IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 47
APRIL TERM, A.D. 2013
April 24, 2013
DHARMINDER VIR SEN,
Appellant
(Defendant),
v. No. S-11-0151
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Diane E. Courselle, Director, and Samantha Lind, Cally Lund, and Brian Quinn, Student
Interns, Defender Aid Program, University of Wyoming College of Law. Argument by
Ms. Lind.
Representing Appellee:
Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D.
Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney
General. Argument by Mr. Daraie.
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.
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
1
See Bear Cloud v. State, 2012 WY 16, 275 P.3d 377 (Wyo. 2012) (Bear Cloud I) and Poitra v. State,
2012 WY 58, 275 P.3d 478 (Wyo. 2012), affirming Bear Cloud’s and Poitra’s convictions.
1
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.
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
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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.
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. §
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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
d e t e r m i n e d b y c o n s i d e r a t i o n o f 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
p e r i o d s o f p r obation to this court, or prior
commitments to juvenile institutions;
4
(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
5
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
6
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 you’re
saying?
7
SEN: (Inaudible.)
AGENT: Pardon me?
SEN: Invoking means using?
AGENT: Yeah.
SEN: Yeah. Pretty much.
AGENT: Okay.
SEN: I mean – I didn’t do it, but, I mean, I’m pretty sure I
can figure out where it came from and what happened.
AGENT: You didn’t do what?
SEN: I’m very sure that I’m being accused for something
that had to do with an incident on Thurmond.
AGENT: Why’s that?
SEN: Because the police officer outside told me.
AGENT: Okay.
SEN: Both of them did, and I (inaudible).
AGENT: Okay. Well you’ve invoked your right to remain
silent. If you change your mind, you can get a hold of one of
us.
Immediately following this exchange, the agent informed Sen that he was going to apply
a gunshot residue test to Sen’s face and hands. Before administering the test, however,
the agent asked Sen approximately 15 questions regarding his family, his school, his
contact information, and who he was with when he was arrested. After the gunshot
residue test was administered, Sen was left alone in the interview room. During his
detention, Sen was offered food and drinks, and was allowed to go to the bathroom.
[¶17] Approximately three hours later, at 8:20 p.m., Sen knocked on the window of the
interview room and indicated that he wanted to talk to the agents. The agents returned
and, before questioning Sen, they noted that he had previously invoked his right to
remain silent and again advised him of his Miranda rights verbally and in writing. Sen
8
stated that he understood his rights and signed a written advisement of rights. He then
asked the agents whether they thought he should have an attorney present. The agents
responded that they could not provide legal advice, and Sen proceeded with the interview
without requesting an attorney. During the second interview, Sen admitted to breaking
into the Ernsts’ home with Poitra and Bear Cloud and to shooting Mr. Ernst.
[¶18] Sen contends that his confession was involuntary because it was the combined
product of his immaturity and improper interrogation tactics employed by the DCI
agents. Specifically, he notes the length of his detention, the “cavalier” manner in which
the agents advised him of his rights, and the agents’ failure to honor his right to remain
silent as factors indicating that his statements were not voluntary. Additionally, although
he does not claim that he invoked his right to an attorney, Sen asserts that the same
factors prevented him from knowingly and intelligently waiving his right to counsel.
[¶19] The Fifth and Fourteenth Amendments to the United States Constitution, and
Wyoming Constitution Article 1, §§ 6 and 11, require that confessions be voluntary.
Hannon, ¶ 12, 84 P.3d at 328. In determining whether a confession obtained during
custodial interrogation is voluntary, we look to the totality of the circumstances
surrounding the interrogation. Id., ¶ 51, 84 P.3d at 340.
Among the circumstances considered are the atmosphere and
events surrounding the interrogation, such as the use of
violence, threats, promises, improper influence or official
misconduct, the conduct of the defendant before and during
the interrogation and the defendant’s mental condition at the
time. [State v.] Evans, 944 P.2d [1120,] 1125 [(Wyo. 1997)].
Other relevant factors include:
[w]hether the defendant was in custody or was free to
leave and was aware of the situation; whether Miranda
warnings were given prior to any interrogation and
whether the defendant understood and waived
Miranda rights; whether the defendant had the
opportunity to confer with counsel or anyone else prior
to the interrogation; whether the challenged statement
was made during the course of an interrogation or
instead was volunteered; whether any overt or implied
threat or promise was directed to the defendant; the
method and style employed by the interrogator
questioning the defendant and the length and place of
t h e interrogation; and the defendant’s mental and
physical condition immediately prior to and during the
interrogation, as well as educational background,
employment status, and prior experience with law
9
enforcement and the criminal justice system.
Id. “A statement is considered to be voluntary if the defendant of his own free and
deliberate choice, and not because of intimidation, coercion, or deception, makes it. The
prosecution has the burden to prove, by a preponderance of the evidence, that a
defendant’s statement is voluntary.” Wilkins v. State, 2005 WY 2, ¶ 9, 104 P.3d 85, 89
(Wyo. 2005).
[¶20] With regard to statements made by juveniles during custodial interrogations, we
have recognized that “the greatest care must be exercised to assure that the giving of a
statement by a juvenile was in fact voluntary and not the product of immaturity,
ignorance or coercion.” Jahnke v. State, 692 P.2d 911, 923 (Wyo. 1984). Nonetheless,
in Jahnke, we also stated that “the fact that the individual being questioned is a juvenile is
simply a factor to be considered in the totality of the circumstances in order to determine
whether the waiver [of constitutional rights] was efficacious.” Id. We noted that this
approach is consistent with the United States Supreme Court’s decision in Fare v.
Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, reh. denied 444
U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), which held that
This totality-of-the circumstances approach is adequate to
determine whether there has been a waiver even where
interrogation of juveniles is involved. We discern no
persuasive reasons why any other approach is required where
the question is whether a juvenile has waived his rights, as
opposed to whether an adult has done so. The totality
approach permits – indeed, it mandates – inquiry into all the
circumstances surrounding the interrogation. This includes
evaluation of the juvenile’s age, experience, education,
background, and intelligence, and into whether he has the
capacity to understand the warnings given him, the nature of
his Fifth Amendment rights, and the consequences of waiving
those rights.
In accordance with this approach, in Rubio, 939 P.2d at 242, we held that a 15-year-old’s
immaturity did not preclude a knowing and voluntary relinquishment of his rights.
[¶21] Although Sen was only 15 years old at the time of his interrogation, the totality of
the circumstances in this case indicates that Sen’s decision to waive his rights was the
result of a free and deliberate choice. First, we note that the record reflects that Sen had
extensive experience with the criminal justice system. As noted above, Sen’s prior
record included violations for hit and run, flight to avoid arrest, shoplifting, unauthorized
use of a motor vehicle, disorderly conduct, and disturbing the peace. During his
interrogation, Sen acknowledged that he had previously been advised of his Miranda
rights as a result of these offenses. Additionally, Sen’s statement that he was “going to
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stay silent” indicates that he understood the nature of his rights and the consequences of
waiving those rights.
[¶22] Further, we find that the circumstances of Sen’s interrogation were not improperly
coercive. As we noted in Hannon, ¶ 59, 84 P.3d at 342, in evaluating the interrogation
tactics of law enforcement, we must balance two competing interests:
[F]irst, society’s interest in preserving the dignity of the
individual and of society and preventing the risk of unreliable
confessions by preventing the government from employing
tactics that coerce confessions; and second, society’s interest
in allowing the government to use permissible tactics that
may motivate a suspect to confess of his own free will.
In this case, there is no indication in the record that the agents made threats or promises
to induce Sen’s confession, or that there were any deficits in Sen’s physical or mental
condition at the time of the interrogation. During the time that Sen was detained, he was
offered food and drinks, and was allowed to go to the bathroom. Further, we are not
persuaded that the length of Sen’s detention was improper in light of the circumstances.
The legitimacy of this tactic is supported by our decision in Bhutto v. State, 2005 WY 78,
¶ 18, 114 P.3d 1252, 1262 (Wyo. 2005), where we held that confinement to an interview
room for “the better part of [a] day,” when such detention serves the legitimate purposes
of a murder investigation, cannot be characterized as coercive.
[¶23] Sen asserts that the agents’ questioning after he invoked his right to remain silent
in the first interview was improper. Immediately after invoking that right, however, Sen
told the agents, “I didn’t do it.” As noted in Bui v. DiPaolo, 170 F.3d 232, 240 (1st Cir.
1999) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68
L.Ed.2d 378 (1981)), courts routinely conclude that a defendant who has professed an
understanding of his right to remain silent “will be held to have effected a waiver when,
after receiving warnings and asserting (equivocally or unequivocally) a right to remain
silent, he spontaneously recommences the dialogue with his interviewers.” Because Sen
recommenced dialogue with the agents, subsequent questioning by the agents during the
interview was not improper. In sum, we find no grounds to conclude that Sen’s
confession was the product of coercion. Based on the totality of the circumstances, we
find that Sen effected a valid waiver of his Miranda rights, and his subsequent confession
to the crimes was voluntary.
III. Motion to Suppress Results of Test for Gunshot Residue
[¶24] Sen also claims the trial court erred in denying his motion to suppress evidence
obtained from the gunshot residue test administered during his custodial interrogation.
He contends the test was an unlawful warrantless search and suggests, as a reasonable
alternative, that his hands could have been bagged or handcuffed to preserve any gunshot
11
residue while law enforcement procured a warrant. Sen, however, does not provide any
authority indicating that a superficial search for gunshot residue violates protections
against unreasonable searches or seizures.
[¶25] We apply the same standard of review as to the denial of Sen’s motion to suppress
his confession. We defer to the district court’s factual findings unless they are clearly
erroneous and view the evidence in the light most favorable to the district court’s
determination. We review the ultimate determination regarding the constitutionality of a
particular search or seizure de novo. Owens v. State, 2012 WY 14, ¶ 8, 269 P.3d 1093,
1095 (Wyo. 2012).
[¶26] The Fourth Amendment to the United States Constitution and Article 1, § 4 of the
Wyoming Constitution protect individuals from unreasonable searches and seizures.
Warrantless searches and seizures are presumptively unreasonable unless they are
justified by probable cause and an established exception to the warrant requirement.
Owens, ¶ 10, 269 P.3d at 1096. “When faced with special law enforcement needs,
diminished expectations of privacy, minimal intrusions, or the like, the [United States
Supreme] Court has found that certain general, or individual, circumstances may render a
warrantless search or seizure reasonable.” Id. (quoting Illinois v. McArthur, 531 U.S.
326, 330, 121 S.Ct. 946, 949, 148 L.Ed.2d 838 (2001)). Among the recognized
exceptions to the warrant requirement are searches incident to arrest and searches and/or
seizures to prevent the imminent destruction of evidence. Pena v. State, 2004 WY 115, ¶
29, 98 P.3d 857, 870 (Wyo. 2004).
[¶27] During the suppression hearing, the DCI agent who administered the test
explained that evidence of gunshot residue was obtained by swabbing a two-inch
applicator on Sen’s hands and face. He stated that the residue is usually invisible to the
naked eye, and that it can be wiped or rubbed away on surfaces contacting the skin. In
light of the evanescent nature of gunshot residue, many courts have held that a
warrantless search for such evidence does not violate constitutional protections against
unreasonable searches. For example, in United States v. Johnson, 445 F.3d 793, 795-96
(5th Cir. 2006), the court stated that “Because the presence of gun powder on his hands
was relevant evidence that Johnson (or merely time) could have eventually removed or
destroyed, if his arrest was valid, the performance of the gun powder residue test was
lawful, and the admission of the results at trial was proper.” After finding that the
defendant’s arrest was lawful, the court concluded that the gunpowder residue test was a
lawful warrantless search incident to his arrest. Id., 445 F.3d at 796. Similarly, in State
v. Riley, 201 W. Va. 708, 717 (W. Va. 1997), West Virginia’s highest court determined
that the admission of evidence obtained from a swab of the defendant’s face and hands
for gunpowder residue was “consistent with the general recognition that superficial
examination of a lawfully arrested individual for evidence of gunpowder residue is not
violative of the Fourth Amendment prohibition against unreasonable searches and
seizures.” See also Lawler v. State, 276 Ga. 229, 234 (Ga. 2003) (“The search of Lawler
at the police station was a lawful search incident to his arrest. Swabbing for blood or
12
gunshot residue at that time was not an unconstitutional search.”) (citation omitted).
[¶28] Sen does not contend that his arrest was unlawful. Rather, he contends that,
because 16 hours had passed between the shooting and his arrest, “[t]he danger of the
trace evidence wiping off [his] hands had already passed.” However, the validity of this
argument is belied by the fact that gunshot residue was, in fact, found on Sen 16 hours
after his arrest. Additionally, we are not persuaded that justification for the search was
eliminated by the mere possibility that the evidence had already been destroyed.
Consistent with the conclusions reached in cases set forth above, we find that, in light of
the minimal intrusion caused by the swab for gunshot residue and the easy destructibility
of such evidence, administration of the gunshot residue test was a valid search incident to
arrest. The district court did not err in denying Sen’s motion to suppress the gunshot
residue evidence.
IV. Admissibility of Testimony Relating to Sen’s Capacity to Form Criminal
Intent
[¶29] In his next issue, Sen claims that the district court’s decision to exclude expert
testimony of Dr. Marie Banich violated his right to present a defense under the
Compulsory Process Clauses of the Sixth Amendment to the United States Constitution
and Article 1, § 10 of the Wyoming Constitution. A violation of the Compulsory Process
Clause occurs when a defendant is arbitrarily deprived of testimony that would have been
relevant, material, and vital to his defense. Dysthe v. State, 2003 WY 20, ¶ 5, 63 P.3d
875, 879 (Wyo. 2003). The mere invocation of the right to compulsory process,
however, “cannot automatically and invariably outweigh countervailing public interests.”
Id.
The factors to be weighed in the balance include, but are not
limited to the “integrity of the adversary process, which
depends both on the presentation of reliable evidence and the
rejection of unreliable evidence, the interest in the fair and
efficient administration of justice, and the potential prejudice
to the truth-determining function of the trial process.”
Id., quoting Taylor v. Illinois, 484 U.S. 400, 414-15, 108 S.Ct. 646, 656, 98 L.Ed.2d 798
(1988). In accordance with these principles, courts have recognized that “‘the right to
present defense witnesses is not absolute. A defendant must abide the rules of evidence
and procedure,’ including ‘standards of relevance and materiality.’” United States v.
Dowlin, 408 F.3d 647, 659 (10th Cir. 2005) (quoting United States v. Bautista, 145 F.3d
1140, 1151-52 (10th Cir. 1998)).
[¶30] We review a trial court’s decision to admit or reject expert testimony for an abuse
of discretion. Gruwell v. State, 2011 WY 67, ¶ 12, 254 P.3d 223, 227 (Wyo. 2011).
Under an abuse of discretion standard, “the ultimate issue is whether or not the court
13
could reasonably conclude as it did.” Breazeale v. State, 2011 WY 10, ¶ 30, 245 P.3d
834, 843 (Wyo. 2011) (quoting Lawson v. State, 994 P.2d 943, 947 (Wyo. 2000)).
“Decisions of the trial court with respect to the admissibility of evidence are entitled to
considerable deference and, as long as there exists a legitimate basis for the trial court’s
ruling, that ruling will not be reversed on appeal.” Lawson, 994 P.2d at 947.
[¶31] As noted above, prior to trial, the State filed a motion in limine to exclude
Dr. Banich’s testimony on the grounds that it related to the defense of “diminished
capacity.” The court deferred ruling on the motion until the defense could provide more
information regarding the proposed testimony. The court addressed the matter again at
trial when it requested an offer of proof from the defense regarding Dr. Banich’s
proposed testimony. During the offer of proof, defense counsel asked Dr. Banich to
explain the “workings of a normal 15-year-old brain.” Dr. Banich testified that, based on
the results of a large-scale study of decision-making abilities of individuals aged 10 to 30,
15-year-olds, when compared to adults, reported greater impulsiveness, evaluated risks
and rewards differently, and had less sensitivity to punishment. Sen claimed that this
testimony was relevant, material, and vital to his defense. After considering the offer of
proof and counsel’s arguments, the district court determined that Dr. Banich’s testimony
was inadmissible because her testimony related to the defense of diminished capacity, a
defense that is not recognized in Wyoming. As a result, the court found that the
testimony was not relevant under W.R.E. 401.2
[¶32] Sen asserts that Dr. Banich’s testimony was offered to help the jury understand
“the workings of an average fifteen-year-old’s mind.” He insists that the district court
erred in excluding Dr. Banich’s testimony on the grounds that it constituted a defense of
diminished capacity because, according to Sen, the testimony would have shown instead
that he “had all the capacity of an average fifteen-year-old,” but that “an average fifteen-
year-old’s brain is not capable of engaging in the mental calculus required to form
specific intent.” He contends that, “Without proving this specific intent element, it would
not have been possible to convict [Sen] of aggravated burglary, let alone felony murder.”
[¶33] We are unable to find any merit in Sen’s claim that the district court erred in
rejecting Dr. Banich’s testimony because (1) there is no support in the record for the
assertion that Dr. Banich would have testified that 15-year-olds do not have the capacity
to form specific intent, and (2) Sen has failed to provide any legal authority supporting
his claim that the proposed testimony was relevant. First, we must point out that
Dr. Banich’s proposed testimony does not support Sen’s contention that a 15-year-old
does not have the capacity to form criminal intent. In response to defense counsel’s
2
W.R.E. 401 defines relevant evidence as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.”
14
questioning during the offer of proof, Dr. Banich testified as follows:
DEFENSE COUNSEL: [15-year-olds] are capable of
planning; are they not?
DR. BANICH: Yes.
DEFENSE COUNSEL: They are capable of matching intent
with volition, of acting on that intent?
DR. BANICH: I’m not sure we looked at that directly, so it
depends on what you mean by that.
DEFENSE COUNSEL: But when you say that they are
capable of planning, as I understand it, the difference that you
found – by planning I mean: “Okay, I want to go out and I
want to look for property that’s valuable to steal, and so I go
out, walking the streets late at night looking for cars that
might be unlocked”; that would be intent and planning. I’m
assuming that they’re capable of doing that?
DR. BANICH: Yes.
DEFENSE COUNSEL: And the difference [between adults
and 15-year-olds] is that the way in which [a 15-year-old]
may try to execute it may be more circuitous or may not take
into consideration the types of things that an adult would do?
DR. BANICH: Right, or the potential consequences of that,
yes.
DEFENSE COUNSEL: Thank you. I have no further
questions.
As indicated in this excerpt from the trial transcript, Dr. Banich’s proposed testimony did
not indicate that 15-year-olds are incapable of intending to perform a criminal act or
producing the desired result of that act. Rather, her proposed testimony suggested that
15-year-olds, when compared to adults, are more impulsive and have a reduced ability to
evaluate the consequences of their actions. The fact that a juvenile may not appreciate
the consequences of his or her actions as fully as an adult, however, does not suggest that
a juvenile does not have the capacity to form “specific intent.”
[¶34] In addition to the fact that the record contains no evidentiary support for his
argument, Sen’s brief presents no legal authority from Wyoming or other jurisdictions
15
addressing incapacity to form specific intent based on the defendant’s age. He contends
that Dr. Banich’s proposed testimony did not relate to the defense of diminished capacity,
but he does not provide any authority supporting its admissibility if the testimony was not
presented in relation to a diminished capacity defense. To the extent that the proposed
testimony could be viewed as evidence of diminished capacity, we are not inclined to
expand the defense of mental incapacity beyond the scope of Wyo. Stat. Ann. § 7-11-
302.3 See Dean v. State, 668 P.2d 639, 644 (Wyo. 1983) (“If the legislature had intended
additional defenses, it would have said so. Courts will not enlarge, stretch, expand or
extend a statute to matters not falling within its express provisions, and they will not
usurp the powers of the legislature by deciding what should have been said.”). Although
Sen has not addressed the issue, we note that his characterization of Dr. Banich’s
testimony could relate to the common law defense of infancy. However, as explained
below, in the context of a criminal proceeding, the defense of infancy has been
supplanted by our legislature’s allocation of jurisdiction between juvenile and criminal
courts.
[¶35] Under common law, the infancy defense is available only to children under the age
of fourteen. Children under the age of seven are conclusively presumed to be without
criminal capacity. For those between the ages of seven and fourteen, there is a rebuttable
presumption of criminal incapacity. 2 Wayne R. LaFave, Substantive Criminal Law § 9.6
(2d ed. 2003). A juvenile who has reached the age of fourteen, however, is fully
accountable for his criminal actions unless incapacity is established on some other basis
such as insanity. Id.; see also In re Devon T., 584 A.2d 1287, 1290 (Md. Ct. Spec. App.
1991).
[¶36] Wyoming case law has not recognized the common law infancy presumptions.
Rather, our legislature has developed a system in which defendants tried in juvenile court
are afforded greater protections than those granted to adults in the criminal justice
3
Wyo. Stat. Ann. § 7-11-302 provides as follows:
(a) No person shall be tried, sentenced or punished for the commission
of an offense while, as a result of mental illness or deficiency, he
lacks the capacity, to:
(i) Comprehend his position;
(ii) Understand the nature and object of the proceedings against
him;
(iii) Conduct his defense in a rational manner; and
(iv) Cooperate with his counsel to the end that any available
defense may be interposed.
16
system. Under Wyo. Stat. Ann. § 14-6-203(d), the juvenile courts have exclusive
jurisdiction in cases “in which a minor who has not attained the age of thirteen (13) years
is alleged to have committed a felony or a misdemeanor punishable by imprisonment for
more than six (6) months.” In all other cases in which a minor is alleged to have
committed a criminal offense, the juvenile court has concurrent jurisdiction with the
district court. Wyo. Stat. Ann. § 14-6-203(c). When the decision has been made to try a
juvenile in criminal court, he is subject to the same legal rules that apply to adult criminal
defendants in his position. Bear Cloud I, ¶ 86, 275 P.3d at 412 (“Once a juvenile’s case
is vested in the criminal courts, the public policies affording a juvenile different treatment
than adults are no longer applicable.”). In light of the statutory mechanisms affording
different treatment to defendants tried in juvenile court, as opposed to criminal court, a
defense of incapacity based on the defendant’s age has no application in a criminal
proceeding. As a result, we agree with the district court that Dr. Banich’s testimony was
not relevant. Accordingly, we find no abuse of discretion in the district court’s decision
to exclude Dr. Banich’s testimony.
V. Ineffective Assistance of Counsel
[¶37] Sen also seeks reversal of his convictions based on a claim that he received
ineffective assistance of counsel. After filing his appeal, Sen filed a motion for limited
remand for the purpose of developing the record on his claim of ineffective assistance of
counsel pursuant to W.R.A.P. 21 and Calene v. State, 846 P.2d 679 (Wyo. 1993). After a
review of the motion, and the attached materials, we denied the motion. In his brief, Sen
reasserts his claim of ineffective assistance of counsel based on the same grounds set
forth in his motion. His primary contention is that his counsel was ineffective because he
failed to interview members of Sen’s extended family who would have revealed a
familial history of mental illness. He asserts that “Thorough investigation of [Sen’s]
family history and his not-quite-sixteen years of life experiences was necessary for
counsel to provide meaningful representation at the plea negotiations stage, at the transfer
hearing, at trial, and at sentencing.”
[¶38] In reviewing claims of ineffective assistance of counsel, our paramount
consideration is whether, in light of all the circumstances, trial counsel’s acts or
omissions were outside the wide range of professionally competent assistance. Gleason
v. State, 2002 WY 161, ¶ 44, 57 P.3d 332, 346-47 (Wyo. 2002). In order to prevail on a
claim of ineffective assistance of counsel, Sen must show, first, that trial counsel’s
performance was deficient, and second, that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d
674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Id., 466 U.S. at 686, 104
S.Ct. at 2064. We invoke a strong presumption that counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable judgment. Rodriguez v.
State, 2010 WY 170, ¶ 14, 245 P.3d 818, 823 (Wyo. 2010). “We are reluctant to reverse
17
based upon allegations of ineffective assistance of counsel, and have stated that ‘[i]n the
usual case, ineffective assistance of counsel is going to be demonstrable because of a
cumulation of errors with a determination that, in the entire context of the trial, the
defendant either was, or was not, denied a right to a fair trial.’” Proffit v. State, 2008 WY
114, ¶ 33, 193 P.3d 228, 241 (Wyo. 2008) (quoting Dickeson v. State, 843 P.2d 606, 612
(Wyo. 1992)).
[¶39] We will limit our analysis of this issue to the prejudice component of the
Strickland test. Floyd v. State, 2006 WY 135, ¶ 13, 144 P.3d 1233, 1238 (Wyo. 2006);
Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (“[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”). In light of our determination that Sen is
entitled to a new sentencing hearing, his claim of ineffective assistance of counsel with
respect to that stage of the proceedings is moot. With regard to the remaining stages of
trial, Sen’s claim that his counsel’s performance resulted in prejudice consists of the bare
allegation that “a more reasonable[,] extensive[,] and thorough investigation . . . would
have revealed information which could have changed the outcome of at least some part of
these proceedings.”
[¶40] Sen’s trial counsel requested mental evaluations of Sen on three separate
occasions: once in support of his motion to transfer the case to juvenile court, and twice
to determine whether he was competent to stand trial. In the first evaluation, the
defense’s expert psychologist interviewed Sen, the great-aunt and uncle who served as
his guardians, another great-aunt, Sen’s mother, and Sen’s aunt. With regard to Sen’s
mental status, the psychologist concluded that “There were no overt indications of a
thought disorder nor did he display any delusional thinking or unusual beliefs.”
Similarly, in the forensic evaluations conducted to determine Sen’s competency to stand
trial, a forensic psychologist from the State Hospital interviewed Sen, his mother, his
great-aunt, and two of Sen’s peers. On both occasions, the psychologist 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,” and that Sen “was not suffering from a major mental illness that
would meet statutory threshold criteria necessary for establishing a basis for the defense,
Not Guilty By Reason of Mental Illness or Deficiency.”
[¶41] On appeal, Sen identifies a number of extended family members that would have
testified to a history of familial dysfunction and mental illness. However, he does not
explain how this evidence was relevant to his defense absent an indication that Sen
himself suffered from a mental illness that would affect his culpability under Wyoming
law. He fails to compare the statements of his extended family members with the
evidence contained in the record, and he does not attempt to demonstrate how such
18
testimony would have impacted the results of his mental evaluations, altered the
prosecutor’s charging decision, impacted plea negotiations, or persuaded the district court
to transfer the case to juvenile court. Because of these deficiencies in Sen’s claim, we are
unable to find any prejudice to the defense. Sen has failed to establish that his counsel
was ineffective.
VI. Sentencing
[¶42] Sen was sentenced to life imprisonment without the possibility of parole for the
crime of first-degree felony murder. He was fifteen years old when he committed the
crime. He contends that his sentence violated the Eighth Amendment to the United
States Constitution because the sentencing court was required by statute to impose a
sentence of life without the possibility of parole. We recently determined that the
statutory sentencing scheme under which Sen was sentenced was unconstitutional. Bear
Cloud II, 2013 WY 18, 294 P.3d 36. We must now decide whether Sen is entitled to a
new sentencing hearing to satisfy the constitutional requirements established by the
United States Supreme Court in Miller v. Alabama and recognized by this Court in Bear
Cloud II.
[¶43] The Eighth Amendment provides that “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” As the Supreme
Court explained in Miller, 132 S.Ct. at 2463:
The Eighth Amendment’s prohibition of cruel and
unusual punishment “guarantees individuals the right not to
be subjected to excessive sanctions.” Roper [v. Simmons], 543
U.S. [551,] 560, 125 S.Ct. 1183, [1190,] 161 L.Ed.2 d 1
[(2005)]. That right, we have explained, “flows from the basic
‘precept of justice that punishment for crime should be
graduated and proportioned’” to both the offender and the
offense. Ibid. (quoting Weems v. United States, 217 U.S. 349,
367, 30 S.Ct. 544, [549,] 54 L.Ed. 793 (1910)). As we noted
the last time we considered life-without-parole sentences
imposed on juveniles, “[t]he concept of proportionality is
central to the Eighth Amendment.” Graham [v. Florida], 560
U.S. [ ], ___, 130 S.Ct. 2011, [2021,] 176 L.Ed.2d 825
[(2010)]. And we view that concept less through a historical
prism than according to “‘the evolving standards of decency
that mark the progress of a maturing society.’” Estelle v.
Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, [290,] 50 L.Ed.2d
251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78
S.Ct. 590, [598,] 2 L.Ed.2d 630 (1958) (plurality opinion)).
The issue of whether a sentence violates the Eighth Amendment’s prohibition against
19
cruel and unusual punishment receives de novo review. Bear Cloud I, ¶ 46, 275 P.3d at
395.
[¶44] Sen was sentenced to “life imprisonment without parole” pursuant to Wyo. Stat.
Ann. § 6-2-101(b) (LexisNexis 2009). That statute provides as follows:
§ 6-2-101. Murder in the first degree; penalty.
(a) Whoever purposely and with premeditated malice, or in
the perpetration of, or attempt to perpetrate, any sexual
assault, sexual abuse of a minor, arson, robbery, burglary,
escape, resisting arrest, kidnapping or abuse of a child under
the age of sixteen (16) years, kills any human being is guilty
of murder in the first degree.
(b) A person convicted of murder in the first degree shall be
punished by death, life imprisonment without parole or life
imprisonment according to law, except that no person shall be
subject to the penalty of death for any murder committed
before the defendant attained the age of eighteen (18) years.
Under Wyo. Stat. Ann. § 6-10-301(c) and Wyo. Stat. Ann. § 7-13-402(a), a person
sentenced to “life imprisonment without parole” or “life imprisonment according to law”
is not eligible for parole:
§ 6-10-301. Life imprisonment without parole.
...
(b) A person sentenced to life imprisonment without parole
shall not be eligible for parole and shall remain imprisoned
under the jurisdiction of the department of corrections during
the remainder of his life unless pardoned by the governor.
(c) A sentence specifically designated as a sentence of life
imprisonment without parole is not subject to commutation
by the governor. A sentence of life or life imprisonment
which is not specifically designated as a sentence of life
imprisonment without parole is subject to commutation by the
governor. A person sentenced to life or life imprisonment is
not eligible for parole unless the governor has commuted the
person’s sentence to a term of years.
§ 7-13-402. General powers and duties of board;
20
eligibility for parole; immunity.
(a) The board may grant a parole to any person imprisoned in
any institution under sentence, except a sentence of life
imprisonment without parole or a life sentence, ordered by
any district court of this state, provided the person has served
the minimum term pronounced by the trial court less good
time, if any, granted under rules promulgated pursuant to
W.S. 7-13-420.
[¶45] As noted above, we recently examined the constitutionality of Wyoming’s
sentencing statutes as applied to juveniles convicted of first-degree murder in Bear Cloud
I and Bear Cloud II. In Bear Cloud I, ¶ 87, 275 P.3d at 413, this Court held that a
sentence of “life imprisonment according to law” imposed on a juvenile convicted of
first-degree felony murder did not violate the Wyoming or United States Constitutions.
Bear Cloud sought review of that decision in the United States Supreme Court. The
Supreme Court summarily vacated the judgment in Bear Cloud I and remanded the case
for further consideration in light of Miller v. Alabama, which was issued after our
decision in Bear Cloud I. Bear Cloud v. Wyoming, U.S. , 133 S.Ct. 183, 184
L.Ed.2d 5 (2012) (mem.).
[¶46] In our decision following remand, we set forth the relevant United States Supreme
Court precedent, beginning with the decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct.
3001, 77 L.E.2d 637 (1983), which held that commutation of a sentence does not equate
to the possibility of parole, and culminating in Miller’s holding that mandatory life
without parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on cruel and unusual punishments. Bear Cloud II, ¶¶ 19-28,
294 P.3d at 41-44. We then proceeded to determine that the combined operation of Wyo.
Stat. Ann. § 6-2-101(b), Wyo. Stat. Ann. § 6-10-301(c), and Wyo. Stat. Ann. § 7-13-
402(a), which allow for the possibility of parole only upon commutation of a sentence of
“life according to law,” conflict with Supreme Court precedent because they exclude any
meaningful possibility of parole for juveniles convicted of first-degree murder. Bear
Cloud II, ¶¶ 33-34, 294 P.3d at 45.
[¶47] After determining that the phrase “life according to law” must incorporate the
Supreme Court’s holding in Miller, we concluded that compliance with the Supreme
Court’s Eighth Amendment jurisprudence was achieved by holding Wyo. Stat. Ann. § 6-
10-301(c) and Wyo. Stat. Ann. § 7-13-402(a) unconstitutional as applied to juveniles:
We find this statutory interpretation most appropriate
for two reasons. First, it minimizes our intrusion into any
legislative function while allowing trial courts to impose the
existing possible statutory sentences for first-degree murder
in a constitutionally permissible way. Second, it separates
21
“life imprisonment without parole” from “life imprisonment
according to law,” making them truly discrete, individual
punishments when applied to juveniles.
Accordingly, we hold that Wyoming Statutes §§ 6-10-
301(c) and 7-13-402(a) are unconstitutional as applied to
juveniles who have been sentenced to life imprisonment
according to law under Wyoming Statute § 6-2-101(b). As
noted above, these statutes prevent a juvenile who has been
sentenced to life imprisonment for first-degree murder from
having a meaningful opportunity for parole in violation of the
Eighth Amendment. These statutes also fail to provide a
sentencing court the discretion to determine whether a
juvenile homicide offender should be eligible for parole at
some point in the future, as United States Supreme Court case
law requires.
Bear Cloud II, ¶¶ 37-38, 294 P.3d at 46.
[¶48] Finally, we explained that, in order to fulfill the requirements of Miller, a trial
court must consider “the factors of youth and the nature of the homicide at an
individualized sentencing hearing when determining whether to sentence the juvenile
offender to life without the possibility of parole or to life according to law.” Bear Cloud
II, ¶ 42, 294 P.3d at 47.
While not exhaustive, the Miller Court specifically indicated
some factors for a trial court to consider at sentencing
include:
(a) “the character and record of the individual
offender [and] the circumstances of the offense,”
Miller, 567 U.S. at , 132 S.Ct. at 2467 (quotation
marks omitted);
(b) “the background and mental and emotional
development of a youthful defendant,” id.;
(c) a juvenile’s “chronological age and its hallmark
features – among them, immaturity, impetuosity, and
failure to appreciate the risks and consequences,” id.,
567 U.S. at , 132 S.Ct. at 2468;
(d) “t h e f a m i l y a n d home environment that
surrounds” the juvenile, “no matter how brutal or
22
dysfunctional,” id.;
(e) “the circumstances of the homicide offense,
including the extent of his participation in the conduct
and the way familial and peer pressure[s] may have
affected” the juvenile, id.;
(f) whether the juvenile “might have been charged
and convicted of a lesser offense if not for
incompetencies associated with youth,” e.g., the
juvenile’s relative inability to deal with police and
prosecutors or to assist his own attorney, id.; and
(g) the juvenile’s potential for rehabilitation, id.
The United States Supreme Court also explained that
the trial court must consider these factors at the time of
sentencing in determining the juvenile offender’s eligibility
for parole. Id., 567 U.S. at , 132 S.Ct. at 2474-75.
Examining these factors at the beginning of the case in
determining whether to try a juvenile as an adult, i.e.,
pursuant to a motion to transfer to juvenile court, is not
sufficient to meet Miller’s requirements. Id., 567 U.S. at ,
132 S.Ct. at 2475 (“the discretion available to a judge at the
transfer stage cannot substitute for discretion at post-trial
sentencing in adult court – and so cannot satisfy the Eighth
Amendment”).
In sum, Miller requires an individualized sentencing
hearing for every juvenile convicted of first-degree murder at
which the sentencing court must consider the individual, the
factors of youth, and the nature of the homicide in
determining whether to order a sentence that includes the
possibility of parole. Miller does not guarantee the possibility
of parole for a convicted juvenile homicide offender, but
Miller does mandate that a meaningful review and
consideration be afforded by the sentencing court.
To conform to recent United States Supreme Court
jurisprudence, when a Wyoming district court sentences a
juvenile convicted of first-degree murder, the sentencing
court shall hold an individualized sentencing hearing that
conforms to the dictates of Miller. The potential sentences
authorized by both the Wyoming Legislature and the United
23
States Supreme Court are “life imprisonment without parole”
or “life imprisonment according to law.” Wyo. Stat. Ann. § 6-
2-101(b); Miller, 567 U.S. at , 132 S.Ct. at 2469 (refusing
to categorically bar a sentence of life without parole for
juvenile homicide offenders).
If at the individualized sentencing hearing the trial
court determines the juvenile offender should not be
foreclosed from the potential for parole in the future, the
appropriate sentence will be life imprisonment according to
law. In order to conform to Solem, Graham, and Miller,
however, the juvenile offender not deprived of the possibility
of parole at sentencing must be afforded some meaningful
opportunity for release beyond executive clemency.
Therefore, the opportunity for true parole at some point in
time (as opposed to executive clemency) must be afforded to
every juvenile sentenced to “life imprisonment according to
law.”
To achieve such meaningful opportunity for release,
and because the current statutory scheme provides no other
method by which to determine parole eligibility, we hold that
when a trial court imposes a sentence of life imprisonment
according to law upon a juvenile homicide offender, the trial
court must also pronounce a specific period of time which
must pass before the juvenile becomes parole eligible. We do
not here suggest a minimum period of time. That should be
determined by the sentencing court after consideration of the
individual factors discussed above. After the specified period
of time expires, the juvenile offender shall become eligible
for parole review before the state board of parole. The trial
court should consider the criteria set out above and discussed
in Miller when determining how long a juvenile offender
must wait before becoming eligible for parole review. Miller
necessitates the sentencing court exercise discretion in
determining whether a juvenile homicide offender should
receive the future possibility of parole.
Bear Cloud II, ¶¶ 42-47, 294 P.3d at 47-48.4 Consistent with our decision in Bear Cloud
4
Our legislature recently enacted amendments to Wyo. Stat. Ann. § 6-2-101(b) and Wyo. Stat. Ann. § 6-
10-301(c) that eliminate life sentences without parole for juvenile offenders effective July 1, 2013. The
24
II, we find that Sen’s sentence was imposed pursuant to a statutory sentencing scheme
that was unconstitutional as applied to juveniles because it effectively mandated a
sentence of life in prison without the possibility of parole for juveniles convicted of first-
degree murder.
[¶49] In light of Miller, the State concedes that Wyoming’s sentencing statutes imposed
mandatory life without parole for juveniles convicted of first-degree murder. However,
the State notes that a sentence of life without the possibility of parole for a juvenile
convicted of first-degree murder remains a constitutionally permissible sentence under
Miller. Further, the State claims that “Sen’s sentencing hearing met the requirements of
Miller because the State and [Sen] presented evidence that spoke directly to the issues of
[Sen’s] youth.” As a result, the State suggests that we need not remand to the district
court for resentencing. Ultimately, however, the State requests that this Court either
1) Affirm [Sen’s] sentence as consistent with the holdings of
the United States Supreme Court in Miller; or 2) Remand the
case for a new sentencing hearing with instructions to the
district court that life according to law and life without parole
are two different sentences, and that it should consider
amended statutes provide as follows:
6-2-101. Murder in the first degree; penalty.
(b) A person convicted of murder in the first degree shall be punished by
death, life imprisonment without parole or life imprisonment according
to law, except that a person convicted of murder in the first degree who
was under the age of eighteen (18) years at the time of the offense shall
be punished by life imprisonment.
6-10-301. Life imprisonment without parole; life imprisonment.
(c) Any sentence other than a sentence specifically designated as a
sentence of life imprisonment without parole is subject to commutation
by the governor. A person sentenced to life imprisonment for an offense
committed after the person reached the age of eighteen (18) years is not
eligible for parole unless the governor has commuted the person’s
sentence to a term of years. A person sentenced to life imprisonment for
an offense committed before the person reached the age of eighteen (18)
years shall be eligible for parole after commutation of his sentence to a
term of years or after having served twenty-five (25) years of his
sentence, except that if the person committed any of the acts specified in
W.S. 7-13-402(b) after having reached the age of eighteen (18) years the
person shall not be eligible for parole.
2013 House Bill No. 23, available at http://legisweb.state.wy.us/2013/Introduced/HB0023.pdf.
25
[Sen’s] age and all of its characteristics before imposing [a
new] sentence.
We do not agree with the suggestion that affirming Sen’s sentence is a viable option or
that Sen’s sentencing hearing met the requirements of Miller.
[¶50] Sen is entitled to a sentencing decision that is informed by the Supreme Court’s
holding in Miller and its discussion of the distinctive characteristics of youth. While a
sentence of life without parole for a juvenile convicted of first-degree murder remains a
constitutionally permissible sentence under Miller, the Supreme Court stated that such
sentences should be uncommon in light of the significant differences between juveniles
and adults:
We [] hold that the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders. Cf. Graham, 560
U.S., at ___, 130 S.Ct. 2011, 176 L.Ed.2d 825 (“A State is not
required to guarantee eventual freedom,” but must provide
“some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation”). By making youth
(and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk
of disproportionate punishment. Because that holding is
sufficient to decide these cases, we do not consider Jackson’s
and Miller’s alternative argument that the Eighth Amendment
requires a categorical bar on life without parole for juveniles,
or at least for those 14 and younger. But given all we have
said in Roper, Graham and this decision about children’s
diminished culpability and heightened capacity for change,
we think appropriate occasions for sentencing juveniles to
this harshest possible penalty will be uncommon. That is
especially so because of the great difficulty we noted in
Roper and Graham of distinguishing at this early age between
“the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.” Roper, 543 U.S., at
573, 125 S.Ct. 1183, 161 L.Ed.2d 1; Graham, 560 U.S., at __,
130 S.Ct. 2011, 176 L.Ed.2d 825. Although we do not
foreclose a sentencer’s ability to make that judgment in
homicide cases, we require it to take into account how
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.
Miller, ___ U.S. at , 132 S.Ct. at 2469 (emphasis added). In reaching this conclusion,
26
the Court explained at length the reasons that juveniles are “less deserving of the most
severe punishments,” referencing Roper and Graham, as well as precedent demanding
individualized sentencing when imposing the death penalty. See Miller, ___ U.S. at ,
132 S. Ct. at 2463-2468. Based on the collective teachings of these decisions, the Court
concluded that juveniles have lessened criminal culpability as compared to adults, that
they have greater prospects for reform, and that the mental traits and environmental
vulnerabilities of juveniles are not crime-specific. Id. The Court summarized the
inherent defects of a mandatory life without parole sentencing scheme as follows:
Such mandatory penalties, by their nature, preclude a
sentencer from taking account of an offender’s age and the
wealth of characteristics and circumstances attendant to it.
Under these schemes, every juvenile will receive the same
sentence as every other – the 17-year-old and the 14-year-old,
the shooter and the accomplice, the child from a stable
household and the child from a chaotic and abusive one. And
still worse, each juvenile (including these two 14-year-olds)
will receive the same sentence as the vast majority of adults
committing similar homicide offenses – but really, as Graham
noted, a greater sentence than those adults will serve. In
meting out the death penalty, the elision of all these
differences would be strictly forbidden. And once again,
Graham indicates that a similar rule should apply when a
juvenile confronts a sentence of life (and death) in prison.
So Graham and Roper and our individualized
sentencing cases alike teach that in imposing a State’s
harshest penalties, a sentencer misses too much if he treats
every child as an adult. To recap: Mandatory life without
parole for a juvenile precludes consideration of his
chronological age and its hallmark features – among them,
immaturity, impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the family and
home environment that surrounds him – and from which he
cannot usually extricate himself – no matter how brutal or
dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have
affected him. Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for
incompetencies associated with youth – for example, his
inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys. See, e.g., Graham, 560 U.S., at ___, 130 S.Ct.
27
2011, 176 L.Ed.2d 825 (“[T]he features that distinguish
juveniles from adults also put them at a significant
disadvantage in criminal proceedings”); J. D. B. v. North
Carolina, 564 U.S. ___, ___, 131 S.Ct. 2394, 180 L.Ed.2d
310 (2011) (discussing children’s responses to interrogation).
And finally, this mandatory punishment disregards the
possibility of rehabilitation even when the circumstances
most suggest it.
Miller, ___ U.S. at ___, 132 S.Ct. at 2467-68 (footnote omitted; emphasis in original).
[¶51] In light of the significant development in Eighth Amendment jurisprudence
represented by the Supreme Court’s decision in Miller v. Alabama, Sen is entitled to a
new sentencing hearing which takes into account the distinguishing characteristics of
youth, as collected and articulated in that decision. Considering the serious nature of
Sen’s crime and the fact that life without parole is the most severe punishment available
for a juvenile, every effort should be made on remand to ensure that the court receives all
information relevant to a determination of Sen’s eligibility for parole. Further, in
exercising its discretion with regard to a determination as to parole eligibility, the district
court must set forth specific findings supporting a distinction between “the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.” As we noted in Daniel v. State,
“The benefits of requiring the trial court to state its
reasons for the imposition of its sentence are manifold: First,
requiring the trial court to articulate its reasons for selecting a
sentence will promote more thoughtful consideration of
relevant factors and will help rationalize the sentencing
process. . . . Requiring a trial court to provide a reasoned
basis for the sentence imposed may enhance the court’s
legitimacy as perceived by judges themselves and participants
in the criminal justice system. It will aid courts in attaining
their institutional objective of dispensing equal and impartial
justice and will demonstrate to society that these goals are
being met. . . . Finally, a statement of reasons will be
invaluable in aiding appellate courts to ascertain whether the
sentence imposed was based upon accurate, sufficient and
proper information.”
644 P.2d 172, 179 (Wyo. 1982) (quoting Commonwealth v. Riggins, 474 Pa. 115, 129-31,
377 A.2d 140, 147-48 (1977)). For the foregoing reasons, we vacate Sen’s sentence of
life without the possibility of parole and remand to the district court for a new sentencing
hearing. 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
28
burglary convictions, which resulted in an additional 40 to 50 years imprisonment beyond
his life term, we think the appropriate course is to vacate those sentences and remand for
resentencing on all counts in order to give full effect to our decision.
CONCLUSION
[¶52] We find no error impacting Sen’s convictions and, accordingly, we affirm those
convictions. However, Sen’s sentence of life without parole was imposed under a
sentencing scheme that precluded the possibility of parole. As a result, Sen’s sentence
violated the Eighth Amendment’s prohibition against cruel and unusual punishment and
relevant Supreme Court precedent. Accordingly, we vacate Sen’s sentence and remand
to the district court for resentencing on all counts.
29