Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Leroy Francis Harris (Harris), challenges that portion of the district court's Sentence which required him to pay, as a portion of the costs of prosecution, the fees paid by the State to some of the witnesses who testified against him. Harris was charged with aggravated assault and battery, and the victim of that charged crime was Diane Hampton. Harris was acquitted by the jury of that felony count. Harris also faced trial on a second count, a misdemeanor, which was interference with a peace officer, Wyo. Stat. Ann. § 6-5-204(a) (LexisNexis 2009). As a part of his sentence, Harris was required to pay a portion of the costs of prosecution (witness fees and costs) in the amount of $548.16. Harris 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 at issue herein. We will affirm the Judgment but reverse and remand the Sentence with directions that the district court amend the Sentence imposed so as to remove the provision that Harris be required to pay the witness fees at issue in this appeal.
[¶2] Harris poses his issue this way:
Did the trial court abuse its discretion when it assessed costs of prosecution fees associated with the State's witnesses without an adequate showing by the State?
The State rephrases that somewhat:
Did the district court abuse its discretion by assessing the appropriate costs of prosecution associated with the State's witnesses?
[¶3] The crimes at issue here occurred during a time when the Hampton family was erecting a fence that separated the parties' abutting land parcels. The district court pronounced sentence at an initial sentencing hearing on April 15, 2010. That hearing was continued on April 20, 2010, and Harris was satisfied with the sentence imposed except for the witness fees portion of it -- and he vehemently objected to that both in his own words and through his defense counsel. The only indication of what the witness fees were in the case came before the court in the form of argument by the prosecutor in favor of a maximum sentence, as well as for witness fees and other usual sentence provisions. The only provision of the sentence in contest here is the witness fees, although that was not the case at the sentencing hearings. This is all there is in the record about witness fees:
[Prosecutor]: Additionally, your Honor I would place on the record that the county attorney's office paid out the following witness and mileage and meal fees: Cody McGuffin, $564.15. Mr. McGuffin did not testify at trial. He was brought here. He was kept here until we decided that we did not need him any longer. Steve Hampton, $150.48. He did testify, and I believe he testified in matters relevant to the conviction in this case.
Wonita Diane Hampton [victim in the aggravated assault case], $90. I believe she did testify in matters relevant to the conviction in this case. We paid Shane Hampton $51. I have no recollection if he testified regarding interference or not. Debra Larsen, we paid her $103.68 in witness fees and mileage. She did testify of matters relevant to the conviction.
We paid Victor Arriaza $51. He did testify. We paid Chance Hampton $153.00. He did not testify. The total amount was $1,163.31, and we'd ask that the Court impose some or all of those costs against the defendant.
[¶4] The district court specifically did not allow the witness fees for witnesses Arriaza and McGuffin, but did allow all other witness fees to be taxed against Harris. For purposes of clarity and context, we note that it was accepted at the trial that a defendant could not be taxed with costs for witnesses who testified only about a crime of which the defendant was not convicted. It was also accepted that a witness need not necessarily testify for such costs to be taxed, as long as there is some showing the witness was called for a proper purpose. It was also accepted that such costs could be taxed if the witness's testimony was at least in part related to a crime for which a defendant was convicted. None of those generally accepted principles are at issue here. However, in any event, the district court retains the discretion to allow or disallow such costs depending on all the facts and circumstances of the case. Steve Hampton, Diane Hampton, and Debra Larson each testified a little bit about the interference count. Shane Hampton did not testify about the interference count, and Chance Hampton did not testify at all. The root of Harris' objection to paying these costs is that all of the witnesses who were allowed fees were on the Hamptons' side of the fence, which was the issue ...