Summary 2009 WY 154

Summary of Decision issued December 17, 2009

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

Case Name: Cross v. State

Citation: 2009 WY 154

Docket Number: S-09-0066

Appeal from the District Court of Campbell County, the Honorable Dan R. Price II, Judge.

Representing Appellant Cross: Donna D. Domonkos of Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin Daraie, Prosecution Assistance Clinic Student Director and Intern.

Facts/Discussion: Cross appealed from several related convictions for forgery and uttering a forgery. Contending that the district court erred in denying his motion for a new trial, and that his trial counsel was ineffective for failing to interview a potential witness.
Motion for new trial: The record is clear that Cross and his attorney were aware of the witness before trial. At the motion hearing, Cross did not testify that the witness was not called because they did not know that he could or should be a witness. In addition, the Court agreed with the district court that the testimony was not likely to have affected the outcome of the trial because the witness’s memory was sketchy and tended to corroborate the State’s theory that shortly before filing bankruptcy, Cross went to extraordinary lengths to get the overriding royalty interests out of his name and into his daughter’s.
Ineffectiveness of trial counsel: Cross alleged that his attorney was ineffective because he did not adequately investigate the case and call the witness. Because the Court decided that at best, the witness would have been a neutral witness, the Court could not conclude that defense counsel’s actions exhibited deficient performance.

Conclusion: The district court did not abuse its discretion in denying Cross’s motion for a new trial. The identity of the witness was not newly discovered. Cross was not prejudiced by the witness’s absence given the highly questionable value of his testimony. For the same reasons, counsel was not ineffective in failing to call the witness.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/y8mqdyb.

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]