Engberg v. Meyer

URBIGKIT, Chief Justice,

dissenting in part and concurring in part.

This post-conviction-relief appeal provides this court’s second consideration of Roy Lee Engberg’s conviction and death sentence for the murder of a Wells Fargo guard delivering money to a grocery store in Casper, Wyoming. I dissent in this second absolution of trial and appellate advocacy errors involved in conviction and concur with the opinion of Justice Cardine in death penalty reversal.

I.

HISTORY OF THE PROCEEDINGS AND ISSUES PRESENTED

Following jury verdict and death sentence, initial appeal was taken with five issues stated: (1) right to individual voir dire of jurors; (2) peremptory challenges used to create a death qualified jury; (3) insufficient evidence of intent to kill to justify the death penalty; (4) duplicate use of robbery and an offense committed for pecuniary gain as aggravating factors; and (5) proportionality of the death penalty.

In Engberg v. State, 686 P.2d 541, 544 (Wyo.), cert. denied 469 U.S. 1077 , 105 S.Ct. 577 , 83 L.Ed.2d 516 (1984) (Engberg I), this court observed that “[t]he only factual issue at the trial of this case was the identity of the perpetrator.” In decision, this court found “[t]he desideration and methodology of voir dire examination of the jurors” was discretionary. Id. at 547 . On the second issue, use of peremptory challenges going beyond Witherspoon expendables, Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 , reh’g denied 393 U.S. 898 , 89 S.Ct. 67 , 21 L.Ed.2d 186 (1968), we said:

Within the limits imposed by Swain v. State of Alabama, supra [ 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 , reh’g denied 381 U.S. 921 , 85 S.Ct. 1528 , 14 L.Ed.2d 442 (1965)], peremptory challenges must be recognized as partisan in nature and idiosyncratic in application. They are part of the tools of interested and able advocates. As such they always have been viewed as wholly discretionary and beyond inquiry with respect to motivation and intention.

Engberg I, 686 P.2d at 549 . The intent to kill issue was addressed by this court in decision that intentional homicide would *97 not be a requirement for the felony murder death penalty sentence.

The most significant issue addressed in Engberg I was dual use of murder for pecuniary gain and robbery as distinct aggravating circumstances. In validating the instruction, this court concluded that “the rule [permitting submission of both as separate circumstances] is premised upon an assumption that the number of aggravating circumstances has some independent significance.” Id. at 553 . This was the thesis of aggregating numerically aggravating circumstances. Finally, Engberg I determined that the death penalty was neither excessive nor disproportionate when compared with other capital cases in Wyoming. Id. at 555 .

Initial appellate briefing was apparently prepared by law school students in the Defender Aid Program at the University of Wyoming. The appellate attorney in the public defender’s office left that position and new counsel filed a petition for rehearing first presenting what is now the Lockhart-Lowenfield issue, Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied 474 U.S. 1013 , 106 S.Ct. 546 , 88 L.Ed.2d 475 (1985); Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 , reh’g denied 485 U.S. 944 , 108 S.Ct. 1126 , 99 L.Ed.2d 286 (1988), of use of the aggregative factor to achieve the felony murder status and then use of the same factor for an aggravating death penalty circumstance. The issue was foreclosed to Engberg by the denial of the petition for rehearing.

In this second appeal (Engberg II), following trial court denial of post-conviction relief, we are now presented with a 212-page appellant brief stating additional or differently phrased issues:

ISSUE 1

* * * the court’s refusal to permit appellant to call an expert on eye-witness identification was error which deprived appellant of his right to a fundamentally fair trial and his right to compulsory process.

ISSUE 2

* * * the State’s failure to disclose its use of hypnosis as means of enhancing Kay Otto’s memory violated its ethical obligations and denied appellant his right to due process of law, his right of confrontation, and his right to effective assistance of counsel.

ISSUE 3

(a) * * * appellant was denied due process of law by the extradition procedure used to bring him to Wyoming such that the proceedings here must be declared null and void.

(b) * * * appellant was denied due process by the introduction of evidence that he had to be beaten by the police officers who arrested him in order to prevent him from fleeing.

ISSUE 4

* * * the State’s introduction of evidence showing that appellant frequently used aliases denied him his right to a fundamentally fair trial.

ISSUE 5

(a) * * * appellant’s rights under the Fifth Amendment to the United States Constitution and Article 1, § 11 of the Wyoming Constitution were violated when evidence that he refused to wear a stocking cap so that he could be photographed was introduced at his trial and argued as evidence of guilt.

(b) * * * appellant’s right to confront witnesses was denied him by the court’s refusal to permit cross-examination of the police officer who photographed him concerning appellant’s medical condition.

ISSUE 6

(a) * * * a defendant’s spouse can invoke spousal privilege and decline to testify when the defendant seeks to have the spouse testify.

(b) * * * the Sixth Amendment to the United States Constitution and Article 1, § 10 of the Wyoming Constitution were violated by the trial judge’s erroneous *98 ruling that appellant could not call Donna Engberg as a witness, cross-examine her, nor introduce her prior statements for impeachment purposes.

(c) * * * a defendant’s spouse who refuses to testify is an unavailable witness whose hearsay statements may be admitted into evidence.

ISSUE 7

* * * the use of a conclusive presumption to convict appellant of first degree murder is plain error and requires reversal of the conviction.

ISSUE 8

* * * appellant’s rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution were violated by the introduction of evidence seized by the police during a warrantless search of appellant’s trailer.

ISSUE 9

* * * the testimony of the ballistics expert was incompetent and should have been disregarded, and should be disregarded now, and thus whether there is insufficient evidence to support the conviction.

ISSUE 10

(a) * * * the prosecution’s use and manipulation of the press prior to appellant’s trial deprived appellant of his right to a fair trial.

(b) * * * appellant’s right to effective assistance of counsel was denied him by his initial court-appointed attorney’s failure to combat the prosecution’s misuse of the media.

ISSUE 11

* * * the trial court’s failure to excuse venireman Alberts for cause deprived appellant of his right to a fair trial by an impartial jury.

ISSUE 12

* * * the voir dire procedure used at appellant’s trial denied him his right to a fair trial by an impartial jury.

ISSUE 13

(a) * * * the introduction of evidence in the penalty phase that appellant had escaped from the authorities in Missouri denied him his right to due process and a fundamentally fair finding that the death penalty should be imposed.

(b) * * * j.jje prosecutor’s closing argument in the penalty phase of the trial deprived appellant of his right to due process and fundamentally fair trial when the prosecutor argued appellant needed to be executed in order to restrain him and when the Wyoming Supreme Court has previously recognized that kind of argument is only proper where the heinous, atrocious, or cruel aggravating circumstance is involved.

ISSUE 14

* * * the court’s refusal to permit appellant the opportunity to present evidence of a mitigating circumstance, the cruelty of the manner of execution, denied appellant his right to due process of law and a fundamentally fair finding to impose the death penalty.

ISSUE 15

* * * appellant’s right to due process and to be free from cruel and unusual punishment was violated by the statutory presumption in favor of death under Wyoming law which requires the defendant to bear the burden of demonstrating that sufficient mitigating circumstances outweigh the aggravating circumstances so as to warrant leniency.

ISSUE 16

* * * appellant’s right to be free from cruel and unusual punishment and to due process were violated by the jury’s finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery *99 when the robbery had already been used to elevate the crime to capital murder.

ISSUE 17

* * * the cumulative nature of the error is such that, regardless of the harmlessness of any one error, together they prejudiced appellant’s rights to due process, fundamental fairness, and a reliable determination that the death penalty should be imposed.

ISSUE 18

* * * appellant was afforded [ineffective assistance of counsel during his appeal to the Wyoming Supreme Court.

ISSUE 19

* * * it was improper for the office of the attorney general to represent the State in post-conviction proceedings to urge that an assistant attorney general’s proper representation was a procedural bar to the issues raised in appellant’s petition for post-conviction relief.

ISSUE 20

* * * this court’s discussion and holding in prior cases with regard to petitions for post-conviction relief ignore the plain and obvious statutory language and establish a procedure which is violative of fundamental fairness[,] due process and equal procedure [sic] and whether it has established a confusing and unworkable process wherein courts simply dismiss petitions for post-conviction relief to get rid of them.

The State frames these issues as:

Argument I

Was there error in the procedures followed in the lower court on Engberg’s petition for post-conviction relief?

Argument II

Was it error to admit evidence of consciousness of guilt at trial?

Argument III

Was Engberg’s motion to suppress evidence seized at the trailer properly denied?

Argument IV

Did any impropriety or illegality in Eng-berg’s extradition to Wyoming affect the jurisdiction of the Wyoming courts?

Argument V

Was Engberg denied a fair trial due to pretrial publicity; was Engberg denied effective trial counsel due to pretrial publicity?

Argument VI

Was the jury selection process * * * proper?

Argument VII

Was the admission or exclusion of expert testimony discretionary and did the exercise of that discretion affect a constitutional right in this case?

Argument VIII

Was Engberg deprived of a fair trial, due process or confrontation by the failure of the State to disclose Kay Otto’s contact with a hypnotist?

Argument IX

Was Engberg denied due process by the trial court’s ruling that his spouse had a privilege not to testify?

Argument X

Was evidence of Engberg’s status as an escapee properly admitted in the penalty phase; was the prosecution’s closing argument at the penalty phase proper?

Argument XI

Was Engberg’s proffer of evidence in “mitigation” to show the effects of lethal gas, etc., properly excluded; is this issue moot?

Argument XII

Is there a presumption in favor of the death penalty under Wyoming statutes in violation of due process or cruel and unusual punishment?

Argument XIII

Was the jury * * * properly instructed as to statutory aggravating circumstances; was Engberg denied due process or subjected to cruel and unusual punishment?

Argument XIV

Did Engberg receive effective assistance of counsel on appeal?

*100 Argument XV

Does the cumulative nature of any errors in this case warrant relief?

Argument XVI

Is the attorney general’s entire staff disqualified from post-conviction proceedings because one of Engberg’s four attorneys on direct appeal has since become an assistant attorney general? M

II.

FACTS

Vernon Rogers and his sister, Kay Otto, employed by Wells Fargo, were making an armored van money delivery to a grocery store in Casper. The two left the store to find themselves face to face with a man armed with a gun. Vernon Rogers was almost instantly shot and killed in front of his sister and the robber escaped with a bag of money. About a week later, Eng-berg was arrested while drunk in Las Vegas, Nevada on New Years Day following a family violence complaint by his wife. The injury Engberg received from the police during arrest required both hospitalization and a surgical operation.

Engberg was eventually brought to Wyoming and charged with premeditated murder and felony murder. During the trial, Engberg was denied the right to call his wife as his witness when the trial judge incorrectly applied federal rather than controlling state law on testimonial privilege. Additionally, he was denied the opportunity to introduce expert witness testimony on the potential for error in eyewitness identification. Furthermore, Engberg and his attorney were kept unaware that the police attempted to have the principal eyewitness hypnotized to enhance her memory. Eng-berg was convicted of felony murder and aggravated robbery and sentenced to death on the murder conviction and a consecutive term of twenty-five to thirty years on the robbery conviction. 2

III.

SCOPE OF REVIEW

A. Introduction and Outline

Consideration of this death penalty appeal within the limited issues raised on initial appeal and the broad based attack now made in post-conviction relief requires application of three different concepts. First, the heightened scrutiny standard of review for death penalty cases requires recognition. Second is the limitation that post-conviction relief addresses a constitutional issue which is found in this case to be primarily ineffectiveness of appellate counsel in failure to raise the issues in initial appeal. Finally, constitutional forfeiture by procedural default is presented in contended waiver by the omission of appellate counsel in the initial appeal since Cutbirth v. State, 751 P.2d 1257 (Wyo.1988) must also be considered. I cannot join the majority of this court for guilt phase reso *101 lution which justifies the conviction by a combination of our absolution and denial of procedural default committed by both trial and appellate counsel.

This court should assess these concepts within post-conviction-relief review standards applicable to a capital case. I will pursue the substantive issues, including denied testimony of Engberg’s wife, expert eyewitness identification and hypnotism of a witness. Other Engberg II issues will only be considered to the extent that consideration will be helpful for future cases, although I will not significantly reconsider the issues raised and determined in initial appeal which occurred before I came on this court. This is not a broad based sufficiency of the evidence case but instead confined to post-conviction-relief review of W.S. 7-14-101 through 7-14-108 initially enacted by the Wyoming legislature to address constitutional issues in criminal convictions. Present discussion is developed within a massive body of case law since this homicide occurred and also since the opinion in Engberg I was written. Thousands of appellate death penalty decisions have been published and segmented issues, penalty or guilt, have been addressed by the United States Supreme Court in at least thirty significant decisions. 3

B. Scope of Review in Death Penalty Cases

When the penalty of execution is provided for criminal punishment, this court should consider assignments of error now first presented under the same standard used by the supreme courts of Utah, Louisiana, and Ohio. These courts carve out a death penalty exception to their contemporaneous objection rule.

The State responds to a number of defendant’s claims of reversible error by urging this Court not to consider or rule on such claims because they were inadequately preserved at trial. We decline to adopt that approach and instruct the State to hereafter brief all issues on their merits in death penalty cases.

A general rule of appellate review in criminal cases in Utah is that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal. As early as 1931, however, this Court recognized an exception to the general rule governing the scope of appellate review in criminal cases where the death penalty was imposed. * * * Nevertheless, because of the serious and permanent nature of the penalty imposed in such cases, there needs to continue to be a death penalty exception to the contemporaneous objection rule. Accordingly, this Court has customarily considered assignments of error which were not preserved at trial but were raised and briefed for the first time on appeal.

1 * 4< * 4c 4c 4c

* * * [W]e have the sua sponte prerogative in such cases to notice, consider, and correct manifest and prejudicial error which is not objected to at trial or assigned on appeal, but is palpably apparent on the face of the record. Not only is such standard in keeping with controlling statutory and case law, but it also furthers the policy of safeguarding a defendant’s right to a fair trial in a death penalty case by permitting review of the proceedings below even in the absence of compliance with procedural technicalities.

State v. Tillman, 750 P.2d 546, 551-53 (Utah 1987) (footnotes omitted and emphasis added). See Furman v. Georgia, 408 U.S. 238, 306 , 92 S.Ct. 2726, 2760 , 33 L.Ed.2d 346 , reh’g denied 409 U.S. 902 , 93 *102 S.Ct. 89 , 34 L.Ed.2d 164 , reh’g denied 409 U.S. 902 , 93 S.Ct. 89 , 34 L.Ed.2d 163 , reh’g denied 409 U.S. 902 , 93 S.Ct. 90 , 34 L.Ed.2d 164 (1972), Stewart, J., concurring; Reid v. Covert, 354 U.S. 1, 65 , 77 S.Ct. 1222, 1262 , 1 L.Ed.2d 1148 (1957), Harlan, J., concurring; Hamblen v. State, 527 So.2d 800, 808 (Fla.1988), Barkett, J., dissenting; State v. Bay, 529 So.2d 845 (La.1988); and State v. Kirkpatrick, 443 So.2d 546 (La.1983), cert. denied 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 847 (1984). The Louisiana Supreme Court uses the same standard and holds that “in cases where the death penalty is imposed, this Court reviews assignments of error not briefed as a matter of policy.” Kirkpatrick, 443 So.2d at 553 . The Supreme Court of Ohio phrases their approach similarly:

Our analysis begins by addressing the propositions of law advanced by appellant. Because of the gravity of the sentence that has been imposed on appellant, we have reviewed the record with care for any errors that may not have been brought to our attention. In addition, we have considered any pertinent legal arguments which were not briefed or argued by the parties.

State v. Williams, 38 Ohio St.3d 346 , 528 N.E.2d 910, 914 , reh’g denied 39 Ohio St.3d 717 , 534 N.E.2d 93 , cert. denied 489 U.S. 1040 , 109 S.Ct. 1176 , 103 L.Ed.2d 238 , reh’g denied 493 U.S. 948 , 110 S.Ct. 355 , 107 L.Ed.2d 343 (1989) (emphasis added). In similar summation, see State v. Bey, 112 N.J. 45 , 548 A.2d 846 (1988). For a broad perspective, see Ledewitz, Procedural Default in Death Penalty Cases: Fundamental Miscarriage of Justice and Actual Innocence, 24 Crim.L.Bull. 379 (1988). 4

The New Mexico Supreme Court recently stated in State v. Henderson, 109 N.M. 655 , 789 P.2d 603, 607 (1990):

“[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Caldwell v. Mississippi, 472 U.S. 320, 329 , 105 S.Ct. 2633, 2639 , 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. [992] at 998-99, 103 S.Ct. [3446] at 3452 [ 77 L.Ed.2d 1171 (1983)]).

The foundational Wyoming judicial legacy is not inapposite. Indeed, traditional Wyoming jurisprudence found greater value in affirming a death sentence only with caution than in devotion to procedural technicalities. In State v. Morris, 41 Wyo. 128, 146-47 , 283 P. 406, 411 (1929) (emphasis added), Justice Riner indicated:

But the familiar rule heretofore announced by this court in Parker v. State, 24 Wyo. 491 , 161 P. 552 [(1916)]; Cirej v. State, 24 Wyo. 507 , 161 P. 556 [ (1916) ]; and Ohama v. State, 24 Wyo. 513 , 161 P. 558 , [(1916)], touching the failure to save exceptions to prejudicial rulings and instructions in capital cases, should, we think, govern here. Under that rule, which we believe to be a wholly salutary one, it is our duty to consider and determine the effect of [the contended error] attacked by appellant in his brief, as before indicated.

The editor in 5 ABA Remand Nos. 3-4, Review of Capital Cases: Should Death Make a Difference?, at 1 (1990) stated:

“What is this mystery that men call death?” The question broached by poet Jerome Bell is much on the minds of appellate judges these days. In state and federal circuits where the death penalty exists, judges are finding that capital cases impose extraordinary demands upon their time, their emotions and their intellectual resources.

*103 In the abstract, capital cases are like other forms of litigation. They require appellate courts to apply legal principles to facts found at the trial level. Yet these cases, where life hangs in the balance, are akin to the “great” cases described by Justice Holmes, where “immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Securities Co. v. United States, 193 U.S. 197, 400-01 [ 24 S.Ct. 436, 468 , 48 L.Ed. 679 ] (1904). 5

The significance occurs here not in contended omissions by very competent trial counsel, but in failure of appellate counsel on first appeal to present issues clearly developed in the trial. Harris v. Reed, 489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989); Evitts v. Lucey, 469 U.S. 387 , 105 S.Ct. 830 , 83 L.Ed.2d 821 , reh’g denied 470 U.S. 1065 , 105 S.Ct. 1783 , 84 L.Ed.2d 841 (1985); Comment, Harris v. Reed: A New Look at Federal Habeas Jurisdiction Over State Petitioners, 58 Fordham L.Rev. 493 (1989).

The finality of capital punishment mandates that states insure reasonable, rational and fair procedures when imposing it, State v. Bolder, 635 S.W.2d 673 (Mo.1982), cert. denied 459 U.S. 1137 , 103 S.Ct. 770 , 74 L.Ed.2d 983 (1983) (citing Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 , reh’g denied 429 U.S. 875 , 97 S.Ct. 198 , 50 L.Ed.2d 158 (1976)), and adequate assistance of counsel constitutes the first constitutional requirement. Wyo. Const, art. 1, § 6, due process of law; Wyo. Const, art. 1, § 10, right of accused to defend. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299 (1983) and Comment, The Ohio Supreme Court’s Move Toward Quality Control of Court-Appointed Counsel for Indigent Defendants Charged With Capital Offense Crimes, 21 Akron L.Rev. 503 (1988).

C. Constitutional Right Forfeiture By Procedural Default

Although my disagreement is well stated therein, constitutional forfeiture by procedural default as defined in Cutbirth, 751 P.2d 1257 cannot be morally or constitutionally ignored here. See also Murray v. State, 776 P.2d 206 (Wyo.1989); Kallas v. State, 776 P.2d 198 (Wyo.1989); and Amin v. State, 774 P.2d 597 (Wyo.1989). Within the strictures of Harris, 109 S.Ct. 1038 , this court is required to address constitutional ineffectiveness of appellate counsel. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , reh’g denied 467 U.S. 1267 , 104 S.Ct. 3562 , 82 L.Ed.2d 864 (1984) for illustration of the failure of the attorneys responsible to brief and present obvious claims of trial error on initial appeal. Any application of the Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 , reh’g denied 434 U.S. 880 , 98 S.Ct. 241 , 54 L.Ed.2d 163 (1977) cause and prejudice factors as presently denominated in Cutbirth will not be ignored within the trial issues which are hereinafter substantively discussed in detail.

On one issue, for example, where the attorney general admitted error in oral argument, it would not have been unreasonable for the importance and pervasiveness of the subject to have been recognized by Engberg’s law school and public defender representation considering the singular exposure it had at trial. Furthermore, by reversal and remand, we should not only here but as we did in Jones v. State, 777 P.2d 54 (Wyo.1989) recognize prejudice. The egregiousness of the Jones problem for this case was highlighted by parading Engberg’s wife, previously identified in opening statement by the prosecutor to have turned in her husband in the Nevada police complaint, to then appear openly at the guilt phase of the trial and refuse to testify before the jury. In Jones, TU P.2d at 60, we said:

*104 Under the circumstances of this case the invoking of the Fifth Amendment in the jury’s presence by Keeler and Haef-ner, who the jury at least suspected to be alleged co-conspirators with appellants in the attempted murder, was too strongly prejudicial to be overcome by a cautionary instruction. We cannot consider this error harmless. The jury could easily have inferred, and the only purpose this testimony could have served was to demonstrate, that the witnesses were invoking the Fifth Amendment because they were guilty of the underlying conspiracy. The probability that the jury could reasonably infer an admission of guilt through a transfer process to appellants is highly prejudicial. Because of the extreme probability of transference, the calling of Keeler and Haefner added critical weight to the prosecution’s case by creating the quintessential inference of guilt not clearly elicited through other testimony at trial.

For Engberg in trial perspective, the participation by his wife in the “flight to Las Vegas” accentuated the suggestion persuasively created by open presentation and non-testimony at trial that she would have only confirmed guilt if her testimony had been permitted. Of no less importance, the very serious death penalty phase trial defect questions will be avoided by retrial under the present statute.

IV.

INEFFECTIVENESS OF COUNSEL

To the extent that within this present society denominated by greed, characterized by cruelty and energized by extremism, leaving little to be actually shocking, a current article, Berger, The Chiropractor as Brain Surgeon: Defense Lawyering in Capital Cases, XVIII N.Y.U.Rev.L. & Soc. Change 245, 249-54 (1990-91) (quoting Minority Report of Stephen B. Bright, Toward a More Just and Effective System of Review in State Death Penalty Cases: Recommendations and Report of the ABA Task Force on Death Penalty Habe-as Corpus app., at A-38 (1989) and Powell v. Alabama, 287 U.S. 45, 69 , 53 S.Ct. 55, 64 , 77 L.Ed. 158 (1932)) (emphasis in original and footnotes omitted), is profoundly shocking in two illustrative segments:

Some attorneys (undoubtedly those in House [v. Balkcom, 725 F.2d 608 (11th Cir.), cert. denied 469 U.S. 870 , 105 S.Ct. 218 , 83 L.Ed.2d 148 (1984)] and Mitchell [v. Kemp, 762 F.2d 886 (11th Cir.1985), cert. denied 483 U.S. 1026 , 107 S.Ct. 3248 , 97 L.Ed.2d 774 (1987)]) are simply incompetent. Approximately 90% of capital defendants are poor, and the poor all too frequently are represented by the incompetent or inexperienced. Amazingly, one-quarter of Kentucky’s death row inmates had trial attorneys who have since been disbarred or resigned rather than face disbarment!

******

* * * Put in a nutshell, it is possible that much of this country simply lacks the political will to stop the type of travesty embodied in cases such as House and Mitchell.

Yet, stop it we must. To quote Steve Bright, the death-penalty expert who served as Tony Amadeo’s lawyer in the Supreme Court: “There are many small communities that do not have surgeons. But that does not mean that we allow chiropractors to do brain surgery in those communities.” We do, however, let “chiropractors” with law degrees perform the equivalent of brain surgery in capital cases and, predictably, the “patient” often dies. This is intolerable. Whatever the views of particular lawyers might be on the merits of capital punishment, members of the bar should at least support the proposition — accepted since Powell v. Alabama [ 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932)] — that a defendant may not be condemned and sent to his death without “the guiding hand of counsel at every step in the proceedings against him.” In the last decade of the twentieth century, the promise of Powell remains to be kept.

See O’Brien, Addressing the Needs of Attorneys for the Damned, 58 UMKC L.Rev. 517, 518 (1990), where the expression was changed to substitute a podiatrist for the *105 chiropractor. See also Burr, Representing the Client on Death Row: The Politics of Advocacy, 59 UMKC L.Rev. 1 (1990).

Engberg II portrays an inextricable principle of logic enfolding constitutional right forfeiture by procedural default and ineffectiveness of counsel. By definition, if there was a right which was subjected to constitutional forfeiture by procedural default, the represented accused was subjected to ineffectiveness of counsel. Consequently, any contention of constitutional forfeiture always raises an equivalent ineffectiveness issue. The jurist is obligated to substantively analyze the scope of the right defaulted in order to weigh the disposses-sive effect of the failure of counsel to avoid the default invoked error in competent practice. For this reason, we serve justice quicker and better by addressing claimed mistakes in justice delivery system operation directly instead of first raising the specter of constitutional right forfeiture by procedural default and then centering on the required second phase for consideration of why the trial counsel permitted the procedural default to occur. I would eliminate constitutional right forfeiture and procedural default as buzz phrases 6 of denied due process and equal protection in the search for justice and directly examine in one single analysis: what happened, why, was it wrong, and what was its effect.

The packaging into which mistakes, neglect, and sloppy counseling is last stuffed to avoid and ignore its practical harm is the unreality to ignore ineffectiveness of appellate counsel. It is obvious that the Cut-birth, Amin, Murray, and Kallas 7 attachment to Strickland, 466 U.S. 668 , 104 S.Ct. 2052 is embodied in a self-produced justification that conviction should be affirmed without regard for the due process, fairness, and even reasonably error-free proceeding from which the conviction is grasped. To revisit the record is to contemplate the enormity of this capacity to ignore. In actual fact, the guilt phase majority simply does not substantively address the ineffectiveness issue, except as this case was pre-staged by the Cutbirth opinion and followed by Amin, Murray, and Kallas. 8 In most jurisdictions, post-conviction relief is the preferable process to consider ineffectiveness issues and inevitably required where evidence is obtained to challenge the conduct of first appeal appellate counsel. United States v. Pelletier, 845 F.2d 1126 (1st Cir.1988); Williams v. Lockhart, 849 F.2d 1134 (8th Cir.1988); United States v. Griffin, 699 F.2d 1102 (11th Cir.1983); In re Cordero, 46 Cal.3d 161 , 249 Cal.Rptr. 342 , 756 P.2d *106 1370 (1988); Heyward v. State, 524 N.E.2d 15 (Ind.App.1988); Com. v. Moore, 373 Pa.Super. 603 , 542 A.2d 106 (1988); State v. Tooher, 542 A.2d 1084 (R.I.1988). See Osborn v. Shillinger, 861 F.2d 612 (10th Cir.1988).

Appellate counsel, in initial appeal, only presented for review a composite jury inquiry concern embracing in part the With-erspoon expendable issue and individual voir dire for adequacy of prejudicial examination. Then finding intent to kill as an issue, counsel recognized the division of robbery into two circumstances, but not the improvidence of the robbery itself, which then became a proportionality issue. Broad, clear, and well-defined concerns, including both guilt and penalty phase questions, were unnoticed or ignored, not the least of which was the clearly defined Sandstrom issue of the reversed or presumed burden of proof. Any second-year law school student’s familiarity with criminal law should have afforded immediate recognition of the aggravating issue of including robbery in the felony murder as only first raised on petition for rehearing and then summarily ignored by this court. Admittedly, I would find this court to have been procedurally wrong there, as it is substantively wrong now. If what we are presented in totality in this case constitutes effective assistance of counsel, woe to the common litigants who are faced with that standard in seeking justice within this jurisdiction.

To understand the ineffective issue as presented, it is seen that the first appellate counsel found (1) individual voir dire; (2) intent to kill; (3) divided use in penalty or pecuniary gain and robbery; and (4) constitutionality of death penalty. Apparently not seen, but in any event certainly not included initially, were twenty-six subjects presented in post-conviction, including eyewitness identification challenge, undisclosed hypnosis (not available to first appeal), extradition, arrest beating/bad person evidence, alias bad person evidence, refusal to be photographed in hospital as consciousness of guilt, denied cross-examination, spousal immunity, admissible substantive hearsay, Sandstrom conclusive presumption, search and seizure, invalidly used expert, excess prejudicial publicity pre-trial process, misuse of media, voir dire — Witherspoon expandable, prior reputation bad person evidence, prosecutorial misconduct in final argument — need to be killed like animal — evidence of manner of execution as cruel and inhumane, improper burden of proof in penalty phase, double up of divided pecuniary gain and robbery for felony murder to become dual aggravating factors for death penalty, as well as cumulative error. Those subjects as presented could not include the additional present issues of conflict of interest of first appellate counsel (not available to first appeal), in-aneness of Wyoming’s post-conviction relief (not available to first appeal), and ineffectiveness of prior appellate counsel (not available to first appeal). The litany is overwhelming in demonstrated ineffectiveness of counsel for first appeal.

The duplicitous cause and result conclusions derived in Cutbirth cannot academically be emplaced to justify result by preordained conclusion. Osborn, 861 F.2d 612 . Procedural default is inimical to competency of performance. The majority cannot properly ignore the character of appellate counsel nonperformance which occurred in this case and excommunicate those concerns by virtue of the nonperformance, and then say that nothing is left to be considered. Hannon v. Maschner, 845 F.2d 1553 (10th Cir.1988); Robson & Mello, Ariadne’s Provisions: A “Clue of Thread” to the Intricacies of Procedural Default, Adequate and Independent State Grounds, and Florida’s Death Penalty, 76 Calif.L.Rev. 89 (1988). Cf. Harris v. State, 528 So.2d 361 (Fla.1988) (majority and dissent). A reversal of Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied 465 U.S. 1051 , 104 S.Ct. 1331 , 79 L.Ed.2d 726 (1984) by the federal judiciary affirming Osborn v. Shillinger, 639 F.Supp. 610 (D.Wyo.1986), aff'd 861 F.2d 612 (10th Cir.1988), can hardly afford comfort to this court in present conclusions and reasoning in an ineffectiveness of counsel issue now presented in this succeeding death case.

*107 The obvious failure of the appellate attorneys in this case is not dissimilar from trial performance reflected in the Nebraska case of State v. Broomhall, 221 Neb. 27 , 374 N.W.2d 845 (1985) (Broomhall I) where, on direct appeal, the conviction was affirmed on a trial court discretionary decision to deny a continuance to obtain an important witness after due diligence by the defendant’s counsel was not shown. On post-conviction, raising the same lack of due diligence of counsel, the conviction was reversed. State v. Broomhall, 227 Neb. 341 , 417 N.W.2d 349 (1988) (Broomhall II). In that reversal, as a critique of conduct of counsel, the court enumerated:

It is difficult, if not impossible, to understand how the failure to call a highly qualified and apparently credible witness to refute the most important ingredient of the State’s case — witness credibility— could by any stretch of the imagination amount to reasonable trial strategy. Certainly defense counsel did not advance such reason during his testimony.

Broomhall II, 417 N.W.2d at 354 .

Similarly, Justice Mosk addressed this subject in In re Smith, 3 Cal.3d 192 , 90 Cal.Rptr. 1 , 474 P.2d 969, 971-72 (1970) (quoting from People v. Feggans, 67 Cal.2d 444 , 62 Cal.Rptr. 419 , 432 P.2d 21, 23 (1967)):

“Counsel must prepare a brief to assist the court in understanding the facts and the legal issues in the case. The brief must set forth a statement of the facts with citations to the transcript, discuss the legal issues with citations of appropriate authority, and argue all issues that are arguable. Moreover, counsel serves both the court and his client by advocating changes in the law if argument can be made supporting change. * * * a * * *

Judged by the foregoing criteria, representation by the appointed counsel for petitioner before the Court of Appeal was demonstrably inadequate. Indeed, petitioner would have fared better had his attorney withdrawn in favor of a pro se brief from petitioner, despite petitioner’s acknowledged legal ineptitude. In a case bristling with arguable claims of error, petitioner’s counsel filed an opening brief consisting of a 20-page recitation of the facts and a one-page argument. * * *

Of course, an appellate counsel is not to be held responsible for an actual frivolous appeal by his client, and we do not hold that Anders [v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967) ] and Feggans require the advocate to contrive arguable issues. But in the instant action, each of the counts on which petitioner was convicted was potentially vulnerable to legitimate and provocative appellate contentions that should have been manifest to an alert and responsive attorney.

See also In re Cordero, 756 P.2d at 1377 as addressing errors of not only ignoring obvious defenses of impairment, but also failure to object to statement introduction, failure to research and argue defenses of law and failure to introduce evidence of third party ownership of an inculpatory article as described by the court as “failpng] egregiously to pursue the leads and evidence made available to him.”

As illuminated in this case, I find thoughtful theory and powerful persuasion in the critique of David Rudovsky in Rudovsky, The Right to Counsel Under Attack, 136 U.Pa.L.Rev.1965, 1971-72 (1988):

This problem is seriously aggravated by the failure of the courts to establish meaningful standards to test the effectiveness of trial counsel. The most incompetent and indefensible actions of defense counsel are rationalized as tactical decisions. In all too many cases, lawyer-ing that should trouble the collective conscience of the courts and bar is determined to be within the realm of competent assistance.

* * * * * *

* * * I find it somewhat ironic that while we are increasing our ethical demands on defense counsel, we denigrate the central purpose of the sixth amendment: meaningful and effective assistance of counsel.

*108 However, compare the analysis in Hayes v. Lockhart, 852 F.2d 339, 352 (1988), reh’g denied 869 F.2d 358 (8th Cir.), cert. granted and judgment vacated 491 U.S. 902 , 109 S.Ct. 3181 , 105 L.Ed.2d 691 (1989) (quoting from Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir.1987)):

In holding that defense counsel’s representation was not constitutionally deficient, we are mindful that our function is not to insulate trial counsel’s performance from post-trial review and criticism, especially in death penalty cases, for a lawyer’s professional reputation is not to be preserved at the expense of a defendant’s constitutional rights. At the same time, however, we must resist

“the temptation to second-guess a lawyer’s trial strategy; the lawyer makes choices based on the law as it appears at the time, the facts as disclosed in the proceedings to that point, and his best judgment as to the attitudes and sympathies of judge and jury.’’

No counsel is probably not much worse than incompetent counsel. Cf. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429 , 108 S.Ct. 1895 , 100 L.Ed.2d 440 (1988) and Giarratano v. Murray, 847 F.2d 1118 (4th Cir.), cert. granted 488 U.S. 923 , 109 S.Ct. 303 , 102 L.Ed.2d 322 (1988), rev’d 492 U.S. 1 , 109 S.Ct. 2765 , 106 L.Ed.2d 1 (1989), cert. denied — U.S. —, 111 S.Ct. 83 , 112 L.Ed.2d 55 (1990). The Wisconsin process assures that counsel has looked at the record and considered the appeal substantively. Anders v. State of California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 , reh’g denied 388 U.S. 924 , 87 S.Ct. 2094 , 18 L.Ed.2d 1377 (1967). By its very nature, this could not be a first appeal issue even if in the unusual case appropriate there. Turner v. Company, 827 F.2d 526 (9th Cir.1987), cert. denied 489 U.S. 1059 , 109 S.Ct. 1327 , 103 L.Ed.2d 595 , reh’g denied 490 U.S. 1031 , 109 S.Ct. 1770 , 104 L.Ed.2d 205 (1989); Harris v. Reed, 822 F.2d 684 (7th Cir.1987), cert. granted in part 485 U.S. 934 , 108 S.Ct. 1107 , 99 L.Ed.2d 268 (1988), judgment rev’d 489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989); People v. Pope, 23 Cal.3d 412 , 152 Cal.Rptr. 732 , 590 P.2d 859 (1979). “Typically, a claim of ineffective assistance of counsel cannot be raised on direct appeal because its resolution often requires evidence which is not contained in the record on appeal.” Harris, 822 F.2d at 686 . See comprehensive consideration in Osborn, 861 F.2d at 626 n. 13. See also United States v. Long, 857 F.2d 436 (8th Cir.1988) and United States v. Dubray, 727 F.2d 771 (8th Cir.1984).

Another problem strains forth out of this morass. This record is barren of any justification of why the attorney who worked on the initial appeal chose to disregard trial error objections originally established by Engberg’s attorney. Lacking an evidentia-ry foundation for explanation to be provided by hearing which most courts require for ineffectiveness consideration, procedural default apparently anticipates that neither the adequate testimony of the client nor more particularly the testimony of trial counsel should be preserved for review. State v. Hatch, 144 Wis.2d 810 , 425 N.W.2d 27 (1988). See also United States v. Hayman, 342 U.S. 205 , 72 S.Ct. 263 , 96 L.Ed. 232 (1952). This is not the state of this appeal since the record actually shows the specific procedural defaults which, by definition, constitute malpractice and ineffectiveness whenever the omitted issue had any arguable validity in a case such as this death penalty appeal. On this record we can see what did not happen on first appeal. The federal cases teach that “when a court disposes of a [post-conviction relief] petition without a hearing, allegations must be accepted as true except to the extent they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” United States v. Mosquera, 845 F.2d 1122, 1124 (1st Cir.1988). Here, as there, absent requested hearing for explanation of cause for observable ineffectiveness, “[petitioner's allegations are not contradicted by the record.” Id. at 1124 (emphasis added).

At the time of Engberg’s first appeal, as today, the University of Wyoming, College of Law sponsored a law school student defender aid program to provide students with clinical trial experience under the su *109 pervision of a law professor. Appellate counsel for the public defender’s office assigned Engberg’s case to that clinical program for brief writing assistance. Nothing of record now available on this appeal or from documentation furnished on the first appeal reveals who did what in issue analysis or preparation of appellate briefs, but relevant comparisons in scope and strength are informatively valuable. The direct appeal appellate brief for this death case cited forty-five cases, a half dozen texts and considered four issues. A statement of facts occupied thirty-nine pages and legal argument only seventeen more, not including the conclusion. In relative comparison, we are now faced with twenty-six numbered and subcategory issues, in a brief of 212 pages, citation of about 160 cases, with a singular number of pages attached in appendices.

The syllogism as defined within this Cut-birth — Engberg definition of Wyoming justice cannot be utilized for declination to realistically consider basic rights of an individual to be adequately represented. A difficult death penalty case with novel and significant issues was given the most cavalier treatment by both appellate counsel for Engberg and this court on first appeal decision. See Geimer, Law and Reality in the Capital Penalty Trial, XVIII N.Y.U.Rev.L. & Soc. Change 273 (1990-91).

The hard work and perceptiveness of successor appellate counsel is now denied effective consideration to most guilt phase questions by the majority’s application of procedural default resulting from failure and defect of representation by counsel on first appeal. In result, procedural default is then used to deny ineffectiveness of appellate counsel. The majority uses the conclusion to prove the premise and then uses the premise to establish the appropriateness of the result determined conclusion. The anomaly of this case is self-illustrated, but the procedural result in substantive conclusion is far more disturbing. An absurdly insufficient death penalty case brief is filed under at least the primary responsibility of a representative of the office of the public defender. After that representative leaves before completion of appeal, rehearing is denied for an issue which should have been included in the initial brief. Post-conviction relief in reality becomes the only comprehensive and matured appellate process that this death penalty case has before and will now receive in the state court system.

This decision is a classic example of why I would follow the spirit of the post-conviction-relief statute to assure that in criminal cases, all legitimate legal issues relating to post-conviction relief are accorded one substantive review without the existentialism of cause and prejudice so that constitutional rights of the accused do not become synonymous with appellate counsel lawyer bashing and defensive rationalizations of the obvious error, mistake, neglect or ignorance. Williams, 849 F.2d 1134 ; State v. Wiley, 228 Neb. 608 , 423 N.W.2d 477 (1988). How much preferable both to the justice delivery system and to this court would it have been if the State brief and present court could have substantially determined appellate issues instead of determining that prior counsel, for undisclosed reasons, waived those interests of Engberg by failure to initially present in initial appeal? I find in present context at this post-conviction relief juncture that Engberg has an ineffectiveness of counsel — conflict of interest — contention that, for whatever else may be stated, bypasses Cutbirth and mandatorily requires substantive consideration of each appellate issue presently offered.

Osborn, in present context, should teach us that much. A further difficulty exists here in that the State organized its order of presentations in its appeal brief differently from Engberg. Innumerable hours of coordination analysis is consequently required which is saved to the majority by procedural disposition in its constitutional forfeiture versus ineffectiveness of counsel dual decision. Without realistic attention to the real issues, I would not find, under these circumstances of insufficiency of representation on initial appeal, that Cutbirth is controlling since Engberg was neither given personal choice nor a fair hearing which would meet state or federal constitu *110 tional criteria. See Cutbirth, 751 P.2d 1257 , Urbigkit, J., dissenting. This is not the deliberative action waiver of Coleman v. O’Leary, 845 F.2d 696 (7th Cir.), cert. denied 488 U.S. 972 , 109 S.Ct. 507 , 102 L.Ed.2d 542 (1988). See Hardin v. Black, 845 F.2d 953 (11th Cir.1988).

As I stated in dissent in Cutbirth, 751 P.2d at 1292 :

Syllogisms aside, neglect or deficient decision of the attorney is innately prejudicial, and the only question for address is to what extent and with what reasoned result. * * *

******

* * * If pragmatism in result is justified, pragmatism in calling the procedural process what it is will be more appropriate in reason and logic. Knowing the fiction of client waiver, this court poses an irrational burden on the liberty interest of the client to demonstrate effectiveness where stupidity, slovenliness or just lack of reasoned preparation will not necessarily suffice.

The vice of Cutbirth is failure to recognize that procedural default, and particularly so for appellate counsel, does not occur in a vacuum. The action or inaction of brief writing counsel was either intended or unintended, negligent or slothful, misguided or ignorant and by definition if defaulted cannot be wise, thoughtful or intelligently presented. Only what is wrong can be defaulted; what is right cannot be. The majority has not afforded any facts or even viably presented contentions why brief writers on initial appeal in Engberg completely failed to present an adequately planned review as an adequate address for a death case appellate brief. Waiver of the omission of earlier challenge is certainly not here in issue. People v. Ginther, 390 Mich. 436 , 212 N.W.2d 922 (1973); Wiley, 423 N.W.2d 477 ; Moore, 542 A.2d 106 . Moreover, the standard of effectiveness is the same for both appellate and trial counsel. Thompson v. State, 525 So.2d 816 (Ala.Cr.App.1984), aff'd 525 So.2d 820 (Ala.1985), ce rt. denied 488 U.S. 834 , 109 S.Ct. 94 , 102 L.Ed.2d 70 (1988); Heyward, 524 N.E.2d 15 ; Com. v. Knapp, 374 Pa.Super. 160 , 542 A.2d 546 (1988). 9

At a minimum in post-conviction relief, evidence addressing the subject should be developed before the convicted death penalty criminal is assigned the ultimate responsibility of execution or even now a life sentence as a direct result of the sins of omission or commission by counsel. 10 Osborn, 861 F.2d 612 . See also Osborn v. State, 806 P.2d 259 (Wyo.1991). In this case, cross-examination inquiry of brief writers of initial appeal, whoever they were and whatever they separately did, would be informative including time spent, research made, conferences regarding issues, effort expended in review of the original record, and especially why so many clearly developed trial time issues were casually ignored in the appeal. In context, the brief, as then filed, seems to have ended before it *111 began with the foreclosed issue of the constitutional viability of the death penalty. I would uniformly and always reject procedural default absolution of legal malpractice — ineffectiveness of counsel — unless the record is clear on its face that neither ineffectiveness nor malpractice existed, or unless alternatively, the record is comprehensively developed in post-conviction proceedings. Smith v. Wainwright, 777 F.2d 609 (1985), reh’g denied 185 F.2d 1037 (11th Cir.), cert. denied 477 U.S. 905 , 106 S.Ct. 3275 , 91 L.Ed.2d 565 , reh’g denied 478 U.S. 1032 , 107 S.Ct. 12 , 92 L.Ed.2d 767 (1986). As currently witnessed in Jurek, 428 U.S. 262 , 96 S.Ct. 2950 , and more recently revisited in Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 , reh’g denied 487 U.S. 1263 , 109 S.Ct. 25 , 101 L.Ed.2d 976 (1988) death case brief writing is a proper responsibility for the dedicated, experienced specialist and perhaps not for the willing, thoughtful, but untrained college law student. 11

It is in the nature of a recognition of practical experience and training as related to competency that Rule 1.1 of the Wyoming Rules of Professional Conduct for Attorneys at Law was provided. This subject was specifically addressed in United States v. Cronic, 466 U.S. 648, 653-54 , 104 S.Ct. 2039, 2043 , 80 L.Ed.2d 657 (1984) (quoting from Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. I, 8 (1956) and McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 1449 n. 14, 25 L.Ed.2d 763 (1970)) (footnotes omitted):

An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases “are necessities, not luxuries.” Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be “of little avail,” as this Court has recognized repeatedly. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.”

The special value of the right to the assistance of counsel explains why “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.”

The relationship of constitutional right to counsel has been intrinsically woven into the fabric of American society since at least the clarion call of Justice Sutherland in Powell, 287 U.S. 45 , 53 S.Ct. 55 . Not only must we be concerned with the competency of counsel, but also the level of effective assistance from that “competent” attorney. Procedural default in appellate brief omission is the anathema of both performance and competency. Being merely a spectator does not suffice in the death penalty adjudicatory process for the defense counsel. Smith, 111 F.2d 609 . Reasonable competence and undivided loyalty is required. Williams, 849 F.2d 1134 ; Mannhalt v. Reed, 847 F.2d 576 (9th Cir.), cert. denied 488 U.S. 908 , 109 S.Ct. 260 , 102 L.Ed.2d 249 (1988). As is well-stated generally and with specificity by Judge Seymour in Osborn, 861 F.2d at 624 (quoting Strickland, 466 U.S. at 686 , 104 S.Ct. at 2063 ):

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as haying produced a just result.”

That ineffectiveness shown was so egregious that the defendant was in effect denied meaningful assistance in the appellate representation. Cf. Chadwick v. Green, 740 F.2d 897 , 901 n. 5 (11th Cir.1984), as a *112 chronic failure as well as a conceptual investigation of the Strickland, 466 U.S. 668 , 104 S.Ct. 2052 delineation. This is not totally different from the “failure to participate * * * deliberate trial tactic * * Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir.1984). In like accord, see Broomhall I, 374 N.W.2d 845 and Broomhall II, 417 N.W.2d 349 . As there, my imagination does not stretch sufficiently here to justify any strategy for the omitted presentation of appellate issues on initial appeal. This is not dissimilar to trial counsel failure to present mitigative circumstance of mental defect. Stephens v. Kemp, 846 F.2d 642 , reh’g denied 849 F.2d 1480 (11th Cir.), cert. denied 488 U.S. 872 , 109 S.Ct. 189 , 102 L.Ed.2d 158 (1988); Wilson v. Butler, 813 F.2d 664 (5th Cir.1987), cert. denied 484 U.S. 1079 , 108 S.Ct. 1059 , 98 L.Ed.2d 1021 , reh’g denied 485 U.S. 1015 , 108 S.Ct. 1491 , 99 L.Ed.2d 719 (1988); Smith v. Martin, 37 Ohio App.3d 213 , 525 N.E.2d 521 (1987). See also Com. v. Rounds, 518 Pa. 204 , 542 A.2d 997 (1988) (failure to object to testimony of expert witness). See likewise on the conflict of interest denigration of representation, People v. Easley, 46 Cal.3d 712 , 250 Cal.Rptr. 855 , 759 P.2d 490 (1988).

In Palmer v. Dermitt, 102 Idaho 591 , 635 P.2d 955, 960 (1981), the Idaho Supreme Court related that an appeal omission was by counsel, not client:

The allegations of ineffective assistance of prior postconviction counsel, if true, would warrant a finding that the omission in the prior postconviction proceeding of the allegations now being raised anew by Palmer was not a result of an active, knowing choice made by Palmer through this prior court-appointed attorney, and would therefore provide sufficient reason for permitting the newly asserted allegations to be raised in the instant petition. Other jurisdictions have similarly held that a claim of ineffective assistance of appellate counsel or prior postconviction counsel provides sufficient reason to permit newly asserted allegations to be raised in a subsequent post-conviction proceeding. See Sims v. State, 295 N.W.2d 420 (Iowa 1980); Curtis v. State, 37 Md.App. 459 , 381 A.2d 1166 (1978) rev’d on other grounds, 284 Md. 132 , 395 A.2d 464 (1978); Stewart v. Warden, Nevada State Prison, 92 Nev. 588 , 555 P.2d 218 (1976).

Engberg has not been given any post-trial demonstration of any reasonably arguable, realistic and plausible, or academically premised tactical choice justifying appellate counsel’s failure to present appropriate appellate issues as so easily perceived and comprehensively presented in this present proceeding. 12 I will not subscribe to or accept the dual standard of attorney competency performance recently attributed to the Fifth Circuit Court of Appeals:

The court’s approach to the performance of trial counsel depends on the context. In claims by the petitioner of ineffective assistance of counsel, the court was content with extremely low standards for trial counsel. On the other hand, in claims by the state that a claim is barred by a procedural default by the defendant’s trial counsel, the Fifth Circuit held trial lawyers to a very strict standard.

Floyd, Survey, Criminal Procedure, 22 Tex.Tech L.Rev. 493, 525 (1991) (footnote omitted). See also Coyle, Effective Assistance: Just a Nominal Right?, 12 Nat’l L.J., June 11, 1990, No. 40, at 42.

In comprehensive research, although confined to trial as I would recognize to be applicable to appeal, the author considered and concluded in part in Goodpaster, su *113 pra, 58 N.Y.U.L.Rev. at 360 (footnotes omitted):

This discussion leads to the conclusion that, absent some kind of capital case attorney certification system, there is no feasible way to insure attorney competence in advance of trial. Direct and collateral postconviction review, as inefficient and inadequate as they may be, remain the best means of vindicating a capital defendant's right to the effective assistance of a competent attorney. The only issues regarding such review are its nature and what specific competency standards it is to apply.

******

In a capital case, defense counsel has duties and functions definably different from counsel in ordinary criminal cases. The Constitution requires great reliability and individualization in capital sentencing and gives a capital defendant the right to present his sentencer with any mitigating evidence [expert presentation on appeal] that might save his life. These particular sentencing requirements shape capital duties and functions and provide the basis for defining “reasonably competent counsel” in capital cases/ 13 !

See also Mello, Facing Death Alone: The Post-Conviction Attorney Crisis on Death Row, 37 Am.U.L.Rev. 513 (1988).

In analysis by Geimer and Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am.J.Crim.L. 1, 53 (1988) (quoting from an undisclosed source), we learn that defense counsel performance is indeed significant in the outcome as related by a juror in a death case where execution resulted:

“I shouldn’t say it, but I feel it in my heart and always have, his lawyer left a lot to be desired. I realize he was hired by the state to do a job and probably not paid much.... I didn’t mention it at the jury room but I think he was not determined enough. He didn’t try enough and that affected the jury. They had less sympathy, I guess. I mean, clearly he was guilty, but there were times that, and I know I’m not a lawyer, but even I know, times when he should have been on his feet and he wasn’t. That’s sad because even if (defendant) was a sorry one, he deserved a trial and someone to care for him and look out for him.”

Of similar conclusion, see Tabak, The Death of Fairness: The Arbitrary and Capricious Imposition of the Death Penalty in the 1980s, 14 N.Y.U.Rev.L. & Soc. Change 797, 848 (1986), as an item in verse description, and then to recite as ineffectiveness:

Too many attorneys for capital defendants, due to a combination of inexperience and lack of time and resources, fail to mount adequate defenses, particularly in sentencing proceedings.

Tabak then concludes in effect that the death penalty system is not working and should be abolished for the arbitrary and capricious way in which it operates. See also Sevilla, Investigating and Preparing an Ineffective Assistance of Counsel Claim, 37 Mercer L.Rev. 927 (1986) and particularly footnote three thereof. Likewise informative is Ruthenbeck, You Don’t Have to Lose Your Shirt on Death Penalty Cases, ABA Criminal Justice, Spring 1988, at 10.

Of even more concern in effectiveness consideration and the need for particular expertise is Amsterdam, The Supreme Court and Capital Punishment, 14 Human Rights 14 (1987), where the author discerns that the death-proneness in the *114 United States means that system protection is less — not more — than in other cases, and consequently, that a higher level of counsel expertise is required. See Catz, The Death Penalty and Federal Habeas Corpus: A Modest Legislative Proposal, 20 Conn.L.Rev. 895 (1988) and Ledewitz, supra, 24 Crim.L.Bull. 379.

The level of our state’s ignorance or inattention is more starkly reflected in the Goodpaster article where, in footnote, he relates to the Wyoming home grown variety:

Some experienced criminal trial counsel simply do not understand the nature or significance of the penalty trial in a capital case. In Hopkinson v. State, 632 P.2d 79 (Wyo.1981), for example, defense counsel competently conducted the guilt phase trial of a complex and lengthy capital case. Before the penalty trial, however, when asked by the trial judge how much time he would need for the sentencing hearing, counsel replied: “Two minutes. I’m serious. I have been in this position probably more than anybody in this room, multiplied by 5, okay, and there ain’t nothing you can say. They [the jury] will do what they want and there is no point.” Id. at 197 n. 13 (Rose, C.J., dissenting in part and concurring in part).

Goodpaster, supra, 58 N.Y.U.L.Rev. at 303-04 n. 22. Neither Engberg nor the large volume of death cases, which by some statistics are reversed at least in part nearly fifty percent of the time, can afford the luxury and attitude that “appellate courts increasingly find themselves questioning the competency of appellate counsel who are questioning the competency of trial counsel.” People v. Eckstrom, 43 Cal.App.3d 996 , 118 Cal.Rptr. 391, 395 (1974). See Radelet & Mello, Executing Those Who Kill Blacks: An Unusual Case Study, 37 Mercer L.Rev. 911 (1986) and Tabak, supra, 14 N.Y.U.Rev.L. & Soc. Change 797. Those authors reflect the obvious fact that the escalated and pervasive ineffectiveness challenges are the direct result of the arbitrary elimination of rights of the defendant by virtue of counsel conduct, unapproved and usually unknown to the client. Since the criminal defendant facing a death penalty lives or dies with the character of legal representation, he is called to question the justice delivery system if substantial mistake of his attorney is beyond review. Although differing only as trial counsel, the factual array of failure of representation found in United States ex rel. Kubat v. Thieret, 679 F.Supp. 788 (N.D.Ill.1988) is disturbingly similar to the service afforded Engberg on his appeal. Reliance on mercy is not sufficient.

Although conviction review by a post-conviction-relief proceeding searches for constitutional right violations which ordinarily considers errors of law, questions of ineffective assistance of counsel address the “ ‘fundamental fairness of the proceeding whose result is being challenged.’ ” State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (quoting Strickland, 466 U.S. at 696 , 104 S.Ct. at 2069 ). See People v. Ruiz, 132 Ill.2d 1 , 138 Ill.Dec. 201 , 547 N.E.2d 170 (1989), cert. denied — U.S.—, 110 S.Ct. 2632 , 110 L.Ed.2d 652 (1990) and Smith v. State, 547 N.E.2d 817 (Ind.1989). See also Harris v. Dugger, 874 F.2d 756 , reh’g denied 885 F.2d 877 (11th Cir.), cert. denied 493 U.S. 1011 , 110 S.Ct. 573 , 107 L.Ed.2d 568 (1989) and Fitzpatrick v. McCormick, 869 F.2d 1247, 1251 (9th Cir.), cert. denied 493 U.S. 872 , 110 S.Ct. 203 , 107 L.Ed.2d 156 (1989).

The review is de novo, Mannhalt, 847 F.2d 576 , considering the totality of the circumstances in application of a prescription that counsel performed competently. Van Hoff v. State, 447 N.W.2d 665 (Iowa App.1989). The search is for a full and fair review, Martin v. Dugger, 891 F.2d 807 (1989), reh’g denied 898 F.2d 160 (11th Cir.), cert. denied — U.S.—, 111 S.Ct. 222 , 112 L.Ed.2d 178 (1990), and the right to counsel is the right to effective assistance of counsel which is for this case to provide proper appellate review. State v. Davis, 116 N.J. 341 , 561 A.2d 1082 (1989) (citing and quoting Strickland, 466 U.S. at 686 , 104 S.Ct. at 2063 ). Obviously, the measure of an advocate’s competency depends on the task to be accomplished. The best intentions and the most devoted of *115 efforts do not necessarily equate with capital competence. We expect capital defense (or appellate) counsel to have an expertise regarding the specific considerations present in capital cases. Davis, 561 A.2d at 1089 .

This present proceeding comes from the failure of Engberg’s appellate counsel to discuss, by inclusion in the initial appeal, well matured contentions of trial court errors. Strickland, 466 U.S. 668 , 104 S.Ct. 2052 . This appeal is essentially presented with dispositive questions whether Eng-berg’s life and death trial issues, which were then identified by objection, could now be waived by incompetently performing appellate counsel by issue exclusion from the Engberg I appeal. Smith, 547 N.E.2d 817 . A simple comparison of the post-conviction brief with the initial appellate brief relates the entire story.

The answer is provided by assessment of what did occur at trial, did error happen and was it prejudicial. Smith, 547 N.E.2d 817 . Proper review requires us now to consider substantive trial issues and their effect on the fairness of the trial to assess whether Engberg was provided the constitutionally required competent counsel for first appeal when those trial objections were apparently disregarded. It is to be recognized that a constitutional error committed in a criminal proceeding is not harmless unless the appellate court is convinced beyond a reasonable doubt that any reasonable jury would not have reached the same conclusion about the error. State v. Ng, 110 Wash.2d 32 , 750 P.2d 632 (1988). 14 See Johnson v. State, 806 P.2d 1282 (Wyo.1991), Urbigkit, C.J., dissenting; Satterwhite v. Texas, 486 U.S. 249 , 108 S.Ct. 1792 , 100 L.Ed.2d 284 (1988); Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) and Chapman v. State of California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 , reh’g denied 386 U.S. 987 , 87 S.Ct. 1283 , 18 L.Ed.2d 241 (1967).

It can be found by case analysis that habeas corpus reversals in federal courts for ineffectiveness of counsel in state courts demonstrate normally that an equal or greater failure of appellate counsel compared to trial counsel can be found if a proper appeal was ever originally taken. Johnson v. Dugger, 911 F.2d 440 , reh’g granted and opinion vacated 920 F.2d 721 (11th Cir.1990); Chambers v. Armontrout, 907 F.2d 825 (8th Cir.), cert. denied — U.S.—, 111 S.Ct. 369 , 112 L.Ed.2d 331 (1990); Murphy v. Puckett, 893 F.2d 94 (5th Cir.1990); Nixon v. Newsome, 888 F.2d 112 (11th Cir.1989); Harrison v. Jones, 880 F.2d 1279 (11th Cir.1989); Fitzpatrick, 869 F.2d 1247 .

Whether an attorney has rendered effective assistance of counsel is a mixed question of law and fact reversible de novo on appeal. Fitzpatrick, 869 F.2d at 1251 ; Mannhalt, 847 F.2d 576 . See also Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts: The Mixed Questions Conflict, 64 S.Cal. L.Rev. 235 (1991). The same standard applies to both trial and appellate counsel. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987). In the state courts, the rule is identically structured in an astronomical number of cases. Cacatian v. State, 70 Haw. 402 , 772 P.2d 691 (1989); State v. Bryant, 237 N.J.Super. 102 , 567 A.2d 212 (1988), rev’d 117 N.J. 495 , 569 A.2d 770 (1990); State v. Burgins, 44 Ohio App.3d 158 , 542 N.E.2d 707 (1988); Com. v. Melson, 383 Pa.Super. 139 , 556 A.2d 836 (1989); Grier v. State, 299 S.C. 321 , 384 S.E.2d 722 (1989); Long v. State, 764 S.W.2d 30 (Tex.App.1989); Pennington v. State, 768 S.W.2d 740 (Tex.App.1988).

I revisit the enormity of the problem presented for justice by this court’s pathway from Cutbirth v. State, 663 P.2d 888 (Wyo.1983); Amin, 774 P.2d 597 ; Kallas, 776 P.2d 198 through Murray, 776 P.2d 206 in an effort to directly face the simple *116 axiom that procedural default — constitutional or otherwise — in counseled trial processes cannot occur without counsel mistake. If it exists to be defaulted, it was created by mistake. It is far better to look first at the conduct instead of reaching for the absolution by characterization to try to sweep under the rug where justice is not to be found. Compare Meders v. State, 260 Ga. 49 , 389 S.E.2d 320, 325 (1990) in which the Supreme Court granted remand for a current and immediate hearing to examine ineffectiveness of counsel following the wise request of counsel for the state. Understanding the constitutional requirement involved, I will move to the Engberg substantive issues in appellate review.

y.

GUILT PHASE ISSUES

A. Errors Contended

In present appeal, the guilt phase issues presented include:

1. In open court, Engberg’s wife was presented by the State as its witness after Engberg’s waiver of interspousal privilege and, in the presence of the jury, she was given the election not to testify;

2. Engberg was consequently denied the right to call his wife as his witness;

3. After invocation by his wife of a privilege not to testify, Engberg was also denied introduction of her statements to a third party as inadmissible hearsay;

4. Denial of the right by Engberg to present a witness to provide expert testimony on the validity of eyewitness identification at the crime scene; and

5. Attempted hypnotism of the principal identifying witness had not been revealed to Engberg until after conviction when first discovered during post-conviction-relief investigation.

Cursory consideration will then be given for bad acts evidence of being badly beaten by police officers at the time of arrest, which is contended to be evidence of fleeing and constituting evidence of guilt, and bad acts evidence of the use of an alias. Further included will be the introduction of evidence of events at the Nevada hospital where Engberg was taken following his injury during arrest. This testimony discussed his refusal to put on a stocking cap for a photograph in the absence of and without advice of the right to an attorney and was introduced for primary proof substantively demonstrating the attempt to avoid detection as evidence of guilt. This will be followed by subsequent denial of the trial right of Engberg to introduce the doctor’s statement concerning delusional state when photographed in the hospital bed without the cap. Finally, Engberg was denied cross-examination of the police officer about his injured and delusional condition during the photography session.

B. The Refusal by the Trial Court to Allow Engberg the Right to Call His Wife as a Witness

A principal issue presented involves Eng-berg’s challenge of the trial court decision to deny him the right to call his wife as a witness. I would reverse on this obvious and clearly significant error.

In oral argument before this court, the State’s appellate counsel related that “[o]n the issue of spousal privilege, it is our position that there was probable error here in the exclusion of the spouse’s testimony.” (Emphasis added.) The State then explains the exclusion to have been harmless error. I conclude the denial of the testimony to be not only erroneous, but prejudicially harmful. It does not even come close to the constitutional criteria for harmless error. It not only may have but probably did have an effect on the decision of the jury. See Jones, 777 P.2d 54 . Accord Limbaugh v. State, 549 So.2d 582 (Ala.Cr.App.1989) and Cooper v. State, 769 S.W.2d 301 (Tex.App.1989). The prosecutor’s opening statement discussed Eng-berg’s Las Vegas arrest and claimed Donna Engberg fingered her husband for the Casper murder. The opening statement by Engberg’s attorney denied that claim and indicated the defense would produce evidence at trial to show the prosecution was wrong. That intended proof was circumvented when the State successfully invited *117 Engberg’s wife to assert her privilege not to testify. She complied. 15 The issue environment for jury understanding had been prejudicially created without evidence and Engberg was then denied opportunity to contest or defend.

On October 25, 1982, Engberg’s counsel moved “to sup[p]ress testimony by his spouse as such testimony is completely in-admiss[i]ble by reason of Wyo.Stat.Ann. * * At a subsequent hearing on November 17, 1982, the subject was again addressed:

[Defense Counsel]: Okay, Your Honor, we want — I think this motion for disclosure of informer is the easiest one. The State of Wyoming in its pretrial memorandum stated they have an informer and I don’t know who the informer is.

It would be paragraph 8(k), use of informer. There was an informer involved and I would assume from the giggle at counsel table over here that it was, probably, Donna Engberg, but I want to make sure.

[Prosecution Counsel]: His assumption is correct, Your Honor.

THE COURT: That’s correct, Mr. Skaggs; that takes care of that.

[Defense Counsel]: We have a ruling on that, that it is disclosed as Donna Engberg?

THE COURT: Yes, counsel.

******

[Defense Counsel]: Now, Your Honor, you have not made a motion — let’s see— let’s take up an easier one first. We have filed a motion to suppress the testimony of one Donna Engberg who just happens to be the wife of Roy Lee Eng-berg. I am at that time — at this time going to withdraw that motion. We have been given a notice of hearsay statements by Donna Engberg, so it’s apparent that if the State of Wyoming cannot force her to testify, they will just simply rely on this hearsay statement that they have already obtained from her which may or may not be admissible; I don’t know. I haven’t looked into it far enough, but I am going to withdraw the motion to suppress her testimony and at this time will give notice that I will consent to her being allowed to be called in the State’s case in chief.

At this time I would respectfully give notice that I am going to object to the use of hearsay statements upon my withdrawal of the motion to suppress her testimony.

THE COURT: Okay.

[Defense Counsel]: So that part of my pretrial memorandum where I said we would rely on that, I’m going to drop that. It’s an interesting issue, what would come up if we were forced into the issue of spousal testimony, whether or not her hearsay statements would be admissible; it would be interesting.

On November 4, 1982, the State had a subpoena served on Donna Engberg in Gothenburg, Nebraska. 16

*118 The trial panorama then developed in mid-trial:

[Prosecution Counsel]: As the Court is aware, the next witness we intend to call is Donna Engberg, the wife of the Defendant, and we are now here in chambers and the Defendant is present with his attorneys and we want to make it absolutely clear on the record that they are willing to waive any privilege or immunity for the wife to testify and agree to allow her to testify.

THE COURT: Mr. Skaggs?

[Defense Counsel]: Okay, Your Honor, at this particular point, we have advised our Defendant — with respect to this particular problem, we have advised him that it is his absolute right to claim spousal immunity and prevent her from testifying. We have further advised our client that if he elects to claim spousal immunity, there is a chance of the hearsay statements from Las Vegas to Officer Jim Cooper becoming available for use by the prosecution under the witness unavailable exception to the hearsay rule. Those statements are extremely damaging in themselves. We have reason to believe that she may change her testimony to some degree from those statements of benefit to Roy. Secondly, we have advised Roy of Wyoming Supreme Court decisions that indicate if the Defendant were to claim spousal immunity the prosecution could comment in closing on the Defendant’s failure to call his wife as a witness. Those factors mitigated against claiming any spousal immunity. Roy, at this time, do you wish to assert the privilege of spousal immunity?

THE DEFENDANT: No, go as you suggested, Wyatt. Let her get on the stand.

THE COURT: You’re saying, Mr. Eng-berg, that you are waiving spousal immunity?

THE DEFENDANT: That is really the only alternative, isn’t it?

THE COURT: Well, I am not—

THE DEFENDANT: Yeah, I will waive.

*119 THE COURT: Okay, we will convene in about five minutes, folks.

[Defense Counsel]: Your Honor, at this time we would request that after her testimony on direct, we all have a recess so we can go over her testimony.

THE COURT: I have no problems with that.

* * * * * *

[Prosecution Counsel]: * * * The State calls Donna Engberg.

DONNA ENGBERG

having been called as a witness by the State, was first duly sworn and testified as follows, to wit:

DIRECT EXAMINATION

BY [Prosecution Counsel]:

Q. For the record, could you please tell the Court and jury your name?

A. Donna Engberg.

Q. Where do you reside?

A. Gothenb[u]rg, Nebraska.

Q. Mrs. Engberg, you are the wife of the Defendant, Roy Engberg, are you not?

A. Yes.

Q. Is it your wish to testify in this case?

A. No.

Q. Are you willing to testify in this case?

A. Not if I don’t have to.

Q. Mrs. Engberg, you know, that is your choice to make and we are asking you now what choice you want to make in this case, whether you want to testify or not?

A. No, I don’t.

[Prosecution Counsel]: May we approach the bench, Your Honor?

THE COURT: You may.

******

THE COURT: Mr. Guetz, she doesn’t want to testify.

[Prosecution Counsel]: We can’t force her to.

THE COURT: No, you can’t force her to.

[Defense Counsel]: I want the opportunity to cross-examine her and assert the immunity on every question.

THE COURT: You want what?

[Defense Counsel]: I want the opportunity to cross-examine her and assert the immunity on every question.

THE COURT: I don’t think if she refused to testify that — I would ask you, Mr. Guetz, to explain to her clearly that she has spousal immunity and she doesn’t have to testify.

[Defense Counsel]: I oppose that. She does not have the privilege. Roy has the privilege.

THE COURT: She can assert the privilege.

[Defense Counsel]: Your Honor, under case law, it’s Roy’s privilege to assert, not hers.

THE COURT: Under the more recent rule, she can assert the immunity herself. Absolutely, she can assert that immunity on her own.

The trial court was misadvised when it applied the federal Trammel rule on testimonial privilege which says “the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53 , 100 S.Ct. 906, 914 , 63 L.Ed.2d 186 (1980). “Testimonial privilege” prevents a spouse from testifying against the other. A “confidential communication privilege” prevents testimony which would reveal what was said in marital confidence. 17

The trial court should have applied Wyoming law found in W.S. 1-12-104:

No husband or wife shall be a witness against the other except in criminal proceedings for a crime committed by one *120 against the other, or in a civil action or proceeding by one against the other. They may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.

This Wyoming statute has remained substantively unchanged since enacted in 1899. W.S. § 3681 (1899); Note, Spouse’s Testimony in Criminal Cases, 19 Wyo.LJ. 35, 40 (1964). Direct consideration or at least implication of the issue of spousal testimony in Wyoming cases is found in Biggs v. State, 13 Wyo. 94 , 77 P. 901 (1904); Strand v. State, 36 Wyo. 78 , 252 P. 1030 (1927); Fox v. Fox, 75 Wyo. 390 , 296 P.2d 252 (1956); State v. Spears, 76 Wyo. 82 , 300 P.2d 551 (1956); Chamberlain v. State, 348 P.2d 280 (Wyo.1960); Simms v. State, 492 P.2d 516 (Wyo.), cert. denied 409 U.S. 886 , 93 S.Ct. 104 , 34 L.Ed.2d 142 (1972); Pike v. State, 495 P.2d 1188 (Wyo.1972); Seyle v. State, 584 P.2d 1081 (Wyo.1978); and Amin v. State, 695 P.2d 1021 (Wyo.1985).

It is obvious that these cases afford no support for the present decision unless the second sentence of the law is disregarded. 18 To analyze the explicit Wyoming statute in relation to this case requires consideration of due process, constitutional fairness, or even whether any clear and unequivocal rule of law was violated by the trial court’s rejection of the testimony which was compounded by appellate counsel’s failure to present the issue on original appeal. Specifically, in close review of each one of these prior Wyoming cases, there is nothing in Wyoming law and precedent to state that a wife has a privilege not to testify when affirmatively requested to testify by her husband in a criminal prosecution.

Among these numerous prior cases, W.S. 1-12-104 was considered in Amin, 695 P.2d 1021 in the context of a joint trial invoking spousal testimony in her own defense. This court settled the statutory violation problem in coerced result by first noting that privilege was not presented in objection to trial joinder and then concluding that the wife’s testimony was not, in that court’s present conception, exculpatory, although actually placing her husband at the scene with an availability of a gun for an armed robbery charge. Amin simply cannot support the present decision on the application of the Wyoming privilege statute as affording a right to the witness-spouse to refuse to testify when approved and requested to do so by the defendant. See 8 Wigmore, Evidence § 2242 (McNaughton rev. 1961). Consequently, this present post-trial construction of W.S. 1-12-104, which is now adopted, develops a differentiated application that has never been accepted in any prior Wyoming case.

Argument that the legislature intended to make the privilege available to both the witness-spouse and the party-spouse is unsupported by case law or apparent statutory text. Since Engberg wanted to call his wife as a witness, there was no privilege for Donna Engberg to exercise and avoid testifying. Engberg was denied the constitutional right to call a potentially beneficial witness and was also denied due process under both the Wyoming and federal constitutions. After the education of the jury had been completed by prosecuto-rial opening statements, response and contradiction by Engberg became a problem of high stakes and compelling significance for any attack on the eyewitness identification case structure to hope to achieve an acquittal. Realistically by opening statement and trial presentation, Donna Engberg became a prosecutorial witness with a persuasion that Engberg could not diminish or defeat by any validly submitted actual evidence.

While the admission of the wife’s testimony in a criminal case where her hus *121 band is defendant is error per se unless coming under the exceptions of § 1-142 [W.S. 1-12-104], and circumstances determine whether or not it is prejudicial, nevertheless in view of the potential reversible error, no valid ■ reason can be conceived why a trial court would admit the evidence of a spouse contrary to the directions of that statute.

Pike, 495 P.2d at 1189 n. 2. There is nothing in Wyoming law to support the claim that a wife has a privilege not to testify when requested to do so by her husband in a criminal prosecution.

In the circumstance of this case, since Engberg elected to permit the testimony as intended to be favorable by whomever presented, there was no privilege previously provided by Wyoming law for Donna Engberg to exercise in denial of his right to have admissible and singularly important defense evidence. Consequently, Engberg, as husband, was denied a constitutional right to a witness and also denied due process under both the Wyoming and federal constitutions. It is said with compelling logic in 8 Wigmore, supra, § 2241 at 254:

But taking the other suggested reason for the privilege, namely, immunity from the repugnant situation of being condemned by one’s spouse or of becoming the instrument of a spouse’s condemnation * * *, the privilege seems to be equally that of party and of witness.

The trial court’s adoption of the Trammel rule renders the Wyoming statute meaningless if the wife can elect not to testify for her husband when corrosive prosecuto-rial pressure is applied. With the explicit state statute in place, adoption of the inapplicable federal Trammel rule becomes reversible error.

Wyoming is not the only jurisdiction to reject the Trammel rule. The Texas court distinguished and disregarded Trammel in relying on their state statute in Young v. State, 603 S.W.2d 851 (Tex.Cr.App.1980). Similarly said in Montana:

Whatever merit this view may possess [:Trammel ], it applies only in the federal courts and is contrary to the statutory law of Montana. Our duty is to construe the law as we find it. * * * Absent constitutional or statutory infirmities, this Court is not empowered to change the statutory law of this state.

State v. Roberts, 633 P.2d 1214, 1218 (Mont.1981). See also State v. Shafer, 609 S.W.2d 153 (Mo.1980); State v. Euell, 583 S.W.2d 173 (Mo.1979); and State v. Evans, 170 W.Va. 3 , 287 S.E.2d 922 (1982). It was recognized “[i]n Michigan, for well over a century, the spousal privilege has been controlled by statute.” People v. Wadkins, 101 Mich.App. 272 , 300 N.W.2d 542, 546 (1980). See People v. VerMeulen, 432 Mich. 32 , 438 N.W.2d 36 (1989). See also People v. Hamacher, 432 Mich. 157 , 438 N.W.2d 43 (1989); People v. Thompson, 111 Mich.App. 324 , 314 N.W.2d 606 (1981); and Note, People v. Hamacher: The Parameters of Privileged Marital Communications, 1990 Det.C.L.Rev. 177 (1990). Consider also the prosecutorial use under W.R.E. 804(b)(6) and 803(24) in State v. Bailey, 365 S.E.2d 46 (W.Va.1987).

Kentucky recognizes two separate statutory limitations on husband-wife testimony. One is disclosure of confidential communication and the second is privilege to refuse to testify. Although different in text from Wyoming, the statutory system is controlled. Estes v. Com., 744 S.W.2d 421 (Ky.1987). Cf. Williams v. State, 430 N.E.2d 759, 768 (Ind.), appeal dismissed 459 U.S. 808 , 103 S.Ct. 33 , 74 L.Ed.2d 47 , reh’g denied 459 U.S. 1059 , 103 S.Ct. 479 , 74 L.Ed.2d 626 (1982), where only “privileged communication” is recognized.

After first recognizing that the error in form and substance is unquestioned, it becomes a bizarre recreation of the trial events to absolve the improper decision of the trial court by charging defendant’s trial counsel with procedural default. Any such argument is misplaced in suggesting that for Engberg to protect the record against the error committed when the State called his wife to the stand in front of the jury, Jones, 111 P.2d 54 , that he thereafter had to recall her again in his case to re-emphasize the prejudicial effect on the jury by her second election not to testify. No fac *122 tual basis for charging trial counsel with this constitutional forfeiture by procedural default is found in trial events unless we ignore Engberg’s continued effort to obtain the testimony of Donna Engberg. Obviously, to reach that answer to excuse the trial error, it is necessary to attach the procedural default failure and mistake to trial counsel. That would be novel both factually and in briefing for this case. Even if we adopt the convoluted construction of these facts argued by the State, then either appellate counsel had a duty to raise the failure as an ineffectiveness contention on initial appeal or that status is now properly before us as ineffectiveness of counsel, which has never been suggested by any prior brief writer, Engberg, the State or this court on initial appeal. Actually, there was no notice of objection failure of any significance by trial counsel and to suggest otherwise now in decision is highly inappropriate.

C. What the Record and Totality of Procedures Established

The majority, in present decision, converts what was confused and confessed error into a non-argued and non-briefed conclusion to disregard the error. First, in the face of the specific ruling of the trial court that Donna Engberg would not testify, the defense thereafter had to again call her to the stand to be protected from something in the nature of “waived error” so that the trial court would make the same ruling. This contention belies recognition that the federal rules and succeeding Wyoming rules now in effect for more than a quarter of a century were intended to eliminate this kind of needless regurgitation in pointless process and procedure. See W.R.C.P. 1. Additionally, trial counsel should have been able to rely on the trial court’s statement that “Donna Engberg has used her privilege” and believe that the trial court meant what was said; that the issue was decided as repeated by the trial court in answer to the State’s objection to the offer of proof and hearsay introduction. Denial to Engberg of his wife’s testimony was disastrous as the case developed from opening statement into other testimony intimating his involvement. In basic terms, the denial to Engberg of any testimony from his wife contravenes the posture of Washington v. State of Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), defining the right of the accused defendant to have compulsory process to obtain witnesses in his behalf. See Wyo. Const, art. 1, § 10.

The federal approach which misdirected the trial court started with Hawkins v. United States, 358 U.S. 74 , 79 S.Ct. 136 , 3 L.Ed.2d 125 (1958), holding modified sub nom. Trammel v. United States, 445 U.S. 40 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980), where conviction was reversed after the government used defendant’s wife as a witness over his privilege objection based on a common law premise and construction. Justice Stewart, in concurrence, contended that the privilege should be that of the witness and not of the accused and said that “[ujnder such a rule the defendant in a criminal case could not prevent his wife from testifying against him, but she could not be compelled to do so.” Id. 358 U.S. at 82 , 79 S.Ct. at 141 . The Tenth Circuit Court of Appeals, which did not apparently like its reversal in Hawkins , sent Trammel to the United States Supreme Court by denial of error in a co-conspirator spouse case where immunity was granted to the wife and she then elected, pursuant to her immunity, to testify over the husband’s claimed privilege objection. Substantively, the common law evaluation was pursued.

The various judicial utterances on the matter of the exercise of the privilege establish that the privilege belongs to the party spouse against whom the other is offered as a witness; however, it is firmly established that the privilege also belongs to the witness spouse.

United States v. Trammel, 583 F.2d 1166, 1169 (10th Cir.1978), cert. granted 440 U.S. 934 , 99 S.Ct. 1277 , 59 L.Ed.2d 492 (1979), aff'd 445 U.S. 40 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980) (emphasis in original).

The United States Supreme Court authenticates its decision for federal law within historical perspective, changed mores, and review of the common law as *123 adverse to limited testimony for the non-statutory purposes of federal rules of evidence. “Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel, 445 U.S. at 53 , 100 S.Ct. at 914 .

No principle or concept was utilized in decision which applied to state rules of evidence or specific state statutes on privilege. See Evans, 287 S.E.2d 922 . Also not considered was the exercise of the privilege by the witness-spouse when the accused in seeking her testimony, specifically withdrew any privilege. 19 See United States v. Morrison, 535 F.2d 223 (3rd Cir.1976), where the activities of the prosecution “convinced” the witness as defendant’s girlfriend to take the fifth amendment rather than testify in favor of defendant as a denial of the constitutional right which affords the opportunity to call a defense witness. See likewise United States v. Hammond, 598 F.2d 1008 , reh’g 605 F.2d 862 (5th Cir.1979) and United States v. Thomas, 488 F.2d 334 (6th Cir.1973).

In this case, we consider and apply an explicit Wyoming statute and not an abstract and attacked “sentimental relic” or “reasoned historical principle.” Since the Wyoming privilege is not the provence of the federal judicial system, neither is it the right of the Wyoming courts to ignore what the legislature has provided as an established standard which has now existed for most of a century. VerMeulen, 438 N.W.2d 36 . In the crucible of this case from opinion statement to appearance of this witness before the jury as the State’s last witness, communicated prejudice from denied availability is undeniable. Whatev- es the testimony might have been, Engberg clearly expected it to be preferable to whatever the police officer from Las Vegas would say Donna Engberg said when she filed the January complaint against her husband.

To conclude to the contrary directly violates the constitutional rights of the defendant to present relevant testimony addressed by Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987). See also Olden v. Kentucky, 488 U.S. 227 , 109 S.Ct. 480 , 102 L.Ed.2d 513 (1988); Taylor v. Illinois, 484 U.S. 400 , 108 S.Ct. 646 , 98 L.Ed.2d 798 , reh’g denied 485 U.S. 983 , 108 S.Ct. 1283 , 99 L.Ed.2d 494 (1988); and Washington, 388 U.S. 14 . We then have a further and even more serious defect, constitutional in nature, created by the majority’s decision in justification of the denial to the accused of desired testimony of his wife. The denial of Engberg’s access to the testimony denies a right to adequately defend and forecloses an interest protected by both state and federal constitutions (Sixth Amendment). Exculpatory testimony desired for use by Engberg was rejected by this decision. The right to defend including introduction of available material testimony has been addressed by the United States Supreme Court in Rock , further considered in Olden and Taylor and is controlling and decisive. Clearly, on this simple yet direct constitutional basis, Eng-berg’s conviction resulted from his denial of Sixth Amendment rights to defend. Reversal is, as a result, constitutionally required.

D. Use of Secondary Evidence From an “Unavailable Witness”

Since the testimony of Donna Engberg by direct examination had been denied, Engberg’s counsel raised the subject again:

*124 [Defense Counsel]: Okay, now, Your Honor, we would have an offer of proof related to Donna Engberg. We would offer at this particular time — and I have Janet Garner here and I will put her on the stand with respect to hearsay evidence that Donna Engberg has told her. Would that be okay? After that I would move to admit it under the hearsay exception.

THE COURT: [Prosecution Counsel], do you have any comment on that?

[Prosecution Counsel]: Well, as far as they want to preserve the record on that, I don’t know if that is the proper way of going about this or not, but—

THE COURT: Well, I’ll tell you what, Gentlemen. Donna Engberg has used her privilege. She is a spouse. It is her privilege and I’m not going to allow the hearsay evidence.

The effort was supported by an offer of proof in chambers, outlining the proposed trial testimony from an investigator which, as presenting statements from Engberg’s wife, would have factually attacked the State’s case and specifically controverted the opening statement contentions of the prosecution.

Following the offer of proof defining the prospective direct testimony of Donna Eng-berg, defense counsel pursued admissability in text substance as W.R.E. 804 evidence through testimony of an interviewing investigator:

[Defense Counsel]: Your Honor, at this particular point, I will make a motion to admit the testimony of Janet Garner pursuant to Rule 804. Under 804(b)(6) and (b)(5), I would state at this time that Mrs. Engberg is an unavailable witness. She is unavailable because of 804(a)(1). She is exempted on the grounds of privilege or, secondly, she fits under 804(b)(5) as being admissible because it is a statement of recent perception. Also, she fits under 804(b)(6) under the other exceptions, the catch-all phrase to 804. It is a statement offered as evidence of a material fact. It is a statement more probative on the point to which it is being offered than any other evidence which a proponent can procure through reasonable effort and I would state at this time we have made other efforts to procure her testimony and on these particular facts, there is no way we can procure any other testimony. We believe that under (c), 804(b)(6)(c), the general purpose of the rules in the interest of justice will best be served by the admission of her statement to Janet Garner into evidence.

THE COURT: Thank you. Would you respond to that, [Prosecution Counsel], please?

[Prosecution Counsel]: Just briefly, Your Honor. We have discussed this matter previously. With respect to the recent perception, there has been no evidence that this matter is a recent perception. With regard to the other items, we have discussed this matter in that she has exercised her spousal privilege, a privilege she holds. She desires not to testify and there is abundant authority that when one exercises that privilege, that even hearsay would be inadmissible and we would request that the motion be denied.

THE COURT: That is also my understanding. I’m going to deny the motion.

The obvious justification for admission was provided by Simms, 492 P.2d 516 , where defense counsel was faced with prior testimony of a witness in a preliminary hearing when the parties were not married. The actual testimony in court after which defendant waived his right not to have his wife testify against him was available for introduction, including both her live testimony and hostile witness examination from the prior transcript. This court in Simms, 492 P.2d at 521 (footnote omitted and citing 5 Wigmore, Evidence, § 1409 (Chadbourn rev.1974)) said “that a disqualification of a witness by exercise of a privilege makes the witness’s present testimony unavailable and accordingly should allow resort to his former testimony, a doctrine which was not accepted by early English common law courts but was well established in chancery practice and would probably be generally followed in our courts.”

*125 Why in this case similar evidence is not available to Engberg through the testimony of the witness investigator is not refined or defined, except in the context of what is good for the prosecution is frequently not available in defense. The State would ask us to ignore the phraseology of Simms . “Having chosen to have his wife testify as a witness, defendant is in no position to argue about his ‘forced’ election * * Simms, 492 P.2d at 521 . See also Pike, 495 P.2d at 1189 n. 2. Whatever else might be said about the harmless error application in Pike as was impaled in dissent, the right of the defendant to foreclose the adverse testimony of the spouse was not in question.

Overtly and explicitly stated, the decision of the trial court was based solely on the exercised privilege as first announced when Donna Engberg was called as a witness by the State to continue to be determinative for her status as a witness for Engberg, or his introduction of hearsay testimony and statements that were available. It should also be recognized that within the analysis of Simms, 492 P.2d 516 , exercise of privilege resulted in the unavailability of the witness, permitting substitute evidence introduction under W.R.E. 804(b)(6) (the same as F.R.E. 804(b)(5)). See also State v. Fisher, 141 Ariz. 227 , 686 P.2d 750 , cert. denied 469 U.S. 1066 , 105 S.Ct. 548 , 83 L.Ed.2d 436 (1984). This decision, albeit consistent in denial, added a third error as directly contrary to our precedent in Simms .

In citing that Wyoming case, Engberg claims that his wife became an unavailable witness by virtue of the privilege decision and that the hearsay was consequently admissible under W.R.E. 804(b)(6) and supported as well by the cases of Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); and Brady v. State of Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), which encompass a United States constitutional due process denial. In answer, the State now contends in appellate brief that the use of the hearsay evidence was properly denied because no subpoena by the defense for the spouse was ever obtained and she “never became a witness.” The validity of the response within the facts of the trial are so self-evident that further comment is unneeded to dispose of this contention. Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988). Next, argument is presented that the testimonial privilege exclusion was valid which continues to disregard the specific criteria of the Wyoming statute providing the right to access, W.S. 1-12-104.

The more distinct and powerful argument supplied by the State for support of denial was procedural in failure of Engberg to give advance trial notice of intent to admit the hearsay. This basis was never considered by the trial court under the circumstances presented either before or at trial and is no more justified now. Finally, the State in appellate brief summarizes the evidence and contends that “[tjhere is no possibility based on the offer of proof made at trial that the excluded hearsay testimony of Janet Garner would have affected the outcome of the proceedings. Appellant was convicted by overwhelming evidence.” In critical fact, the majority here again by this conclusion converts what was confused and confessed error into a non-argued and non-briefed issue decision based on separate evidentiary analysis.

Heaping hyperbole on imposed justification, the substantive basis of the majority, which occasions my most severe rejection, is the present and now first time determination as an analysis of the evidence that there was no corroborating evidence presented which could be relied upon to enhance the trustworthiness of the version reported to the investigator and lacking “circumstantial guarantees of trustworthiness,” the hearsay testimony could not be admitted properly. 4 D. Louisell & C. Mueller, Federal Evidence § 491 (1980). It is possible, although not stated, that the majority now determines that the trial court should have determined that the investigator, Janet Garner, was herself untrustworthy. The more distinct problem with this conception is that it is unearthed for the first time. The trial court denied *126 admissibility on the basis of privilege and no corroborative pursuit was possible or considered. What the majority now does is to determine, as a first-time judicial inquiry as if it might have been the trial court, what a present construction of the reliability of unavailable witness repeated statements of the wife may have been in order to justify the trial court inadmissibility decision. See Black, Federal Rules of Evidence 803(24) & 804(b)(5) — The Residual Exceptions — An Overview, 25 Hous.L.Rev. 13 (1988) and 4 D. Louisell & C. Mueller, supra, §§ 472 and 491. In factual content and authoritative relevance, the unavailability case of United States v. MacCloskey, 682 F.2d 468 (4th Cir.1982) is directly in point.

It might be that the countervailing interests of justice attainment versus corroboration factors would weigh adversely to the criminal defendant’s interest even where the evidence was not otherwise available. Such a decision may be sustained on appeal as exercised discretion of the trial court. That is not what occurred in this trial. The trial court did not rule on this basis and the objections by the State neither there, nor now here, were made on that basis. Consequently, the majority now presumes wrongly to exercise a nisi prius type discretionary evaluation of the evidence in denial of availability of téstimony of a wife which was to be presented to support the trial posture of her defendant husband. Obviously, the premiere mistake made was in denial of the trial evidence. The second mistake made by appellate counsel was negligence and neglect to present this obvious trial court mistake on first appeal. Now, the majority compounds by extrapolation in utilizing its evidence weighing to determine by justification for what should have been considered and determined by the trial court. We again ignore the procedural posture long held by this court requiring discretionary decisions to be made by the trial court as repeated in Smith v. State, 715 P.2d 1164 (Wyo.1986), involving the identical subject of W.R.E. 804(b)(6) in criminal case defense.

The availability of W.R.E. 803(24) and 804(b)(6) to the criminal defendant is unquestionable for the prosecution. See MacCloskey, 682 F.2d 468 and 4 D. Louisell & C. Mueller, supra, §§ 472 and 491. The right to witness requirements of Wyo. Const, art. 1, § 10 and the Sixth Amendment of the United States Constitution are clearly presented. As the best possible proof available to a defendant facing death-conviction execution, the testimony should have been admissible for the weight to which it would have been justified to the jury. See 4 D. Louisell & C. Mueller, supra, § 491 and Black, supra, 25 Hous. L.Rev. 13. The subject should never have been reached since the wife should have testified when privilege was released by the husband.

The principle where we find ourselves, however, which should be applied is found in the converse of the Morrison, Thomas and Hammond line of cases as stated in United States v. Carlson, 547 F.2d 1346 (8th Cir.1976), cert. denied 431 U.S. 914 , 97 S.Ct. 2174 , 53 L.Ed.2d 224 (1977), where the defendant scared the witness into taking the Fifth Amendment and the witness then became available to the state for prosecu-torial use of other testimony. See Hammond, 598 F.2d 1008 and Thomas, 488 F.2d 334 . Here, in exercised due process, this same right should apply in favor of Eng-berg. That result was afforded after reversal in MacCloskey, 682 F.2d 468 , where denial of proffered prior testimony use by defendant was erroneously excluded when the witness took the Fifth Amendment under pressure from the prosecutor. See also United States v. Salerno, 937 F.2d 797 (2nd Cir.1991), where the prosecution withheld immunity and then opposed prior testimony under a hearsay objection resulting in a thirteen month “megatrial” reversal.

Surely the majority would not intend that, in consideration of state constitutional rights, W.R.E. 803(24) or 804(b)(6) are only available to prosecute but never to defend. The substantive justice considerations of Williams v. Collins Communications, Inc., 720 P.2d 880 (Wyo.1986) would justify usage and the right to present witnesses in criminal defense under the Wyoming and *127 United States Constitutions. Rodriguez v. State, 711 P.2d 410 (Wyo.1985); Faretta, 422 U.S. 806 , 95 S.Ct. 2525 . Cf. Smith, 715 P.2d 1164 ; Washington, 388 U.S. 14 , 87 S.Ct. 1920 , and Thomas, 488 F.2d 334 . This court should take stock of the well reasoned analysis of rights of a defendant to secure testimony in Salerno, 937 F.2d 797 , but then this is only what we have done for the prosecution in Cardenas v. State, 811 P.2d 989 (Wyo.1991).

This error alone substantively requires conviction reversal to provide a new trial.

E. Prejudice in Witness Presentation in Open Court

This concern is created by the trial process where the non-testifying witness was presented before the jury to invoke privilege or immunity. This subject is resolved by Jones, 777 P.2d 54 . 20 In initial trial, the significance for jury effect was initiated by opening statements by the prosecution in discussing the arrest in Las Vegas and outlining evidence that Donna Engberg, in essence, turned in her husband. Argument response by Engberg was that this was not true, to be addressed by Engberg’s evidence. Opportunity to present the evidence was precluded by the State’s invitation for Donna Engberg to assert her privilege not to testify. The process used by the State commencing with opening statement to final appearance before the jury ran directly into the prosecutorial prejudice campaign rejected by most authorities. See Douglas v. State of Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965); Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963); People v. Pirrello, 166 Ill.App.3d 614 , 117 Ill.Dec. 238 , 520 N.E.2d 399 (1988); and People v. Crawford Distributing Co., Inc., 78 Ill.2d 70 , 34 Ill.Dec. 296 , 397 N.E.2d 1362 (1979). This was additional error in calling the witness for privilege exercise in open court with the near certainty that the jury would draw unfavorable inferences against Eng-berg solely from Donna Engberg’s predetermined refusal to testify. United States v. Chapman, 866 F.2d 1326 , reh’g denied 874 F.2d 821 (11th Cir.), cert. denied 493 U.S. 932 , 110 S.Ct. 321 , 107 L.Ed.2d 312 (1989) (not plain error, however); Limbaugh, 549 So.2d 582 . The Texas cases have been exceptionally expressive on the subject of reversible error in calling a recalcitrant witness before the jury where the spousal immunity exists. Stewart v. State, 587 S.W.2d 148 (Tex.Cr.App.1979); Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). See also Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990), cert. denied — U.S.—, 111 S.Ct. 2914 , 115 L.Ed.2d 1078 (1991) and Cooper, 769 S.W.2d 301 ; but see People v. Ford, 45 Cal.3d 431 , 247 Cal.Rptr. 121 , 754 P.2d 168 (1988). Wyoming should now have settled this issue in Jones, 777 P.2d 54 .

The touchstone of Jones, 777 P.2d 54 was conscious prosecutorial impropriety by reference to Douglas, 380 U.S. 415 , 85 S.Ct. 1074 and Namet, 373 U.S. 179 , 83 S.Ct. 1151 . Once that analysis is completed, I then consider the effect of an “admission of guilt through a transfer process” to the accused defendant. Jones, 777 P.2d at 60 . The exchange here whereby the wife asked and was given the right to refuse to testify in open court could only serve to confirm her guilty knowledge as evidence of the guilt of her husband. The prejudice in this case was even more apparent and insidious than was the case when the two alleged *128 uncharged coconspirators were called to the witness stand and refused to testify as described in Jones.

It is apparent from close record review that the State brought Donna Engberg from Nebraska for the purpose of establishing a basis of unavailability to admit her prior statements as made to police officers under the purview of W.R.E. 804(b) if she chose not to testify or Engberg did not waive his privilege. Engberg’s decision to withdraw suppression and release privilege was premised on a preference for her live testimony. Thereafter, when the trial court invoked her privilege by effectively excluding the provisions of the second sentence of W.S. 1-12-104, Engberg turned himself to hearsay as preferential to a record without any of her testimony by recognition of the intrinsic participation which other evidence had radiated about her.

Trial events not only denied Engberg the right to call his wife for desired testimony, but created a prejudice by implication with the jury that her testimony would have been hostile since she was called and excluded as an apparent State witness in open court. With Donna Engberg thus called as the last and apparently decisive witness, to then have her openly invoke a privilege before the jury created inferences and innuendos of Engberg’s guilt. Prejudice in the eyewitness identification preeminence of proof of the case cannot be doubted. Jones, 111 P.2d 54 ; Limbaugh, 549 So.2d at 583 ; State v. McGinty, 14 Wash.2d 71 , 126 P.2d 1086 (1942); State v. Winnett, 48 Wash. 93 , 92 P. 904 (1907). With reversal of guilt conviction on other bases, we avoid either review of this issue on the basis of plain error or retroactivity of application of a determined principle of Wyoming law. See for example, in federal law, Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 , reh’g denied 490 U.S. 1031 , 109 S.Ct. 1771 , 104 L.Ed.2d 206 (1989) and Allen v. Hardy, 478 U.S. 255 , 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986). Unless totally unexpected, any invocation by a witness of immunity or privilege should occur outside of the presence of the jury. Jones, 777 P.2d 54 ; State v. Smith, 116 Idaho 553 , 777 P.2d 1226 (1989). 21 See also Jones v. State, 86 Md.App. 204 , 586 A.2d 55 (1991).

F. Eyewitness Identification Witness — Refusal of the Trial Court to Allow the Engberg to Call an Expert Witness to Testify on the Potential for Error in Identification

But just how accurate are eyewitnesses? The possibility of over 5,000 wrongful convictions in the United States annually and the steady trickle of news accounts of innocent persons imprisoned alert us to the fact that the human and legal process of identification contains risks of error. This conclusion is amply supported by research.

*129 Zalman & Siegel, The Psychology of Perception, Eyewitness Identification, and the Lineup, 27 Crim.L.Bull. 159, 160 (1991) (footnote omitted).

Mistaken identification is one part of a broader misidentification problem. A comprehensive public policy approach must suggest several techniques for lessening the incidence of wrongful convictions. For example, where guilt is based entirely on eyewitness testimony, extraordinary attention must be paid to the general and specific questions of reliability. Expert witnesses must always be allowed to testify on the issue of reliability and special training be given to police officers and to high-risk employees (e.g., of banks and convenience stores) on observation and documentation during criminal incidents.

Id. at 174 (footnote omitted).

Before any competent counsel today puts his client on trial in a case involving significant proof by eyewitness identification, reasonable competency would require reading the current book of E. Loftus & K. Ketch-am, Witness for the Defense: The Accused, The Eyewitness and The Expert Who Puts Memory on Trial (1991). The authors lead us to initial thought by a quotation from William Shakespeare, Hamlet, Act III, scene ii:

Hamlet: Do you see yonder cloud that’s almost in shape of a camel?

Polonius: By the mass, and ’tis like a camel, indeed.

Hamlet: Methinks it is like a weasel.

Polonius: It is backed like a weasel.

Hamlet: Or like a whale?

Polonius: Very like a whale.

The dedication to the book provides: “We dedicate this book to the women and men who have been wrongfully accused, convicted, imprisoned, or have otherwise suffered because of faulty eyewitness testimony.” As will be later related, Elizabeth Loftus was the witness called to testify in this case regarding the singularly significant eye-witness identification evidence provided for conviction. 22

One of the difficult issues of this appeal was denial to Engberg of the use of an identification expert witness. Within this fast evolving and tremendously litigated eyewitness issue involving usage of the expert witness or submission of a special jury instruction, little national consistency exists. Actually, within this state, the expert witness has been used in serious cases and, for appellate review, only this case has reached us. Similarly, the Telfaire instruction has been given and denied and denial has been previously approved on appeal.

When faced with a claimed error from denial to Engberg of an expert witness, the State again contended a constitutional forfeiture by procedural default “solution.” This is an unsupportable resolution of the appellate issue created by trial rejection and exasperated by the failure of appellate counsel to include it in first appeal. As direction for retrial, I cannot casually disregard the constitutional rights of Engberg under Wyo. Const, art. 1, § 10, right of accused to defend, and Wyo. Const, art. 1, § 6, due process of law, in conjunction with the Sixth Amendment to the United States Constitution. Faretta, 422 U.S. 806 , 95 S.Ct. 2525 . This issue should be properly presented when intermixed with predominating consideration of ineffective assistance of appellate counsel. Curry v. Zant, 258 Ga. 527 , 371 S.E.2d 647 (1988); Palmer, 635 P.2d at 960 ; Sims v. State, 295 N.W.2d 420 (Iowa 1980); Curtis v. State, 37 Md.App. 459 , 381 A.2d 1166 (1977), rev’d on other grounds 284 Md. 132 , 395 A.2d 464 (1978); Stewart v. Warden, Nevada State Prison, 92 Nev. 588 , 555 P.2d 218 (1976). Cf. Valeriano v. Bronson, 209 Conn. 75 , 546 A.2d 1380 (1988).

I do not understand why this issue was not raised on initial appeal considering the expense incurred by the public defender (at state expense) in having the witness available for the trial. This is re-emphasized by the fact that the same witness had previ *130 ously testified in another Wyoming death case also involving identification. Alberts v. State, 642 P.2d 447 (Wyo.1982). There has to be a differentiation between justification, incapacity or misguided disinclination in adequacy of representation. Appellate counsel has a responsibility to pursue issues established at trial unless non-pursuit is mandated by research. Valeriano, 546 A.2d 1380 . See McCoy, 108 S.Ct. 1895 . Cf. Anders, 386 U.S. 738 , 87 S.Ct. 1396 . Extrication of the issue from appellate review cannot realistically be called thoughtfully unintended. See E. Arnolds, W. Carroll, M. Lewis & M. Seng, Eyewitness Testimony: Strategies and Tactics (1984) (hereafter E. Arnolds) and N. Sobel, Eyewitness Identification: Legal and Practical Problems (1988).

Since the denial, neglect or negligence of appellate counsel to include this issue on appeal is unexplained, we are mandated to a substantive analysis for post-conviction review. Initially, the hypnotism issue in this case aggravates the due process concern of the eyewitness identification validity. Justice in evenhanded application should require this court to reject any double standard of due process where the kind of experts available to the prosecution, if they assist the jury with foundational knowledge, would not be the kind of experts available to defend as either not helpful or invading the provence of the jury. See Jackson v. Fogg, 589 F.2d 108 (2nd Cir.1978); State v. Long, 721 P.2d 483 (Utah 1986); and Note, Eyewitness Identification in Utah: A Changing Perspective, 1988 Utah L.Rev. 113 (1988). See also State v. Whaley, 406 S.E.2d 369 (S.C.1991).

Analysis of eyewitness identification as a function of criminal prosecution presents that timeless clash between necessity and questionable validity. Little need be said about necessity. In many cases, eyewitness identification is the only or at least the principle prosecutorial evidence. See United States v. Smith, 563 F.2d 1361 (9th Cir.1977), cert. denied 434 U.S. 1021 , 98 S.Ct. 747 , 54 L.Ed.2d 769 (1978), Hufsted-ler, J., specially concurring. Extensive and well documented research suggests that eyewitness testimony is not only suspect and frequently completely mistaken, but the degree and frequency of error in such identification remains undisclosed to the fact-finding jury. Faulty eyewitness identification, second only to perjury, is considered a major cause of the conviction of innocent persons. See Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21 (1987). This problem was highlighted by Justice Frankfurter in F. Frankfurter, The Case of Sacco and Vanzetti (1927). We could go back even further and find that Sir Walter Raleigh lost his head as the result of both hearsay and faulty identification.

Judicial consideration of the problem is not new. In the 1896 case of In re Bryant’s Estate, 176 Pa. 309 , 35 A. 571, 577 (1896), it was stated:

The parties to the present litigation are claimants of his estate, and their claims depend upon the question of identity. There are few more difficult subjects with which the administration of justice has to deal. The carelessness or superficiality of observers, the rarity of powers of graphic description, and the different force with which peculiarities of form or color or expression strike different persons, make recognition or identification one of the least reliable of facts testified to even by actual witnesses who have seen the parties in question; and, where they have not, there is the added obstacle of the inadequacy of language to describe the minute variations of feature and color which go to make up the individual personality.

The incantation to keep the jury ignorant of the high degree of erroneous eyewitness identification has not diminished over a half century. Louisiana is alert to the problem with eyewitness identification to convict. “Where the key issue is the accused’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.” State v. Carter, 522 So.2d 1100, 1109 (La.App.1988). This is true since reliability is the linchpin in determining the admissibility of identification testimony. Walker v. State, 523 *131 So.2d 528 (Ala.Cr.App.1988) (quoting Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977)). See also People v. Riley, 70 N.Y.2d 523 , 522 N.Y.S.2d 842 , 517 N.E.2d 520 (1987).

One of the most thoughtful judicial treatments on this is found in People v. Anderson, 389 Mich. 155 , 205 N.W.2d 461, 468 (1973):

The psycho-legal fundamentals in this case derive from the tension between four factors involved in eyewitness identification in criminal cases. The four factors are:

1. The natural and usually necessary reliance on eyewitness identification of defendants by the police and prosecution;

2. The scientifically and judicially recognized fact that there are serious limitations on the reliability of eyewitness identification of defendants;

3. The scientifically and judicially recognized fact that frequently employed police and prosecution procedures often (and frequently unintentionally) mislead eyewitnesses into misidentifi-cation of the defendant;

4. The historical and legal fact that a significant number of innocent people have been convicted of crimes they did not commit and the real criminal was left at large.

In United States v. Brown, 461 F.2d 134, 145 (D.C.Cir.1971), Chief Judge Bazelon responded to the problems of eyewitness identification by stating “[n]o other aspect of the accusatory process creates so much opportunity for miscarriage of justice — for punishment of an innocent man.” “Unquestionably, identifications are often unreliable — perhaps consistently less reliable than lie detector tests, which we have in the past excluded for unreliability.” Id. at 145 n. I. 23

Erroneous eyewitness identification, many times given confidently in good faith, has led to the conviction and execution of innocent people charged with capital crimes. See Bedau & Radelet, supra, 40 Stan.L.Rev. at 91-172 (Appendix A: Cat-alogue of Defendants). The problem of faulty eyewitness identification has been comprehensively addressed in books, scientific publications and legal journals. For Wyoming law to be as fundamentally fair as we can make it, a defendant should be able to present evidence which can shake the confidence in eyewitness identification — just as the prosecution is free to use eyewitness identification. It is a matter of fundamental fairness. 24 After analyzing *132 the unquestioning reliance on eyewitness identification by the legal system, two prominent scholars argue for uniform rules to govern such identification:

In light of the unenumerated inadequacies of eye-witness identification and testimony, new procedural safeguards are required. The following proposed protections are not suggested as alternatives to eyewitness evidence, for such evidence can play a very vital role in investigative and trial proceedings. Rather, these safeguards are suggested in order that eyewitness evidence might be presented to a jury in its proper and least prejudicial perspective.

Cunningham & Tyrrell, Eyewitness Credibility: Adjusting the Sights of the Judiciary, 37 Alabama Lawyer 563, 585 (1975). These scholars recommend that police avoid using suggestive lineups and that courts provide special jury instructions, require corroborating evidence, employ protective procedures for in-court identification, and require pretrial identification procedures (St ovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967) (Denno hearing)).

The literature is nearly endless. A representative analysis is found in Levine & Tapp, The Psychology of Criminal Identification: The Gap From Wade to Kirby, 121 U.Pa.L.Rev. 1079, 1079 (1973) (quoting United States v. Wade, 388 U.S. 218, 235 , 87 S.Ct. 1926, 1936 , 18 L.Ed.2d 1149 (1967) and footnotes omitted), which stated:

On June 12, 1967, the Supreme Court of the United States in a trilogy of cases, United States v. Wade, Gilbert v. California and Stovall v. Denno, dealt with the constitutionality of police practices and procedures in obtaining eyewitness identifications. These decisions marked the Supreme Court’s first major attempt to confront the “dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.” The Court’s primary concern was to evolve legal standards and remedies that would substantially reduce erroneous identification.

Katz & Reid, Expert Testimony on the Fallibility of Eyewitness Identification, 1 CrimJustJ. 177, 177 (1977) describes:

Many psychologists believe the testimony of an eyewitness to a crime may often be unreliable. This article addresses the question whether behavioral scientists should be permitted to testify at criminal trials to explain to the jury the inherent danger of relying on eyewitness identifications.

After a discussion of the legal admissibility of this testimony, an analysis of the nature and scope of the problem is presented, followed by a discussion of specific topics upon which an expert in eyewitness identification may testify. In conclusion, this article presents some guidelines to assist the trial judge in his exercise of discretion on this matter.

O’Connor, “That’s the Man”: A Sobering Study of Eyewitness Identification and the Polygraph, 49 St.John’s L.Rev. 1, 1-2 (1974) (footnote omitted) states:

It is almost four o’clock in the morning, and, as he stands in the lighted doorway of the squad room at the 110th precinct, Manny Balestrero is tired — but, worse still, he is scared, more scared than he has ever been in his life. Things seem to be closing in around him. His interrogation since earlier that evening has not, by any standard, been brutal; no force has been used — just persistent, relentless, ceaseless questioning by two *133 detectives who are so skeptically polite, so adamantly unbelieving!

* * * * * *

The drama moves swiftly to its bitter end. Manny again senses, rather than sees, movement in the darkened room. Then come the whispered words: “That’s the man!” Manny’s whole world collapses.

(After a mistrial and, in the interim, the real perpetrator was apprehended.)

“It is an article of faith within the legal profession that eyewitness testimony is unreliable.” Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L.Rev. 1097, 1097 (1974).

The unreliability of eyewitness identification evidence poses one of the most serious problems in the administration of criminal justice. Identifying the defendant as the wrongdoer presents an issue, and often the sole one for determination, in every criminal trial. Yet, commentators extensively have documented the frequency of wrongful convictions resulting from mistaken identifications and long have recognized the threat that such misidentification poses to the ideals of criminal justice. As Justice Felix Frankfurter once noted, “The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.”

Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969, 969 (1977) (quoting F. Frankfurter, supra, at 30) (footnotes omitted). The variety and detail of just a few of the other articles on this subject are astounding. 25

*134 In current literature, Fassett, The Third Circuit’s Unique Response to Expert Testimony on Eyewitness Perception: Is What You See What You Get?, 19 Seton Hall L.Rev. 697, 722 (1989) provides a thoughtfully detailed and documented exposition and then concludes:

The inherent unreliability of eyewitness identification evidence, combined with the dilution of constitutional protections designed to exclude unreliable identifications, necessitates the adoption of additional judicial safeguards where such evidence is both critical and disputed. The most effective such safeguard, expert identification testimony, should be admitted far more frequently than presently allowed by the majority Amaral [ 488 F.2d 1148 ] standard. Enunciated over fifteen years ago by the Ninth Circuit, that standard is inconsistent with the more liberal criteria of the Federal Rules of Evidence and has resulted in the near-blanket exclusion of such testimony.

In Downing, the Third Circuit recognized the flaws of the Amaral standard and recommended more lenient admission of expert identification testimony. However, the tremendous discretion Downing afforded district courts, coupled with its open invitation to exclude such testimony in all cases except those based solely upon a single uncorroborated identification, will regrettably prevent any significant increase in its admission. Hence, criminal defendants who require expert testimony to attack unreliable identifications shall continue to face closed doors needlessly shut by a judiciary intent on limiting the scope and duration of trials. Given the dismantling of the constitutional protections developed twenty-two years ago to ensure the exclusion of unreliable identification evidence arising from unduly suggestive pretrial procedures, those closed doors will almost certainly and tragically facilitate the conviction of innocent defendants.

When invoking the reliability of the expert witness analysis in eyewitness identification, four concerns are found in review of the many cases and expansive literature:

1. The test for admissibility of expert testimony is F.R.E. 702, with application of either the Frye test, Frye v. United States, 54 App.D.C. 46 , 293 F. 1013 (1923), or a currently modernized standard.

2. There are generally agreed and determined practical validity concepts for eyewitness identification testimony.

3. Fairness is implicated in equality for availability of the expert witness to the defendant as to the prosecution.

4. The nature and the essential characteristics of the trial court exercised discretion presented by contentions of identification invalidity.

Judicial answers to the acknowledged problem have taken three directions. The first is to do nothing with the clearly un *135 justified hope that either the jury will be smart enough to adequately discount identification testimony, or second, that the other evidence is sufficient so that the invalid testimony does not really matter. Alternatively, reliance on the power of cross-examination is also frequently given as a justification for the uncontrolled procedure as an adequate validation of eyewitness identification testimony. Since none of these explanations assure reliability of result for those who are innocent in a significant number of cases, the only remaining solace comes from the possibility that the guilty individual will confess or be otherwise uncovered, post-conviction processes will be remedial or that the normal justification is sufficient of a utilitarian society concept of a wrong-place, wrong-time — so what tragedy resolution. To one federal court, this latter precept was not acceptable where unreliable eyewitness identification was used. Jackson, 589 F.2d 108 . The case was critiqued by the federal appellate court as “the rare case of a record almost entirely bare of credible untainted evidence of guilt” as founded on eyewitness identification. Id. at 108 . See similar suggestive processes of identification in United States v. Russell, 532 F.2d 1063 (6th Cir.1976). 26

The second and spreading effort to test contended prosecutorial identification reaches to education of the jury by special instructions. The most common application is the usage of some version of the Telfaire instruction which provides four factors a jury should consider when deciding how much reliance eyewitness testimony might be given. United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). See Note, Eyewitness Identification Testimony and the Need for Cautionary Jury Instructions in Criminal Cases, 60 Wash. U.L.Q. 1387 (1983). In Hampton v. State, 92 Wis.2d 450 , 285 N.W.2d 868 (1979) (citing Chapman v. State, 69 Wis.2d 581 , 230 N.W.2d 824 (1975) and State v. Williamson, 84 Wis.2d 370 , 267 N.W.2d 337 (1978)), testimony of the expert witness was permitted, although restricted in scope, while the special instruction was denied. The special instruction approach has found broad usage, but unfortunately has been previously rejected by this court in a plain error context without any substantive consideration of its broad perspective. Campbell v. State, 589 P.2d 358 (Wyo.1979); but see Thomas v. State, 784 P.2d 237 (Wyo.1989), Urbigkit, J., specially concurring. Cf. United States v. Hodges, 515 F.2d 650 (7th Cir.1975); United States v. Holley, 502 F.2d 273 (4th Cir.1974); State v. Wheaton, 240 Kan. 345 , 729 P.2d 1183 (1986); State v. Warren, 230 Kan. 385 , 635 P.2d 1236 (1981); and State v. Mastracchio, 546 A.2d 165 (R.I.1988). The Tenth Circuit Court of Appeals adopted an intermediate position posited upon unavailable collaborative testimony. United States v. McNeal, 865 F.2d 1167 (10th Cir.), cert. denied 490 U.S. 1094 , 109 S.Ct. 2439 , 104 L.Ed.2d 995 (1989).

The third ameliorative approach addresses the jury by the use of expert witness testimony pursuant to W.R.E. 702. 27 The *136 decisional process used is significant, including both the propriety and advisability of a Denno hearing or motion in limine resolution in advance of trial.

As general principles for expert witness testimony, the separately definable considerations by the trial court include (a) competency and qualification of the witness, see State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973) and Windmere, Inc. v. Internartional Ins. Co., 105 N.J. 373 , 522 A.2d 405 (1987); (b) appropriateness of the subject for testimony under W.R.E. 702, see People v. Cole, 47 Cal.2d 99 , 301 P.2d 854 (1956); Windmere, Inc., 522 A.2d 405 ; State v. Spry, 87 S.D. 318 , 207 N.W.2d 504 (1973), overruled sub nom. State v. Buckingham, 90 S.D. 198 , 240 N.W.2d 84 (1976), modified sub nom. State v. Hartman, 256 N.W.2d 131 (S.D.1977) and Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum.L.Rev. 1197 (1980) (as affording the three-test function); (c) creation of undue prejudice under W.R.E. 403, see Foster v. State, 508 So.2d 1111 (Miss.1987); and (d) probative value compared to prejudicial effect as a general power of exercised trial court discretion to deny a litigant his desired evidence, see Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir.1986); United States v. Amaral, 488 F.2d 1148 (9th Cir.1973); and Fensterer v. State, 493 A.2d 959 (Del.Super.), ce rt. granted and judgment vacated 474 U.S. 15 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985).

The admissibility standard for expert testimony is somewhat differently phrased by the Sixth Circuit Court of Appeals in United States v. Kozminski, 821 F.2d 1186, 1194 (6th Cir.), cert. granted 484 U.S. 894 , 108 S.Ct. 225 , 98 L.Ed.2d 185 (1987), judgment aff'd and remanded, 487 U.S. 931 , 108 S.Ct. 2751 , 101 L.Ed.2d 788 (1988) (emphasis in original) as a four-part test:

For expert testimony to be admissible under Rule 702, a four-part test must be met: (1) a qualified expert; (2) testifying on a proper subject; (3) in conformity to a generally accepted explanatory theory; (4) the probative value of which outweighs any prejudicial effect.

It is noteworthy that a difference can be assessed between a test for scientific evidence compared with expert testimony. Id. at 1214, Guy, J., dissenting.

One of the more lucid reviews of the admissibility of expert testimony is found *137 in statements of the New Jersey Supreme Court in Windmere, Inc. in regard to the particular topic of voice prints which was ultimately found inadmissible. That court recognized:

There are generally three ways in which a proponent of expert testimony or scientific results can prove the required reliability in terms of its general acceptance within the professional community: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions which acknowledge such general acceptance of expert testimony.

Windmere, Inc., 522 A.2d at 408 . 28 That case applied a reasoned approach by factual analysis of each acceptability criteria.

The Frye test has been generally superseded by F.R.E. 702, and the more current recognition of science’s relationship to the fact-finding search for truth in trial inquiry. 29 The psychological principles as psycho-legal fundamentals are enumerated to be derived from four factors involved in eyewitness identification quoted earlier in Anderson, 205 N.W.2d at 468 (with exhaustive bibliography).

The line of authority where trial denial resulted in reversal on appeal began in State v. Chapple, 135 Ariz. 281 , 660 P.2d 1208 (1983) and People v. McDonald, 37 Cal.3d 351 , 208 Cal.Rptr. 236 , 690 P.2d 709 (1984). These cases have presented the expanding philosophy that the expert witness testimony should be admissible when properly directed and adequately presented. A principal support for the eyewitness invalidity inquiry was provided in the Third Circuit Court of Appeals case of United States v. Downing, 753 F.2d 1224, 1230-31 (3rd Cir.1985):

[W]e find persuasive more recent cases in which courts have found that, under certain circumstances, this type of expert testimony can satisfy the helpfulness test of Rule 702. * * *

******

We agree with the courts in Chappie, Smith, and McDonald that under certain circumstances expert testimony on the reliability of eyewitness identifications can assist the jury in reaching a correct decision and therefore may meet the helpfulness requirement of Rule 702.[ 30 ]

Retained discretional jurisdiction in making the probative versus prejudicial evaluation is further reflected in United States v. Moore, 786 F.2d 1308 , reh’g denied 791 F.2d 928 (5th Cir.1986) and State v. Via, 146 Ariz. 108 , 704 P.2d 238 (1985), cert. denied 475 U.S. 1048 , 106 S.Ct. 1268 , 89 L.Ed.2d 577 (1986). The more recent realistic and responsible analyses have generally concluded that the issue whether to reject requires an affirmative conclusion of trial prejudice. See State v. Hamm, 146 Wis.2d 130 , 430 N.W.2d 584, 591 (1988). Perhaps the case most viably addressing eyewitness identification invalidity and the justification for relevant expert testimony comes from the Fifth Circuit Court of Appeals in Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir.1988), as now addressed after release of the defendant from state penitentiary after serving four years on the fifteen year sentence.

Under present general standards which apply to discretion under W.R.E. 403 and *138 702, expert witnesses who evaluate the eyewitness identification clearly meet criteria of either the Frye test or the more modern approach of W.R.E. 702. Discretion in 1988 concept cannot properly be used to deny validity of knowledgeable testimony as long as the evidence is retained within proper bounds as not individualized to separately attest to the validity or invalidity of the critiqued eyewitness. It is also recognized that the discretion in exercise has a proper place under W.R.E. 403 or 706 to reject testimony which may be redundant, lacking benefit, unduly prejudicial, or otherwise excludable as would similar expert witness information on subjects such as speed, point of impact, occurrence of a sexual offense, or psychological explanation of a delayed report. See State v. R.W., 200 N.J.Super. 560 , 491 A.2d 1304 , cert. granted 101 N.J. 206 , 501 A.2d 891 (1985), judgment aff'd and modified, 104 N.J. 14 , 514 A.2d 1287 (1986) (psychiatric analysis of testimonial capacity).

Clearly, the trial court is not required within the proper exercise of discretion to always permit this evidence in every case where eyewitness identification exists. Close analysis justifies the exclusion where the identification testimony is unquestionably valid, such as a case of personal acquaintanceship, significant occurrence contact, or other clear identification by an obviously competent and knowledgeable witness. Similarly, where identification is not important to conviction, exclusion is justified since the testimony serves no probative function. The Arizona courts recognized these discretionary constraints in the case of State v. Poland, 132 Ariz. 269 , 645 P.2d 784 (1982). Utah has followed a similar path in State v. Bruce, 779 P.2d 646 (Utah 1989).

The evidence reaches relevance and ad-missability where identification is highly significant and, perhaps, reasonably questionable. In such a case, exclusion of the expert witness may factually constitute a directed verdict of conviction against the defendant. If we define discretion in real terms of judgmental decision and apply the principles emplaced in W.R.E. 702, answers in modern terms for expert witness testimony on eyewitness identification validation assume a rational structure. “Where the key issue is the accused’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.” Carter, 522 So.2d at 1109 .

The admissibility issues for use of the expert witness should be determined in advance of trial by Denno hearing or a motion in limine resolution. State v. Porraro, 121 R.I. 882 , 404 A.2d 465 (1979). This is more rationally justified by planning, scheduling and expeditious trial proceedings. Also, since the cost of the attendance of the expert will usually fall upon the public, whether or not the witness testifies, savings are accommodated by advance decision in the Denno motion disposition. This process permits (a) determination of the expert status of the witness; (b) determination of the scope of the proposed testimony; and (c) application to the case as a discre-tional conclusion in consideration of the trial purpose and function. Function and purpose present discretional decision assessing whether there really is a viable issue of identification about which the scientific knowledge of the expert witness can aid the jury. 6 Ordover, Criminal Law Advocacy, at 6-1 (1988).

For the trial of Engberg (as was recognized in Engberg I), identification was central to prosecution and critical in defense. First to be questioned is the competency and qualification of the witness. Second is the appropriateness of the subject for expert witness testimony in a jury trial context. Third is the conformity of the testimony to the explanatory theory, and fourth is the eternal resolution in admissibility of weighing probative value versus prejudicial effect.

Dr. Elizabeth Loftus was clearly qualified by national exposure and experience and particularly so since she had testified in Alberts v. State, 745 P.2d 898 (Wyo.1987). See E. Loftus & J. Doyle, Eyewitness Testimony: Civil and Criminal (1987). The next step in properly considered analysis is assessment of expert *139 testimony for admissibility validity. Clearly, this criteria was met and the proposed text enunciated within the offer of proof could not justify denial as validated with a witness of national reputation with an extensive history of courtroom forensic expert appearances. Her testimony came within the parameters of Downing, 753 F.2d 1224 ; Chapple, 660 P.2d 1208 ; and McDonald, 690 P.2d 709 as defined by the proper bounds of expert testimony under W.R.E. 702. Eyewitness identification legal jurisprudence has advanced too far since 1896 in In re Bryant’s Estate, 35 A. 571 , and even earlier studies, to now sustain denial of use of the expert criticism of impreciseness and invalidity.

Consequently, it is then in the fourth concept that the trial court should exercise discretion when presented the conflicting genesis for decision. For a proper exercise of discretion, see State v. Cooper, 708 S.W.2d 299 (Mo.App.1986), where the jury would have been bored with unconvincing evidence or insulted with an attack on their intelligence since no real issue of identification was presented. Bruce, 779 P.2d at 652 . The test for use is a function of properly exercised discretion which should be essentially the same to address the admissibility of any expert witness testimony. Discretion is reasonableness when balancing probative function as a benefit and prejudice as a detriment. Martin v. State, 720 P.2d 894 (Wyo.1986).

The Supreme Court of Colorado has most recently spoken on this subject in Campbell v. People, 814 P.2d 1 (Colo.1991) in following Downing, 753 F.2d 1224 which is the pathway in justice and logic this court should also take. In other jurisdictions, the recent case law continues without remission from State v. Galloway, 275 N.W.2d 736 (Iowa 1979) through McDonald and Chapple to People v. Sanders, 51 Cal.3d 471 , 273 Cal.Rptr. 537 , 797 P.2d 561 (1990), cert. denied — U.S.—, 111 S.Ct. 2249 , 114 L.Ed.2d 490 (1991) and then Parker v. State, 568 So.2d 335, 339 (Ala.Cr.App.1990); State v. Hall, 244 Mont. 161 , 797 P.2d 183 (1990); Melson, 556 A.2d 836 and State v. Kinsey, 797 P.2d 424 (Utah App.), cert. denied 800 P.2d 1105 (Utah 1990). See also Hoffheimer, Requiring Jury Instructions on Eyewitness Identification Evidence at Federal Criminal Trials, 80 J.Crim.L. & Criminology 585 (1989) and Comment, Expert Testimony on Eyewitness Identification: The Constitution Says, “Let the Expert Speak”, 56 Tenn. L.Rev. 735 (1989). Wyoming sadly fails to turn forward to modernization at this crossing in criminal law adjudication. Additionally well critiqued, we would find Lof-tus & Schneider, “Behold With Strange Surprise”: Judicial Reactions to Expert Testimony Concerning Eyewitness Reliability, 56 UMKC L.Rev. 1 (1987). 31

G. The Failure of the Prosecutor to Inform Engberg and His Attorney That They Had the Principal Eyewitness Hypnotized to Enhance Her Memory and Subsequent Denial of a Post-Trial Hearing

This appeal, unbelievably now first in post-conviction relief, combines four uncomfortable subjects for the majority to resolve in one harmless error resolution after the trial court denied a factual hearing to responsively consider following a full evidentiary presentation of what really happened. In Engberg II, combined issues are presented of eyewitness identification, plus hypnosis, plus Brady nondisclosure, plus post-trial hearing denial. Here, neither defense counsel nor trial court knew until after the trial was completed that the principal witness had been subjected to hypnosis prior to any identification of Engberg. Prosecutorial non-disclosure was prejudicial error. United States v. Miller, 411 F.2d 825 (2nd Cir.1969); People v. Schreiner, 77 N.Y.2d 733 , 570 N.Y.S.2d 464 , 573 N.E.2d 552 (1991); People v. Hughes, 59 N.Y.2d 523 , 466 *140 N.Y.S.2d 255 , 453 N.E.2d 484 (1983), cert. denied, 492 U.S. 908 , 109 S.Ct. 3221 , 106 L.Ed.2d 571 (1989).

In post-conviction investigation, the successor appellate counsel discovered that hypnotism of the principal eyewitness had both been “attempted” and undisclosed to Engberg either before or during trial. In the post-conviction-relief proceeding, Eng-berg asked for an opportunity to have an evidentiary hearing to establish what had occurred in attempted hypnotism and why the activity was hidden from his counsel. After discovery, the trial court, in post-conviction decision denied any evidentiary hearing. The decision eliminated any proper examination by oral inquiry, leaving only the decedent’s sister’s denial by affidavit that she had actually succumbed when hypnotism was attempted on her by the police representative. State v. Iwakiri, 106 Idaho 618 , 682 P.2d 571 (1984). Cf. People v. Romero, 745 P.2d 1003 (Colo.1987), cert. denied 485 U.S. 990 , 108 S.Ct. 1296 , 99 L.Ed.2d 506 (1988).

Both case law and academic writing considering the subject are again almost endless, including the right to defend case of Rock, 483 U.S. 44 , 107 S.Ct. 2704 . See People v. Guerra, 37 Cal.3d 385 , 208 Cal.Rptr. 162 , 690 P.2d 635 (1984); Note, Rock v. Arkansas: Hypnosis and the Criminal Defendant’s Right to Testify, 41 Ark. L.Rev. 425 (1988); and Note, Rock v. Arkansas: Hypnosis and the Prejudice Rule — Your Memories May Not Be Your Own, 21 J. Marshall L.Rev. 409 (1988). See also Note, Hypnosis and Criminal Defendants: Life in the Eighth Circuit and Beyond, 53 Mo.L.Rev. 823 (1988).

An extensive list of comparable cases can be found in Rock , as well as the principal case of People v. Shirley, 641 P.2d 775 (Cal.), republished 31 Cal.3d 18 , 181 Cal.Rptr. 243 , 723 P.2d 1354 , cert. denied 459 U.S. 860 , 103 S.Ct. 133 , 74 L.Ed.2d 114 (1982). See State v. Coe, 101 Wash.2d 772 , 684 P.2d 668 (1984); State v. Martin, 101 Wash.2d 713 , 684 P.2d 651 (1984); and State v. Laureano, 101 Wash.2d 745 , 682 P.2d 889 (1984), where independent verification is required. See also Little v. Ar-montrout, 835 F.2d 1240 (8th Cir.1987), cert. denied 487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988). Also, in review, see Note, Hypnosis and the Defendant’s Right to Testify in a Criminal Case, 1989 Utah L.Rev. 545 (1989).

A thoughtful analysis is provided by Comment, Hypnotically Enhanced Testimony: Has it Lost its Charm?, 15 S.I11. U.L.J. 289, 293-95 (1991) (footnotes omitted):

The scientific consensus is that hypnosis does enhance recall. If this were the only factor to be considered, there would be no argument about its use. But the problems associated with hypnosis create the conflict. These problems lie in four major areas: suggestibility, confabulation, deliberate fabrication, and increased confidence.

Suggestibility is inherent in the hypnotic process. A hypnotic subject is intensely focused on the hypnotist and has an increased desire to please the hypnotist by complying with both implicit and explicit demands. Leading questions can imply the correct answer. However, the suggestions need not be verbal. The attitude, demeanor, and expectations of the hypnotist, coupled with tone of voice and body language, can convey suggestive messages to the subject. Most subjects will respond to these subtle hints and answer accordingly.

Often, the subject’s desire to please will affect the truth of their statements. The subject may not be able to remember details which are being asked for by the hypnotist. The subject will then hallucinate or imagine the missing details. This pseudomemory will be remembered as being accurate. This fantasizing of information that seems plausible is called confabulation. The subject does not mean to lie, but the mind creates additional facts to make the story more logical.

The danger of someone deliberately lying while under hypnosis is minimal. The larger problem is that someone may pretend to be hypnotized and lie to enhance his version of the story. Only *141 someone who has a working knowledge of hypnotic techniques could adequately fake the results. However, experiments in the area have shown that even the best in the field have difficulty distinguishing between those who are faking and those who are not. Feigned hypnosis presents the same problems as when a defendant commits perjury. The hypnotist can attempt to determine the veracity of the statements in the same manner that a jury would decide whether a witness was lying. Generally, the incentive for a witness to lie is much less than that of the actual defendant.

The last area of concern is the increased confidence that a subject has after hypnosis. The details that are confabulated are often assimilated by the mind and the subject believes that they are real memories. The amount of confidence that one has regarding the recalled materials is based on responsiveness to hypnosis rather than the accuracy of the information. This misplaced confidence creates a more credible witness, who is harder to cross-examine. The difficulty in testing the witness, when combined with the other concerns, provides the basis for the opposition to the use of hypnosis. However, the fact that hypnosis reveals relevant evidence can not be rebutted.

In State v. Tuttle, 780 P.2d 1203, 1208 (Utah 1989), cert. denied 494 U.S. 1018 , 110 S.Ct. 1323 , 108 L.Ed.2d 498 (1990), the Utah Supreme Court stated:

Over the course of the last twenty years or so, courts across the nation have taken different approaches to this issue at different times. Initially, the courts displayed a tendency to admit such evidence, accepting it as “scientific” and reliable. * * * However, after a period of time this trend was reversed as the results of carefully controlled scientific studies accumulated. The later decisions tended to exclude such evidence and to permit witnesses to testify only to their prehypnotic recall. * * *

This trend toward inadmissibility has gathered considerable momentum and now represents the undisputed direction of the law in this area. * * * Only a few recent decisions permit the admission of hypnotically enhanced testimony, even on a case-by-case basis.

See Recent Developments in Utah Law, 1991 Utah L.Rev. 119 (1991). See also Bruce, 779 P.2d 646 . Additionally, see Romero, 745 P.2d 1003 ; Stokes v. State, 548 So.2d 188 (Fla.1989); Iwakiri, 682 P.2d 571 ; State v. Johnston, 39 Ohio St.3d 48 , 529 N.E.2d 898 , reh’g denied 40 Ohio St.3d 707 , 534 N.E.2d 850 (1988); and, in particular, the procedural perilousness in trial usage, People v. Zayas, 131 Ill.2d 284 , 137 Ill.Dec. 568 , 546 N.E.2d 513 (1989). The Illinois courts have even more recently spoken in Tardi v. Henry, 212 Ill.App.3d 1027 , 157 Ill.Dec. 1 , 571 N.E.2d 1020 (1991).

It is apparent that a close division has previously existed within this court on the usage of hypnotically induced testimony. Haselhuhn v. State, 727 P.2d 280 (Wyo.1986), ce rt. denied 479 U.S. 1098 , 107 S.Ct. 1321 , 94 L.Ed.2d 174 (1987), Brown and Urbigkit, JJ., dissenting; Pote v. State, 695 P.2d 617 (Wyo.1985); Gee v. State, 662 P.2d 103 (Wyo.1983); Chapman v. State, 638 P.2d 1280 (Wyo.1982). 32 Without re *142 gard for the meandering of our precedent, we have a high degree of hypothetical question here since prior opportunity was not provided counsel to accurately develop by examination and investigation what really did happen. I would strongly advise bench and bar that a Denno hearing in advance of trial should be provided permitting the trial court to assess any proper infection by the hypnotically induced testimony. Comment, supra, 15 S.I11.U.L.J. 289. The trial court may find that the witness was actually not hypnotized. The trial court might also find that her identification testimony, whether or not hypnotized, was not inflicted by hypnotic suggestion if it did occur. In the absence of any confinement of a potential testimony related to or affected by hypnosis, we write in this decision by assumption, absolution or ignorance.

The three-fold problem explicitly presented by this hypnosis issue is: (1) hypnosis of the principal witness was attempted; (2) prosecution then intentionally withheld the hypnosis activity from the defense pretrial; and (3) no post-trial hearing was provided for Engberg to rationally determine what actually happened. We only know factually as the “beyond a question of doubt” standard that hypnosis, which was never voluntarily revealed by either police or prosecution, was attempted on Kay Otto, who was the principal witness for eyewitness identification shortly after the robbery. About two years after the trial was concluded, the possibility of pretrial hypnotism of witnesses was first anticipated by astute appellate counsel and then confirmed by a private investigator. The issue within the present indeterminate factual record, in addition to substantive issues of hypnotically circumscribed testimony as particularly relating to eyewitness identification testimony, raises the question of prosecutorial non-disclosure.

Review of the record reflects an inordinate factual question as this court is faced, like counsel for Engberg, with “guessing what happened.” This is truly adjudicating from ignorance. See Cutbirth, 751 P.2d 1257 , Urbigkit, J., dissenting and Story v. State, 755 P.2d 228 (Wyo.1988), Urbigkit, J., specially concurring. Cf. Frias v. State, 722 P.2d 135 (Wyo.1986). An evidentiary comparison can be made with the evidence of what did occur in Calhoun v. State, 297 *143 Md. 563 , 468 A.2d 45 (1983), cert. denied sub nom Tichnell v. Maryland, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 , reh’g denied 467 U.S. 1268 , 104 S.Ct. 3564 , 82 L.Ed.2d 865 (1984) (videotape, audio tape, independent expert witness). In stark contrast to the evidentiary opportunity not afforded Engberg, this case is not comparable to Bundy v. State, 455 So.2d 330, 343 (Fla.1984), cert. denied 476 U.S. 1109 , 106 S.Ct. 1958 , 90 L.Ed.2d 366 (1986), where “th

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