A motion hearing was held in 4th Judicial District Court Friday morning on the Dharminder Sen case. Sen, 16, along with 16-year-old Wyatt Bear Cloud and 20-year-old Dennis Poitra, Jr. will each be tried in the near future for the August 26, 2009 shooting death of Robert Ernst. Sheridan Media's Mary Jo Johnson has this report.
Dhar Sen, along with his attorneys Tim Cotton and Traci Lacock of Casper, went before Judge John Fenn with two motions Friday: a Motion to Suppress the audio confession Sen gave in two interviews on the evening of August 26, 2009, and a Motion to Suppress evidence gathered from a gun residue test, or GSR.
On the first motion, citing the Totality of Circumstance issue when questioning a juvenile, the Defense argued that Special Agents Louie Williams and Chris McDonald with the Department of Criminal Investigation had continued to ask questions during the first interview, conducted at 5 pm, even after Sen had evoked his right to remain silent.
They argued that Sen was then kept in the interview room for three hours, without any parent or guardian contacted, and inferred that he had not been treated very humanely. Lastly, on this motion, they argued that after Sen re-initiated a conversation with the agents, the first thing he said was not, “I would like to tell you what happened,” but rather, “Do you think I need to call a lawyer?” The agents, the Defense said, acknowledged that they could not offer legal advice, but they also did not clarify if he wanted to contact an attorney. Instead, Cotton heatedly charged that the agents used psychological interrogation techniques on a [then] 15-year-old.
On the GSR motion, the Defense argued that the State did not meet the two exigent circumstances of conducting a personal search without a warrant, those being that there was no security risk to any law enforcement officer in the interview room, and that there was sufficient time to secure a warrant before doing a GSR test.
State's attorney, Sheridan County Attorney Matt Redle played the first interview for the court, and countered on the first motion that the handful of questions posed after Sen evoked his right to remain silent could be construed as “small talk” while McDonald was waiting for Williams to get the GSR kit. Judge Fenn didn't fully agree with that argument, and said that that portion of the audio may be stricken, but he needs to review it further.
Before Redle played the audio of the second interview, Cotton asked the judge to only allow the first few minutes to be played, up to the point where Sen begins to tell his side of the story. He and Redle hashed out for the record that 40 minutes into the interview, Williams indicates that Sen does have food, referring to a sandwich. After playing the first 7.5 minutes, on the issue of clarifying whether Sen wanted to ask for a lawyer during the second interview, Redle argued that in Wyoming, per a State Supreme Court ruling, that unless the suspect makes an unequivocal request for an attorney, questioning may continue.
And regarding the GSR test, Redle argued that because it had been about fifteen hours since the crime took place, time was ticking to allow any evidence to be gathered. He said, “Once evidence is gone, it's gone.”
After just under four hours of Friday's hearing, Judge Fenn said that he will take the audio cd to listen to in its entirety before issuing a decision, which he will render “in the near future.”
On a related matter -- regarding a possible Motion for Change of Venue, Judge Fenn said that there is still time before Sen's scheduled trial at the end of October to let the law school in Laramie know if he will move the trial there.
Dennis Poitra's trial is slated to begin Monday, August 30th in Sheridan.
I'm Mary Jo Johnson, reporting for sheridanmedia.com news.