Summary 2011 WY 70

Summary of Decision April 22, 2011

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Case Name: Harris v. State

Citation: 2011 WY 70

Docket Number: S-10-0144

http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462038

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel, and Kirk A. Morgan, 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; Stewart M. Young, Faculty Director, Prosecution Assistance Program; and Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: April 22, 2011

Facts: Appellant was charged with felony aggravated assault and battery as well as misdemeanor interference with a peace officer. He was acquitted of the felony charge but convicted on the misdemeanor charge. As a part of his sentence, Appellant was required to pay a portion of the costs of prosecution (witness fees and costs). Appellant contends that he should not have to pay witness fees for witnesses whose testimony was primarily related to the felony count for which he was acquitted, as well as because the State failed to present any evidence to support its claim for the witness fees.

Issues: Whether the trial court abused its discretion when it assessed costs of prosecution fees associated with the State’s witnesses without an adequate showing by the State.

Holdings: The prosecution failed to introduce evidence of any sort that could serve to sustain the district court’s imposition of the witness fees and costs on Appellant. .

Wyoming’s jurisprudence is consonant with that of most jurisdictions in that witness fees may not be imposed in any case in which the defendant is acquitted. Witness fees and costs could have been taxed to Appellant for the misdemeanor conviction, but the court is hesitant to intimate that the entirety of those costs could be assessed even though there was an acquittal on the primary offense. As with all aspects of sentencing, the district court is accorded wide discretion and assessment of 100% of the witness fees for the misdemeanor conviction, given the circumstances of this case, appears to exceed that discretion. It should be noted that one witness gave no testimony regarding the misdemeanor and one witness gave no testimony at all. The prevailing law suggests that witness fees may be taxed to a party even though a witness did not testify if the witness was ready to testify but extrinsic circumstances rendered his or her testimony unnecessary. There is nothing in the record on appeal that could serve to verify that there were such qualifying circumstances in this case.

The Judgment of the district court is affirmed. The Sentence is also affirmed, with the exception of that portion of the Judgment and Sentence which ordered Appellant to pay costs of prosecution. This matter is remanded to the district court for such proceedings as are necessary to accomplish that result.

J. Hill delivered the opinion for the court.