concurring.
I am compelled now to proceed with a discussion of the inappropriate, improper, and unjustified appellate approach to this ease in the dissent and to discuss the propriety of going outside the appellate record for evidence and facts, the incorrect statements and application of law, and the unwarranted attacks upon counsel and the court.
Footnote 2 of the dissenting opinion informs us that the dissenting justice has ex parte gone outside the record on appeal and taken “judicial notice” of “[t]he criminal file of State v. Sarah Monn, Docket No. 40806, Natrona County, Wyoming * * ⅜ including specifically the prosecution and district court * * W.R.E. 201 provides that “[a] court may take judicial notice * * *.” This “court” has never taken judicial notice of matters which the dissent identifies, and I do not believe each justice is privileged to separately undertake his own expansion of a record on appeal.
Even more unprecedented is the fact that the specific documents which were judicially noticed are not presented, identified, marked as exhibits or made part of the record. We were informed that because information “was only a telephone call away,” that the dissenting justice effected this judicial notice by telephone — so we have now in this case telephonic judicial notice. But what records were noticed and how — with whom was the telephone discussion? The actual summary in footnote 2 may be accurate or inaccurate. We do not know. The dissenting justice went outside the record, ex parte — without informing either counsel — and by telephone he developed his own facts, conducted his own investigation, and added his own development of facts to this appellate record. In Lawn v. United States, 355 U.S. 339, 354, 78 S.Ct. 311, 320, 2 L.Ed.2d 321 (1958), the United States Supreme Court stated: “[The court] must look only to the certified record in deciding questions presented.”
In Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929), the Supreme Court of Mississippi stated:
“It follows that this court has no power to alter, amend or correct the records of trial courts in respect to the contents or recitals of those records. * * *
“It follows further that this court acts and must act only on the record as it is *1008certified to us by the clerk of the trial court.”
Evidence outside the record does not become part of the appellate record unless made so pursuant to rule in some regular proceeding. Suydam v. Williamson, 61 U.S. (20 How.) 427, 15 L.Ed. 978 (1858). Records and evidence in another case cannot be considered by an appellate court unless introduced in evidence or made part of the record in some judicial proceeding. Damon v. Damon, 312 Mass. 268, 44 N.E.2d 657, 143 A.L.R. 463 (1942). A telephone call does not satisfy the requirements of this rule. In addition, what occurred here was ex parte, i.e., without notice to any counsel, let alone one counsel.
In Nuspl v. Nuspl, 717 P.2d 341, 343-44 (Wyo.1986), Justice Urbigkit, writing for a unanimous court, said:
“Subsection (d) [W.R.E. 201] also operates to limit judicial notice in that it provides the opportunity for a party to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.
“Concerning this opportunity for notice, Louisell and Mueller, Federal Evidence § 58, p. 449 (1977) states:
“ ‘ * * * The question always to be answered is whether the court has in fact embodied in its findings or opinion an adjudicative fact not found in or sup- ■ ported by the formal evidence in the case, and if so, whether the fact in question is a fact properly noticeable.’
⅝ * * * * *
“ ‘A major risk when the trial judge resorts to outside sources to verify facts is that he may choose to decide the whole dispute on the basis of his own independent research. * * * [Sjuch procedure should be discouraged, at least until the parties are given ample opportunity to examine the sources in question before the judge formulates his own opinions and to present arguments upon the meaning of such sources and suggest additional sources.’ ” (emphasis added)
A judicial proceeding is said to be “ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.” Black’s Law Dictionary, p. 517 (5th ed. 1979). An ex parte investigation is “[a]n investigation conducted about a person who is not personally contacted or questioned.” Id. at p. 517. The telephone call to develop facts here was clearly not in accordance with established law, was inappropriate, and was ex parte.
The balance of the dissent concerns the testimony of a witness (not a party), the witness Sarah Monn. Sarah had pled guilty to a sexual assault crime arising out of the same incidents for which appellant was on trial. She was sentenced, probably as a result of a favorable plea bargain, to two to four years and, at the time of trial, was serving her sentence at the women’s prison at Lusk, Wyoming.
The dissent complains that:
“Nothing in the record reveals an effort by defense counsel to learn whether a statement existed or whether its introduction might be attempted. There was the statement and even a subsequent interview by the prosecuting attorney with the witness, but no preliminary objection to introduction was raised nor was any Denno hearing on admissibility conducted.” (emphasis in original) Dis. op. at p. 1013.
It is not surprising that the record reveals nothing about defense counsel learning of the existence of a statement. It never does. Efforts to know of a statement are not evidence; defense counsel does not testify. Nor is it surprising there was no “Denno ” hearing with respect to this witness’ statement. She is a witness — not a defendant. Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), provides that:
“A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.” (emphasis added)
*1009Sarah Monn was a witness. Often there are 15 to 20 witnesses in a trial. Were a Denno hearing required upon the statement of each witness, the trial would become a cumbersome, never-ending circus.
Next it is said:
“The statement was neither marked for identification at trial nor tendered for introduction into evidence.” Dis. op. at p. 1013. Again, not surprising. There is no rule of evidence that requires an attorney to mark and tender anything into evidence. What evidence and exhibits should be offered has always been left to trial counsel who decides how best to present and try his case.
Next it is said:
“What we do not know is whether Sarah Monn was ever given a Miranda warning before her statements were obtained and specifically what assistance of counsel she had been provided before or after criminal charges had been filed against her.” Dis. op. at p. 1014.
Whether Sarah Monn was given Miranda warnings is simply immaterial in this case. She is only a witness. Miranda warnings are not required before a statement, given by a witness, is utilized. And if a Miranda warning was material to the charge filed against Sarah in the State’s case against her, it was waived by her favorable plea bargain and guilty plea. So the fact is the Miranda warning requirement is not now relevant or material in either case.
Next it is said:
“What distresses me about this record is the abject failure at this trial to provide Sarah Monn the opportunity to have the assistance of counsel which she needed to avoid self-incrimination under the Fifth Amendment and Wyo. Const, art. 1, § 11, or to advise her about the privilege held by a wife not to testify against her husband under the statute.” (emphasis in original) Dis. op. at p. 1014.
It was unnecessary to advise her of the Fifth Amendment privilege against self-incrimination because she could not incriminate herself. She had already pled guilty to a criminal activity arising out of this incident. Double jeopardy would prevent her from being charged again. And this court has said clearly and succinctly that the wife’s privilege not to testify against her husband does not exist in a child abuse case. We have said in Seyle v. State, 584 P.2d 1081, 1086 (Wyo.1978):
“In Chamberlain v. State, Wyo., 348 P.2d 280 (1960), we held that it is within the purview of our statute [§ 1-142, supra (now W.S. 1-12-104) ] that the wife be permitted to testify where she has suffered a special, particular and personal wrong through the rapacious assault upon her child. We reasoned that cases in which there is a wrong against the child of the wife fall within the § 1-142 exception applicable to ‘criminal proceedings for a crime committed by one [spouse] against the other’ * * *. If we abandoned the construction placed on § 1-142, supra, in Chamberlain, we would encourage defendants to silence their spouses in child-abuse or child-homicide cases. This is not the policy of this State.”
Next it is stated that “[t]his case provides neither impeachment nor refreshed recollection.” Dis.op. at p. 1014. The essence of the claim is that one who says “I don’t remember” may not be impeached. Again, a surprising contention. Suppose she is lying when she says she cannot remember. Surely the state attorney can impeach her by showing she is lying. The transcript of testimony attached to the dissent demonstrates precisely that. For example, see the following questions and answers:
“Q. Do you remember anything happening while she was sleeping in your bed?
“A. Not really.
“Q. Do you remember giving a statement before that you remember something happening?
“A. I don’t remember.
******
“Q. Didn’t you call [Investigator] and tell him what was going on in your house?
“A. No, I don’t, I didn’t call him, I had talked to somebody else.
“Q. Didn’t you call * ⅜ * at DPASS?
*1010“A. Yes, I talked to [DPASS personnel].
“Q. And you told her that you had information for her about things that were going on in your house?
“A. Things that I thought were going on.
“Q. In fact things that you were involved in?
“A. Yes.
sfc ⅜ * * * *
“Q. Didn’t you give a factual basis to an incest charge that you did those things?
“A. I possibly did.
“Q. Isn’t it true that when these things were going on in your house, Curtis was also present with you and your daughter?
“A. Possibly.
“Q. And isn’t it true that you saw Curtis Monn and [Curtis’s daughter] sexually engaged?
“A. I can’t say that I remember that.
“Q. Again did you or did you not give a statement to Investigator * * * and myself about that incident?
“A. I don’t remember giving you a statement.
“Q. Did you in response to a question tell me that?
“A. I may have.”
From the whole of her testimony, it is apparent that she discussed the case with appellant a few days before trial, that she is lying when she says she does not remember, and that she attempted to influence her daughter’s testimony. Thus, she testified:
“Q. Isn’t it true that you have been in contact with him [defendant] the last several days?
“A. Very good possibility, yeah.
“Q. And isn't it true that you wrote a letter to your daughter just recently?
“A. Yes, I probably did.
“Q. In that letter didn’t you tell her that if she testified Daddy would go away?
“A. Telling her the truth, apparently you didn’t take into consideration what else I said to her, did you, I would be happy to tell everybody unless there is something you want to hide from it.”
Then the letter was read to the jury. An excerpt from that letter follows:
“Now I hear [the Investigator] talked to you about daddy. He said you wanted to tell everyone what daddy did. You know, if daddy goes to jail, you, [other daughter] and momma [sic] won’t be able to ever see or talk to him ever again. Do you really want that to happen[?]”
The dissent objects that “[t]he prosecutor was relentless in ignoring her claim that she did not remember giving the prior statement.” Dis. op. at p. 1015. The dissent is correct; he was relentless, and he should have been relentless. A trial is a search for the truth. The truth in this case is that this lady knew exactly what appellant had done to these girls and she tried to hide behind, “I don’t remember.”
Next it is stated:
“Defense counsel at trial and this court in opinion disregard without reference Channel v. State, 592 P.2d 1145 (Wyo. 1979), which clearly determined the scope of admissibility of the proffered testimony here even if it had been done right and then, if a limited instruction would have been given, states that ‘[t]he prior statement of this witness does not qualify for substantive use to prove a fact but only for the limited purpose of impeachment.’ Id. at 1149-50. Without citing authority, we now sub rosa overrule Channel, adopt a minority rule without discussion or citation of authority and confuse both the law of refreshed recollection and of impeachment.” (emphasis in original) Dis. op. at p. 1014.
This case does not overrule Channel nor adopt a minority rule. In Channel, defense counsel requested a limiting instruction. It was refused. That was error. In this case, there was no request for a limiting instruction. If requested, it would have been given. Thus, there was no error.
Finally, there are the continuing, appalling attacks on trial and appellate counsel *1011found in the following statement in the dissent:
“Complete preclusive ineffectiveness in trial preparation and presentation existed and is not presented for this appeal by the appellate student defender counsel in appellate brief writing and, consequently, the majority safely justifies what occurred at trial by absolution and resolution of plain error incantation. Lozano v. State, 751 P.2d 1326 (Wyo.1988); Schmunk v. State, 714 P.2d 724 (Wyo. 1986); Jones v. State, 580 P.2d 1150 (Wyo.1978).” Dis. op. at p. 1014.
I found the brief of appellate defense counsel superior in research, writing and scholarship. Presentation of argument was far above average. Professor Gerald Gallivan, for whom I have utmost respect, is director of the student defender program, and supervises research and preparation of brief and argument and was present at counsel table for oral argument. Both trial and appellate counsel did an admirable job representing this appellant in a case in which there was not much with which to defend. Even the dissent recognizes this fact when it begins by stating “[t]his case presents a sordid scene of parental sexual abuse and misconduct with their children,” dis. op. at p. 1011, and concludes by stating “[n]o matter how reasonably assured conviction might have been * * *.” Dis. op. at p. 1016. If the conviction was reasonably assured, then at least we ought to accept that what occurred at trial was not prejudicial, i.e., its absence would not change the outcome or result in an acquittal, and there was no error.