Capshaw v. State , 10 P.3d 560 ( 2000 )

THOMAS, Justice,

concurring specially, with which KAIL, District Judge, Retired, joins.

I am in accord with affirming Capshaw's conviction. I cannot, however, join in that aspect of the opinion that treats the claim of error under Kwallek v. State, 596 P.2d 1372 (Wyo.1979). In Ross v. State, 980 P.2d 965, 972-73 (Wyo.1996), I reiterated the analysis of that I advanced in Urrutia v. 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 the absence of the requisite objection.