Griebel v. State , 1988 Wyo. LEXIS 143 ( 1988 )

BROWN, Justice Retired,

dissenting.

The majority opinion is apparently premised on the assumption that in some surreptitious manner a videotape came into the possession of the trial judge. This impression can be created from reading appellants’ brief, but not from reading the record. The record does not tell us the circumstances under which the trial judge received the videotape; whether it was proper or improper.

The existence of the tape was not unknown to appellants. The record reveals that it was viewed during a recess at the preliminary hearing. The record further discloses that, at sentencing, the trial judge stated that he had viewed the tape.

It seems to me most strange that, if this business about the judge viewing the tape came as a surprise to appellants or their counsel, something would have been said at sentencing. No objection was made nor was any comment made or explanation requested. The sentencing judge never had a chance to rule on the question now before the Supreme Court.

On appeal the court should not consider matters not brought to the attention of the lower court. Furthermore, this court should not consider any matter upon which the record is silent, Mentock v. Mentock, 638 P.2d 156 (Wyo.1981).

Not every trial error mandates a reversal. Assume arguendo that the videotape was handled improperly. In that event, I believe the error was harmless. In Lozano v. State, 751 P.2d 1326 (Wyo.1988), the trial judge saw the appellant violate the terms of her probation. In that case, the trial judge in effect was aware of evidence that was not formally before the court. On appeal of revocation of her probation, the appellant, for the first time, asserted that it was error for the trial judge not to recuse himself from the revocation hearing. This court gave short shrift to the alleged error. Similarly, in the case before us, the sentencing judge had evidence before him that was not formally before the court. Although factually different, the underlying rationale of the Lozano case should apply here.

At the sentencing hearing, after remand, I will be interested to see what appellants can do to explain or contradict what is shown on the videotape.

I would affirm.