Johnson v. State

oc- Gentry, that conviction Q. Mr. Does that JOHNSON, Appellant of ’89? August 1st

curred on Andrew J. (Defendant), right? sound about date, yeah. A. I that’s believe that are the—or Q. Those checks Wyoming, The STATE convicted, the check you check (Plaintiff). Appellee on, that was was based fraud conviction account; Medics’ the Auto drawn on No. 89-283. it?

wasn’t Wyoming. Supreme Court of Objection, COUNSEL]: [DEFENSE Honor; They’re going irrelevant. Your March has to do to do charge into [sic] 27, 1991. Rehearing Denied March case. anything this Your ATTORNEY]: [PROSECUTING facts, Honor, like the offense goes under

—conviction, testified to. what he’s

THE Overruled. COURT: (By Gentry) Mr. reason

A. charge—

Q. Excuse me. your that caused conviction

The check on the Auto fraud was written

for check account; true?

Medics’ insufficient funds.

A. For fact, And, was writ-

Q. that check 1989; 19th, January true? on

ten dates, those were the

A. I believe

yeah.

Q. your account had been days prior even fór a few

overdraft

that; true? made deposit

A. Because the wasn’t supposed to be. Friday like it was deposited it like he was

Had Lariviere to, happened. not have

supposed

Q. Excuse me. you any questions.

I ask didn’t case,

How, credibility all of in a tested beyond a reasonable could be harmless mind, is, my beyond any doubt

doubt by principle logic.

unsustainable See Innuendo, A.B.A.J.,

Moss, Bias

(Aug.1990).

Consequently, dissent. Munker,

Leonard D. State Public Defend- er, Weerts, E. Steven Sr. Asst. Public De- fender, Lindsey, and David Asst. Public Defender, Program, Public Defender for appellant.

Joseph Meyer, Atty. B. Gen. and W. John Renneisen, Gen., Deputy Atty. appellee. URBIGKIT, C.J., Before MACY GOLDEN, JJ., and RAPER and BROWN, Ret.JJ.

BROWN, Justice, Retired. jury County trial in the Laramie Court, appellant District Andrew J. John- aggravated burglary son was convicted of degree and first sexual assault. The him also found to be a habitual criminal. appellant Counsel for raised five issues appeal:1 Appellant pro right, deprivation process filed a brief se and raised addi- either as a due tional issues: equal protection law or as a denial of judge I. Should the trial allowed laws? attorney district to use the habitual criminal II. It was reversible error for the trial provision seq. under the of s. 6-10-201 et judge photo- the state to alter the aIIo[w] W.S.1977, against when the Dis- graph, appear to make an identification card District, trict Court of the First Judicial did in it. not advise the of his constitutional had The victim “A.J.,” into the bar. came improperly de- I. Was through boyfriend. her by jury? trial met A.J. previously right to waive nied his the lat- about and A.J. talked The victim ruling of the suppression II. theWas break-up girlfriend. recent ter’s judge proper? trial well- out a few They decided to check error for it reversible III. Was watering Cheyenne. known holes the evidence judge to exclude trial assault reports of sexual prior victim’s to have identification The victim did not comply failure trial counsel’s based establishments, certain gain entrance into W.S.1977. 6-2-312 § to look to her house she and A.J. drove so for the error it reversible IV. Was house, arriving at her Upon for her I.D. present allow the state judge to trial room, in a living sat down to the A.J. went provided to the were witnesses which the victim remained there while chair and discovery reciprocal under the Defendant not find it. I.D. She did looked for her W.R.Cr.P.? Rule 16.1 provision of Nevertheless, Cheyenne they to the went impermissibly prosecutor Did the V. that he from A.J. with assurances Club right to be Defendant’s on the comment the bar. admittance to gain could her guilty? proven innocent until Mayflower, they to the there went From the issues Wyoming states asked for identification. State where reaching into to be: A.J. The victim remembers showing identifica- Ap- and pocket Brief of his back “Supplement I. Does the leaving Mayflower. After any issues at the pro se raise tion card pellant” filed home, the victim drove Mayflower, this court? cognizable building. leaving at an unidentified A.J. have an criminal defendant II. Does a by jury? a trial unqualified right to waive house, victim reaching her After court’s denial of the trial III. Was sometime She awakened went to bed. was suppress the identi- motion to appellant's door, banging on her and a voice later proper? appellant’s eyeglasses fication of heard the recognized as A.J.’s. She she appellant’s the admission IV. Was footsteps move break and glass on the door harmful eyeglasses of his identification could see the glass. The victim across the error, appellant’s requiring reversal ap- recognized him as clearly and intruder convictions? The victim pellant, Andrew J. Johnson. ex- judge properly Did the trial V. bed, pushed appellant out of jumped prior con- of the victim’s clude evidence ran toward the bathroom. of sexual assault? versations arms, them victim’s twisted grabbed the properly allow judge trial VI. Did the back, her face down and threw behind her present previously state to witnesses to ravish her. proceeded the floor and onto defendant, but not noticed noticed onto turned the victim over Appellant then reciprocal dis- the defendant under again raped her. her back 16.1 W.R.Cr.P.? covery provision of Rule the victim neighbor heard A downstairs impermissi- prosecutor VII. Did scream, reported what she 911 and dialed appellant’s bly comment on re- Spencer Alan W. hearing. Officer guilty? proven until silent the 911 call. He noted sponded to We affirm. sup- apartment and glass inside the broken standing outside posed that someone evening of June have broken windows. apartment must with friends. drinking in a bar victim was crying, whimpering Johnson, heard Spencer known Appellant Andrew J. attorney make remarks V. Did the district labo- scientist crime III. Did the forensic beyond evi- jury that went before ratory give perjured testimony; prior her dence? report? written detective, give police, and victim VI. Did attorney use false evi- Did the district IV. hearings during testimony the court perjured dence? eye-glasses? my about yells coming apartment. from the approval muffled with the of the court and the sobbing hysterical and in consent of the The victim was state. cries, Through emotional state. her upon This rule confers the defendant a said, me, hurt victim “He he hurt me.” “qualified” right to jury waive a trial. The asked, Spencer you?” Officer “Who hurt qualified requires because waiver responded

The victim was “A.J.” approval of the court and consent of the who had hurt her. In Taylor state. 612 P.2d (Wyo.1980), 37 A.L.R.4th Spencer appellant’s found Officer identi- (1985), this court stated: apart- fication on the floor of the victim’s words, In other implicitly the rules ac- packet prop- ment. The identification knowledge trial erly received into evidence as state’s exhib- right defendant, is a constitutional consisted, part, it 13. State’s exhibit 13 in qualified the waiver of which is in the Wyoming identification card and a may context that it not be exercised with- Wyoming driver’s license. Both items of approval out the of the court and the appellant wearing identification show consent of the State. glasses, glasses and the worn in the identi- appear An glasses fication identical to the accused does right not have a apartment. a trial to the court. In Spencer Singer found at the victim’s v. United States, 24, 36, 783, 790, 13 showed the identification to the victim and S.Ct. asked, L.Ed.2d pointed the Court you’re talking “Is this the A.J. out that: victim, upon looking about?” The at the

picture, hysterics, eventually went into We find no impediment but constitutional n conditioninga “Yes, responded, that’s waiver of this A.J.” [the right to by jury] trial on the consent of days rape, after the About two the victim the prosecuting attorney and the trial pair glasses found a her bedroom. when, judge consent, if either refuses to thought glasses She must have be- simply the result is that the defendant is longed appellant, she so called Detective subject impartial to an trial jury—the Cheyenne Depart- Stanford of the Police very thing guaran- that the Constitution Appellant subsequently ment. identified tees him. as his. The victim remembered contends, Appellant that there an ex- appellant wearing his at the bar ception general to the rule that the state identification, after had looked for her nonjury sup- must consent to a In trial. and she testified at trial that she had never port of this contention he refers to Singer: appellant seen glasses. without his We need not determine in this case Appellant appeals from jury his convic- might whether there be some circum- tion. stances where a defendant’s reasons for wanting by judge to be tried a are alone compelling so in- Government’s arraignment again At his be by jury sistence on trial would result trial, appellant requested fore that his case the denial to a impartial defendant of an be tried before the court jury. argues without a trial. Petitioner might that there The state nonjury “passion, did not consent to a trial. arise situations where preju- public feeling” Because of the dice state’s refusal to waive a ... or some other jury impossible unlikely the court directed that the factor render case impartial by jury. trial jury. be heard 37-38, Singer, 380 U.S. at at jury The waiver of to a trial is (footnote omitted). 24(a). controlled W.R.Cr.P. This rule provides: Referring quotation to the from Singer, appellant states in his brief to the court: by jury. required Trial to be —Cases by jury

tried shall be so tried passage exception unless the This creates an to the jury writing generally accepted proposition defendant waives a trial that there concerning additional evidence to condi- radio impediment constitutional is no proceeded He victim’s house. vic- right to waive Defendant’s tioning the glasses. house and was shown court tim’s approval of the upon the jury trial Stanford was told June Detective The court On of the state. the consent glasses. wanted certain cases trial to that in points out the time was arrested on from the Defendant’s jury violate 29, 1989, he had until June exactly such June trial. This is impartial to an requests glasses. for his made several a case. county jail checked detention nurse at the is a an accused who This case involves glass- for his appellant’s personal property vic- alleged sexual assault and an black es, Appellant but none were found. be- alleged to The crime is tim who is white. glasses. He angry came and demanded Cheyenne, Wyoming, a have occurred had stated that he knew Detective Stanford number of community a limited county to sue the them and threatened number of blacks is persons. The black denying him medical care. told impan- one black was limited that not so the detention nurse to call Detective Stan- venire, obviously elled on the Stanford, ford, being which she did. after jury. This Appellant’s blacks sat on jail by appellant, brought summoned to the implicate situation is sufficient glasses appellant. the to Detective Stan- ability receive a fair Appellant’s to glasses appellant if the were ford asked However, additionally is the fact trial. affirmatively. Appellant his. answered appellant was accused of that the crime glasses given appellant to The were but type the which tends to arouse is one of preserved for evidence. public feel- passions, prejudice and the * * * Appellant ings any community. trial, appellant Before made a motion to receiving impartial chance of an had no suppress inculpatory statements made jury trial. regarding by him to Detective Stanford his ownership glasses. suppres- of the At the appellant phrases this issue While hearing, sion Detective Stanford testified nonjury right to a as a denial of glasses an that he felt identification right denied the to argument is that he was important place because it would right to a fair and impartial jury. an If the defendant at the scene of the He crime. impartial jury questioned, a motion for it was his intent to further testified that proper recourse change of venue is glasses get an identification of the when he 23(a). Appellant has under W.R.Cr.P. jail. went to the evidence, to either the trial presented no court, court or this that would tend to show contends in second is great deprive him of an prejudice so by that the statements made him re sue impartial jury. guaranteed An accused is glasses garding ownership of the should jury; right to a trial he is not suppressed have been because his nonjury guaranteed to a trial. Amendment of the counsel under the Sixth by jury Trial was not error. This conclu was violated. United States Constitution excep without supported, sion is almost The to counsel attaches when adver tion, by jurisdictions other which have a against proceedings sarial criminal the ac Wyo very rule the same or similar to cused have been commenced. Brown v. Annotation, Accused, in ming’s. Right of State, 1024, (Wyo.1983). P.2d 1029 661 Trial, Insist, Over State Criminal expressed an has his desire “Once accused Objection, on Tri Prosecutor’s or Court’s counsel, police only through deal with he Jury, 37 A.L.R.4th al Court Without interrogation subject is not to further until 304, (1985). 310-15 available, counsel is made unless the ac communication, further ex cused initiates

II police.” changes or conversations with the 246, (Wyo. 749 P.2d 253 Tuesday, On June Detec v. Griffin 1988). “interrogation” as police defines tive Stanford received a call over his Griffin Mauro, 520, by police In U.S. “only actions officers Arizona 529- words or 30, 1931, 1936-37, have known were reason should L.Ed.2d 458 incriminating re ably likely (1987), an points pur- to elicit Court that the out sponse.” at 253-54. Id. pose decisions in Miranda and behind prevent is to “government offi- Edwards Arizona, In U.S. Edwards v. using cials from the coercive nature of 484-85, 1885, 68 L.Ed.2d 101 S.Ct. confinement extract confessions that the Court held that given would not an unrestrained envi- custody has “ex- person accused who ronment.” police pressed his to deal desire with counsel, only subject is not to fur- through argues The state that when until interrogation ther the authorities told the detention nurse that he knew the him, counsel has made available to been police glasses, voluntarily had his he was unless the himself initiates further accused giving a statement an unrestrained envi- communication, exchanges, or conversa- argues ronment. State further that here, In police.” tions with the the case act of simple verifying glasses at the hear- preliminary learned police appel- held were the ing glasses, had his he lant claimed were his cannot be said to deten- demanded their return told the interrogation. amount to coercive We specifically tion nurse to call Detective problem would have with the introduc- appel- court Stanford. The trial found that except tion of the into evidence communication, lant further initiated the that Officer Stanford admitted that he in- exchange police, or conversation appellant identify glass- tended to suppression and denied of his statement. place es in him order at the scene of the Innis, Rhode Island crime. 300, 1682, 1688-89, 64 L.Ed.2d S.Ct. the improperly Whether trial court de- 306-07 the de- Court appellant’s suppress nied motion to his “interrogation” fined the term for constitu- statements to Officer is a Stanford close purposes. recognized tional The Court that will, question. purposes We for the of this “ * * * ‘[interrogation’ must mea- reflect a case, assume that denial motion was compulsion beyond sure of above and that However, error. the state’s evidence custody inherent in itself.” The then Court against appellant overwhelming is so that interrogation “any defined words or ac- beyond is a the error harmless reasonable (other police part tions on the of than those doubt. normally custody) attendant to arrest and The'proper analysis employed in to be police reasonably know should are Campbell this case is that found in likely incriminating response to elicit an (Wyo.1979). P.2d There the suspect.” from the Id. at at that, “[bjefore court held a federal consti- points 1689-90. court that The Innis out harmless, can be tutional error held interrogation pri- the definition of “focuses on the burden is State to demonstrate and suspect, marily upon perceptions of the must the court be able to declare a belief police.” rather than intent of the Id. a beyond that it was harmless reasonable Arguably, according to the Innis defini- at doubt.” Id. appellant tion interrogation, cannot be interrogated po- claim Appellant’s said to have been of a sixth amendment glasses, only lice. he identifying He demanded his which violation is his statement had, glasses, knew de- not the Detective Stanford then he introduction speak glasses Notwithstanding manded to with Detective into evidence. Stanford. compul- relating appellant’s There is of coercion to identifica- testimony no evidence tion, Appellant voluntarily gave sion. glasses whatever could still have been intro- regarding glasses; statements he made duced into evidence and the could have police responded reasonably to the made inferred from evidence demands other by appellant. belonged appellant. The previous sexual assault. reiterate, during reported the victim

To appellant she and to allow this evidence judge that while trial refused testified she night of June proper on the file upon appellant’s out failure to based taking wip- off and appellant remembered Act, Wyoming Rape Shield notice under the boyfriend The victim’s glasses. ing his (June Repl.).2 Appellant W.S. 6-2-312 concerning testified friend also appellant’s contends, however, Rape Shield that he did not He stated glasses. inapplicable in this case. Accord- Act was and had never seen glasses himself wear purpose not the ing appellant, was Bilk- glasses. Officer without his appellant questioning smear the vic- this line of ie, appellant, testified that arrested who credibility through introduction of her tim’s wearing glasses he not when appellant was Rather, appellant prior activity. sexual arrested, he did not wear attempted impeach contends he the wit- the station. through prior reports the use false ness upon appellant’s defense was based the fact that these false police The evi- identity. mistaken premise is a coin- reports related to sexual assaults only is one regarding the dence credi- cidence. The attack on the victim’s identity. establishing piece of evidence untruthfulness, bility grounded in testified much more. The victim There is activity, according appel- prior sexual bang- in bed when a that she was at home theory.' Appellant contends that the lant’s up ing her woke her voice door testimony have been re- offered should The victim testified saying “let me in.” purposes ceived under the listed W.R.E. recognized that she the voice as that 404(b).3 appellant. The victim testified that she recognized appellant person as the who Appellant attempted to introduce evi- appellant’s raped her. The found that, past, time in the dence at some identification card driver’s license and state person in a bar that she victim had told the scene of the crime. The state’s sexually assaulted. The court had been tests on the semi- expert witness conducted to make an offer of allowed nal fluid found in the The state’s victim. proof. Counsel for asked wheth- expert percent to exclude 95 was able people er had told in a bar that the victim among the population. assaulted; sexually she had been the victim percent could have left the semi- five who any denied such conversation. presented by the nal fluid. The evidence consisting then offered evidence of a wit- identifying appellant perpetra- as the state victim, testify that the in a ness who would overwhelming. tor of the crime is There is conversation, told him that she barroom that, possibility in the absence of the sexually had been assaulted. There is no error, the have been more verdict would indication in the record that the victim ever appellant. Campbell, 589 favorable to police report concerning a sexual made a P.2d at 367. alleged any prior assault or that conversa- concerning a false. tion sexual assault was Ill appellant grounds his contention of Since Appellant attempted to introduce 404(b), falsely error on Rule we note that in evidence at trial that the victim had Gra pertinent part: victim 2. W.S. reads in of the sexual conduct of the and its 6-2-312 relevancy to the defense[.] (a) any prosecution under W.S. 6-2-302 through any 404(b) 6-2-305 or for lesser included 3. W.R.E. states: offense, prior if evidence of the sexual con- crimes, wrongs, Other or acts.—Evidence of victim, reputation duct of the evidence or crimes, wrongs, other or acts is not admissi- opinion evidence to the character of the prove person ble to the character of a in order following proce- victim is to be offered the conformity that he acted in there- to show however, dure shall be used: may, with. It be admissible for (i) motive, A written motion shall be made purposes, proof op- such as other portunity, (10) intent, days preparation, plan, defendant to the at least ten court knowl- prior stating edge, identity, that the has acci- trial defense or absence of mistake or proof relevancy an offer dent. of evidence State, (Wyo.1980), Reversible error was committed 621 P.2d when bill v. principal test to deter court held the the trial court allowed the state to 404(b) admissibility under mine W.R.E. present witnesses which were not noticed directly it tends to or not is whether reciprocal to the defense under the dis consequential fact prove disprove or 16.1, covery provision of Rule W.R. knowledge, or such as intent or whether Cr.P.[4] proposi- to may or not it tend establish 10, 1989, August in On accordance with motive, through tion such as which 16.1, W.R.Cr.P. the state made demand on to series of inferences tend establish appellant August for notice of alibi. On consequential fact probability 22, 1989, knowledge. demand, as intent or response appel- such in to this lant listed three Sep- alibi witnesses. On Appellant’s proffered evidence does not tember precipe state filed a admissibility the criteria for under meet subpoena listing the state’s 404(b). witnesses. He did not claim that the W.R.E. copy victim harbored some resentment toward A precipe given appel- of the him, any nor that she had other motive or lant’s trial counsel about two weeks before Likewise, him. plan implicate there was trial. appellant appellee Counsel for suggest in nothing the evidence to expected testimony discussed the reported, if it prior assault was or appellant’s witnesses and counsel made no- or reported, falsely was done precipe. tations on the The state did not sought harass. The evidence to be intro respond appellant’s further notice of al- any duced would not tend to establish such argues ibi. The state that the witnesses fact, support any the record does not precipe listed were the witnesses employed the victim inference some and, who would incriminate if plan any or or had motive sort of scheme necessary, also rebut witnesses. alibi rape. The excluded accuse only would have served attack evidence appear It does not that W.R.Cr.P. 16.1 court, credibility of the victim. This any application has to this case. At State, (Wyo. 752 P.2d Velos v. appellant did not call the witnesses he had 1988), prior held that evidence of sexual listed as alibi witnesses nor did other wit- credibility to attack a conduct used victim’s say anything nesses about an alibi. W.R. 608(b). was inadmissible under W.R.E. applicable only Cr.P. 16.1 is if an alibi wit- Finally, appellant presented any has not does, testify ness at trial. authority cogent argument support Appellant brings to our attention People proffered his contention that the evidence Jarrett, 22 Ill.App.3d 316 N.E.2d 659 should have been admitted and we need not (1974) Smith v. 319 So.2d address the issue further. (Fla.1975). cases, In both of these alibi IV by appellant witnesses were called at trial responded by calling and state .the rebuttal appellant’s assignment In fourth argues error he that: witnesses. The Illinois and Florida courts (b) pertinent part: 4. W.R.Cr.P. 16.1 reads in Disclosure and witness.— of information thereafter, (10) days (a) Upon Within ten but in no Notice written de- defendant. — (10) attorney stating days mand of the for the state event less than ten before time, date, place alleged directs, at which the unless the court otherwise attor- committed, offense was the defendant shall ney upon for the state shall serve the defen- (10) days, serve ten or at within such different attorney stating dant or his a written notice direct, upon time as the court the attor- the names and addresses of the witnesses ney for a written the state notice of his inten- upon rely whom the state intends to to estab- tion to offer a defense of alibi. Such notice by presence lish the defendant’s at the scene of specific place the defendant shall state the alleged any offense and other witnesses to places at which the defendant claims to testimony any be relied on to rebut alleged have been at the time of the offense defendant's alibi witnesses. and the names and addresses of the witnesses upon rely whom he intends to to establish such alibi. test, as defined in (Wyo.1975). The wit- 107 allowing the rebuttal that determined Knowles, is: because the testify was error nesses to [Wjhether language used was mani- not disclosed had state of such character festly intended or was witnesses. names of the rebuttal naturally jury would and neces- that the appellant have cited The cases be a comment on the sarily take it to this court. case before application to testify. It is failure of the accused no alibi witnesses Succinctly, there government to draw improper'for the not event, any any witnesses. nor rebuttal lack of to the failure or evi- attention faith contend that good appellant cannot point on a if it is not intended dence victim, who was surprised he was to the failure of the defen- call attention him witness, incriminate as a listed testify. dant to crime. scene of the at the place him (citation omitted). Knowles, 224 F.2d at 169 assignment of error is fourth Appellant’s alleged respect error with Other without merit. eyeglass identification is discussed assignment the second of error. V by appellant The second incident claimed assignment of error fifth Appellant’s right on his to remain to be a comment improper made prosecutor “The during testimony states: silent occurred Jal- re- Griffin, Appellant on the defendant’s comment a forensic scientist. ene guilty.” As proven during main innocent until redirect of this wit- contends that appel- from ness, can determine on line nearly prosecutor proceeded as we brief, complaints response two questioning he makes which elicited the lant’s (1) through ques- assignment error: could have had his own this that the defendant improperly laboratory. com- crime tioning, prosecutor tests made the state right to remain si- mented on defendant’s By Mr. Forwood * * * lent; (2) pros- through questioning, q does the state crime [W]ho defendant should suggested that the ecutor perform lab work for? prove his innocence. agencies Wyoming A. Various state. testified at trial Detective Stanford Q. prosecutor’s Such as the office? pair identify that was able A. Yes. being Appellant his.5 con eyeglasses Q. police? testimony constituted tends departments, A. sheriff’s of- Police on his to remain improper comment fices. appellant’s rea We cannot follow silent. Q. you for a defense Do do work alleged error. It does not soning on this agency? jury could have de possible that the seem eyeglass identification A. That has been done. But termined personally. to remain silent. appellant’s related to testify did not at trial. Remain Q. you place? Do know if that takes preclude the state ing silent at trial cannot Yes, it A. can. introducing made him from statements counsel, Q. And if for exam- defense place. at another time and done, requests a that should ple, test (cid:127) be run[?] determining The test for what consti Honor, by prosecutor a MR. SERELSON: Your because improper tutes an comment innocence, States, presumption of there’s in is set forth Knowles v. United (10th Cir.1955), prove any- on Mr. Johnson to adopted no burden F.2d 168 State, thing. by Wyoming in 534 P.2d Oldham signment of error.

5. A more detailed account and discussion of the eyeglass problem is discussed in the second as- Honor, consequence. I don’t collateral Under MR. FORWOOD: Your W.R.Cr.P. impres- 15, with the to leave the required want the trial court is to inform only done for the sion tests are possible the defendant of all collateral state. consequences. State, (Wyo.1986) 718 P.2d 53 Gomez In by appellant, Issue II se pro raised he that, authority for our determination

is claims that State’s Exhibit was altered. us, comment, was no the case before there photograph The exhibit was a of an area in through questioning, right of appellant’s on apartment. the victim’s When Exhibit case, In silence. defendant was con- Spencer was identified Detective at tri- driving During victed while intoxicated. al, spot he marked the where he found prosecutor a asked officer appellant’s identification. The exhibit was “the whether defendant ever to be ask[ed] Appellant’s received pro into evidence. se taped preserve so he could that for evi- argument respect with to Issue II spuri- 55. dence trial?” Id. at This Court ous. affirmed this case Gomez because “[i]n simply upon there was no comment Gomez’ Appellant’s pro se Issue V addresses re- of his silence.” Id. at exercise marks made the prosecutor concerning alleged improper The comments this case appellant wearing what on night are even more innocuous than the com- attack. While the actual ap- items of Here, Gomez, as in ments Gomez. evidence, parel were not introduced into simply do not prosecutor’s statements con- there was from testimony witnesses con- upon appellant’s right comments stitute cerning appellant the attire of night Furthermore, testimony silence. re- appellant attack. The attire of garding suggest the tests do not that de- introduced as testimonial evidence rather prove need fendant his innocence. The tes- physical than evidence. testimony This timony merely shows that state labo- supports prose- the statements made ratory facility exclusively is not available issue, In support appellant cutor. of this police, prosecution. sheriff or (22 Ruling cites venerable Case Law R.C.L. (1918)) explaining the duties of the VI attorney. excerpt district from R.C.L. supplemental se Appellant, pro nothing has to do with this case. court, issues, filed with raises six brief VI, pro III, In IV se Issues supported authority none which are cogent argument. 1 sets perjured testimony Footnote out makes reference to pro by appellant the issues raised se. brief, pro false evidence. In se reply appellant attempts to raise still another issue, In pro his first se charges issue. this brief he the attor- contends that it was error for the district ney general perjury. Appellant with has court to sentence him as a habitual criminal obsession perjury. concept His because, prior pled guilty when he felo perjury contrary is that if a statement is nies, failed, during plea the court hear perjury. his version of a it is There is guilty ings, pleas inform him that appellant's perjury argument. no merit to him in against later used a habitual hearing. criminal carefully We have considered the five In Carson v. 755 P.2d by appellate issues raised counsel. We (Wyo.1988), the court held the “trial plus have also six considered the issues one duty court’s to insure that defendant by appellant pro raised se. We do not find consequences guilty understand the reversible error. plea only he enters extends before one Affirmed. consequences plea.” direct of such Pos- guilty plea use of the at a later

sible habit- URBIGKIT, C.J., dissenting a proceeding ual criminal for sentence files en- subsequent opinion. hancement conviction is a

1292 State, Justice, v.

URBIGKIT, dissenting. tional Cutbirth miscalculation. Chief (Wyo.1988). 751 P.2d 1257 analyze carefully I what this more The considers, and determines court disclaims intentionally waive If accused cannot the case, more constitutional con in this the rights, surely does not constitutional develop review from what first cerns provide justice make sense—or —when simple identification seem to be a would inef- unintentionally from waiver surfaces Within the consti rape appeal. conviction I Consequently, fectiveness of counsel. J. of Andrew Johnson’s tutional concerns Wyoming under Con- provence find conviction, provided life sentence there is a right for a to limit release of the stitution enhancement. by habitual criminal Wel by trial the court even jury trial to secure 1990). State, (Wyo. P.2d 513 v. 800 don prosecutorial The by veto. when resisted result, by lightly pass that I cannot so With pro- simply does not Wyoming Constitution and his right denied to counsel Johnson’s guilt vide for the State to have a statement, incriminatory both of coerced trial by jury a instead of the determined questions. raise constitutional basic which court. Among by issues raised John- the eleven history I of the of federal am aware son, me there are three issues which cause cases, including Sing cases state and other particular concern. States, 24, 36, 85 er v. United (1965), 13 L.Ed.2d 638 BY I. WAIVER OF JURY Annotation, Right and other cases cited DEFENDANT Trial, Accused, in Criminal State of the majority’s I am not with satisfied Insist, Ob Over Prosecutor’s or Court’s Wyoming not believe conclusion. do by Jury, jection, on Trial Court Without provides right for a the State Constitution courts 37 A.L.R.4th but those in a If require jury a trial criminal case. effectua adapted omnipotent have not jury a then a defendant cannot waive in deci tion of waiver and forfeiture found has a correlative it means State State, in Murray sions this court v. Wyo. I find remedy. the same for State, (Wyo.1989); P.2d 206 Kallas v. Const, justify adapta- not art. 10 does § State, (Wyo.1989); P.2d Amin v. 24(a), which states that tion W.R.Cr.P. State, (Wyo.1989); Campbell P.2d “[cjases required jury tried shall to be Cutbirth, (Wyo.1989); 772 P.2d 543 and a so tried unless the defendant waives 751 P.2d 1257. approval writing trial in with jury Consistency, ingredient which is of the the court and the consent state.” process equal protection, and both due added.) (Emphasis just a desired be should not be motto of philosophic problem adaptation The application havior but also standard of qualified a by this court of such waiver delivery justice system within rights is thesis for constitutional that such confining Wyoming structure of the Consti an affixation to the constitution cannot (Wyo. 404 P.2d 740 tution. Holm to a properly logically confined —or —be 1965). required If the accused defendant long jury litany right of trial. retrogres subject to constitutional stand developed court about has forfeiture sion unintended and counsel by an mistake waiver defense to constitutional for failure, also be to affirm he should entitled just right violation be confined not atively remaining the one waive accused, —to but also to interac- to action give trial in up order approval trial tion and of waiver challenge trial decision court. The prosecutor. The inef- court and morass of consistency of for burdens and benefits counsel, waiver and forfei- fectiveness prosecution accused—and rights ture of would now be constitutional —should go con not unanswered constitutional agreement corralled consent protection. cepts process equal due released to unintended mistake or inten- II. A A. Yes. INTERROGATION OF REPRESENTED ACCUSED Q. your And what involvement in clearly significantly divisive and A more that situation? problem majority with this

more obvious On A. June the victim in this analysis its decision is created the to apartment. case called me her She stat- interrogation represented renewed ac- ed that she pair glasses had found a majori- in II cused addressed Section belonged she believe Mr. to Johnson. ty opinion. police strategy The have Q. long How was this after the inci- effective, surely acceptable but been not dent? limit- crossing when constitutional barriers

ing investigatory activities. A. Two days. officer, simple police Detec- Q. Okay. Stanford, interrogation tive initiated glasses A. I took the into I evidence. jail presence Johnson in without any way didn’t have exactly to determine counsel. much questioned. That cannot be they belonged who to. proper Whether was harmless leaves my disagreement for discussion serious Well, Q. you? what did she tell the majority opinion and the clear A. She said she they believed were Mr. application difference about of the defini- Johnson’s. explicit tive and of the decisions United Q. Okay. Why you place did them in States Court. evidence? Essentially happened what is that a cou- her, They belong A. didn’t to and I ple crime, of days after victim didn’t know that they weren’t evidence. strange found some glasses apart- in her might ment which she believed been rape perpetrator. owned She called Q. And the detective-investigator as on picked

the Detective Stanford and he up case, your what was of saving intent glasses. days by during Several went glasses? purpose What would attempted develop which detective to in serve the case? ownership a optical contact with try A. wanted to a way and find to sources. Johnson came believe that the glasses determine whether or did in police glasses had his without which he belong fact to Mr. Johnson. normally could not function and made de- for delivery gener- mand their assist Q. And helpful how would that be jail. al accommodation Johnson became your investigation? glasses insistent that be returned. He place A. It him the bedroom of did not know that the could become apartment. significant evidence since found the vic- Q. important part Is that an of the apartment. tim’s case,— carefully detective elected not Yes, A. bring interroga- defense counsel into an tion session incriminating where the identi- Q. —placing the defendant scene Johnson, fication could be obtained. while of the crime? in custody, a was within coercive environ- Yes, A. it is. ment. The events in sup- were discussed a Q. you And when then did next become pression hearing where, after identification glasses? involved with the Cheyenne, Wyoming witness a Department detective, Police that officer days A. Several after that I took them testified: optical shop town, try, to an here in Q. Did anything do, there lack you try come time when better to piece prescription became involved of evidence in- find out what the volving pair in this case? lenses. you Q. you go? And where did did do

Q. Okay. And then what glasses? with county To the north annex of A. evidence. Put them back into A. jail. next involve- Q. your And when was residing at Q. was Mr. Johnson Where glasses? with the

ment that time? I the 29th. can A. I believe it was A. He was that annex. Yes, on the 29th my quick. note real check Q. custody? In jail by the 29th I advised I was—June was A. Yes. glass- requesting his Mr. Johnson was that holding them es, saying that were as we you got Q. you And what did do when evidence. there? over

Q. you then did do? And what glasses, him and I—I A. I showed words, I believe I recall the exact but myself, don’t jail I took them over to the A. they his, respond- him if were and he deputy. asked Sergeant another Kaine and with affirmatively. ed Q. purpose taking your What was Q. there? them over “Yes”? were, they if

A. To determine A. “Yes.” glasses asking that he Mr. was Johnson’s Q. yes? He said for. but, yes, he exactly, A. I don’t recall give him Q. you intending Were they glasses. indicated that were his they if his? glasses, Q. Okay. A. No. try them I asked if he like to A. would Q. Why not? sure, that he to make and he indicated on holding them Because I still as A. was didn’t need to. evidence. Q. happened? And then what purpose for Q. They still held the same up I A. And then told him it would be they as held before? evidence as to or not the Mr. Forwood whether A. Correct. be glasses would released. say that Q. Would it be fair to that was Q. now and a half This was about two intent, get identification of the your alleged after the incident? to three weeks glasses? That’s correct. A. That’s A. correct. Q. you Mr. John- And were aware that say that Q. it fair to that Would custody two and son had been for about trial, if was for use at Mr. intent future to three weeks? a half glass- denied those were his Johnson that Yes, I A. was. es? it, then A. If he would have denied (cid:127) evidentiary of had no value. further So, you him Q. confronted with when 29th, you were aware it, Q. But if he then would admitted represented by myself? he evidentiary value? That’s correct. A. so, yes.

IA. believe Mi- Q. you read Mr. Did Johnson go- Q. purpose your And rights prior your conversation randa there? ing over him? A. That’s correct. No, not. A. I did Q. go over you And what did date Q. in evidence? Are those still there? so. 29th, A. believe A. The I believe. Q. you (1966). them return to evidence af- L.Ed.2d 121 Did Minnick v. — -,

ter that Mississippi, conversation? U.S. 111 S.Ct. (1990),Minnick, 112 L.Ed.2d 489 a fugi- Yes, I did. A. killing tive from a in Mississippi, was ar- question, interroga- this Without was rested in fugitive California and held on a presence of jail tion—in John- —without Diego jail. in the San warrant He was purpose developing son’s counsel for the by agents, first FBI interviewed which re- incriminatory things an “confession.” Two request sulted his to have attorney an could have occurred—the detective present. attorney appointed An glasses told could have Johnson where the him, met with or at least had with contact or, appropriately, were found more could him, or on two three Following occasions. appointed coun- have contacted defense contacts, those a sheriff’s officer from Mis- ownership sel to or to present check sissippi ques- came to the jail California any advise Johnson before statement was Minnick, tion who was then advised made. Neither was done and this court jailers that he would have to talk to the applies now a harmless error resolution to deputy sheriff. It was the statement then deprivation the constitutional given Mississippi officer, to the sheriff’s counsel under both the state federal requested present, without counsel that be- Const, 10; 1 Wyo. constitutions. art. § subject came the of the decision Const, U.S. amend. VI.1 Supreme following United States Court be, may majority suggests, It as the that penalty death conviction where the evi- processes other for the identification dence was used in Mississippi trial. successfully could have used been Supreme Court, The United States for that, by prosecution. may It also be con- decision, any Minnick did not reach introduced, sidering eye other evidence case, implications Sixth Amendment in the glass unnecessary identification for pro- but determined that Fifth Amendment supposi- Both clearly only conviction. are tection had been terminated sus- tions, by factual undocumented determina- pended by consultation with counsel so tions this do within record. What we know the non-counseled interview should not is that Johnson’s constitutional pursued. By application have been of Ed- protected by counsel have been should sus- wards, 477, 451 U.S. 101 S.Ct. 1880 and taining suppression of non-counseled Miranda, 436, 1602, 86 384 U.S. S.Ct. as during interrogation jail. admission Al- Illinois, followed Patterson v. 487 U.S. though implicat- the Sixth Amendment was 2389, 2393-94, 108 S.Ct. 101 constitutionally impermissible po- ed L.Ed.2d 261 the United States Su- conduct, suggest lice I that a Fifth preme succinctly Court delineated the rule: Amendment violation issue is more even view, presented. persuasively reading our a fair of Edwards and subsequent cases demonstrates Supreme The United States Court has interpreted we po- the rule to bar spoken emphatically this current term interrogation lice-initiated ac- unless the about use of incriminatory testimony cused has counsel with him at the time of obtained in the absence counsel questioning. ambiguities Whatever the violation of the Fifth to the Amendment point, of our earlier cases on we now pur- United States Constitution within the requested, hold that when is in- counsel Arizona, 477, view Edwards v. 451 U.S. cease, terrogation must and officials 1880, 378, 101 reh’g S.Ct. 68 L.Ed.2d de- interrogation not reinitiate without coun- 973, 3128, nied 452 U.S. 101 present, sel whether or not the accused (1981) L.Ed.2d 984 and Miranda v. State of has attorney. consulted with his 1602, Arizona, 436, 384 U.S. 86 S.Ct. 694, Minnick, reh’g L.Ed.2d denied sub nom. Cali- S.Ct. at 491. The United Stewart, 87 S.Ct. Court States further stated: fornia court, filings ques- by requested comparison In other in this Johnson contested with actually photograph. tioned whether the his as identification majority’s notion exception take protection from remove decline to We handicapped initiates visually person that a iso- based on questioning police-initiated “ ‘communication, exchanges, or conversa- with counsel who lated consultations ” police’ to waive tions with the sufficient interrogation resumes. absent when coun- rights Fifth Amendment or Sixth lenses. asking sel corrective rights Edwards, admission Both waiver of (Quoting U.S. 1885.) every indulge affirmation guilt are consistent S.Ct. at “[CJourts prin- presumption against that is a waiver responsibility individual reasonable [of justice system. It Brewer ciple of the criminal counsel].” Williams, 404, 97 S.Ct. principle, how- 430 U.S. not from does detract 1242, 424, 431 U.S. reh’g 51 L.Ed.2d denied ever, nor to neither admissions insist that 925, 2200, (1977). 240 53 L.Ed.2d 97 S.Ct. are unless there waivers are effective prin- no in happened here is different What particular systemic assurances both and from ciple keeping an artificial limb than custody pressures the that coercive he initiates “communica- amputee an until inducing not cause. The Ed- the leg. by asking tion” for artificial arm specific rule forth a standard wards sets People’s handicaps exploited. should not be and purposes, fulfil these we to exception part also to of the take that it in other instances. declined confine disap- majority opinion expresses which Roberson, 675, 486 U.S. Arizona v. See police the proval regarding the behavior of (1988). 2093, L.Ed.2d 108 S.Ct. 100 704 harmless constitutional detective. While efficacy from the of the It would detract may possible Chapman error be under protections based on rule to remove its 18, 23, 87 California, 386 U.S. State consultation with counsel. 827, 705, 824, reh’g 17 L.Ed.2d denied S.Ct. 111 S.Ct. at 491-92. Id. 1283, 87 S.Ct. 18 L.Ed.2d U.S. the ad- strategy employed The obtain leads any intentional behavior which bring not these mission from does Johnson Chapman analysis for a should need province of events within the waiver police The discouraged. behavior protections such as when Fifth Amendment intention- appears detective to have been might accused reinitiate the discus- the places at al—such behavior the conviction no doubt that the sions. There can be judi- of reversal. I believe the serious risk by was interrogation question initiated system Repub- cial a disservice to the does was a formal inter- police the detective—it discount, silence, by lic such when we our compelled at- was view which Johnson governmental inappropriate by behavior re- specific Since made tend. Johnson employees. quest for and had obtained counsel before Second, the police I believe detective’s interroga- interview, police-initiated the the right Fifth violated a Amendment behavior impermissible. was Johnson’s state- tion involving only a to counsel rather than clearly is inad- ment to Detective Stanford Amendment counsel as indi- Sixth principles Minnick. missible under opinion. Minnick, majority cated by the misshapes It the facts this case at 487 held that counsel S.Ct. “[w]hen compulsion were suggest that coercion and cease, requested, interrogation is must jail, needed present. he not Johnson interrogation officials reinitiate living normal and there or not present, without counsel whether original that cus- no evidence that he knew his attor- accused has consulted with from tody ney.” upon had been obtained the Fifth Minnick was based police. The apartment by victim’s to counsel. Under Amendment activity by subterfuge, majority opinion, then as it pursued facts revealed was, interrogation initiated police was not make detective use, being present. which counsel glasses available for Johnson’s without Johnson’s Minnick, (quoting at 490 Mi- not, did to authenticate but rather 1623). at randa, 384 U.S. 86 S.Ct. interrogation. trial evidence coercive error, purpose to sence of spotlighted the common Ed- the verdict would have “ Miranda, which is to ‘insure wards and appellant.” been more favorable to (Citing government- that statements made in the Campbell (Wyo. 589 P.2d atmosphere product established are not the 1979).) If Campbell did elicit concept, ” compulsion.’ just it was then and is wrong. now plain majority proceeds result-emplaced then with what I The basis for a harmless believe has to be a Minnick violation constitutional error rule was specifically Chapman analysis sufficient to obviate re directly rejected in Chapman and the majority versible error. The holds right principle substantial applied. Any against appellant “the state’s evidence is so statement taken Campbell from the case overwhelming that the error is harmless directed to result and not to affect cannot beyond a reasonable doubt.” The United scrutiny withstand a constitutional disapproved States Court of this inquiry, violation Campbell dissent “overwhelming approach evidence” clearly analysis correct in Chap Chapman, 386 U.S. at 87 S.Ct. at 827. application. man The same result remains “ question ‘The is whether there is a rea today. reemphasized true That rule was possibility that sonable the evidence com Texas, 249, 258-59, Satterwhite v. plained might of have contributed to the 1792, 1798-99, 108 S.Ct. 100 L.Ed.2d 284 ” 23, Chapman, conviction.’ 386 U.S. at 87 (1988) (quoting Chapman, 24, 386 U.S. at (quoting S.Ct. at 827 Fahy v. State Con of emphasis added) 87 S.Ct. at 828 and as necticut, 85, 86-87, 229, 375 U.S. 84 S.Ct. examining “whether the proved State has 230, (1963)). 11 L.Ed.2d 171 In the absence ‘beyond a reasonable doubt that the error proof from which a foundation for intro complained of did not contribute to the duction of the into evidence could ” verdict obtained.’ See likewise Rose v. obtained, a character of non-contribution Clark, 570, 578, 3101, 478 U.S. 106 S.Ct. required for constitutional error absolution 3106, (1986) 92 L.Ed.2d 460 (quoting Chap surely implied cannot be into this case. man, 24, 386 U.S. at 87 S.Ct. at 828 and Speculation as to what investigation other added), emphasis where the United States and identification could have made the Supreme again emphasized Court admissible into evidence the test introduces “ significant a bundle of unknown and non- constitutional error is that it ‘did not ’ ” evidentiary hypothetical straws into the contribute to the verdict obtained and completed product which was the verdict of 499, v. Hasting, United States 461 U.S. conviction.2 506, 1974, 1979, 103 S.Ct. 76 L.Ed.2d 96 (1983) (citing 86-87, Fahy, 375 U.S. 84 greater There is mischief to be observed 230-31) S.Ct. at which was the case where reading majority opinion than what recognized the rule also appears presented. substantive to be In the last sen right, covering plausibility tence this issue it not the of a is stated different “[tjhere that, possibility verdict, is Furthermore, in the ab required as the test. pure I empirical practice prosecution am not satisfied that a harmless error unless a Chapman appropriate examination is in these and clear defined Edwards waiver is demonstra interrogation Chapman, cases of of a defendant without ble. See 37 S.Ct. at 828 n. 8. Two of presence attorney already examples rights of his who had the three of constitutional so representation. commenced It would seem that basic to a fair trial that their infraction can anything evidentiary obtained of value which implicat never be treated as harmless error are confessions, sufficient to be Payne admitted into evidence as rele ed here. Those are coerced and, Arkansas, 560, 844, vant and material should be excluded con v. State U.S. 356 78 S.Ct. 2 versely, wrongfully (1958); counsel, testimony if the obtained L.Ed.2d 975 v. Gideon tests, relevancy materiality Wainwright, does meet such 372 U.S. 83 S.Ct. 9 beyond (1963); impartial judge, evidence cannot be considered to be Tumey L.Ed.2d 799 Ohio, possibility criteria of a reasonable of contribu v. State 47 S.Ct. 71 (1927). probative tion to noteworthy conviction. If the evidence is L.Ed. 749 It is also admissibility, probative weight strongly it is to add even within the stated of Justice dissent Minnick, accomplish premised conviction. Information obtained Scalia in er, which was on waiv by police represented possible application from a Chapman defendant harmless simply should presented. not be admissible in evidence was never as error rejection under issue, justifies countervailing that a like result was with this

at least Arsdall, First, 404(b) perceive I v. thesis. Van W.R.E. found Delaware 1431, 1435, 89 106 S.Ct. this court for admissi- U.S. double standard det an “outcome where evidence, L.Ed.2d bility whether tendered rejected as prejudice was erminate” Essentially, prosecution or defense. for violation reversible error test of than that used inquiry was no different Mahorney also Clause. See Confrontation regarding conviction of against Johnson Cir.1990). (10th Wallman, 917 F.2d P.2d prior Gentry offenses. Justice, dissent- protec- (Wyo.1986), Urbigkit, try to restrict may This court Constitution, but it Wyoming ing. significance from a defense tion of the recognition that ignore case, surely although tough cannot standpoint within the Constitution, applied the United States defend, prior that a at best to Court, is the the United States or, report made have been could factu- supreme of the land. One law complaint was false. Campbell as a misidenti- ally differentiate cursory disposi agree with the neither controversy from a basic constitu- fication subject of lack of tion of this on the basis review, subject which is the tional issue argument in basis for cogent switch presented of coerced confession here recognition providing pro decision forma of the uncon- counsel. Admission reason for the decision that the stated incriminatory testi- stitutionally obtained wrong. At issue was a the trial court was requires and retrial.3 mony reversal challenge credibility by impeachment EXAMINATION III. LIMITATION OF the witness. Result-oriented absolution A WITNESS TO IMPEACH relevancy or remoteness could based on greater validity, but not the basic prose- attempted impeach Johnson impeach by challenging credibility. pri- a contended regarding cutorial witness 608(b). State, Story 607 and See v. W.R.E. allegedly made of complaint that she 1020, (Wyo.), P.2d 1038 cert. denied 721 rejection of The trial court assault. sexual 962, 459, 479 107 S.Ct. 93 L.Ed.2d 405 U.S. denied evidence after the witness available (1986); Chapman 638 P.2d v. 1280 clearly improper if the occurrence was Alaska, (Wyo.1982); and v. 415 U.S. Davis rape pre- shield concept on the based 308, 1105, (1974). now 94 39 L.Ed.2d 347 6-2-312. This court clusion. W.S. law, 3. Illustrative of the presented Under California error in a criminal issues is the offer Whitt, case is considered harmless unless the defen- People proof bypass v. decision of “miscarriage 252, show it resulted in a 620, dant can Cal.Rptr. 798 P.2d 849 Cal.3d 13; Const., VI, (Cal. justice.” People art. v. § (1990), Skipper error was at issue. where a Archerd, 397, Cal.Rptr. 3 Cal.3d Carolina, 1, Skipper 106 S.Ct. v. South (1970).) This means the defen- 477 P.2d 1669, (1986). Justice Mosk of the 90 L.Ed.2d 1 dant must demonstrate that without the error Court, Supreme California in concurrence reasonably probable "it is a result more favor- dissent, stated: able" to the defendant would have been Chapman, a federal constitu- Under "before Watson, (People reached. 46 Cal.2d harmless, court can be held tional error (1956).) Chapman 299 P.2d 243 declare a belief that it was must be able to 18, 23-24, California, 386 U.S. 87 S.Ct. (386 beyond a doubt.” harmless reasonable 827-828, 17 L.Ed.2d the United 828.) p. p. The "burden U.S. at 87 S.Ct. at rejected States "miscarriage Court California's proof’ prejudice rests on the state. as to justice” inappropriate test as * * * error, error, "Certainly constitutional evaluating federal constitutional error. person preju- casts on someone other than the Chapman, beneficiary "the of a [feder- Under diced it a to show that it was burden prove beyond constitutional error” must al] * * beneficiary of a consti- harmless *. [T]he complained doubt "that the error reasonable beyond prove required] to tutional error [is did not contribute to the verdict obtained.” of (Ibid.) complained Thus, error reasonable doubt that the the error violates the fed- when Constitution, obtained.” did not contribute to the verdict eral the defendant need not rather, (Ibid.) prejudice; prosecution must show Whitt, prejudice. Then Justice Kennard establish the absence of 798 P.2d at 876. (emphasis original). at 880-881 added: Id. CONCLUSION IV. advanced

Among the several issues reversal of his seeking to obtain

Johnson trial on his and obtain a new

life sentence conviction, three issues

rape there are particular I con- which am left with

about permanent Wyoming effect on law

cern in Wyoming by this ma-

and the Constitution analysis Obviously, and decision.

jority’s

the Minnick reanalysis reapplication

longstanding principles constitutional basic singularly significant the most and con- severely troubling. Di-

sequently the most questions

rect about enforcement of both Wyoming Constitution and the Fifth

and Sixth Amendments to the United provided

States Constitution are within our I

agenda in this decision. conclude that proper majority only not misstates the

tests, misapplies concept but then whatever justification in

is then used to find absolv-

ing constitutionally prohibited investigato- overreaching. badly here

ry We write funda-

only to decide this case as involves interests,

mental constitutional but also to

prepare jus- and instruct for the future in operation delivery system

tice and court

decision.

Consequently, respectfully dissent. JENNINGS, Appellant

Tomi E.

(Defendant), Wyoming, STATE (Plaintiff). Appellee

No. 90-58. Wyoming. Court of

March

Case Details

Case Name: Johnson v. State

Court Name: Wyoming Supreme Court

Date Published: Mar 4, 1991

Citation: 806 P.2d 1282

Docket Number: 89-283

Court Abbreviation: Wyo.