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Capshaw v. State9/29/2000
State, 924 P.2d 965, 971-72 (Wyo. 1996). I still am satisfied that I articulated in those concurring opinions the correct way in which Kwallek should be applied. The net effect is that, in the absence of an objection by the defendant, which was not made in this case, there is no cognizable claim of error in an appeal from a conviction even under the plain error standard. I would hold on that issue that there is no error in this case in the absence of the requisite objection.
In decisions subsequent to Kwallek, this Court has disregarded the requirement for a timely objection at trial, and applied plain error analysis when evidence of a witness' factually related plea agreement was admitted. The dynamics at the trial that result in such testimony being offered are intriguing. The prosecution seeks to introduce the conviction or plea in order to manifest a posture of openness and candor, and blunt the effect of its introduction on cross-examination. As we said in Schmunk v. State, 714 P.2d 724, 739 (Wyo. 1986):
pposing counsel may choose not to object to receipt of the offered evidence for many reasons. Trial strategy may dictate no objection; the opposing party may believe the offered evidence will be favorable; the opposing party may believe that impeachment may be more damaging and choose not to exclude the evidence.
For tactical reasons, the defendant may well prefer that the conviction come in during the prosecution's case-in-chief. The defense may prefer to focus cross-examination upon the details of the conviction and the deal the witness was able to make with the prosecution. On the other hand, the defense may perceive an advantage in first introducing the conviction on cross-examination. There may be instances in which the defense may prefer that the matter not be presented at all. In either of the latter instances, the defendant will object to the introduction of the information by the prosecution, and, as Kwallek holds, it will be prejudicial error to permit the presentation to proceed.
If no objection is posed by the defendant, the trial court or this Court cannot know whether the failure to object was inadvertent or tactical. If, in that equivocal atmosphere, we permit the invocation of the plain error rule in an appeal, the defendant enjoys the opportunity to fail to object to information he wants the prosecution to develop, but he still has tucked away in his briefcase a claim of error on appeal if the jury finds him guilty. That result is inherently unfair to the prosecution, and indeed justifies the correct rule articulated in Kwallek. In State v. Marshall and Brown-Sidorowicz, P.A., 2 Kan.App.2d 182, 577 P.2d 803, 817 (1978), the Court of Appeals of Kansas ruled that failure to offer a timely objection to testimony about a witness' plea of nolo contendere bars a challenge on appeal. That rule was adopted in Kwallek, and we should now reaffirm that holding. I still am satisfied that, in the absence of a timely objection by the defendant to testimony about a witness' plea agreement or conviction, there is no cognizable claim of error on appeal even under the plain error standard. Urrutia and Ross should be overruled in this regard.
The approach suggested by the majority opinion may be palliative, but we will be left with an obligation to review the issue in every similar case. For me, a better approach would be to require that the matter be settled prior to trial. The prosecution could be required to disclose an intention to offer such evidence, and if so, the defendant would be required to state whether an objection would be made. If the defendant manifests an intention to object, then the prosecution would not be permitted to offer the evid
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