Summary 2010 WY 159

Summary of Decision November 22, 2010

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Case Name: Holloway v. State

Citation: 2010 WY 150

Docket Number: S-09-0185

URL: http://tinyurl.com/32pm3lh

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Date of Decision: November 22, 2010

Facts: Appellant was convicted after a jury trial of one count of second degree sexual abuse of a minor and sentenced to three to eight years in prison. He seeks reversal of that conviction on the basis of prosecutorial misconduct.

Issues: Whether Appellant was denied due process of law by the prosecutor’s misconduct in pursuing a charge she knew was not supported by any evidence.

Holdings: In addressing a claim of prosecutorial misconduct, the focus is on the prejudicial effect of the misconduct. When reviewing a claim of prosecutorial misconduct, the entire record must be considered. In the present action, Appellant insists that reversible error occurred when the prosecutor pursued one of the three counts for which he was charged, a charge he claims the prosecutor clearly knew was not supported by any evidence. He contends that the prosecutor’s actions violated several rules of professional conduct and resulted in a denial of his due process right to a fair trial. The State counters that the prosecutor had a reasonable belief that some incriminating evidence existed to support the charge – the victim’s initial statements to police – and, therefore, did not violate her ethical duties by pursuing it.

Applying the legal principles of prosecutorial misconduct, the court could not conclude that reversible error occurred in this instance. First, it was not persuaded under the facts of this case that the prosecutor violated her ethical responsibilities by prosecuting the charge. More importantly, a review of the entire record does not show that the prosecutor’s pursuit of that charge, even if deemed improper, resulted in substantial prejudice amounting to the denial of a fair trial. The prosecutor ultimately dismissed the charge, and the jury was told of its dismissal before the second day of trial. After that, there was only minimal reference to the facts relating to that charge at trial. Most importantly, the evidence of Appellant’s guilt on the charge for which he was convicted was quite strong. Considering the strength of the evidence in conjunction with what transpired at trial, the original inclusion of the charge in question did not have a deleterious effect on the jury’s verdict. It cannot be concluded that a reasonable possibility exists that the exclusion of that charge would have led to a more favorable verdict.

Affirmed.

J. Golden delivered the opinion for the court.