dissenting.
Differing from the court’s resolution of Issue II (jury prejudice), and dissenting from disposition of Issues I and IV (admissibility of defendant’s evidence), I also dissent to the decision on the sufficiency-of-the-evidence contention of Issue V. To be considered is not only the treatment of these issues in this case, but far more importantly what appears on some issues as an unfortunate development of two disparate standards, depending on whether favoring the defendant or the prosecution. Knowing this court would not consciously develop one standard used to convict and another singularly different to acquit, I respectfully address the emerging double standard.
ISSUE II: ERROR TO LIMIT THE EXTENT OF DEFENSE INVESTIGATION INTO THE ALLEGED JURY TAMPERING
After a claim of a fixed jury arose at trial, defendant attempted to probe the jury status to establish or disprove those allegations. The trial court confined defense counsel’s examination to events occurring during trial and before commencement of deliberations, in denying inquiry which could reach the substance of the corroborating information furnished in interview by the jury foreman. The trial court decision now supported by this court is based on a misconception that Rule 606(b), W.R.E., exists as a complete barrier to all inquiries which open to view jury prejudice beyond the deliberation session as specifi*1071cally excluded from examination. I disagree in that Rule 606(b) allows an exception — where the inquiry proceeds from a substantial allegation that a juror lied during voir dire. After stating:
“ * * * Where the comments indicate that the juror had preconceived notions of liability or guilt or personal knowledge about the facts in issue, the statements may be admissible not because they are not prohibited by Rule 606(b), but as tending to prove that the juror lied on , the voir dire * * 3 Weinstein, ' § 606[04], p. 606-33 (1985),
Weinstein further states:
“Wigmore would prohibit all disclosure— except where the proof is offered in connection with a showing that the juror had lied on the voir dire in failing to indicate bias * * Id. at 606-34.
The problem considered here arose during the course of the trial when a person anonymously, but later identified as Michael Evans, called the office of the Public Defender about prejudicial influence of decedent’s family with two jurors, including one who was his grandmother.
My examination of the record does not accord with the conclusion of this court that:
“The only restriction placed on appellant in his questioning of witnesses at the hearing on a motion for new trial were strictures specifically provided for in Rule 606(b), W.R.E. Otherwise, he was given wide latitude.”
Rule 606(b) only justifies examination denial of occurrence during deliberations, and clearly affords no restriction on retesting accuracy of initial voir-dire answers.
“ * * * Moreover, where comments indicate prejudice or preconceived notions of guilt, statements may be admissible not under F.R.E. 606(b) but because they may prove that a juror lied during the voir dire. * * * Such evidence can be used to show that a juror should be disqualified by his prejudice and that the verdict in which he participated was a nullity.” (Emphasis added.) Tobias v. Smith, 468 F.Supp. 1287,1290 (W.D.N.Y.1979).
The actual restriction was circumscribed by the trial court at the commencement of the new-trial motion hearing:
“THE COURT: Very well. You say you understand the guidelines. It’s my understanding — and so we all have the same understanding — that all we’re concerned about is to ask jurors whether or not, after they were chosen and selected in this case, whether they had any outside contact with anyone prior to reaching their verdict, and not about their deliberations or what they thought of or talked about or felt during their deliberations.”
The premise for confinement of examination of the jurors to events occurring during trial is not established by this record. Obviously if the decedent’s family, and particularly the father, had “influence” with the two jurors, the basis would predate trial commencement and would have existed when the initial voir-dire examination occurred, as evidenced in questioning Juror K as one of the two named by the informant:
“MR. CARROLL [Prosecuting Attorney]: Mrs. K, do you know anything about this case except what you have heard here in the courtroom?
“MS. K: Just what I have heard in the courtroom. * * *.
“MR. CARROLL: And is there anything that you want to tell any of us that would have a bearing on your ability to serve as a fair and impartial juror in this case?
“MS. K: No.
******
“MS. K: No, I just recognize the victim’s brother sitting over there. I just know who he is through a friend.
“MR. CARROLL: You say you recognize him?
“MS. K: Yeah, I just know him through someone as an acquaintance, a casual one.
“MR. CARROLL: Have you had any social or business relationship with him?
“MS. K: No, I just know who he is,”
*1072and similar inquiry of informant’s grandmother, Juror G:
“MR. CARROLL: * * * And, Mrs. G, do you know anything about this case except what you have heard here in the courtroom?
“MS. G: No.
* * # * # *
“MS. G: No, I have seen the father but — I don’t know him personally.
“MR. CARROLL: Do you know Mr. Gregorio, you have seen him?
“MS. G: I have seen him but I don’t know him personally.
# # * * * *
“MR. CARROLL: And is there anything I should have asked you that I have not that would bear on your ability to serve as a fair and impartial juror?
“MS. G: No, I don’t think so.”
Again, we are faced with the age-old dilemma of being ignorant as judges of what we know as persons: (1) a juror’s grandson anonymously called the Public Defender twice with contention of a fixed jury; (2) after trial, counsel for defendant interviewed the foreman of the jury, obtaining conjecturally corroborating information; and (3) pure coincidence without causative rationale is an anathema to the laws of nature.
I would not confine inquiry of the defense merely to the scope permitted by the trial court, particularly so since limitation is not justified by the test of Rule 606(b), W.R.E. Exclusion of the substance of deliberations after the jury started verbal consideration is considerably more confined than was the examination preclusion actually effected. Particularly of concern, although not clearly defined in this record, is the afforded opportunity for further examination post-trial, to determine whether initial voir dire was intentionally or unintentionally false.
Additionally, I see little justification for denying the court’s consideration of the testimony of the foreman of the jury about the substance of the information which he had furnished to counsel for defendant in post-trial interview in order to determine the initial fairness and reliability of the two women jurors and the accuracy of the answers given on initial voir dire. I find a difference between an initial determinative posture and later positions and discussion adopted during the deliberative session.1
Furthermore, a curious dichotomy is formulated by this opinion. The court would describe Evans as unworthy of belief as “a convicted felon.” Because prosecutors often embrace convicted felons as reliable witnesses, “the jury is entitled to know that the state’s witnesses are convicted felons,” State v. Ross, 104 N.M. 23, 715 P.2d 471, 475 (1986), I find greater significance in Evans being the grandson of one of the two subject jurors as logical support for possible knowledge.
Necessary to the court’s thinking is the conception that a person’s past criminal status always serves to predict the value of that person’s continuing actions. Oddly enough, this notion is then abandoned completely in Issue IV where this court approves the exclusion of the decedent’s past arrest record when offered by the defendant to prove pertinent traits of the victim.
If the status of being a convicted felon deters believability, the officers of the Wyoming Bar Association must be hard-pressed to explain successfully the reported $5,000 price tag in inviting the ex-convict, G. Gordon Liddy, to speak at its annual convention.
Recognizing that we are not intruding within the strictures of Rule 606(b), but only in the general area of the exercise of discretion, the “guidelines” were, in my interest-of-justice analysis, far too confined.
*1073Because I would reverse and remand for retrial on the basis of the remaining issues and so would not anticipate this particular problem to arise again with a fresh jury, my dissent on this issue will not be expanded, except to note that in jury tampering cases, the inquiry, where the allegations prove to be true, “does not end there, however, because not every incident of juror misconduct or bias requires a new trial.” United States v. Hendrix, 549 F.2d 1225, 1229, cert. denied 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74, reh. denied 434 U.S. 960, 98 S.Ct. 493, 54 L.Ed.2d 321 (1977). But “[i]f only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel.” Id. at 1227.
ISSUE IV: INSUFFICIENCY OF EVIDENCE FOR SECOND-DEGREE MURDER CONVICTION
The majority affirm that the evidence justified the second-degree murder conviction. After allowing for the fact that the jury was denied knowledge of the victim’s past arrest record (Issue IV), and that they were denied the defendant’s expert witness’ testimony of the effect fear might have in impairing judgment (Issue I), I could agree based only on the testimony given. But the information permitted to be introduced was not all the specifics which should have been available to the jury. My dissent unfolds from the assertion that the evidence was insufficient because proper evidence was excluded, not that the information as it was before the jury was insufficient for a second-degree murder conviction.
In the present opinion this court says: “Malice has been defined as intentional killing without legal justification or excuse and under circumstances which are insufficient to reduce the crime to manslaughter.”
Necessarily, a full examination by the trial court should always be made which fairly allows a determination whether or not the circumstances are insufficient to reduce the crime to manslaughter. Under § 6-2- , 105(a)(i), W.S.1977, a person is guilty of voluntary manslaughter if he or she unlawfully kills any human being without malice, express or implied, voluntarily, upon a sudden heat of passion. To infer malice then is to assert that there are no circumstances which would allow an inference of voluntary manslaughter, i.e., no sudden heat of passion.
The majority say, “In this case, appellant walked into his apartment and loaded his rifle * * From the facts developed at trial, one might well say, “In this case, appellant rushed into his apartment to call the police and upon hearing his wife’s screams, loaded his rifle.” While heat of passion is often brought to mind as the kind of emotion a husband might experience in suddenly finding that his wife has an additional lover, State v. Saxon, 87 Conn. 5, 86 A. 590, 594 (1913), I submit that sudden heat of passion would grip any man or woman who suddenly hears a blood-chilling scream from a loved one, knowing he or she is in a potentially very dangerous confrontation with a trouble-provoking and antagonistic individual.
“[T]he legal definition of heat of passion should incorporate the reactive passions of fear and terror as fully as it includes the aggressive passion of rage in order to recognize a close relationship between heat-of-passion manslaughter and imperfect self-defense.” Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 U.C.L.A. L.Rev. 1679, 1682 (1986)!
This court, while properly disapproving the concept of diminished capacity as an infringement on the legislature, Dean v. State, Wyo., 668 P.2d 639, 644 (1983), has never authoritatively2 discussed the defense of imperfect self-defense when linked to heat-of-passion manslaughter. However, this court came close in discussing the psychological factors faced by a long-*1074battered youth who killed his father. Jahnke v. State, Wyo., 682 P.2d 991, 1013 (1984).
The legislature set the parameters of defense for mental illness or deficiency in § 7-11-304, W.S.1977. To allow any defendant to argue diminished capacity outside the conceptual limits of § 7-11-304 would necessitate a violation of the constitutional demand for separation of powers. Art. 2, § 1, Wyoming Constitution. This is not the case which would obtain in allowing the development of an imperfect self-defense, since the legislature has not codified self-defense, and this court allows self-defense as unobtrusive upon the legislature’s province. Mewes v. State, Wyo., 517 P.2d 487, 488 (1973). An imperfect self-defense lies within the radius of self-defense, as in this case where the defendant came to the help of his wife, on “asserting the justification of defense of another,” stepped into the position of the person defended. Leeper v. State, Wyo., 589 P.2d 379, 383 (1979).
Perfect self-defense is defined by Illinois in People v. Brown, 104 Ill.App.3d 1110, 60 Ill.Dec. 843, 847, 433 N.E.2d 1081, 1085 (1982), as follows:
“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend * * Ill.Ann.Stat.1977, Ch. 38, § 7-1.
and imperfect self-defense:
“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing * * * but his belief is unreasonable.” Ill.Ann.Stat. Ch. 38, § 9 — 2(b).
See also Lambert v. State, 70 Md.App. 83, 519 A.2d 1340, 1346, cert. denied 309 Md. 605,. 525 A.2d 1075 (1987). The notion of an imperfect self-defense is that the actor honestly but unreasonably took the steps he took.
“The concept of reasonableness is as firmly entrenched in the law of self-defense as it is in the law of heat-of-passion manslaughter.” 33 U.C.L.A. L.Rev., supra at 1700.
Since this court says:
“ ‘ * * * Malice may be inferred from all of the other facts and circumstances,’ ” quoting from Leitel v. State, Wyo., 579 P.2d 421, 424 (1978),
it would seem strange if malice may be inferred from all the circumstances, but heat of passion cannot. Yet, when the defendant is denied the opportunity to develop fully all the circumstances from which heat of passion arising from terror or fear could be inferred, he is denied the opportunity to preclude an inference of malice. Where he has not been given that opportunity, the whole story is kept from the jury and, in that sense, the whole evidence might be insufficient to convict for murder in the second degree. I am not unaware of the restrictive posture as defensively applied in enunciation by this court in Buhrle v. State, Wyo., 627 P.2d 1374 (1981), and at least peripherally continued in Krucheck v. State, Wyo., 702 P.2d 1267 (1985). Unless this court is adopting a standard that what is not admissible for defense is admissible for prosecution, these two cases in restrictive structure cannot be accommodated to much of the current literature in comparable cases, but more specifically, even after ignoring the vouching-for-the-truthfulness aspect, to what this court now stated in Brown v. State, supra. Buhrle is today in the obvious minority. See Note, A Trend, Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome, 25 J.Fam.L. 373 (1986). At the time of writing, the author found only three other states in concurrence, Louisiana, Ohio and Texas, compared to seven where unconditionally admissible, and six where conditionally admissible. 33 U.C.L.A. L.Rev., supra; Rosen, The Excuse of Self-Defense: Correcting a Historical Accident On Behalf of Battered Women Who Kill, 36 Am.U.L.Rev. 11 (1986). To be noted is that the Dyas test, Dyas v. United States, D.C.App., 376 A.2d 827, cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), adopted in Buhrle is more restrictive than the liberal*1075ized test of Rule 702 in our Rules of Evidence. Compare as considered on another basis, State v. Zespy, Wyo., 723 P.2d 564 (1986).
“ * * * Thus, the more liberal Rule 702 requires only that the expert’s scientific, technical or other specialized knowledge assist the trier of fact; there is no requirement that expert testimony be beyond the understanding of the jury.” 25 J.Fam.L., supra at 374.
ISSUE I: ERROR TO EXCLUDE DR. MERRELL’S TESTIMONY AS TO THE STATE OF MIND OF THE DEFENDANT
It is a “well-settled rule of law that the expert witness may not testify to the truthfulness of the victim.” Brown v. State, Wyo., 736 P.2d 1110, 1125 (1987), Urbigkit, J., dissenting, citing United States v. Azure, 801 F.2d 336 (8th Cir.1986). Equally, an expert “ ‘cannot testify as to the truthfulness of the defendant’s version [of the incident].’ ” Brown v. State, supra at 1115, quoting from Smith v. State, Wyo., 564 P.2d 1194, 1200 (1977).
This defendant wanted to introduce expert testimony, not that the expert thought he was telling the truth which would invade the province of the jury, but that “fear can certainly impair judgment.” It seems inadequate simply to announce, “We hold that fear and stress are emotions experienced by all mankind and are not distinctively related to some science.” While fear and stress are emotions experienced by all of us, we do not all react equally to the same stimulus, in the same way or in the same fashion. Of particular interest in understanding the psychology of conflict as augmented by the introduction of firearms, is the work in 29 Law & Contemp.Probs. (1986), and particularly Stell, Close Encounters of the Lethal Kind: The Use of Deadly Force in Self-Defense, 29 Law & Contemp.Probs. 114 (1986). Unfortunately the 249-page treatise does not consider adequately the intrinsic-proclivity factor of availability motivation, particularly when infected by ingestion of alcohol.
When an expert can place weight upon a particular stimulus or the action or reaction results of the stimuli, then the expert should “aid the trier in his search for truth.” This would allow the defendant the opportunity to develop an imperfect self-defense — that he honestly believed the actions he took were necessary even though assessable in hindsight as unreasonable. In the nature of psychological reaction, threat to wife or children might frequently cause more reaction than would threat to one’s self. Protective love in many is a more pervasive stimulus than personal safety. To ignore that mental quality is to reject human history and deny well-established fact.
As judges, we should not ignore what we know both as lawyers and as people, in denying expert analysis of the effect of stress-factor sensors causatively related to the malice differentiation between murder and manslaughter.3
When a reaction is deemed self-defense, the reaction is said justified; when the reaction is heat of passion, the reaction is said partially excused. Respected thinkers have devoted exhaustive consideration to their analyses of human understanding to justification versus excuse; the significance of justification; defense of justification; reasonable-men criteria; passion and emotion as dethroning reason; self-defense re-examined; the adequacy of provocation; interpretative construction; and imperfect self-defense. What is discerned through synonym versus antonym; similarity and differentiation; desert and detriment; and rule and standard, is that the relationship of intended result to assessed retribution is both clouded in fact and confused in conception. If scholars so disagree, how can the trial process, on the basis that we all experience fear and stress, reject expert assistance on the totality of causation and character while seeking justice? Leven-book, Responsibility and the Normative Order Assumption, 49 Law Contemp. *1076Probs. (1986); McEwen, The Defense of Justification and Its Úse by the Protestor: A Focus on Pennsylvania, 91 Dick.L.Rev. 1 (1986); Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification, 77 J.Crim.Law and Criminology 277 (1986); Donovan and Wildman, Is the Reasonable Man obsolete? A Critical Perspective on Self-Defense and Provocation, 14 Loy.L.A.L.Rev. 435 (1981); Perkins, Self-Defense Re-Examined, 1 U.C.L. A.L.Rev. 133 (1953); Dressier, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J.Crim.Law and Criminality 421 (1982); Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan.L.Rev. 591 (1981); Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 U.Pa.L.Rev. 1021 (1958); Dressier, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking, 32 U.C.L.A.L.Rev. 61 (1984); Fletcher, The Individualization of Excusing Conditions, 47 S.Cal.L.Rev. 1269 (1974); Note, Partially Determined Imperfect Self-Defense: The Battered Wife Kills and Tells Why, 34 Stan.L.Rev. 615 (1982).
The engine of this dissent is driven by the treatment given this expert’s testimony when contrasted to the treatment given the complaining expert witness in Brown v. State, supra. In Brown, expert testimony was allowed to help convict. Here, expert testimony to challenge for acquittal is denied.
In Brown v. State, supra, the expert testimony was that the complaining witness took a psychological “test” which “showed” she had been sexually abused and was truthful. One struggles to capture the logic necessary to reveal how this is not expert testimony vouching for the truthfulness of the complaining witness, except that the court said that Smith v. State, supra, 564 P.2d at 1200 stood for the notion that an expert “cannot testify as to the truthfulness of the defendant’s version [of the incident]” and that principle was not violated. To allow expert testimony which infringes on the province of the jury when that testimony is used to convict, and to disallow expert testimony which might develop an imperfect self-defense when that testimony is used to help acquit, points to an inconsistent treatment by this court which is constitutionally (due process) and logically (fairness) unacceptable.
ISSUE IV: ERROR TO EXCLUDE THE PAST ARREST HISTORY OF THE VICTIM
This defendant sought to pursue the Rule 404(a)(2), W.R.E., exception — pertinent trait of the decedent — by introducing his past arrest history to place a perspective on defendant’s reaction in the context of his perception of a threat to his wife. As Rule 404(a)(2) specifically allows evidence of a pertinent trait of the victim, the question arises whether evidence of other crimes, wrongs, or acts may be used to establish for the jury in this case that pertinent trait. The plain language in Rule 404(b), W.R.E. reveals no barrier in applying Rule 404(b) to the decedent as well as the defendant when arguing pertinent trait. Several courts take this approach.
In United States v. Greschner, 647 F.2d 740, 742 (7th Cir.1981), the Seventh Circuit Court of Appeals reversed a lower court for excluding proof of the victim’s “violent character” by application of Rule 404, F.R.E., which creates a specific exception to offer evidence of a pertinent character trait. As in that case approved, it is in this case precisely what the defendant attempted. In articulating the reasoning, that court said:
“ * * * The reason that prior convictions are disfavored, however, is not that they are irrelevant, but that they may be extremely prejudicial. In the instant case, there was no issue of prejudice since [the victim] was neither a defendant nor a witness.” 647 F.2d at 742, n. 1,
with which the Virginia courts agree:
“It is well settled in Virginia that where an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the victim for turbulence and violence, *1077even if the accused is unaware of such character.” Jordan v. Commonwealth, 219 Va. 852, 252 S.E.2d 323, 325 (1979).
See also State v. Basque, 66 Hawaii 510, 666 P.2d 599, 602 (1983):
“ * * * [W]e treated general character evidence and specific prior acts (including those reflected in the victim’s criminal record) the same for purposes of corroborating a defendant’s self-defense claim as to who was the aggressor.”
The reasoning concludes:
“ ‘ * * * [P]roof of the deceased’s violent and turbulent character in this situation is circumstantial evidence of the likelihood of his being the aggressor.’ ” Id. 666 P.2d at 602, quoting from State v. Lui, 61 Hawaii 328, 603 P.2d 151, 154 (1979).
The orbit of the majority’s analysis fails to encompass the defendant’s argument. The defendant wished to introduce, during trial, evidence of a pertinent trait of the victim by introducing the victim’s past arrest history. The majority discusses how Rule 404(b) is quite often used subversively by both prosecutors and defendants against victims to establish that the person acted in conformity with his or her character. I agree fully that in the absence of an offer to prove pertinent trait, it is indeed a subversion of Rule 404(a) to use adverse character evidence for substantive-fact evidence. This subversion is seen most clearly when a Rule 404(b) exception is allowed to eclipse Rule 404(a). It is precisely this subversion I argued against where motive eclipsed propensity, Brown v. State, supra, when no mention of pertinent trait was made and yet this court willingly allowed propensity evidence, thinly veiled as motive, where that evidence was used to convict. This defendant attempted to demonstrate pertinent trait and was inappropriately denied that opportunity on the basis of a need to prevent Rule 404(b) abuse. While Rule 404(a)(2) is subject to a Rule 403, W.R.E. prejudice balancing, Rule 404(b) cannot fairly stand as a barrier to Rule 404(a)(2).
Apprehended is that evidence of alleged past sexual abuse with someone other than the victim is admitted to help convict, Brown v. State, supra, despite the enormous presence of prejudice, but evidence of an arrest record of the deceased is excluded on the basis of possible prejudice. One cannot help but be confronted by a strange vacuum when an attempt is made to articulate the logic necessary to accommodate such different results.
The court makes note that the victim’s arrest record began at age 13. Presumably, such an alert is tangential to the issue of remoteness. A pertinent trait not extended through time cannot reliably be called a trait. The question then for this court is, at what point does the pertinent trait become acknowledged as pertinent but yet not remote? Remoteness may have little force on an argument concerning pertinent trait. Where it does have some force, the analysis necessary to give that force some place in the argument must be more rigorous than this court has provided.
The majority also ascribe that only one arrest concerned violence, which occurred at a police booking desk, before defining the exclusion of the past arrest record to have been proper. Occasioned by a set of circumstances not dissimilar to this case, a defendant arguing self-defense sought to introduce a prior conviction of the victim for assault and battery upon a police officer. The Pennsylvania Supreme Court, in dismissing the argument of the prosecution, said:
“The prosecution argues that punching a police officer in a police station presents a ‘less serious’ and entirely different situation than the one at issue here. When the prior conviction is for assault and battery, there is no need to compare the facts. Any difference is irrelevant. A conviction for assault and battery necessarily implies a character involving aggressive propensities.” Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371, 1373 (1979).
Our court concedes:
“Arguably, the bits and pieces of the record might support appellant’s theory *1078that the victim was the aggressor.” (Emphasis added.)
Yes, they might. That is the point in issue. Nothing in the Braley story disproves an aggressive characterization of decedent.
In United States v. Greschner, supra, 647 F.2d at 741, the court said:
“ * * * [T]he ‘violent character’ line of proof is relevant to the defendant’s theory of self-defense in that it makes his version that the victim attacked him ‘more probable.’ ”
For this defendant, the offered and refused character evidence of the decedent was equally relevant.
Given the predictive value granted to Michael Evans’ status as a criminal during appellant’s jury-tampering issue, why then is the criminal record of decedent of 13 offenses, whether or not matured by act or accident to the level of a felony, not singularly significant? Specifically, we would find included in 1973, shoplifting; 1976, disturbance of property, removing tires from a car; 1977, failure to appear for a traffic citation; 1977, disturbance, yelling and cussing, refused to leave property on request by owner; 1978, drinking and driving, “extremely belligerent and threatening,” obscene language, made threats against the family of arresting officer; 1978, disturbance and destruction of property, made threats against officer, attempted physical assault on officer at booking, including kicking and use of obscene language; 1979, drinking and driving; 1980, car prowl; 1980, open container in automobile; 1981, drinking and driving; 1983, drinking and driving; and 1984, drinking and driving, uncooperative. Then, in 1985, this event occurred which involved drinking, driving, parking and the disturbance. Unfortunately, it was final.4
The course of events at the scene, detailed to have lasted nearly an hour, gives no pause for the characterization of heroism by any of the participants. The recognition of the friend of the decedent that “[when the Braleys return] we’re going to get into a fight,” gives some substance to conjecture that the parking place chosen after the first incident was deliberately arranged with a fair likelihood of provocation.
While “the admission of evidence is within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed,” Taylor v. State, Wyo., 642 P.2d 1294, 1295 (1982), and “[t]hat party must establish that the ruling of the trial court was erroneous and that it did affect substantial rights of the party,” Jahnke v. State, supra, 682 P.2d at 1005, when facing the same problem, the federal court in United States v. Greschner, supra, has said
“ * * * The trial court’s improper exclusion of the character and motive evidence was seriously prejudicial to that theory. Therefore, the improper evidentiary rulings require reversal of the defendant’s assault conviction and a new trial.” 647 F.2d at 743.
I cannot conclude that due process and fairness as constitutionally and procedurally required to avoid unapprovable trial prejudice to defendant will be found or does exist from denial to the jury of the complete story from the victim’s past arrest record and evidence of rejection of defendant’s expert-witness testimony. Viewing this trial-evidence denial as an improvident abuse of discretion, I would reverse the conviction and remand for retrial.
. I do not perceive the current United States Supreme Court opinion in Tanner v. United States, — U.S. —, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), a five-to-four decision, to be inappo-site for Wyoming Constitutional inquiry, first because I find the dissent to state a more rational and well-reasoned position, and second, what is tested is not deliberative activities but incontinent if not deliberately false response to voir-dire examination.
. See, however, Best v. State, Wyo., 736 P.2d 739 (1987), which discussion this writer did not then and does not here consider to be precedentially dispositive of the broad principles not there factually invoked.
. As Justice Frankfurter also said, an " 'issue of fact’ is a coat of many colors." Watts v. Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949).
. The court’s opinion speaks of “victim," and this dissent of "decedent." Unfortunately, the victims in these assault fatality cases are many, including wives, families, society, and, not insignificantly, the Wyoming taxpayer.