Summary 2013 WY 118

Summary of Decision October 1, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: GABRIEL R. DRENNEN v. THE STATE OF WYOMING

Docket Number: S-11-0199

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County the Honorable Norman E. Young, Judge

Representing Appellant: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 1, 2013

Facts: After Gabriel R. Drennen appealed his convictions for first-degree murder and aggravated assault and battery, we remanded for a hearing on his assertion that defense counsel was ineffective. The district court found his trial counsels’ performance was deficient because they failed to present expert testimony in support of his self-defense claims. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance.

Mr. Drennen argues on appeal that his convictions should be reversed because his trial was riddled with instances of prosecutorial misconduct, the district court improperly instructed the jury and he was prejudiced by his trial counsels’ deficient performance.

Issues: The issues in this case are: 1. Did the prosecutor engage in misconduct requiring the reversal of Mr. Drennen’s convictions? 2. Did the district court erroneously instruct the jury on self-defense with respect to the homicide charges? 3. Did the district court erroneously instruct the jury on self-defense with respect to the aggravated assault and battery charge? 4. Did the district court erroneously instruct the jury on the elements of first-degree murder, second-degree murder, and manslaughter? 5. Did the district court err in ruling on Mr. Drennen’s claim of ineffective assistance of counsel?

Holdings/Conclusion: We conclude the prosecutors committed misconduct and Mr. Drennen is entitled to reversal of his convictions. Because we are reversing for a new trial, we address Mr.
Drennen’s claims regarding the jury instructions and find they are wanting in certain respects. We will not analyze the ineffective assistance of counsel arguments with any degree of specificity because we assume any deficiencies will be corrected on remand. We reverse Mr. Drennen’s convictions and remand to the district court for retrial, consistent with this opinion.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 47

Summary of Decision April 24, 2013

Justice Burke delivered the opinion for the Court. Convictions affirmed. Sentence vacated and remanded.

Case Name: DHARMINDER VIR SEN v. THE STATE OF WYOMING

Docket Number: S-11-0151

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sheridan County, 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.

Date of Decision: April 24, 2013

Facts: 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. He challenged his convictions on a number of grounds, and contended 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).

Issues: Sen presents six issues, which we discuss in the following order:

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

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

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

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

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

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

The State phrases the issues in a substantially similar manner.

Holdings: The Court found no error impacting Sen’s convictions and, accordingly, affirmed 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, the Court vacated Sen’s sentence and remanded to the district court for resentencing on all counts.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 123

Summary of Decision September 13, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed. Justice Voigt filed a specially concurring opinion.

Case Name: SHAWN OSBORNE v. THE STATE OF WYOMING

Docket Number: S-12-0281

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, Kyle A. Ridgeway, Student Intern, Prosecution Assistance Program.  Argument by Mr. Ridgeway.

Date of Decision: September 13, 2012

Facts:  A Sheridan County jury found Shawn Osborne guilty of first degree murder.  He appealed the conviction, claiming his trial counsel was ineffective in failing to properly investigate and seek expert assistance with his defense that he was under the influence of alcohol and amphetamines to such an extent that he could not form the specific intent necessary for first degree murder. 

Issues:  Mr. Osborne states the issue for this Court’s consideration as follows:

Was Shawn Osborne denied effective assistance of counsel when his trial counsel failed to properly investigate and secure expert testimony thereby violating the Sixth Amendment to the United States Constitution and the requirements of Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052 (1984)

The State phrases the issue as follows:

Wyoming Statute[] § 6-1-202 disallows self-induced intoxication as a defense to a criminal charge, but it allows defendants to offer evidence of it if relevant to negate a specific-intent element of a crime.  Osborne’s trial counsel offered evidence of self-induced intoxication to negate the premeditation element of the first-degree murder charge but did not present any expert testimony.  Was counsel ineffective in failing to use an expert even though he reasonably investigated the facts of Osborne’s case and made all the relevant arguments and objections at trial?

 

Holdings:  The evidence against Mr. Osborne was overwhelming.  Given the strength of that evidence, the Court was not persuaded that a reasonable probability existed that but for any failure on defense counsel’s part to investigate and present expert testimony concerning substance abuse delirium, the outcome would have been different.  Even with such expert testimony, the Court concluded the probability in this case was that the jury would have convicted Mr. Osborne of first degree murder.  Affirmed.

VOIGT, Justice, specially concurring.

I concur in the result reached by the majority because that result is mandated by precedent.  I write separately only to give voice to a concern we all should have with the Strickland standard cited in the majority, a standard that we have followed for years.  The problem is that, while it is often relatively easy to prove defense counsel’s deficient performance, it is practically impossible to prove prejudice because it is practically impossible to prove that the outcome would have been different had the jury been allowed to hear certain evidence.  This is especially true because our system does not allow a defendant to query the jury about its deliberations.  W.R.E. 606(b); U.R.D.C. 701.

In finding a lack of prejudice, the majority states that the evidence of guilt was overwhelming. See supra ¶ 26.  We frequently rely upon that rationale in finding no prejudice under Strickland.  See, e.g., Sincock v. State, 2003 WY 115, ¶ 59, 76 P.3d 323, 342 (Wyo. 2003).  Of course, where defense counsel has failed to produce evidence, it is likely to appear that the State’s evidence is overwhelming.  A pair of deuces is overwhelming where one’s opponent folds without showing his cards.

In the instant case, defense counsel recognized that the only defense available to the defendant was the argument that the combination of alcohol consumption and the ingestion of the drug Adderall rendered the defendant incapable of forming the specific intent to kill.  At the hearing upon the motion for a new trial, subsequent counsel produced evidence through an expert forensic neuropsychologist that the defendant likely was suffering from substance abuse delirium, which would have left him incapable of forming the necessary specific intent.  This question is so obviously beyond the ken of the average person that defense counsel’s mention during the jury trial of the defendant’s use of Adderall was meaningless without expert testimony.  The only way to counter “overwhelming” evidence is with contrary evidence.  Counsel’s deficiency in this regard was glaring.

The point I wish to make is that where defense counsel’s performance has been shown to be so ineffective as to deprive the defendant of that counsel assured him by the Sixth Amendment, we cannot rely upon the adversarial process as having produced a just trial.  Nevertheless, we continue to require the appellant to prove the impossible--that the results would have been different. See, e.g., Montez v. State, 2009 WY 17, ¶ 3, 201 P.3d 434, 436 (Wyo. 2009); Harlow v. State, 2005 WY 12, ¶ 45, 105 P.3d 1049, 1069 (Wyo. 2005).  It seems that there should be some line of egregiousness that, when crossed, the presumption becomes one of ineffectiveness.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]