Summary 2011 WY 39

Summary of Decision March 4, 2011

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Case Name: Dana L. Graham v. The State of Wyoming

Citation: 2011 WY 39

Docket Number: S-10-0163

URL:http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461798

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.


Date of Decision: March 4, 2011

Facts: Appellant challenges the district court’s judgment and sentence finding her guilty of delivery of methamphetamine (second or subsequent offense). She maintains that the district court abused its discretion by denying the State’s motion to dismiss the charges against her (without prejudice to refile them). She also contends that the district court erred in excluding the testimony of an eye witness to her crime, on the basis that the district court was concerned that the witness might exercise his right not to incriminate himself (Fifth Amendment protections) and, thereby, deflect the jury’s attention from Graham’s criminal act. We will affirm.

Issues: Whether the court abused its discretion in denying the State’s motion to dismiss without prejudice, in violation of the separation of powers doctrine. Whether the trial court erred when it excluded Appellant’s witness in violation of her Sixth Amendment rights without sufficient showing of the extent the witness would exercise his Fifth Amendment rights.


Holdings: The district court did not abuse its discretion in denying the State’s pretrial motion to dismiss the information without prejudice. Appellant failed to produce a cogent argument or pertinent authority that the district court erred in not allowing Appellant to call a witness once he had clearly expressed his intent not to answer any questions that might serve to incriminate him with respect to the events after consulting with his attorney. Appellant contends that she was denied her right to compulsory process when he ultimately did not testify. Appellant further contends that the district court’s action with respect to the potential witness and his ultimate decision not to testify violated Appellant’s right to a fair trial. Although some of the proceedings associated with his decision not to testify were unusual, Appellant was not prejudiced by the State’s or the district court’s actions with respect to this issue. Appellant has not presented cogent argument or pertinent authority that these circumstances constitute reversible error. The judgment and sentence of the district court are affirmed.

Justice Hill delivered the opinion for the court.