IN THE SUPREME COURT STATE OF WYOMING BRIEF OF APPELLANT

Transcription

1 October 12, :11:45 AM CASE NUMBER: S IN THE SUPREME COURT STATE OF WYOMING PHILLIP SAM, ) Appellant (Defendant), ) ) v. ) No. S STATE OF WYOMING ) Appellee (Plaintiff). ) BRIEF OF APPELLANT Diane Lozano, # State Public Defender Tina N. Olson, # Chief Appellate Counsel Eric M. Alden, # Senior Assistant Appellate Counsel Office of the State Public Defender Rogers Bldg., 316 West 22 nd Street Cheyenne, WY (307) ATTORNEYS FOR APPELLANT

2 TABLE OF CONTENTS Table of Authorities 5 Statement of the Issues 10 Statement of the Case 12 Argument I A 15 THE COURT ABUSED ITS DISCRETION IN DENYING MR. SAM S CONFRONTATION RIGHTS. Argument I B 20 THE TRIAL COURT AT THE TRANSFER HEARING DID NOT PROPERLY CONSIDER THE FACILITIES AVAILABLE TO THE JUVENILE COURT WHEN IT LIMITED CONSIDERATION OF THOSE RESOURCES TO A YEAR OR LESS. Argument I C 24 WHEN UNCONTESTED EVIDENCE IS PRESENTED AT A JUVENILE TRANSFER HEARING THAT THE JUVENILE PRESENTS A GOOD LIKELIHOOD OF REHABILITATION WITHIN THE JUVENILE JUSTICE SYSTEM WITHOUT ENDANGERING PUBLIC SAFETY THE COURT MAY NOT DENY TRANSFER. Argument II 31 THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY. Argument II A 34 THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY WHEN IT FAILED TO REMOVE INSTRUCTION 4 FROM THE OFFICIAL INSTRUCTION PACKET. Argument II B 38 2

3 THE TRIAL COURT ERRED WHEN IT FAILED TO DEFINE ATTEMPT IN THE JURY INSTRUCTIONS. Argument II C 43 THE TRIAL COURT ERRED IN GIVING AN INCORRECT DEFINITION OF MALICE IN THE JURY INSTRUCTIONS. Argument II D 49 THE TRIAL COURT ERRED WHEN IT GAVE THE DEFINITION OF RECKLESS TO THE JURY RATHER THAN THE DEFINITION OF ENHANCED RECKLESSNESS REQUIRED BY THE LAW. Argument II E 52 THE COURT ERRED IN GIVING AN IMPROPER INFERENCE OF MALICE INSTRUCTION. Argument II F 58 THE TRIAL COURT ERRED IN GIVING AGGRESSOR INSTRUCTIONS NOT SUPPORTED BY EVIDENCE. Argument II G 62 THE TRIAL COURT ERRED IN GIVING AN INCORRECT INSTRUCTION ON DUTY TO RETREAT. Argument II H 65 THE TRIAL COURT ERRED IN REFUSING AN INSTRUCTION ON PERCEIVED THREAT. Argument III 70 THE PROSECUTOR COMMITTED MISCONDUCT BY MAKING INFLAMMATORY VICTIM IMPACT ARGUMENTS. 3

4 Argument IV 82 LACK OF EVIDENCE OF INTENT TO HARM DIRECTED TOWARD THE ALLEGED VICTIMS IN COUNTS I, II, III, IV, V, VII, VIII, IX AND XII REQUIRED DISMISSAL OF THOSE COUNTS FOR INSUFFICIENT EVIDENCE. Argument V A 85 THE SENTENCE IMPOSED ON MR. SAM IF INTERPRETED AS A CUMULATIVE SENTENCE IS AN UNCONSTITUTIONAL DE FACTO LIFE WITHOUT PAROLE SENTENCE. Argument V B 90 A CUMULATIVE SENTENCE DEPRIVES THE PAROLE BOARD OF ITS STATUTORY AUTHORITY TO CONSIDER PAROLE OF A JUVENILE AFTER TWENTY-FIVE YEARS. Argument V C 96 MR. SAM RECEIVED AN UNCONSTITUTIONAL DOUBLE SENTENCE FOR MURDER AND AGGRAVATED BATTERY IN COUNTS XIII AND XIV. Conclusion 106 Certificate of Service 107 Appendix A 108 Judgment and Sentence 4

5 TABLE OF AUTHORITIES Cases Adekale v. State, 2015 WY 30, 344 P.3d 761 (Wyo. 2015) Amrein v. State, 836 P.2d 862 (Wyo. 1992)...96 Anderson v. State, 2014 WY 13, 317 P.3d 1108 (Wyo. 2014)...16 Bear Cloud v. State, 2014 WY 113, 334 P.3d 132 (Wyo Browder v. State, 639 P.2d 889 (Wyo. 1982)...73 Budder v. State, 2010 WY 123, 238 P.3d 575 (Wyo. 2010)...53 Burdine v. State, 974 P.2d 927 (Wyo.1999)...96 Cecil v. State, 2015 WY 158, 364 P.3d 1086 (Wyo. 2015)...40 Compton v. State, 931 P.2d 936 (Wyo. 1997)... 39, 40, 82, 84 Cook v. State, 841 P.2d 1345 (Wyo. 1992) Drennen v. State, 2013 WY 118, 311 P.3d 116 (Wyo. 2013)... 59, 60, 62, 63, Duffy v. State, 789 P.2d 821 (Wyo. 1990) Dysthe v. State, 2003 WY 20, 63 P.3d 875 (Wyo.2003)...76 Eaton v. State, 2008 WY 97, 192 P.3d 36 (Wyo. 2008)...33 Eckert v. State, 680 P.2d 478 (Wyo. 1984)...55 First Nat. Bank of Rock Springs v. Foster, 9 Wyo. 157, 61 P. 466 (1900)...75 Freudenthal v. Cheyenne Newspapers, Inc., 2010 WY 80, 233 P.3d 933 (Wyo. 2010)...92 Guy v. Lampert, 2016 WY 77, 376 P.3d 499 (Wyo. 2016)... 15, 20, 24 5

6 Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)...28, 86, Hadden v. State, 2002 WY 41, 42 P.3d 495 (Wyo. 2002)...56 Harley v. State, 737 P.2d 750 (Wyo. 1987)...54 Haynes v. State, 2008 WY 75, 186 P.3d 1204 (Wyo. 2008)... 73, 74, 77 Henderson v. Kibbe, 431 U.S. 145 (1977)...33 Henderson v. United States, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013)...44 Hereford v. State, 2015 WY 17, 342 P.3d 1201 (Wyo. 2015)...52, 55 Houghton v. Franscell, 870 P.2d 1050 (Wyo. 1994)...92 In re RB, 2013 WY 15, 294 P.3d 24 (Wyo. 2013)...93 JB v. State, 2013 WY 85, 305 P.3d 1137 (Wyo. 2013)...25, 30 Johnson v. State, 2003 WY 9, 61 P.3d 1234 (Wyo. 2003)...86 Johnson v. State, 2015 WY 118, 356 P.3d 767 (Wyo. 2015)... 43, 46, 52 Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)...44 Ken v. State, 2011 WY 167, 267 P.3d 567 (Wyo.2011)...81 Loy v. State, 26 Wyo. 381, 185 P. 796 (1919)...66 McGinn v. State, 2015 WY 140, 361 P.3d 295 (Wyo. 2015)... 70, 75, 76, 77 Miller v. Alabama, 567 U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)... 28, 92, 94 Miller v. State, 2015 WY 68, 350 P.3d 264 (Wyo.2015)...43 Montgomery v. Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016)...94 Mraz v. State, 2014 WY 73, 326 P.3d 931 (Wyo.2014)...82 Mueller v. State, 2001 WY 134, 36 P.3d 1151 (Wyo. 2001)

7 O Brien v. State, 2002 WY 63, 45 P.3d 225 (Wyo. 2002)...41, 50 Parker v. State, 24 Wyo. 491, 161 P. 552 (1916)...66 Pope v. State, 2002 WY 9, 38 P.3d 1069 (Wyo. 2002)...96 Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)...28 Sampsell v. State, 2001 WY 12, 17 P.3d 724 (Wyo. 2001)...86 Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010)...76 Six v. State, 2008 WY 42, 180 P.3d 912 (Wyo. 2008)...32 Solis v. State, 2013 WY 152, 315 P.3d 622 (Wyo. 2013) Spreeman v. State, 2012 WY 88, 278 P.3d 1159 (Wyo.2012)...90 State v. Mares, 2014 WY 126, 335 P.3d 487 (Wyo. 2014)...90 Strickland v. State, 2004 WY 91, 94 P.3d 1034 (Wyo. 2004)...85, 96 Talley v. State, 2007 WY 37, 153 P.3d 256 (Wyo. 2007)...81 Trujillo v. State, 2002 WY 51, 44 P.3d 22 (Wyo. 2002)...72 Tucker v. State, 2010 WY 162, 245 P.3d 301 (Wyo. 2010) Vigil v. State, 2004 WY 110, 98 P.3d 172 (Wyo. 2004)...76 Wenger v. State, 2007 WY 121, 163 P.3d 824 (Wyo. 2007) Whitney v. State, 2004 WY 118, 99 P.3d 457 (Wyo. 2004)...73 Wilkerson v. State, 2014 WY 136, 336 P.3d 1188 (Wyo. 2014)... 43, 49, 52 Statutes Fifth Amendment to the United States Constitution...95 Sixth Amendment to the United States Constitution

8 Eighth Amendment to the United States Constitution...85 Art. 1, 9 of the Wyoming Constitution,...75 Art. 1, 10 of the Wyoming Constitution...16 Art. 1, 11 of the Wyoming Constitution...96 Art. 1, 14 of the Wyoming Constitution...86 Art. 1, 15 of the Wyoming Constitution...28 W.S (a)(ix)...49 W.S (a)(i)...39 W.S (a)(i)...40 W.S (a)(ii)...83 W.S W.S (b)...39 W.S (c)...92 W.S (a)(vii)...91 W.S (a)...90, 92 W.S (c)...28 W.S (b)(ii)...15 W.S , 22 W.S (a)...15 W.S (b)... 17, 19, 26, 29 W.S (b)(vii)...20, 23 8

9 Rules Rule 9.04 W.R.A.P...75 Rule 24.1 W.R.Cr.P...36 Rule 52(a) W.R.Cr.P...75 Rule 303(c) W.R.E... 54, 55, 56 9

10 I. THE TRANSFER HEARING: STATEMENT OF THE ISSUES A. DOES THE JUVENILE HAVE CONFRONTATION RIGHTS AT A TRANSFER HEARING? B. DID THE COURT PROPERLY CONSIDER FACILITIES AVAILABLE TO THE JUVENILE COURT? C. WHEN THE UNCONTESTED EVIDENCE WAS THAT THE JUVENILE PRESENTS A GOOD LIKELIHOOD OF REHABILITATION WITHIN THE JUVENILE JUSTICE SYSTEM WITHOUT ENDANGERING PUBLIC SAFETY IS TRANSFER REQUIRED? II. DID THE COURT PROPERLY INSTRUCT THE JURY? A. DID THE COURT IMPROPERLY FAIL TO REMOVE INSTRUCTION 4 FROM THE OFFICIAL INSTRUCTION PACKET? B. DID THE COURT FAIL TO INSTRUCT ON THE ELEMENTS OF TEN AGGRAVATED ASSAULT CHARGES BY FAILING TO DEFINE ATTEMPT? C. DID THE COURT GIVE AN INCORRECT DEFINITION OF MALICE? D. DID THE COURT ERR WHEN IT GAVE THE DEFINITION OF RECKLESS RATHER THAN THE DEFINITION OF ENHANCED RECKLESSNESS REQUIRED BY LAW? E. WAS THE INFERENCE OF MALICE INSTRUCTION IMPROPER? F. DID THE COURT ERR IN GIVING AGGRESSOR INSTRUCTIONS NOT SUPPORTED BY EVIDENCE? G. DID THE COURT GIVE AN INCORRECT INSTRUCTION ON DUTY TO RETREAT? 10

11 H. DID THE COURT ERR WHEN IT REFUSED THE INSTRUCTION ON PERCEIVED THREAT? III. DID THE PROSECUTOR COMMIT MISCONDUCT BY MAKING INFLAMMATORY VICTIM IMPACT ARGUMENTS? IV. DID LACK OF EVIDENCE OF INTENT TO HARM DIRECTED TOWARD THE ALLEGED VICTIMS IN COUNTS I, II, III, IV, V, VI, VII, VIII, IX AND XII REQUIRE DISMISSAL FOR INSUFFICIENT EVIDENCE? V. WAS THE SENTENCE ILLEGAL? A. IS A CUMULATIVE SENTENCE IMPOSED ON MR. SAM AN UNCONSTITUTIONAL DE FACTO LIFE WITHOUT PAROLE SENTENCE? B. DOES A CUMULATIVE SENTENCE DEPRIVE THE PAROLE BOARD OF ITS STATUTORY AUTHORITY TO CONSIDER PAROLE OF A JUVENILE AFTER TWENTY-FIVE YEARS? C. DID MR. SAM RECEIVE AN UNCONSTITUTIONAL DOUBLE SENTENCE FOR MURDER AND AGGRAVATED BATTERY IN COUNTS XIII AND XIV? 11

12 STATEMENT OF THE CASE 1. Nature of the case, course of proceedings and disposition in the trial court. The Appellant Phillip Sam, hereinafter Mr. Sam, at the age of sixteen shot and killed Tyler Burns and shot and wounded Demian Brennand during an incident in Cheyenne, Wyoming. In the course of that incident he also fired several other shots. In the vicinity of Mr. Brennand and Mr. Burns at the time the shots were fired were ten other juvenile individuals: J.S., A.S., S.S., D.P., L.V., B.S., A.H., M.J.D., A.B., and I.D. None of the juvenile individuals was shot or otherwise injured. Mr. Sam was charged in a fourteen count information with thirteen counts of aggravated battery under W.S (a)(ii) and a single count of first degree murder in violation of W.S (a). (R.A., p. 2). A Motion for Transfer Hearing was filed by Mr. Sam seeking transfer of the case to juvenile court. (R.A., p. 47). After the transfer hearing the motion to transfer the case was denied. (R.A., p. 100). A Petition for Writ of Review was filed with this Court seeking review of alleged errors in the transfer hearing which petition was denied. (S ) One count of aggravated battery (Count X) was dismissed at preliminary hearing after it appeared that the alleged adult victim in that count was not present at the scene. (R.A., p. 1). The remaining thirteen counts of the information went to jury trial and Mr. 12

13 Sam was convicted on all thirteen counts. Mr. Sam was sentenced to life imprisonment on the murder charge (Count XIV). Because he was under age eighteen Mr. Sam is eligible for parole consideration in twenty-five years. Mr. Sam was further sentenced to a consecutive sentence of nine to ten years on each of counts I, II, III, IV and V, concurrently to commence after the life sentence and a further consecutive sentence of nine to ten years on each of counts VI, VII, VIII, IX, and XII, concurrently to commence after the first term of years and a further consecutive sentence of nine to ten years on counts XI and XIII concurrently to commence after the second term of years. An unspecified credit of 474 days was given for time served. (R.A., p. 584). This appeal follows. 2. Statement of Facts. Mr. Sam belonged to a group of juveniles who had an ongoing level of conflict with another group of juveniles and young adults including regularly occurring fist fights. (Tr. 2 nd day, p. 97). The opposing group included all the victims alleged in the charges and several more individuals. The opposing group contained members who had used weapons or bragged of using weapons in the past. (Tr. 3 rd day, p. 245). On the evening in question, Mr. Sam took a handgun belonging to his mother s boyfriend without permission. (Tr. 3 rd day, p. 22). Then, apparently desiring to fight with B.S., Mr. Sam vandalized B.S. s car. (Tr. 4 th day, p. 128). 13

14 Mr. Sam and Mr. Brennand arranged for a fight between Mr. Sam and B.S. to occur at a park in Cheyenne. (Tr. 3 rd day, p. 202). During the arranging, Mr. Brennand threatened to shoot Mr. Sam and later withdrew that threat. (Tr. 2 nd day, p. 53). Mr. Sam, armed with the gun, went to the park with a friend. (Tr. 2 nd day, p. 55). The other group, now containing twelve people, came to the park and were walking toward the area where Mr. Sam was waiting. Mr. Sam emerged and fired a number of shots. (Tr. 2 nd day, p. 62). One shot winged Mr. Brennand and another struck Mr. Burns non-fatally. (Tr. 3 rd day, p. 206). Mr. Sam then approached Mr. Burns and fired several shots striking him once fatally at very short range. (Tr. 3 rd day, p. 186). The other ten members of the opposing group were not injured. 14

15 ARGUMENT I A THE COURT ABUSED ITS DISCRETION IN DENYING MR. SAM S CONFRONTATION RIGHTS. Standard of Review. This issue involves interpretation of a statute and is reviewed de novo. Guy v. Lampert, 2016 WY 77, 13, 376 P.3d 499, (Wyo. 2016). Argument. At the juvenile transfer hearing in this case the State presented a police officer to testify about the facts in the incident. He offered testimony of what he had been told by witnesses for the truth of those statements. Mr. Sam s attorney objected. The court overruled the objection and allowed the testimony. Mr. Sam asserts that this violated the rules of evidence, denied him his right of confrontation and cross-examination and was an abuse of discretion. The Juvenile Justice Act, W.S through 252, governs the conduct of transfer hearings. W.S (a) specifically states The transfer hearing shall be conducted in conformity with W.S through except there shall be no jury. Those statutes deal with the general conduct of adjudicatory hearings. W.S (b)(ii) specifically provides that the juvenile ( A party to any proceeding under this act ) is entitled to Confront and cross-examine adverse witnesses. Mr. Sam asserts that 15

16 the court s acceptance of hearsay testimony and refusal to require the actual presence and testimony of the adverse witnesses deprived Mr. Sam of that right. The right of confrontation is enshrined in the Constitution of the United States in Amendment VI and in Art. 1, 10 of the Constitution of Wyoming. Its meaning is fairly straight-forward. It is related to but different from the hearsay provisions of the rules of evidence. This Court has stated: [A] constitutional right to confront a witness arises under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Wyoming Constitution. Kramer v. State, 2012 WY 69, 19, 277 P.3d 88, 93 (Wyo.2012), cert. denied, U.S., 133 S.Ct. 483, 184 L.Ed.2d 303 (2012). The central right protected by the Confrontation Clause of the United States and Wyoming Constitutions is the right of cross-examination. Downing, 2011 WY 113, 11, 259 P.3d at 368. However, the admission of out-of-court statements does not violate the Confrontation Clause if they are not testimonial. See Bush, 2008 WY 108, 39, 193 P.3d at 213. Anderson v. State, 2014 WY 13, 26, 317 P.3d 1108, (Wyo. 2014). Generally the right of confrontation applies to trials and not to ancillary proceedings like preliminary hearings. In the matter of juvenile transfer hearings Wyoming has specifically provided by statute that the right of confrontation applies. This is a sensible decision both to protect the rights of the juvenile and the integrity of the judicial process. The transfer hearing is a crucial point in the legal process for a juvenile charged with a serious crime. The decision to place his charges in the regular criminal 16

17 system rather than the juvenile justice system has huge and irreversible impacts on the juvenile and had those impacts on Mr. Sam. Additionally, the court, in making the difficult determination presented in the transfer decision is entitled to have the most accurate version possible of the testimony of the witnesses and the facts of the case. If the judge relies on second hand recitations of what witnesses say about the events of the incident skewed through the filter of an investigator s conclusions and it later turns out that the witnesses actually say something different an irreparable miscarriage of justice may be created. The first three factors listed in W.S (b) which the judge is to consider all relate to the facts surrounding the charged offense. Without accurate testimony, subjected to the clarification of the confrontation process, the judge charged with the transfer decision is unable to adequately perform that analysis. Examples of these mistaken conclusions appear in the transfer hearing order in this case. In the initial paragraphs of the order denying transfer the judge lists her understanding of the facts of the incident which she learned from the hearsay testimony of the investigating officer over Mr. Sam s objection. The following facts listed in that narrative were directly contradicted at trial by the witnesses to whom the investigator attributed them. In paragraph 3, the theater where Mr. Sam and his father went to the movie was not at the mall. In paragraph 4, Mr. Sam did not meet with Damian Brennand, Brennand and company were at a different theater than Mr. Sam had been at, Mr. Sam 17

18 did not ask Brennand about either he or Sparks fighting Sam and Brennand did not decline on behalf of Sparks because no conversation between Mr. Sam and Mr. Brennand took place. In paragraph 6, several people who were present during that time testified. None supported the conclusion of the judge that Mr. Sam said somebody would die or that he pointed the gun at someone s face. Mr. Strange didn t recall any such statement, (Tr. 2 nd day, p. 52); G. Stockdale denied that any threats were made, (Tr. 4 th day, p. 129); Mr. Olivas did not testify to any such statements (Tr. 4 th day, p ); K.D. testified on direct that Mr. Sam said that he was going to kill someone that night (Tr. 3 rd day, p. 35), but on cross-examination she changed that testimony and stated He said that he was going to jail. (Tr. 3 rd day, p. 37) then on re-direct she said she didn t have a clear recollection but thought maybe he said both things (Tr. 3 rd day, p. 39). This is a good example of the importance of confrontation. At least seven people were present at Mr. Strange s house during this time. Only four were called to testify. Three remembered no such statement being made by Mr. Sam. The one witness who testified to the statement backed away from that testimony on cross and admitted to unclear memory on re-direct. Because the transfer hearing judge relied only on the testimony of the investigator she believed his report was true and specifically listed it as one of the facts which she considered significant in analyzing transfer factor two. (order denying transfer, 19(c), R.A., p. 106). 18

19 In paragraph 7, the transfer judge found, based on the hearsay testimony of the investigator, that B.M. and C.N. acted as lookouts. Neither B.M nor C.N. testified. Mr. Strange testified that they were nearby and that C.N. called him and warned him that a big crowd of kids was approaching. (Tr. 2 nd day, p. 60). This is apparently the phone call referred to in paragraph 8. As far as any instruction from Mr. Sam to Mr. Strange to mask up as stated in paragraph 8, Mr. Strange recalled no such instruction or statement in his trial testimony. (Tr. 2 nd day, p. 61). The transfer judge considered several of the facts provided by the investigator which were not supported by the later trial testimony of the witnesses in her consideration of the aggressive, premeditated aspect of factor (ii) of (b). These appear in paragraphs 19(c) and 19(d) of the order. It is impossible to tell at this time whether the judge s decision to deny transfer would have been different had she known the actual testimony of the witnesses rather than the sanitized version presented by the investigator. This impossibility highlights the purpose of the statute extending the right of confrontation to the transfer hearing. 19

20 ARGUMENT I B THE TRIAL COURT AT THE TRANSFER HEARING DID NOT PROPERLY CONSIDER THE FACILITIES AVAILABLE TO THE JUVENILE COURT WHEN IT LIMITED CONSIDERATION OF THOSE RESOURCES TO A YEAR OR LESS. Standard of Review. This issue involves interpretation of a statute and is reviewed de novo. Guy v. Lampert, 2016 WY 77, 13, 376 P.3d 499, (Wyo. 2016). Argument. One of the factors which is to be considered in a transfer decision is: 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. W.S (b)(vii). Mr. Sam asserts that this is actually not simply a co-equal factor with the six prior listed factors. This is the final contextual consideration through which the earlier facts involving the nature of the charged incident and the character of the juvenile are reviewed. Consideration of this factor requires that the judge considering transfer measure risk and rehabilitation in reference to the resources available to the juvenile court system. The judge in Mr. Sam s transfer motion did not do so. 20

21 The procedures, services and facilities available to the juvenile court include jurisdiction over the juvenile until age twenty-one. W.S (c)(ii). The superintendent of the Wyoming Boy s School testified at the transfer hearing. He described the resources available and the time period available for placement at the Boy s School. The juvenile court has authority over adjudicated juveniles until age twenty-one and can commit juveniles in the Boy s School for an indefinite term up until that age. W.S If the Boy s School determines that it cannot provide appropriate services it works cooperatively with the court to identify an alternative placement. (Tr. transfer hearing, p. 158). If the Boy s School determines that a student has successfully completed its program it may elect to discharge the student subject to a reporting requirement to the court which retains its jurisdiction to place the child elsewhere. To the superintendent s knowledge, in the twenty-nine years he has been at the school the school has never discharged a juvenile over an objection by the court. (Tr. transfer hearing, p. 177). Based upon this testimony the transfer hearing judge decided to only consider the resources of the Boy s School to be available for a year or less. ( There is no reason to believe that the Wyoming Boy s School, as good as it is, will succeed in a year or less to rehabilitate the Defendant. Order Denying Transfer, p. 13, (R.A., p. 112). Therefore the judge determined that the program of treatment recommended by the testifying psychologist as providing a good likelihood of rehabilitation by Mr. Sam s twenty-first 21

22 birthday, individualized, intensive inpatient treatment in a structured environment for a number of years, was not available to the juvenile court. In order to reject the uncontested testimony that Mr. Sam was subject to a good likelihood of rehabilitation by his twenty-first birthday the transfer hearing judge effectively decided that the Wyoming Boy s School would attempt to dump Mr. Sam without adequate treatment and that the juvenile court would do nothing to prevent that. The judge simply concluded that the Boy s School would only retain Mr. Sam for a year or less presumably until his eighteenth birthday. There was no testimony to support that conclusion. The superintendent did not testify to that; he stated that an indefinite placement order would last until the student was discharged or reached the age of twentyone. That is the law as clearly stated in W.S As shocking as the inherent supposition by the judge that the Wyoming Boy s School would decline to provide appropriate services to Mr. Sam may be, her opinion of what the juvenile court s response to that anticipated failure would be should cause despair to this Court. Despite the clear statutory jurisdiction to order appropriate treatment and counselling of juvenile delinquents until the age of twenty-one the transfer judge concluded that when faced with the likelihood of the Boy s School discharging Mr. Sam after a year or less without providing adequate treatment the supervising juvenile court judge could or would do nothing. 22

23 The refusal of the transfer hearing judge to apply the correct jurisdictional limits of the juvenile court resulted in an improperly truncated consideration of the procedures, services and facilities currently available to the juvenile court. By eliminating three years of available juvenile jurisdiction the judge failed to properly consider the likelihood of rehabilitation as required by W.S (b)(vii). Mr. Sam was entitled to the consideration of the procedures, services and facilities currently available to the juvenile court. The transfer judge did not consider those available resources. Nothing in the record supports her decision to ignore the available resources. 23

24 ARGUMENT I C WHEN UNCONTESTED EVIDENCE IS PRESENTED AT A JUVENILE TRANSFER HEARING THAT THE JUVENILE PRESENTS A GOOD LIKELIHOOD OF REHABILITATION WITHIN THE JUVENILE JUSTICE SYSTEM WITHOUT ENDANGERING PUBLIC SAFETY THE COURT MAY NOT DENY TRANSFER. Standard of Review. This issue involves interpretation of a statute and is reviewed de novo. Guy v. Lampert, 2016 WY 77, 13, 376 P.3d 499, (Wyo. 2016). Argument. Mr. Sam presented the testimony of a forensic psychologist, Dr. Maximillian Wachtel, at the transfer hearing. He had examined Mr. Sam after the incident. In the order denying the transfer the judge noted Dr. Wachtel s opinion that Mr. Sam has the ability to learn to conform his behavior to that which will ensure the safety of our community if the Defendant receives individualized, intensive inpatient treatment in a structured environment for a number of years and that there is a good likelihood that, should the Defendant receive appropriate services for an appropriate duration, the Defendant could be rehabilitated by his twenty-first birthday. (order denying transfer, p.12, R.A., p. 111). Another psychologist, Dr. Berry, was also presented by Mr. Sam. Dr. Berry had a counseling and treatment relationship with Mr. Sam prior to the shooting in his capacity 24

25 as a therapist at Youth Alternatives in Cheyenne. Dr. Berry has worked with the juvenile system in Cheyenne over thirty years. He expressed the opinion that the juvenile system would be a better fit for Mr. Sam therapeutically and that placement in the adult system would increase the likelihood of future criminal behavior. (Tr. transfer hearing, p. 111). He expressed his opinion that rehabilitation for Mr. Sam was a good possibility and he felt positive about that possibility. (Tr. transfer hearing, p ). The State presented no testimony on Mr. Sam s prospects for rehabilitation. It did present a Mr. Laping who had supervised and mentored Mr. Sam on a municipal court probation program. He testified that Mr. Sam had done well and wasn t a thug or a hardened criminal-type. (Tr. transfer hearing, p. 354). The State also presented a Mrs. Campbell who was a social worker/counselor with a special school program in Cheyenne called the Annex. Mr. Sam attended her school for a short period. Neither Mr. Laping nor Mrs. Campbell expressed any opinions on Mr. Sam s prospects for rehabilitation. This evidence left the transfer court with an uncontested record that Mr. Sam presented a good likelihood of rehabilitation within the juvenile justice system without endangering public safety. The burden of persuasion in a juvenile transfer hearing is on the State. JB v. State, 2013 WY 85, 10, 305 P.3d 1137, 1141 (Wyo. 2013). The State in Mr. Sam s case did not even attempt to meet its burden on the issue of whether Mr. Sam was amenable to rehabilitation within the juvenile system. Mr. Sam argues that this issue, effectively conceded by the State, is dispositive. 25

26 W.S (b) provides: The determinative factors to be considered by the judge in deciding whether the juvenile court's jurisdiction over such offenses will be waived are the following: (i) The seriousness of the alleged offense to the community and whether the protection of the community required waiver; (ii) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (iii) Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted; (iv) The desirability of trial and disposition of the entire offense in one (1) court when the juvenile's associates in the alleged offense are adults who will be charged with a crime; (v) The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living; (vi) The record and previous history of the juvenile, including previous contacts with the law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this court, or prior commitments to juvenile institutions; (vii) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the juvenile court. Mr. Sam asserts that of the seven listed factors in (b), factors (i) through (vi) present preliminary issues while factor (vii) presents the ultimate issue to be determined by the transfer hearing court. This is evident not only from the nature of the 26

27 factors themselves but also from the purpose of the Juvenile Justice Act. Those purposes are primarily to provide for the best interests of the child consistent with public protection and safety. This act shall be construed to effectuate the following public purposes: (i) To provide for the best interests of the child and the protection of the public and public safety; (ii) Consistent with the best interests of the child and the protection of the public and public safety: (A) To promote the concept of punishment for criminal acts while recognizing and distinguishing the behavior of children who have been victimized or have disabilities, such as serious mental illness that requires treatment or children with a cognitive impairment that requires services; (B) To remove, where appropriate, the taint of criminality from children committing certain unlawful acts; and (C) To provide treatment, training and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child's conduct, reduces recidivism and helps children to become functioning and contributing adults. (iii) To provide for the care, the protection and the wholesome moral, mental and physical development of children within the community whenever possible using the least restrictive and most appropriate interventions; (iv) To be flexible and innovative and encourage coordination at the community level to reduce the commission of unlawful acts by children; (v) To achieve the foregoing purposes in a family environment whenever possible, separating the child from the child's parents only when necessary for the child's welfare or in the interest of public safety and when a child is removed from the child's family, to ensure that 27

28 W.S (c) individual needs will control placement and provide the child the care that should be provided by parents; and (vi) To provide a simple judicial procedure through which the provisions of this act are executed and enforced and in which the parties are assured a fair and timely hearing and their constitutional and other legal rights recognized and enforced. The purposes of the juvenile system are consistent with the Wyoming Constitution s requirement that the penal system be framed on the humane principles of reformation and prevention, Art. 1, 15, with the general principle that children are different recognized in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010); and Miller v. Alabama, 567 U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The legitimate penological purposes for sentences are segregation from society, general deterrence, specific deterrence and rehabilitation. Because the punishment of juveniles has little deterrent effect, either general or specific, the juvenile court system utilizes a combination of rehabilitative therapies and segregation from society, varying from full segregation in the Boy s School or a treatment facility to lesser segregations through restrictions and supervision. In cases where rehabilitation cannot be achieved within the temporal jurisdiction of the juvenile court (by age twenty-one) the remaining option for long term segregation from society is through use of the transfer to the regular criminal system. 28

29 We do not transfer juveniles to the regular criminal system to create public displays or opportunities for prosecutors to posture. We do not transfer juveniles to the regular criminal system to assuage the feelings of victims or to give vent to community outrage. We transfer juveniles to the regular criminal system in cases where the sentencing options available in the juvenile system are inadequate to protect society. The first six factors under (b) require the hearing court to consider aspects of the alleged offense and of the charged juvenile. Those factors each have a potential bearing on one of two issues: the danger which the juvenile presents to society and the potential for rehabilitation within the time and resources available to the juvenile system. The balance between those two things is the ultimate decision which the transfer hearing court must make. That is the balancing question set forth in factor (vii). Beyond the fact that the State presented no evidence to meet its burden on the question of Mr. Sam s susceptibility to rehabilitation, the hearing court specifically accepted the evidence presented by Mr. Sam that he was susceptible to rehabilitation by age twenty-one. (order denying, 24, R.A. p. 111). Once the State conceded, by its failure to even attempt to meet its burden of persuasion on the prospects of Mr. Sam s rehabilitation, that such rehabilitation was likely, the decision of the transfer court was foreordained. Mr. Sam could be rehabilitated within the juvenile justice system to a point where community danger was not a concern. If so, there was no valid reason to deny the 29

30 motion for transfer. It does not matter that the crime was of the most serious nature. JB v. State, 2013 WY 85, 16, 305 P.3d 1137, 1142 (Wyo. 2013). The entire presentation by the State at the transfer hearing was that the crime was an extremely serious one, first degree murder, and Mr. Sam had prior low level disciplinary problems. It does not matter that there may have been evidence of premeditation, that only goes to the magnitude of the crime, first degree rather than second. It does not matter that Mr. Sam may have had disciplinary trouble in school or a prior history of low level violations. The question is whether the danger to society can be managed during rehabilitation by age twenty-one. The fact that the danger is greater from a more serious crime is relevant only to that ultimate question. Information about the juvenile s character and psychological problems, if any, are relevant only to the ultimate question of rehabilitability. Mr. Sam s susceptibility to rehabilitation was conceded by the State. Once that fact was conceded transfer was required. 30

31 ARGUMENT II THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY. Standard of Review. This Court has set forth the standard of review for questions of the propriety of jury instructions many times. The text below, stripped of its many citations, is a thorough statement of the standard except for the use of the term fundamental which is excised. We have a well-established standard for the review of jury instructions, which standard incorporates the test to be applied when there was no trial objection: Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. We analyze jury instructions as a whole and do not single out individual instructions or parts thereof. We give trial courts great latitude in instructing juries and will not find reversible error in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial. 31

32 Finally, we have indicated that when an appellant does not object at trial to the jury instructions, or request that a certain instruction be included, our review of this issue follows our plain error standard: First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him. Six v. State, 2008 WY 42, 12, 180 P.3d 912, 917 (Wyo. 2008) (citations omitted, deletion added). In Mr. Sam s case many instructional errors are raised. The circumstances of each as they relate to the general standard for jury instructions are noted. Additionally, Mr. Sam asserts that a cumulative error analysis should be applied to consider the effect of multiple errors on the totality of the instructions. Because the proper evaluation of instructional error requires consideration of the instructions as a whole, so too, the accumulation of numerous errors, each of which standing alone might be excused, must also be viewed as a whole in evaluating prejudice. This Court has noted the concept of cumulative error as follows: We have said that the purpose of the cumulative error rule is to address whether or not the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error. In that equation, we only consider matters determined to be errors, not matters asserted to be errors but determined not to be erroneous. Moreover, a series of harmless or nonprejudicial errors will only be cause for reversal where the accumulated effect constitutes prejudice and the conduct of the trial is other than fair and impartial. 32

33 Eaton v. State, 2008 WY 97, 105, 192 P.3d 36, 79 (Wyo. 2008). Finally, the instructional errors are of such magnitude as to deny Mr. Sam his constitutional right to due process of law. A due process claim arises if jury instructions are so prejudicial as to constitute a denial of due process and fundamental fairness. See, Henderson v. Kibbe, 431 U.S. 145 (1977). Argument. The alleged instructional errors are numerous and are individually addressed in sub-arguments below. Mr. Sam additionally asserts that the cumulative effect of these multiple errors rendered the entire jury instruction process so confused and incorrect as to deny him a fair trial. 33

34 ARGUMENT II A THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY WHEN IT FAILED TO REMOVE INSTRUCTION 4 FROM THE OFFICIAL INSTRUCTION PACKET. Standard of Review. The standard of review for jury instructions generally is set forth above. This particular instructional issue was recognized by the trial court and an attempt was made to remedy it. Mr. Sam asserts that the court s failure to extend its remedial efforts beyond the individual juror notebooks to the official jury instruction packet left the error incompletely remedied. Mr. Sam suggests that this sub-issue should be reviewed on an abuse of discretion standard. Argument. At the outset of the trial the court read the jury instruction number 4 containing the elements of aggravated assault and battery. A copy of Instruction 4 was placed in each juror s notebook. It was soon realized that the elements contained in Instruction 4 were wrong. The instruction contained the element of intentional or knowing causation rather than attempting to cause. Of the twelve counts of aggravated assault and battery only two were alleged under an actual causation of injury theory. The other ten were alleged under an attempt theory. 34

35 The trial court caught the error early in the trial and the parties agreed at the instruction conference to remove the potentially misleading Instruction 4 from the instruction packet and the juror notebooks and give separate elements for each of the twelve counts of aggravated assault and battery. (Tr. 5th day, p.66). To the extent that the parties agreed to that remedy any error in giving the Instruction 4 at the beginning of the trial and leaving it uncured until the end of the trial was arguably waived. But the trial court failed to remove the original Instruction 4 from the official instruction packet and that acknowledged incorrect instruction was actually given to the jury and sent with it to its deliberations. (see jury instructions, R.A., Vol. 7) Instruction 4 purported to set out the elements of the twelve counts of aggravated assault and battery charged against Mr. Sam. In fact it set out the elements of two of those counts, Counts XI and XIII. In so far as Counts I, II, III, IV, V, VI, VII, VIII, IX and XII were concerned the instruction listed the wrong elements. (Count X was dismissed at the preliminary hearing.) For each of the improper counts the court added specific elements instructions which correctly recited the elements of the charges. This instructional error appears to be an administrative error. The trial judge and the attorneys all recognized that Instruction 4 was incorrect and misleading. They determined on a course of action to remedy that problem. Then they failed to fully follow through on that course of action. To a certain extent the underlying cause of this error is the decision of this Court to provide individual juror notebooks to the jurors. 35

36 Rule 24.1, W.R.Cr.P. That rule was adopted to enhance the ability of jurors to perform their duties in the trial process. The rule provides for numerous possible things to be included in the notebooks including copies of instructions and exhibits. These can be supplemented during trial as materials become relevant. The rule directs that Copies of any additional jury instructions given to jurors during trial or before closing arguments should also be included in juror notebooks before the jurors retire to deliberate. Rule 24.1(b), W.R.Cr.P. The rule makes no provision for taking documents, exhibits or instructions out of the notebooks if they are discovered to have been included in error. Obviously there are times that this will need to be done. Mistaken instructions or rejected exhibits which have been inadvertently placed in the juror notebooks need to be removed. The decision confronting the trial judge in those situations is the existence of prejudice created by the mistake and the possible efforts to remedy that prejudice through curative instructions or the like. That decision, if it occurred, would be reviewed on an abuse of discretion basis. The problem presented here is not the review of the trial judge s decision, it is the impact of the failure to fully implement that decision. The judge correctly determined that the instruction should be removed. Then he did not remove it. The bailiff or clerk properly implemented the judge s direction by removing the copies of Instruction 4 from the locations within their bailiwick, the juror notebooks. The error was in the failure to 36

37 remove it from the location singularly within the control of the judge, the official instruction packet. The dispositive aspect of this error would normally be prejudice. The improper instruction was probably more prejudicial to the prosecution than to the defense. It instructed the jury that actual injury was an element when the charges only alleged attempt to cause bodily injury. Had this been the only instructional error in this case it could be easily excused as non-prejudicial. However this is not the only instructional error; it is one of many. This clear error contributed to the general level of confusion, contradiction and incorrectness of the jury instructions as a whole. 37

38 ARGUMENT II B THE TRIAL COURT ERRED WHEN IT FAILED TO DEFINE ATTEMPT IN THE JURY INSTRUCTIONS. Standard of Review. The standard of review for jury instructions generally is set forth above. This particular error was not objected to at trial although it was noted as part of the motion for new trial proceedings. The proper standard of review is plain error. Additionally, this issue was presented to the trial court in a motion for new trial which the trial court denied. (R.A., p. 555). The denial of a new trial motion is reviewed on a standard of abuse of discretion. Argument. Ten of the twelve aggravated assault and battery counts alleged attempt to cause bodily injury. These were the counts where the elements were mis-described in Instruction 4 discussed above. These charges related to members of the group approaching Mr. Sam who were not injured by his gunshots. The charge was that Mr. Sam attempted to cause injury to each of these ten people. The jury was not told what attempt means and what elements it requires. Attempt has a specific meaning in the law of Wyoming. (a) A person is guilty of an attempt to commit a crime if: 38

39 W.S (a)(i). (i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A substantial step is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime This Court has stated that when instructing a jury on a charge of attempting to cause injury to a police officer under W.S (b) the attempt theory requires additional instructions defining what attempt means Mueller v. State, 2001 WY 134, 36 P.3d 1151, 1157 (Wyo. 2001) fn. 7. This is consistent with this Court s holding in Compton v. State that proper instruction on an attempt charge requires instruction on the intent requirements of attempt. The crime of attempt in this case required the court to instruct the jury to determine if Compton had the intent to perform acts and attain a result which, if accomplished, would constitute the crime of first degree sexual assault and that he acted on that intent but was unsuccessful in completing the crime. Instruction No. 5 specifically and precisely and in an understandable manner properly instructs on the specific intent element of attempt. Compton v. State, 931 P.2d 936, 941 (Wyo. 1997). The Instruction No. 5 specifically approved by this Court in that case set forth the necessary finding as follows: 3. With the intent to commit sexual intrusion on [the victim], Raymond Compton, did an act which was a substantial step towards the infliction of sexual intrusion on her; 39

40 Compton v. State, 931 P.2d 936, 939 (Wyo. 1997). In the more recent case of Cecil v. State, 2015 WY 158, 364 P.3d 1086 (Wyo. 2015), the Court excused the failure to give a separate attempt instruction in a charge under W.S (a)(i). However, in that case the instructions involved provided the necessary information to the jury about the specific intent needed to establish the crime. Mr. Cecil was charged with knowingly intentionally or recklessly (enhanced) attempting to cause serious bodily injury. The trial court instructed on the substantial step element of attempt but failed to instruct on the specific intent to commit the crime aspect. Because the subsection charged was already a specific intent crime, the conversion to an attempt theory did not change the nature of the intent requirement. Subsection (a)(ii), the charge against Mr. Sam is worded differently. It applies to a person who Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon. When the jury was instructed on the elements of the charges involving Mr. Brennand and Mr. Burns, (the two actually injured victims) they were informed that the charges required proof that the act was knowing or intentional. On the ten attempted to cause counts no intent element was contained at all. Mr. Sam asserts that attempt is a specific intent crime and requires proof of an intent to cause harm to the specific alleged victim. That is the gist of his insufficient evidence assertion below. It is not just that he tried to perform an act which may have harmed that individual, it is that he intended to harm that individual. The elements 40

41 instructions failed completely to convey that requirement. Beyond that, they failed to convey any intent requirement at all. Under the statute the actual injury of another with a deadly weapon must be intentional or knowing. The legislature clearly intended this to be more than a simple general intent element. This is clear because in subsection (a)(i) the intent requirement is intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. That enhanced recklessness is a higher standard than general intent. That is why the Court incorporated it as the distinguishing line between second degree murder and manslaughter. Yet the legislature included enhanced recklessness in (a)(i) to expand on the intent requirements of intentionally and knowingly. Clearly intentionally or knowingly is intended to have a more specific intent aspect than enhanced recklessness. See, O Brien v. State, 2002 WY 63, 20, 45 P.3d 225, 232 (Wyo. 2002). If the actual injury had to be knowing or intentional surely the attempted injury had to be at least that intentional, if not much more so. The jury instructions given in this case contain no information of the intent required to be found in order to convict Mr. Sam on the ten counts of aggravated assault and battery under the attempt theory. Was ordinary recklessness sufficient, enhanced recklessness, negligence? The law requires more but the jury was not told what was required. There is no intent requirement at all. As such, the instructions failed to meet 41