehabilitated by his 21st birthday if he received appropriate services. The order also accurately summarized the testimony of Gary Gilmore, Superintendent of the Wyoming Boys' School, who testified that, although therapeutic and habilitative services would be available until a juvenile's 21st birthday, the Wyoming Boys' School could discharge a juvenile at its discretion at any time, and that the average stay for a juvenile in the school's violent offender program is 8 to 12 months. Mr. Sam takes issue with the conclusion of the district court that "There is no reason to believe that the Wyoming Boys' School, as good as it is, will succeed in a year or less to rehabilitate the Defendant, whose 'nature is avoidance, ' according to Dr. Wachtel, and who has rebuffed 'a lot of attempts' to assist the Defendant in turning his life around." He suggests that this statement evidences the district court's misunderstanding of the jurisdictional limits of the juvenile court and consequent failure to consider available resources. Our reading of the entire order reveals that the district court understood very well the jurisdictional limits of the juvenile court and properly considered the resources available; weighing all the factors, the district court found that it was unwilling to risk the possibility that Mr. Sam could be released within a year if he were tried as a juvenile.[3] The district court did not abuse its discretion in reaching that conclusion.

         C. The district court did not abuse its discretion when it weighed the likelihood of reasonable rehabilitation

         [¶19] Mr. Sam contends that he presented uncontested evidence that he was reasonably likely to be rehabilitated, and, furthermore, he argues that factor should outweigh the other six factors in Wyo. Stat. Ann. § 14-6-237(b). We find no support for the argument that any one of the seven factors should outweigh the others. Indeed, this Court has said that "Undue weight should not be given to any single factor." JB, 2013 WY 85, ¶ 16, 305 P.3d at 1142.

         [¶20] Dr. Berry, who had counseled Mr. Sam in the past, did not opine regarding the likelihood of Mr. Sam's rehabilitation, but did express his belief that it was more likely to succeed in the juvenile justice environment than in the prison system. Dr. Wachtel, the forensic psychologist, said that there was a "good likelihood" he could be rehabilitated, but, as the district court noted, he also testified that:

[Not] all juveniles can be rehabilitated, and that the age of the offender, the severity of the offender's actions, the offender's willingness to accept treatment and medications, and the offender's underlying mental health conditions all play a role in the offender's chance of successfully rehabilitating.

         Unfortunately, there is a great deal of evidence regarding these factors that does not weigh in favor of predicting rehabilitation. Rebecca Campbell, a social worker/counselor for Laramie County School District No. 1, testified that while she worked with him, "he was very angry most of the time;" "he wasn't really open to counseling;" "he really had trouble with authority;" and he showed "continued disrespect." Mike Webster, the school resource officer at Central High School, testified regarding his several interactions with Mr. Sam, usually arising from violence on Mr. Sam's part. Kristen Siegal, assistant principal at Central High School, testified regarding Mr. Sam's fighting, name calling, and not wanting to follow the rules, and her recommendation that he be expelled. Mr. Sam's aggressive behavior continued after he was arrested. While in detention, he verbally threatened deputies, threatened to "stab somebody, " and threatened and attempted to attack other juveniles. The district court considered this "long history of aggression, defiance and explosive outbursts, " along with the fact that Mr. Sam "has generally refused to take his medication, " and did not abuse its discretion when it found "no reasonable likelihood of rehabilitation for Mr. Sam within the juvenile court system, nor prospects for adequate protection of the public."

         II. Did the district court improperly ...


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