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Johnson v. State3/4/1991
perjured testimony and false evidence. In a pro se reply brief, appellant attempts to raise still another issue. In this brief he charges the attorney general with perjury. Appellant has an obsession with perjury. His concept of perjury is that if a statement is contrary to his version of a fact, it is perjury. There is no merit to appellant's perjury argument.
We have carefully considered the five issues raised by appellate counsel. We have also considered the six issues plus one raised by appellant pro se. We do not find reversible error.
Affirmed.
URBIGKIT, C.J., files a dissenting opinion.
URBIGKIT, Chief Justice, dissenting.
The more I carefully analyze what this court considers, disclaims and determines in this case, the more constitutional concerns develop from what in first review would seem to be a simple identification rape conviction appeal. Within the constitutional concerns of Andrew J. Johnson's conviction, there is a life sentence provided by habitual criminal enhancement. Weldon v. State, 800 P.2d 513 (Wyo. 1990). With that result, I cannot so lightly pass by Johnson's denied right to counsel and his coerced incriminatory statement, both of which raise basic constitutional questions.
Among the eleven issues raised by Johnson, there are three issues which cause me particular concern.
I. WAIVER OF JURY BY DEFENDANT
I am not satisfied with the majority's conclusion. I do not believe the Wyoming Constitution provides a right for the State to require a jury trial in a criminal case. If a defendant cannot waive a jury trial, then it means the State has a correlative right for the same remedy. I find that Wyo. Const. art. 1, § 10 does not justify adaptation of W.R.Cr.P. 24(a), which states that " ases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state." (Emphasis added.)
The philosophic problem with adaptation by this court of such a qualified waiver thesis for constitutional rights is that such an affixation to the constitution cannot properly — or logically — be confined to a right of a jury trial. The long litany that this court has developed about forfeiture and waiver for defense to constitutional right violation would be confined not just to action of the accused, but also to interaction and approval of waiver by the trial court and prosecutor. The morass of ineffectiveness of counsel, waiver and forfeiture of constitutional rights would now be corralled by agreement and consent not released to unintended mistake or intentional miscalculation. Cutbirth v. State, 751 P.2d 1257 (Wyo. 1988).
If the accused cannot intentionally waive constitutional rights, it surely does not make sense — or provide justice — when the waiver unintentionally surfaces from ineffectiveness of counsel. Consequently, I find no provence under the Wyoming Constitution to limit release of the right for a jury trial to secure trial by the court even when resisted by prosecutorial veto. The Wyoming Constitution simply does not provide a right for the State to have guilt determined by a jury instead of the trial court.
I am aware of the history of federal cases and other state cases, including Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), and other cases cited in Annotation, Right of Accused, in State Criminal Trial, to Insist, Over Prosecutor's or Court's Objection, on Trial by Court Without Jury, 37 A.L.R.4th 304 (1985), but those courts have not adapted the omnipotent effectuation of waiver and forfeiture found in decisions of this cou
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