Jurisdictional Statement — Auclair v. Wyoming

JURISDICTIONAL STATEMENT

PAUL A. AUCLAIR

Pro Se.

P.O. BOX 400.

RAWLINS, WYOMING 82301.

TABLE OF CONTENTS

meee OF GAN a a Ps eee

STATEMENT OF THE ISSUES. .......-..-+.+..

STATEMENT OF THE CASE. ........+..s..

STATEMENT OF THE FACTS ..............

ARGUMENTS

I. WAS THE APPELLANTS SIXTH AMENDMENT RIGHT

TO COUNSEL DENIED BY THE USE AND INTRO-

DUCTION INTO EVIDENCE AT TRIAL, OF THE

TRANSCRIPT OF A TELEPHONE CONVERSATION

BETWEEN APPELLANT AND HIS.DAUGHTER, WHEN

THAT PHONE CALL WAS RECORDED AFTER THE

INITIATION OF FORMAL JUDICIAL PROCEEDINGS

AND WITHOUT APPELLANTS KNOWLEDGE?. ... .

CERTIFICATE OF SERVICE ....-.-+ +++ ce «© « «

PAGE

TABLE OF CASES

CASES: PAGE:

Arnold v. State

484 S.W.2d 248 (Mo. Sup.Ct. 1972). ..... +. 10

Benton v. Maryland

SAS ss TOO. CUES) oii ie ie ei eet 5

Brewer v. Williams

430 U.S. 387 (1977). * ,.* . * 7 . 7 . 7 * 7 . 7 * 9, 14

Carnley v. Cochran

369 3.6.1 506 (1962) «ce + « 6 0 #4 © © «Ke

Chavez v. State of Wyoming

COG P20 194E GRO.7 1979) 6! eos 8 0 Sie Pog ae, ae

Coleman v. Alabama

399 U.S. 1 (1970). . 7 a . - . . . 7 . ~ . ~

Gideon v. Wainwright

372 U.S. 335 (1963). * . > . 7 * . 7. * . * *. * * 5

Glasser v. United States

SES Ose Ue MESES ie) ca hc, eee Ko ae. ele seae ae

Holloway v. Arkansas

535k, OTS FEE > 6 hs OES Bille) OM ec 6. On Bae

Kirby v. Illinois

406 U.S. 682 (1972) >. * . * > * * > * * 7 * 7 . > 9

Massiah v. United States

377 U.S. 201 (1964). * * * . * >. > * 7 * * * * 7,8,12,13

Miranda v. Arizona

304 0.5. See 89066 ei Be KS OE in eee

People v. Faulkner

c 80 Ill.App.3d 136, 407 *

NS

O70 126° (1980). OO

People v. Kazmarick . ;

~ 52 N.Y.2d 322, 438 N.Y¥.S.2d 247 (1981). ... . 10

People v. McGowan

, 105 Cal. App. 3d 997, 166 Cal. Rptr. 725 (1980). 10

ea ie c > J ‘. ty) - > ¢ by < 7 é

oe er st oe hehe pe ee eS ae ng OE,

The ON ROLE ee Ds as Se BR i SE Se ORs SVE »

C 0

CASES - continued:

People v. Payne

. . , 435 N.Y.S.2d 59 (1980)

P le v. Samuels

49 N.Y.2d 218, 400 N.E.2d 1344 (1980)

Powell v. Alabama

287 U.S. 45 (1932) * * . ° ° * * * ° °

State v. Mitchell

593 S.W.2d 280 (Tenn. Sup.Ct. 1980).

Thomas v. Justice Court of Washakie County

538 P.2d 42 (Wyo. 1975) . - . - .

United States v. Henry

447 U.S. 264 80) . . . . . *. . . .

United States v. Wade

388 U.S. 218 (1967) * . . * . * 7 *. -

Statutes :

Tenn. Code Ann. § 40-701 (1975). .... -»

Tenn. Code Ann. § 40-703 (1975). .... -

Tenn. Code Ann. § 40-704 (1975). .... -

Vyoming Statutes § 6-5-102 (1977). ... .

Wyoming Statutes § 14-3-104 (1977) ....

Wyoming Statutes § 14-3-105 (1977) ....

Other Authority

Comment, 73 Yale Law Journal 1000 (1964) .

Wyo. Rules of Crim. Pro. 3. « «+ + «© «© « «

Wyo. Rules of Crim. Pro. 4... + «+ «+ «+ «+s

10,

10,

13

1l

11

11

10

i,

ral

& (

STATEMENT OF THE ISSUE

1, Was the Appellant's sixth Amendment right to Counsel denied by the use of an

introduction into evidence at trial, of the transcript of a telephone conversation

between Appellent and his daughter, when that phone call was recorded after the

initiation of formal Judicial proceedings and without Appellant's Knowledge?

2. The decision of the Wyoming Supreme Court is probably not in accordance with

decisions made in this court, as the decisions of the Wtoming Supreme court not

only allows the Police to make a criminal complaint and acquire an arrest warrant

but encourages the police to do so without arresting the accused and continue to

investigate after they have the criminal complaint and arrest warrant, thereby

denying the accused the rights guaranteed by the constitution of the United States,

This decision gives all power to the police and denies all rights and freedoms of

the accused, in violation of the Constitution of the United States, therefore this

issue deserves consideration by the Supreme Court of the United States.

3. This issue has not been decided in this Court.

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STATEMENT OF THE CASE

This is an appeal from a proceeding in the Park County

District Court of the Fifth Judicial District, the Honorable

Judge John T. Dixon presiding. Appellant was convicted by

jury trial on May 6th, 1982 on three charges. 1) Taking in-

decent and immoral liberties with a child, in violation of

Wyoming Statutes § 14-3-105 (1977). 2) Unlawfully soliciting,

procuring, or knowingly encouraging a child under the age of

sixteen years to engage in illicit sexual penetration or

sexual intrusion, in violation of Wyoming Statutes § 14-3-104

(1977). 3) Being a parent who unlawfully had sexual intercourse

with his child knowing her to be such, in violation of Wyoming

Statutes § 6-5-102 (1977). Record Vol. I at 79-80. On July 27,

1982 Appellant was sentenced by the Honorable Judge John T.

Dixon to not less than six years nor more than eight years for

taking indecent and immoral liberties with a child; to not less

than four years nor more than five years for soliciting, pro-

curing of knowingly encouraging a child under the age of sixteen

years to engage in illicit sexual penetration or sexual intrusion;

and to not less than four years nor more than five years for

the commission of incest. These sentences were to be served

concurrently in the Wyoming State Penitentiary. Record Vol.

I at 97-98.

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STATEMENT OF THE FACTS

On approximately October 23, 1981, Appellant's 13 year

old daughter, Robin Auclair, reported to Bob Coorough, Powell

Chief of Police, that Appellant had had an incestuous relation-

ship with her. Record Vol. IV at 26. Based upon his interview

with Ms. Auclair, Police Chief Corrough, on the 24th of

October, 1981, signed a criminal complaint against Appellant

and an arrest warrant was issued by Justice of the Peace

Hunter Patrick. Record Vol. I at 2-3. On the 25th of October,

1981, Appellant voluntarily went to the Powell Police Station,

where he was informed by Police Chief Corrough of the allega-

€tikice made against him by his daughter. Defendants Exhibit O..

at 1. Police Chief Corrough then informed Appellant of his

rights and asked Appellant if he understood his rights.

Appellant answered in the affirmative and Police Chief Coorough

proceeded to interrogate him. Record Vol. V at 199. During

the interrogation Appellant, on several occasions, requested

an opportunity to speak with his daughter. Defendants Exhibit 0

at 9, 22; 24, 29. At the conclusion of the interrogation,

Appellant was permitted to leave despite the fact that Police

Chief Coorough knew a warrant was outstanding for his arrest.

On October 26, 1981 Police Chief Coorough arranged for Ms.

Auclair to talk to the Appellant by phone. Ms. Auclair placed

the call to her father and tape recorded the conversation ac-

cording to instructions given her by the police. She was given

specific instructions to deny, to the Appellant, that the call

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was being taped, which she did. ..ecord Vol. V at 194.

Following the recording of the phone conversation, et

approximately 9:30 P.M. on October 26th, 1981, Appellant was

arrested pursuant to the arrest warrant which had been out-

standing for two days. Record Vol. V at 197. At trial,

defense counsel objected to the introduction into evidence

of the telephone conversation transcript, Record Vol. V at

196, but it was admitted. Record Vol. V at 218.

ARGUMENT

I. WAS THE APPELLANTS SIXTH AMENDMENT RIGHT TO COUNSEL

DENIED BY THE USE AND INTRODUCTION INTO EVIDENCE AT TRIAL,

OF THE TRANSCRIPT OF A TELEPHONE CONVERSATION BETWEEN APPELLANT

AND HIS DAUGHTER, WHEN THAT PHONE CALL WAS RECORDED AFTER THE

INITIATION OF FORMAL JUDICIAL PROCEEDINGS AND WITHOUT APPELL-

ANTS KNOWLEDGE?

The Sixth Amendment right to counsel has unequivocally

been recognized by the United States Supreme Court as a

fundamental right, essential to a fair trial, and therefore

applicable to the states through the Fourteenth Amendment.

Gideon v. Wainwright, 372 U.S. 335 (1963). In applying this

fundamental right the same constitutional standards bind both

the Federal and State Governments. Benton v. Maryland, 395

U.S. 784 (1969).

The right to assistance of counsel arises in basically

two distinct factual situations. One is during proceedings

conducted while under judicial surveillance. In a courtroom

the defendants right to counsel grants him the assistance of

an attorney to aid him in understanding the technical intricacy

of the trial process, and to ensure the accused that his .

myriad of rights will be fully exercised. Powell v. Alabama,

287 U.S. 45 (1932).

The second situation in which the right to counsel arises

is during out-of-court proceedings conducted by law enforcement

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personnel. Under such circumstances an attorney acts, not

only to safeguard his clients rights and to insure that they

are not unintentionally waived, but also as a counterbalance

against potential overreaching or other unfair tactics on the

part of the law enforcement personnel. Miranda v. Arizona,

384 U.S. 436 (1966).

"Counsel, then has been more than a technical aid; he

has served to overcome the original unfairness of the .-

, balance of state against individual. Historically,

this role has been played mainly at trial - the focus

of confrontation. If, however, a critical confron-

tation occurs at the earlier investigative stage of

the process, we might have to alter our corception of

the role counsel must play to readjust the balance".

Comment, 73 Yale L.J. 1000, 1034 (1964).

Appellant firmly believes that the tapping and recording

of his telephone conversation with his daughter, and the use

at trial of the transcript of that conversation, constituted

a violation of his right to counsel. The wrongful admission

into evidence of that transcript mandates a reversal of

Appellants conviction. The conversation was a surreptitious

interrogation of Appellant, through his daughter Robin, designed

to deliberately elicit incriminating statements in the absence

of counsel.

The initial inquiry, in a case such as this, is at what

point does the right to have the assistance of an attorney

attach? A brief review of the relevant facts is appropriate

at this time, af

On October 24th, 1981, Powell Police Chief Bob Coorough,

based on an interview conducted with the complaining witness

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Robin Auclair, signed a criminal complaint against the

Appellant. At that same time Justice of the Peace Hunter

Patrick issued a criminal warrant for the arrest of Appellant.

Record Vol. 1 at 3. On the following day, October 25th, 1981

Appellant voluntarily went to the Powell Police Station.

Police Chief Coorough advised him of his rights and the

Appellant stated he understood his rights, but wished to talk

anyway. . Record Vol. V at 199. Police Chief Coorough inter-

rogated Mr. Auclair about the alleged incidents but did not

arrest him. On October 26, 1981, while the arrest warrant was

still outstanding, Robin Auclair phoned her father and tape

recorded the conversation pursuant to instructions given her by

the police. Record Vol. V at 194. She was instructed not to

allow the Appellant to know that the conversation was being

recorded and to deny it if he asked. Record Vol. V at 194.

Appellant aia inquire if the police were listening and Ms. Auclair

denied that the police were tapiny the call. States Exhibit #23

at 9. Later on the same day, October 26th, 1981, the Appellant

was arrested. Record Vol. V at 197,

In the case of Massiah v. United States, 377 U.S. 201

(1964), the United States Supreme Court strongly affirmed the

right of a criminal defendant to have aaniitencs of counsel

during pre-trial extrajudicial proceedings. Massiah was arrested,

arraigned and later indicted for possession of narcotics. |

After his release on bail, Massiah had a conversation with a

co-defendant in a car, in which he made several incriminating

statements. Unknown to Massiah, his co-defendant had struck

a exes to cooperate with the prosection and had allowed a Rye

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them to electronically bug the automobile. A federal agent

overheard Massiah's incriminating statements and testified

at trial as to their content. Massiah was convicted.

Massiah at 203. The Supreme Court reversed that conviction

holding that the use of his own incriminating statements

against him at trial was a violation of Massiah's Sixth

Amendment right to counsel, when the statements were deliber-

ately elicited by federal agents without his hhbuledawk after

indictment and in the absence of counsel. Massiah at 206.

The Supreme Court said the right to counsel “must apply to

indirect and surreptitious interrogations as well as those

conducted in the jailhouse." Massiah at 206.

Appellant argues that the facts in the Massiah case

closely parallel those in the case on appeal. The requirements

of the Massiah holding will be shown to be present, with the

exception of the indictment. Under judicial reasoning which

has occurred subsequent to the 1964 Massiah decision, an in-

dictment is no longer necessary for the attachment of the right

to counsel. Instead, the United States Supreme Court and the

Wyoming Supreme Court have analyzed these cases based upon

whether or not a "critical stage" of the proceedings had been

reached, therefore giving rise to a need for the assistance of

an attorney.

. Many events prior to the actual trial have been recognized

as being “critical stages." Among these are: the arraignment,

Powell v. Alabama, supra,; post-indictment lineups, United States

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v. Wade, 388 U.S. 218 (1967); custodial interrogations, Miranda

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v. Arizona, supra; and preliminary hearings, Coleman v. Alabama,

399 U.S. 1 (1979). The initiation of adversary judicial pro-

ceedings has also been viewed as the point in time at which

the right to counsel attaches. In Kirby v. Illinois, 406 U.S..

682 (1972), a plurality of the United States Supreme Court

stated:

"The initiation of judicial criminal proceedings is

far from a-mere formalism. It is the starting point

of our whole system of adversary criminal justice.

' For it is only then that the government has committed

itself to prosecute, and only then that the adverse

positions of government and defendant have solidified.

It is then that a defendant finds himself faced with

the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and pro-

cedural criminal law. It is this point, therefore, that

marks the commencement of the ‘criminal prosecutions’

to which alone the explicit guarantees of the Sixth

Amendment are applicable."

Kirby at 689-690.

This plurality analysis of the court was later endorsed by a

majority of the members in Brewer v. Williams, 430 U.S. 387

(1977), when the Sroreme Court said,

“Whatever else it may mean, the right to counsel

granted by the Sixth and Fourteenth Amendments

means at least that a person is entitled to the

help of a lawyer at or after the time that judi-

cial proceedings have been initiated against him -

whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment."

Brewer at 398.

The Wyoming Supreme Court has also addressed the issue

of what constitutes a critical stage of the prommetisne. In

Thomas v. Justice Court of Washakie County, 538 P.2d 42 (Wyo.

1975), the court stated, an accused "...need not stand alone

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against the state at any stage of the prosecution, formal or

informal, where counsel's absence might derogate from the

accused's right to a fair trial." Thomas at 47. Chavez v.

State of Wyoming 604 P.2d 1341 (Wyo. 1979), provides more

support for the assertion that a surreptitious interrogation

is a critical stage. Chavez had been charged with two counts

of forgery. For reasons not relevant to present discussion,

he was then left for Seo weeks without assigned representation.

The Wyoming Supreme Court held Chavez had been denied his

Constitutional right to assistance of counsel. The rationale

relied on was that nothing occurred, either critical or non-

critical, relating to the defendant, during the two weeks he

had been without counsel. The Court listed several events

which, had they occurred, would have triggered Chavez's right

to counsel. Among these was the subjecting of the defendant

to “investigative stratagies". Chavez at 1347.

Several other states have held that the initiation of

formal judicial proceedings occurs at the time that a criminal

complaint and/or an arrest warrant are issued. Among these

states are Missouri, Arnold v. State, 484 S.W.20 248 (Mo. Sup.

Ct. 1972); California, People v. McGowan, 105 Cal. App.3d 997,

166 Cal. Rptr. 725 (1980); Illinois, People v. Faulkner, 80 I11l.

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App.3d 136, 407 N.E.2d 126 (1980); New York, People v. Samuels,

49 N.Y¥.2d 218, 400 N.E.2d 1344 (1980); People v. Pawlyshyn, 79 ~

A.D.2a 771, 435 N.Y¥.S.2da 59 (1980), People Vv. Kazmarick, 52

N.Y.2d 322, 438 N.¥.S.2d 247 (1981); and Tennessee, State v.

Mitchell, 593 S.W.2d 280 (Tenn. Sup.ct. 1980). It should be noted —

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that New York Statutes expressly provide that the filing of

- a felony complaint commences a criminal action. N.Y. Criminal

Procedure Law § 1.20 (1,8,17) (McKinney 1981). However, the

New York court's analysis is still relevant for our consider-

ation.

"The sole function of a warrant of arrest is to

achieve a defendants appearance in a criminal

action for the purpose of arraignment upon the

accusatory instrument by which such action was

commenced. ...The police of course may continue

to investigate after the filing of the felony

complaint, as they may after an indictment has

been returned. But once the accusation has been

made in a court the case is no longer merely a

subject of investigation."

People v. Samuels, 49 N.Y.2d 218, 400 N.E.2d 1344 at 1346.

The Tennessee Supreme Court has said, "We hold the right

to counsel attaches when adversary judicial proceedings are

initiated. Initiation is marked by formal charge, which we

construe to be an arrest warrant." State v. Mitchell, 593 S.W.2d

280 at 286. This holding was based upon the idea that the

issuance of an arrest warrant marks the end of the investigatory

stage and the beginning of the accusatory stage. The court

cited the Tennessee Code Annotated § 40-701 to § 40-704 which

contains language similar to that found in the Wyoming Rules

of Criminal Procedure, Rule 3 and ¢.

Applying these principles to the case at hand we see that

judicial proceedings had been initiated by the signing of the

complaint and the swearing out of an arrest warrant against Mr.

Auclair. In addition, the accused was subjected to investigative

strategies consisting of a surreptitious interrogation by

the police, through his daughter, Robin. These two events,

when considered together, most assuredly triggered the

Appellants constitutional right to the assistance of counsel.

Having established the Appellants right to counsel, it

remains to be shown under the Massiah holding that incrimin-

ating statements were deliberately elicited from the accused.

Two sacetbes of the phone conversation were particularly

incriminating. The first is as follows:

Paul Auclair: "There's only one way out of this and that's

for you to just get up and tell them you're

lying."

Robin Auclair: "That'd be lying though."

Paul Auclair: "But it's the only way out of this."

States Exhibit #23 at 2.

This portion of the conversation was not only included in the

typed transcript which was admitted into evidence, but was

discussed before the jury during the cross-examination of the

Defendant. Record Vol. VI at 440.

The second incriminating pdttion of the conversation were the

repeated apologies made by the Defendant to his duaghter.

States Exhibit #23 at 6-7. These were also brought to the

attention of the jury on the cross-examination of Mr. Auclair.

Record VI at 443.

Were the incriminating statements deliberately elicited?

In a post Massiah decision the United States Supreme Court had

occasion to consider this requirement. United States v. Henry,

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447 U.S. 264 (1980). Henry was indicted for bank robbery and

held in a city jail pending trial. Federal agents approached

a known informant, who was being held in the same cellblock

with Henry, and told the informant to be alert to any state-

ments made by his fellow inmates. The agents specifically

instructed the informant not to question Henry about the

alleged bank robbery or initiate any conversations. Henry

at 266. Henry made inorind nist awe statements to the informant,

who testified as to their content at trial. The Court held

that the deliberately elicited test of Massiah had been met,

and they affirmed the lower courts reversal of Henry's con-

viction saying, "By intentionally creating a situation likely

to induce Henry to make incriminating statements without the

assistance of counsel, the government violated Henry's right

to counsel."

Henry at 274.

Appellant argues that the government, in the case at bar,

also intentionally created a situation likely to induce him

into making incriminating statements. The police arranged the

phone call and instructed Robin on how to record the conver-

sation. Robin was specifically told to deny to her father

that their conversation was being taped. It is clear that the

police intended that the verbal reunion between father and

daughter would result in an incriminating statement.

One other fact helps to support a finding of deliberate

elicitation. Why, when the complaint was signed and the arrest

euediit was issued on the 24th of October, did the police wait

until after the phone call was completed on October 26th

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to arrest the Appellant? Powell Police Chief Bob Coorough

testified that the arrest was delayed until the 26th in

order to obtain the results of a doctor's examination con-

ducted on Robin Auclair. Record Vol. V at 198. However, the

criminal complaint prepared by Chief Coorough and signed by

the Justice of the Peace on the 24th of October makes specific

mention of the results of the doctors examination. Record

Vol I at 2.

There can be no doubt that the Appellant did not waive

his right to assistance of counsel under current constitutional

standards. For a finding of waiver the burden is imposed upon

the state to show "an intentional relingiushment or abandon-

ment of a known right or privilege." Brewer v. Williams,

430 U.S. 387 at 404. "Presuming waiver from a silent record

is impermissible." Carnley v. Cochran, 369 U.S. 506 at 516

(1962). The record in the present case is silent as to an

affirmative waiver of the right to counsel pertaining to the

telephone conversation.

Appellant has established, under the facts of the case,

a right to assistance of counsel, and a denial of that right

through the use at trial and introduction into evidence, of

the transcript of a telephone sepsahd esos ta between himself

and his daughter. The United States Supreme Court has stated,

"that the assistance of counsel is among those constitutional

rights so basic to a fair trial that their infraction can never

be treated as harmless error." Holloway v. Arkansas, 435

U.S. 475 at 489 (1978). The Wyoming Supreme Court, in the case

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of Chavez v. State of Wyoming, supra, cited Holloway with

approval and added a quotation from Glasser v. United States,

315 U.S. 60 (1942)

"the right to have the assistance of counsel is too

fundamental and absolute to allow courts to indulge

in nice calculations as to the amount of prejudice

arising from its denial."

Chavez v. State of Wyoming, 604 P.2d 1341 at 1345 (Wyo. 1979).

The denial of Appellant's Sixth and Fourteenth Amendment

right ‘to assistance of counsel mandates reversal of his con-

viction.

Respectfully submitted,

Calle Ceeter Z, |

G a va Dire r

PAUL A- ALELAIR PRo SE Wyoming Defender Aid Program

Po. re Yo University of Wyoming

eX College of Law

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BAWLIVS “yo +230) P.O. Box 3035, University Station

Laramie, Wyoming 82071

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Kurt C. Weiss, Student Intern

Wyoming Defender Aid Program

P.O. Box 3035, University Station

Laramie, Wyoming 82071

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UV di ed OF WYOMING

“2 22 1983

i. IN THE SUPREME COURT, STATE OF WYOMING

. OCTOBER TERM, A.D. 1982

March 21, 1983

PAUL AUCLAIR,

Appellant

(Defendant),

v. No. 5775

STATE OF WYOMING,

Appellee

(Plaintiff).

Appeal from the District Court of Park County, the Honorable John

T. Dixon, Judge.

cN Sylvia Lee Hackl, State Public Defender; Gerald M. Gallivan,

Director, Wyoming Defender Aid Program; and Kurt C. Weiss, Intern,

signed the brief on behalf of appellant. Mr. .Weiss appeared in

oral argument.

A. G. McClintock, Attorney General; Gerald A. Stack, Deputy

Attcrnay Coneral; Allen ¢. Johnson, Senior Assistant Attorney

General; and Thomas T. C. Campbeil, Intern, signed wie brief on

behalf of appellee. Mr. Campbell appeared in oral argument.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE, and BROWN, JJ.

RAPER, J., delivered the opinion of the court. THOMAS, J., filed

a specially concurring opinion.

G

NOTICE: This opinion is subject to formal revision

before publication in Pacific Reporter Second. Read-

ers are requested to notify the Clerk of the Supreme

Court, Supreme Court Building, Cheyenne, Wyoming

82002, of any typographical or other formal errors,

in order that corrections may be made before tinal

publication in the permanent volume. |

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RAPER, Justice.

Paul Auclair (appellant) was found guilty by a jury ana

sentenced on three criminal counts 1/ arising from an incestuous

relationship he engaged in with his thirteen year-old daughter.

During the trial the transcript of a recorded telephone conversa-

tion between appellant and his daughter, held before appellant was

arrested, was introduced and received into evidence by the trial

judge over his objection. Appellant raises on appeal the follow-

ing issue:

"Was the appellant(')s Sixth Amendment right

to counsel denied by the use and introduction

into evidence at trial, of the transcript of a

telephone conversation between appellant and

his daughter, when that phone call was record-

- ed after the initiation of formal judicial

proceedings and without appellant[']s knowl-

edge?"

We will affirm. is

On October 23, 1981, appellant's Gaughter contacted a social

worker from the Wyoming Department of Public Assistance and Social

Services (DPASS) and revealed to him that her father (appellant)

had, for the past several months, engaged in an incestuous rela-

tionship with her. She, later that day, told the same story to

Powell Chief of Police, Bob Coorough. After the initial inter-

view, DPASS placed appellant's daughter in a foster home. On

October 24, 1982, a criminal complaint alleging. appellant had vio-

lated § 6-5-102, W.S.1977--Wyoming's incest statute--was made and

filed by Chief Coorough pursuant to Rule 3, W.R.Cr.P. On the same

date, an arrest warrant was issued by the justice of the peace

pucsuant to Rule 4, W.R.Cr.?. for the arrest of appellant.

On October 25, 1981, appellant, by his own account, voluntar-

ily’ went to the Powell police station where Chief Coorough in-

formed him of the allegations made by his daughter. Chief

Coorough, prior to any conversation with appellant at the police

Station, insured that appellant was aware of his constitutional

rights--per Miranda. He then proceeded to interview appellant:

about his daughter's allegations. During the interview, appellant

complained that, since DPASS had taken his daughter, he had been

unable to talk to her and would like to do so to clear up the mat-

1/ Appellant was convicted and sentenced to: six to eight years in the

penitentiary for taking indecent liberties with a child in violation of

§ 14-3-105, W.S.1977; four to five years in the pnitentiary for committing in-

cest in violation of § 6-5-102, W.S.1977; and four to five years in the peni-

tentiary for engaging in illicit sexual relations with a child in violation of

§ 14-3-104, W.S.1977; all sentences to be served concurrently.

at~

© ©

ter. At the conclusion of the interview, despit2 the fact that a

warrant had issued against him, eppellant was allowed to go

home.2/ The interview was not objectionable to appellant who,

at trial, offered a transcript of that interview, which was re-

ceived in evidence.

On October 26, 1981, at the request of Chief Coorough, appel-

lant's daughter was examined by a physician to determine if there

was evidence that would corroborate her allegations. The examina-

tion revealed, in the opinion of the physician, that appellant's

thirteen year-old daughter had previously, and on more than one

occasion, had sexual intercourse with an adult male. There was

medical evidence that prior to returning to live with her father

she had not yet engaged in sexual intercourse. Chief Coorough

later testified that, in his mind, the physical examination fur-

ther substantiated the allegations made by.the little girl against

appellant.

Also on the 26th, Chief Coorough arranged for appellant's re-

quested conversation with his daughter. Appellant was not allowed

to speak with her in person but was allowed to talk to her by

telephone. She spoke from a social services office in’ Powell.

The conversation was tape recorded at the request of the police.

There is nothing in the record to indicate that the police in-

structed appellant's daughter what to say to her father other than

it was requested that she not let her father know that the conver-

Sation was being taped. She was instructed to deny that the call

was being taped if her father questioned that fact. During the

conversation, in the face of denials by his daughter, appellant

indicated his awareness that the conversation was being taped and

indicated that he really did not care whether it was taped or not.

The transcript reveals no instance where appellant ever admitted

any criminal wrongdoing, although the State, in its zeal, appar-

ently believed selected passages were incriminating.3/

2/ Chief Coorough explained that he wanted to wait cuntil the little girl was

examined by a physician and her story could be somewhat substantiated before

acting on the arrest warrant.

3/ Appellant complains of the State's use of the following exchange:

“[Appellant) There's only one way out of this and

that's for you to just get up.and tell them you're

lying.

“[Daughter) That'd be lying though.

“{Appellanc]) But it’s the only way out of this.

"([Daughter] That'd be lying."

i

@ ©

After all of the foregoing took place, appellant was finally

arrested during the evening of October 25th. Ye appeared initial-

ly before a justice of the peace October 27, 1981. From that time

on he has been represented by a public defender.

A transcript of the recorded telephone conversation between

appellant and his daughter was introduced by the State at trial as

State's Exhibit 23, and was objected to on the grounds that it was

unfair and odtained as the result of an illegal wiretap. The ob-

jection was ultimately overruled and the transcript of the tele-

phone conversation was received into evidence. During the State's

cross-examination of appellant, certain allegedly incriminating

passages in portions of the transcript were alluded to.

Appellant now on appeal raises a Sixth Amendment objection to

‘the evidence in question when no objection dn that ground was

raised at«trial. At trial, the transcript of the telephone con-

versation was objected to on the ground that it was the product of

an illegal wiretap--a Fourth Amendment issue. That, of course,

was not on valid ground and the objection was properly overruled.

See, Hoffa v. -United States, 385 U.S. 293, 87 S.Ct. 408, 17

L.Ed.2d 374 (1966), reh. denied 386 U.S. 951, 87 S.Ct. 971, 17

L.Ed.2d 880 (1967).4/ Rule 103, W.R.E. 5/ requires us, where new

4/ In Hoffa the Court said:

“Neither this Court nor any member of it has ever ex-

pressed the view that the Fourth Amendment protects a

wrongdoer's misplaced belief that a person to whom he

voluncarily confides his wrongdoing will noc reveal it.

Indeed, the Court unanimously rejected that very con-

tention less than four years ago in Lopez v. United

States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.26 462.

In that case the petitioner had been convicted of at-

tempted bribery of an internal revenue agent named

Davis. The Court was divided with regard to the admis-

sibility in evidence of a surreptitious electronic re-

cording of an incriminating conversation Lopez had had

in his private office with Davis. But there was no

dissent from the view that testimony about the conver-

. sation by Davis himself was clearly admissible." 385

U.S. at 302-303, 87 S.Ct. at 413-414,

See also, United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453,

reh. denied 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971). :

5/ Rule 103, W.R.E., provides, in pertinent part:

"(a) Effect of erroneous ruling.--Error may not be

predicated upon a ruling which admits or excludes

-

- a = “ a »Y oe + 3 nod,

i * os > ere «> Masi «rte. se ae 4. a) + bk ye,

C) Cy

grounds for objecting to the admission of evidence are raised on

appeal, to consicer whether plain error nullified the conviction.

1 Lovisell and Mueller, Federal Practice §§ 8 and 21 (1977). We,

therefore, taxe up the Sixth Amendment issue to determine if plain

error occurred.

We have recently set out the three-part test to determine if

plain error exists:

"x * * First, the record must be clear as

to the incident which is alleged as error.

Second, the party claiming that the error

amounted to plain error must demonstrate that

a clear and unequivocal rule of law was vio-

lated. Finally, that party must prove that a

.~ substantial right has been denied him and as a

result he has been materially prejudiced.

“* * *" Bradley v. State, Wyo., 635 P.2d 1161,

1164 (1981).

In this case we turn our attention only to the second re-

quirement and look to see if appellant's right to counsel was

violated since the record is clear as to the incident alleged as

error. We do not dispute that the right involved is substantial.

If a violation of appellant's right to counsel is found, we have

indicated that it is such a basic right that its violation can

never be treated as harmless error. Chavez v. State, Wyo., 604

P.2d 1341, cert. denied 446 U.S. 984 (1979) (following Holloway v.

Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). We

note, however, the following language from Holloway:

"Moreover, this Court has concluded that the

assistance of counsel is among those ‘consti-

= tutional rights so basic to a fair trial that

their infraction can never be treated as harm-

evidence unless a substantial right of the party is

affected, and

"(1) Objection.--In case the ruling is one admit-

ting evidence, a timely objection or motion to

strike appears of record, stating the specific

c ground of objection, if the specific ground was not

apparent from the context; * * *

x xxek*e*

"(d) Plain error.--Nothing in this rule precludes

taking notice of plain errors affecting substantial

rights sithough they were not brought to the attention

of the court.’

© ©

less error.’ Chapman v. California, supra

[386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967)}), at 23. Accordingly, when a defendant

is deprived of the presence and assistance of

his attorney, either throughout the prosecu-

tion or during a critical stage in, at least,

the prosecution of a capital offense, reversal

is automatic. Gideon v. Wainwright, 372 U.S.

335, . 83 °8.ct. 792, 9 b.Ed.2ed .799. tisé6és);

Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct.

157, 7 L.Ed.2d 114 (1961); White v. Maryland,

ats U.85: 59, 8S BoCh JOSG; : VE te eee see

(1963)." 435 U.S. at 489, 98 S.Ct. at 1181.

In the instant case we are not confronted with the prosecution of

a capital offense nor does the claimed deprivatton of the right to

counsel here arise out of any conflict of interest among several

defendants who have been required to be jointly represented by one

attorney. We turn our attention then to determine if the trial

court violated appellant's Sixth Amendment right to counsel by its

_vruling to receive the transcript of the-telephone conversation

into evidence.

The Sixth Amendment to the United States Constitution guaran-

tees that: "In all criminal prosecutions, the accused shall enjoy

the right * * * to have the Assistance of Counsel for his de-

fence."6/ Appellant argues here that this right to counsel ac-

crued after an arrest warrant issued but before his arrest oc-

curred. We disagree.

Rule 6, W.R.Cr.P. sets out when an indigent's right to

assignment of counsel accrues under our rules:

“Every defendant who is unable to obtain

counsel shall be entitled to have counsel

assigned to represent him at every stage of

the proceedings from his initial appearance

before the commissioner or the court through

appeal, unless he waives such appointment."

That rule, as we shall show, though relating only to assignments

of counsel, states the general view as regards the Sixth Amendment

right to counsel of all criminal defendants. In Chavez v. State,

Supra, this court summarized the then-existing state of Sixth

Amendment jurisprudence. Little has changed to expand that right

since then.

6/ Section 10, Art. 1 of the Wyoming Constitution likewise provides for the

right to counsel in criminal prosecutions and tracks the federal provision.

C Oo

The Sixth Amendment has been made applicable to the states

through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S.

335, 83 §.Ct. 792, 9 L.Ed.2d-799, 93 A.L.R.2d 733 (1963). The

basic contours of the right are identical in both state and feder-

al contexts. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51

L.Ed.2d 424, reh. denied 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d

240 (1977), and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056,

23 L.Ed.2d 707 (1969). It is without question that a criminal de-

fendant is entitled to be represented at all stages of the pro-

ceeding against him. Chavez v. State, supra, and Hoskins v.

State, Wyo., 552 P.2d 342, cert. denied 430 U.S. 956 (1976). Ina

long line of constitutional cases reaching back to Powell v.

Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527

(1932), the United States Supreme Court has firmly established

that an individual's Sixth and Fourteenth Amendment right to coun-

sel only accrued at or after the time adversary judicial proceed-

ings have been initiated against him. Kirby v." Illinois, 406 U.S.

682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In Powell v. Alabama

the Court spoke in terms of critical periods or critical stages in

the proceeding, other than trial itself, when the right to counsel

attaches. A critical stage of the proceedings has been held to

include: °

“* * * arraignment, Powell v. State of Ala-

bama, supra; preliminary hearing, Coleman v.

Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d

387 (1970); after the initiation of adversary

judicial criminal proceedings, Kirby v. Illi-

nois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d

411 (1972); at custodial interrogation, Miran-

da v. State of Arizona, 384 U.S. 436,°86 S.Ct.

1602, 16 L.Ed.2d 694 (1966); and Escobedo vy.

State of Illinois, 378 U.S. 478, 84 S.Ct.

1758, 12 L.Ed.2d 977 (1964); at post-indict-

ment lineup, United States v. Wade, 388 U.S. .

218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); at

corporeal identification after initiation of

adversary judicial criminal proceedings, Moore

v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54

L.Ed.2d 424 (1977)." Chavez v. State, 604

P.2d at 1347.

We note here, before proceeding further, that appellant's

Fifth Amendment privilege against compulsory self-incrimination is

not involved. Although the Supreme Court's decision in Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d

974 (1966), required an accused's right to counsel be included in

its now classical warning, that case dealt with the Fifth Amend-

ment and custodial interrogations.7/ To come within the

7/ We note that although Miranda was briefed and argued as a Sixth Amend-

ate

a a

© C

7 an requirements of Miranda, custodial interrogation must still oe

oresent. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.£d.2d 378, reh. denied 452 u.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d

: °84 (1981). We are not confronted with a custodial interrogation

here under any construction of that term. See Rhode Island v.

Innis, 4146 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (dis-

cussing meaning of “custodial interrogation").

With the foregoing in mind, we turn to appellant's specific

argument here. He urges us to adopt the position that the Sixth

Amendment right to counsel attaches at the time an arrest warrant

issues, regardless of whether an individual has been arrested or

placed in custody. If we were to adopt such a position, he then

argues that under Massiah v. United States, 377 U.S. 201, 84 S.Ct.

1199, 12 L.Ed.2d 246 (1964), the contents of his October 26th con-

versation with his daughter were inadmissible at trial as being

obtained without a waiver of his right to counsel. Of course,

ultimately appellant would then have us say that by allowing the

contents of his telephone conversation to be admitted at trial,

< the trial court committed plain error for which he contends we

must reverse. In that we will hold there was no error in admit-

ting the transcript, we need not reach plain error as a ground to

reverse.

In Massiah v. United States, supra, and for that matter in

the more recent and factually similar cases of Brewer v. Williams,

e™ | supra, and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183,

65 L.Ed.2d 115 (1980), the Supreme Court held that post-indictment

or post-arraignment statements from defendants surreptitiously ob-

tained without waiver of their right to counsel were inadmissible

at trial in violation of the defendant's Sixth Amendment right to

counsel. Those cases dealt particularly with post-indictment or

post-arraignment statements and not with pre-arrest statements.

In the. case before us the statements complained of were made

not only before a district court information was filed or an ar-

raignment proceeding held, but also before appellant was arrested.

After a careful review of the United States Supreme Court's Sixth

Amendment decisions, we have yet to find a case in which the Sixth

“Amendment right to counsel was held to accrue prior to arrest,

whether a warrant was outstanding or otherwise. The Court, in

Kirby v. Illinois, supra, discussing when the right to counsel at-

taches, said:

"* * * [T]he point is that, while members of

Cc

ment right-to-counsel case, to the surprise of Miranda's ACLU attorneys it was

decided as a landmark Fifth Amendment case in which the right to counsel was.

addressed only in the context of custodial interrogations and then only to se~ .

cure the Fifth Amendment privilege against self-incrimination. 61°F.R.D. 259,

278 (1972) (remarks of John J. Flynn); Miranda v. Arizona, supra.

-7-

.

“:

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4

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the Court have differed as to existence of the

right to counsel in the contexts of some of

the above cases, all of those cases have in-

volved points of time at or after the initia-

tion of adversary judicial criminal proceed-

ings--whether by way of formal charge, prelin-

inary hearing, indictment, information, or

arraignment." (Emphasis in original.) 406

U.S. at 689, 92 S.Ct. at 1882.

That statement does not declare at which elaborated event adver-

Sary judicial proceedings begin, it states that the right attaches

at whichever of those events adversary judicial proceedings have

begun. Of particular note is the Court's language, “adversary

judicial criminal proceedings," to set the point at which the

right attaches rather than simply setting it when judicial pro-

ceedings have begun. In United States v. Ash, 413 U.S. 300, 93

S.Ct. 2568, 37 L.Ed.2d 619 (1973), after setting out the histori-

cal development and expansion of the Sixth Amendment's right to

counsel, the Court said that it looks, when setting the point at

which the right attaches, to determine whether the. accused re-

quired legal aid in coping with legal problems or meeting his

adversary.

The Court, in holding that an identification of an accused at

a post-arrest preliminary hearing without the assistance of coun-

sel was a violation of the accused's right to counsel: said: at

that point the accused found himself confronted with the prosecu-

torial forces of organized society, and immersed in the intrica-

cies of substantive and procedural criminal, law. Moore v.

Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977) (quot-

ing from Kirby v. Illinois, supra). In all of the Supreme Court's

decisions on this point, the need for an adversarial setting for

the right to accrue stands out, as well it should when dealing

with the right to counsel.

In the case before us, judicial proceedings began with the

issuance of an arrest warrant but adversary judicial proceedings

d.d not begin until after appellant was arrested and imade a party

to the proceedings. Prior to his arrest appellant was protected

by, at the very least, the Fourth and Fifth Amendments but not the

Sixth Amendment right to counsel, except, of course, in the custo-

dial interrogation setting dealt with in Miranda. As noted ear-

lier, there were no violations of appellant's Fourth and Fifth

Amendment guarantees. To hold that the Sixth Amendment right to

counsel as contemplated by appeliant attached before he was made

aware by arrest that the State intended to prosecute him would be

to extend the Sixth Amendment right to counsel further than has

any decision of the United States Supreme Court to date. The

presence of such proceedings in the files of a court and the pres-

ence of a warrant in a law enforcement officer's desk or pocket is

inert until triggered by placing the accused in custody. We re-

fuse to adopt appellant's position and extend the Sixth Amendment

application as he suggests.

-8-

ee. -« ;

‘ A avy

‘ % i af

. : . pd : ee

ye ee et ee Mb ae eee RES, gat (OS SARE ing WES 5 re

e Cin

Appellant complains that since an arrest warrant had issued,

the police could do nothing further but arrest him. Delay in the

use or execution of an arrest warrant does not make it invalid. 1

Wright; Federal Practice and Procedure: Criminal 2d § 55 (1982).

There are no constitutional requirements dictating that an arrest

warrant be executed at the earliest opportunity. People v.

Nisser, 189 Colo, 471, 542 P.2d 84 (1975). Rule 4, W.R.Cr.P.,

dictates no time limit on the execution of an arrest warrant. We

note that in Hoffa v. United States, supra, a Sixth Amendment ar-

gument similar to appellant's was raised. There it was argued

that appellant Hoffa could have been arrested before a damaying,

incriminating conversation was held with a government agent.

Therefore, the incriminating evidence was acquired only by flout-

ing Hoffa's Sixth Amendment right to counsel. The Supreme Court

rejected the argument when it said:

"Nothing in Massiah, in Escobedo {v.

Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12

L.Ed.2d 977 (1964)), or in any other case that

has come to our attention, even remotely sug-

gests this novel and paradoxical constitution-

al doctrine, and we decline to’adopt it now.

There is no constitutional right to be arrest-

ed. The police are not required to guess at

their peril the precise moment at which they

have probable cause to arrest a suspect, risk-

ing a violation of the Fourth Amendment if

they act too soon, and a violation of the

Sixth Amendment if they wait too long. Law

enforcement officers are under no constitu-

tional duty to call a halt to a criminal in-

: vestigation the moment they have the minimum

evidence to establish probable cause, a quan-

tum of evidence which may fall far short of

the amount necessary to support a criminal

conviction." (Footnote omitted.) 385 U.S. at

310, 87 S.Ct. 417.

¢

In view of the seriousness of the allegation of incest, we cannot

condemn the police for waiting until a physician's’ exam of appel-

lant's daughter was completed or that their evidence was otherwise

firmed up before proceeding on the warrant. Appellant's Sixth

Amendment right to counsel was unaffected. -

Appellant calls our attention to several state court deci-

sions 8/ in which he argues the Sixth Amendment right to counsel

8/ Arnold v. State, Mo., 484 $.W.2d 248 (1972); People ¥. McGowan, 105 Cal.

App.3d 997, 166 Cal.Rptr. 725 (1980); People v. Faulkner, 86 Ill.App.3d 136,

407 N.E.2d 126 (1980); State v. Mitchell, Tenn., 593 S.W.2d 280, cert. denied

-9-

o O

has been extended to the point he requests us to extend it now.

“ Reviewing those cases we note that in all but the New York case, sf

the courts were faced with and addressed post-arrest and, in most -

cases, post-arraignment events. The criminal defendants were in

be those cases in custody, under arrest and well aware that the State

was proceeding acainst them; therefore, they had the right to

counsel at the critical stages set out in the various decisions.

Of course the situation we are faced with is distinguishable in

that here appellant had not yet been arrested when the alleged

Sixth Amendment violations occurred.

As noted above, appellant also cited New York authority in

support of his position. In People v. Samuels, fn.8 supra, the

court makes it clear that the right to counsel attaches at the

time a warrant issues because, in its view, a recent addition to

their rules of criminal procedure requires as much. Prior to the

adoption of that rule of procedure, New York followed the tteasi-

tional view that held the cight to counsel attached at arraignment

on a warrant. People v. Samuels, supra fn.8. Because particular

procedural rules in New York differ from ours, we find the line of

cases following their rule changes to be less than persuasive

here. -o

Our research of decisions from other jurisdictions leads us

to the conclusion that adversary judicial proceedings at which the

right to counsel attaches can only occur at some point after an

individual has been arrested.9/ A criminal defendant's Sixth

Amendment right to counsel attaches only when confronted by the “>

prosecutorial forces of the State, when faced with the intricacies

of substantive and procedural criminal law. We hold that the

admission and use of the transcript of the telephone conversation

was not a violation of appellant's Sixth Amendment right to

counsel; therefore no plain error was committed, .

Affirmed.

449 U.S. 845, 101 S.Ct. 128, 66 L.Ed.2d 53 (1980); People v. Samuels, 49 N.Y.2d

218, 424 N.Y.S.2d 892, 400 N. E.2d 1344 (1980). ;

9/ State v. Irving, 231 Kan. 258, 644 P.2d 389 (1982) (taped conversation

prior to adversary judicial proceedings not a Sixth Amendment violation); State

v. Ruth, 102 Idaho 638, 637 P.2d 415 (1981) (accused entitled to cbunsel from

initial appearance on); State v. Masaniai, 63 Hawaii 354, 628 P.2d 1018 (1981)

(issuance and execution of an arrest warrant does not constitute the initiation

of adversary judicial proceedings); State v. Fitzsimmons, 93 Wash.2d 436, 610

P.2d 893 (1980), on reuand from United States Supreme Court, 94 Wash.2d 858,

620 P.2d 999 (1980) (a criminal defendant's Sixth Amendment right to counsel

attaches when a critical stage in a criminal prosecution resulting in a loss of “

liberty is reached),

-10- s

Q- | ©

THOMAS, Justice, specially concurring.

I agree with the result in this case, and I do not necessar-

ilv disagree with any of the substantive law encompassed in the

majority opinion. In my special concurring opinion in Barnes v.

State, Wyo., 642 P.2d 1263 (1982), I did articulate my position

with respect to disposition when a claim of error is urged upon

this court under the quise of plain error.

I still am satisfied that as a matter of judicial restraint

we should examine the substantive law only to the point of reach-

ing a conclusion that plain error is not present. When, as in

this instance, the absence of plain error hinges upon a conclusion

that there exists no clear and unequivocal rule of law which was

violated, we should not make any holding with respect to the

merits of the appellant's claim of error. As I" view the majority

opinion, it does resolve a claim of error which is asserted to be

reviewable under the plain-error doctrine even though review of

the error claimed is foreclosed by the plain-error doctrine. For

that reason I cannot join in the ground for disposition set forth

in the majority opinion.

PAUL AUCLAIR,

Appellant,

vs

THE STATE OF WYOMING,

Appellee.

|; RECEIVED |

IN THE SUPREME COURT MAY 2 4.1983

OF THE UNITED STATES

Oren ur ome ULERK

SUPREM® “1'"? 4°

82 6798

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS,

Persuant to rule 46.1 of the Rules of this Court motion is hereby made that

Petitioner be allowed to proceed in Forma Pauperis . Petitioner's Affidavit is attached

to this Motion, Leave to proceed in Forma Pauperis was sought and obtained for appeal

to the Supreme Court fo the State of Wyoming. LBL:

Paul A, Auclair Pro Se

P.O.Box 400

Rawlins, Wyoming 82301.

: IN THE SUPREME COURT eat

OF THE UNITED STATES

PAUL AUCLIAR _ §2 6798

Appellant.

ve No,

THE STATE OF WYOMING, RECEIVED

Appellee.

MAY 2 4.1983

AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED IN FORMA PAUPERIS trowe vr it CLERK

SUPREME “NET 46

I, Paul A, Auclair, being first duly sworn according to Osé a

say that I am the Petitioner in the above- entitled case; that in support of my motion

to proceed without being required to prepay fees, costs of give security therefor,:

That because of my poverty I am unable to the costs of said case or to give security

therefore, and that I believe I am entitled to redress.

I further swear that the responses which I have made to the questions

and instructions below relating to my ability to pay the costof proceeding in this

court are true, ~

1. Are you presently employed ? NO,

My last employment ended May lst. 1982. Salary was approximately $2,000.00 per month.

2. Have you received within the past twelve months any income from a business

profession or other form of self employment, or in the form of rent payments, interest,

dividends or other source? YES, (

Ihave been incercarated in the Wyoming State Penitentiary since August 4th 1982, my

income since then to the present has averaged $50.00, per month from State pay.

3. Do you own a cash or checking or savings account? NO,

4, Do you own any Real Estate, stocks, bonds, notes, automobiles or other

valuable property? NO,

5. List the persons who are dependent upon you for support and state your

relationship to these persons? NONE,

I understand that a false statement or answer to any question in this Affidavit will

subject me to penalties for perjury.

[TAY 17,1953

Paul A, Auclair Pro Se

P.O.Box 400

Rawlins, Wyoming 82301

Witnessed by °