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Capshaw v. State9/29/2000
sion of evidence regarding guilty pleas entered by two of his alleged conspirators. Indeed, the record reveals that McIntosh admitted under prosecution questioning that she had been indicted in federal court on conspiracy charges stemming from her Wyoming activities with Capshaw, inter alia, and had received favorable treatment by the federal system conditioned upon her agreement to testify against him. More significantly, perhaps, Tisdale acknowledged, under prosecutorial questioning, that he had entered a guilty plea to conspiracy for which he received remarkably lenient treatment in return for his testimony against Capshaw:
[Prosecutor]: And when you pled guilty to conspiracy, who did you plead guilty to conspiring with?
[Tisdale]: Gary Capshaw.
Capshaw acknowledges that it is clear from the record that no objection was interposed to the conspirators' testimony about their convictions. This absence of a contemporaneous objection obliges us to apply the plain error standard of review. Urrutia v. State, 924 P.2d 965, 969 (Wyo. 1996). Though we have previously mentioned the threshold requirement for a finding of plain error, it remains useful to articulate the plain error test in full:
Plain error will not be assigned unless: (1) the record clearly reflects the incidents urged as error; (2) appellant is able to demonstrate violation of a clear and unequivocal rule of law; and (3) it is shown that a substantial right of the appellant was materially abridged. Guerra v. State, 897 P.2d 447, 459 (Wyo. 1995) (quoting Lobatos v. State, 875 P.2d 716, 721 (Wyo. 1994)). Seymour, 949 P.2d at 883.
There is no need to dwell upon the threshold requirement of record clarity. Beyond question, two of Capshaw's conspirators were allowed to reveal their guilty pleas stemming from their involvement in the charged conspiracy.
We have long held that "when two persons are indicted for separate offenses growing out of the same circumstances, the fact that one has pleaded guilty is inadmissible against the other." Kwallek v. State, 596 P.2d 1372, 1375 (Wyo. 1979). The vitality of this rule is amply demonstrated by Kwallek. There, when a contemporaneous objection was lodged with respect to a conspirator's testimony, this Court had no difficulty holding that admission of that guilty plea evidence constituted prejudicial error presaging reversal of Mr. Kwallek's conviction and remand for a new trial. Kwallek, 596 P.2d at 1376. As Capshaw points out, Mr. Justice Jackson clearly explained the basis for this unequivocal rule:
It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 723, 93 L.Ed. 790, 800 (1949) (Jackson, J., concurring in judgment and opinion).
In short, there can be no doubt that the appellant's right to a fair trial embraces his right not to be convicted, in whole or in part, upon the guilty pleas of his conspirators. Ross v. State, 930 P.2d 965, 968 (Wyo. 1996).
Thus, under the plain error standard, we are left to ponder only the third prong of that test: Whether Capshaw has shown that a substantial right of his was materially abridged. The State urges us to draw a parallel between this case and the one against Chad Urrutia, alleging that the evidence which convicted Capshaw was more than sufficient, exclusive of the offensive guilty plea testimony. Urrutia, 924 P.2d at 9
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