dissenting.
Although recognizing that Steven De-Wayne Rands properly plead guilty to escape and was convicted by adequate evidence of at least burglary to join his many prior convictions for the same offense, I dissent from the conspiracy to commit first degree murder conviction and the life sentence mandatorily resulting as a consequence.
In reading and re-reading this record, I concur with the trial judge when he initially found from what Rands stated when he tried to plead guilty that he neither admitted to the offense nor did the evidence properly demonstrate that the conspiracy to kill existed as an offense of attempted murder against the victims. Clearly, an offense was committed against the victims without question by the passenger in the Rands vehicle, Gerald Dean Ellett, also known as Gerald Dean Jones, but this record provides nothing to my satisfaction in its confused, antagonistic and psychopathic portrayal of Rands that murder of anyone was intended by him.1
Rands, age thirty-one at the date of the offense and of native American origin, commenced his problems at age ten as a product of a troubled household with alcoholic parents. His criminal record developed with foster care and juvenile placement by the age of fifteen or sixteen and continued with regularity through numerous felony convictions and charged and uncharged offenses in a multitude of states, including a Texas offense providing a parole time technically extended until the year 2030.
Rands was a life’s loser, but I find nothing in this record disputing the central consistency of his testimony, no matter how drunk he was at the time of the shooting incident, that for him no killing was either planned or intended.
I remain satisfied, in application and general conception, with the burden and method of proof for conspiracy which was enunciated in Bigelow v. State, 768 P.2d 558 (Wyo.1989). In Bigelow, a conspiratorial offense was committed, e.g., attempted burglary of the Casper Wonder Bar, leaving the question relating to the identity of the participants and the character of their joint intent and common participation. Here, I lack conviction from the record that Rands expected, assisted or conspired to commit a random murder which became the substance of wrong for which his life sentence results. Further, I do not find the fortress of plain error satisfactory here to defend properly against ineffectiveness of counsel. We should not absolve introduction of the plea colloquy when rejected by the trial court in initial attempt of guilty plea and later introduced into evidence in *51the succeeding guilt determinative trial in contravention of W.R.Cr.P. 15(e)(6), W.R.E. 410 and also the constitutional right against self-incrimination guaranteed by Wyo. Const, art. 1, § 11. Westmark v. State, 693 P.2d 220 (Wyo.1984).
Introduction of evidence in this trial that Rands had previously entered into plea bargaining and any reference to the factual basis could not fail to be highly prejudicial to Rands and emphatically persuasive on the jury. Extreme prejudice to jury decision is the specific reason for the explicit evidentiary preclusion of W.R.Cr.P. 15(e)(6) and W.R.E. 410 regarding non-completed plea bargaining providing that any “statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.” W.R.Cr.P. 15(e)(6).
W.R.E. 410 states:
Withdrawn pleas and offers.
Evidence of a plea of guilty, later withdrawn, or admission of the charge, later withdrawn, or of a plea of nolo conten-dere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.
Case law in review of F.R.Cr.P. 11(e)(6), which is operationally the same as W.R.Cr.P. 15(e)(6) and a source of the Wyoming rule, is also similar in text to III ABA Standards for Criminal Justice § 14-2.2 (2d ed. 1980) which provides:
A plea of guilty or nolo contendere which is not accepted or has been withdrawn, and any statements made by the defendant in connection with entering such a plea of guilty or nolo contendere, should not be received against the defendant in any criminal or civil action or administrative proceedings, except that such statements may be admitted against a defendant in a criminal proceeding for perjury or false statement if the statements were made by the defendant under oath, on the record, and in the presence of counsel.
The history of non-admissibility of the withdrawn plea predates adoption of either rule and can be found decisively starting with Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927) where the court said:
The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto.
See also the emphatic and authoritative decision in State v. Boone, 66 N.J. 38, 327 A.2d 661 (1974).
The clear and unquestionable phraseology of the criminal and evidentiary rules, W.R.Cr.P. 15(e)(6) and W.R.E. 410, is mandatory for rule application but also constitutional in basic intent. The propriety and effect of plea bargaining was resolved by the United States Supreme Court in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The historical derivation of F.R.Cr.P. 11(e)(6) was actually F.R.E. 410 and the substance of its federal rule predecessor remains similarly restated in III ABA Standards for Criminal Justice, supra, § 14-2.2. U.S.C.S. Federal Rules of Criminal Procedure, Rule 11 (1991). See also Annotation, Propriety and Prejudicial Effect of Showing, in Criminal Case, Withdrawn Guilty Plea, 86 A.L.R.2d 326 (1962).
Not only is the fact of the entry and withdrawal or denial of the plea inadmissible, but also statements made in connection with the plea.
Statements made by a defendant in connection with a plea or an offer to plead may not be used substantively or for impeachment in any civil or criminal proceeding against the person who made the plea or offer.
2 Weinstein’s Evidence § 410[02] (1990) (footnotes omitted). See United States v. *52Leon Guerrero, 847 F.2d 1363 (9th Cir.1988) and United States v. Herman, 544 F.2d 791, reh’g denied 549 F.2d 204 (5th Cir.1977). See also F.R.E. 410; Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 228 (1973); and Annotation, When is Statement of Accused Made in Connection with Plea Bargain Negotiations so as to Render Statement Inadmissible Under Rule 11(e)(6) of the Federal Rules of Criminal Procedure, 60 A.L.R.Fed. 854 (1982).2
The guilty plea admission before the jury in this case was particularly egregious since the trial court in its Rule 15 Boykin review had earlier determined that the initially attempted guilty plea was not sustained by sufficient evidence to be acceptable, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When the circumstance and some facts relative to the denied plea came into jury trial evidence, it occurred in abject violation of both criminal and evidentiary rules and case law, although admittedly without objection which, in itself, was a demonstration of overt ineffectiveness of counsel.
Contemporary analysis of F.R.Cr.P. 11(e)(6) and its companion rule, F.R.E. 410, is most informatively found in the frequently cited cases of Herman, 544 F.2d 791; United States v. Ross, 493 F.2d 771 (5th Cir.1974); People v. Cole, 195 Colo. 483, 584 P.2d 71, 76 (1978), Carrigan, J., concurring in part and dissenting in part; and Boone, 327 A.2d 661.
The thoughtful legal scholarship of Justice Carrigan of the Colorado Supreme Court at a time predating Colorado adoption of F.R.E. 410 and F.R.Cr.P. 11(e)(6) recognized:
No matter what the real reason for a bargained guilty plea may be in any particular case, whether or not the trial court will accept that plea generally depends on its determination that the plea has a “factual basis.” Crim.P. 11; section 16-7-207(2)(f), C.R.S.1973. Such a •determination, in turn, requires the defendant or his counsel to satisfy the court that the defendant’s conduct giving rise to the more serious charges provides an adequate factual predicate to support a finding that he is guilty of the crime to which he wants to plead. Therefore, regardless of his reasons for negotiating a plea bargain, a defendant is placed in the inherently coercive situation of either providing the court with that factual basis or having the court refuse to accept his plea and force him to trial on the more grave charges. In such circumstances, a defendant may feel constrained to state what all in the courtroom expect of him, i.e., sufficient facts connecting him to the criminal incident to assure that his plea will be accepted. In my opinion, statements made under such compulsion, however subtle, cannot be viewed as “voluntary,” and therefore their trustworthiness is unreliable at best. Hence, such statements should not be admissible at a subsequent trial for the offense originally charged.
* * * * * *
The sound public policy favoring settlement, rather than trial, of lawsuits should require that statements made in connection with settlement or plea bargaining efforts not be admissible in evidence at the trial if the settlement efforts fail. This is the long-established rule governing attempts to compromise and settle civil litigation. McCormick, Evidence 663 (1972); IV Wigmore § 1061 (Chadbourn Ed.1972).
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Last, but not least, we ought not adopt a procedure so fundamentally unfair as that approved by the majority. Normally a defendant will not make a statement, and thus provide evidence against himself, but for the State’s inducement through a plea bargain. Moreover, the trial court’s indication that it will refuse *53to accept the bargained plea unless the defendant admits facts sufficiently ensnaring him in criminal conduct to provide a “factual basis,” amounts to an ultimatum delivered to one already under considerable emotional stress. Implicit in the situation is the understanding that the defendant’s statement is being made solely for the court’s consideration in deciding whether to accept the tendered plea. In effect the statement is extracted as a condition to obtain court approval of the plea bargain. When the court rejects the plea bargain and puts the defendant on trial on the original charge, it is not fair to allow the State to retain and use against the defendant the fruits of the rejected plea bargain. In my view this procedure is so fundamentally unfair as to constitute a denial of due process. U.S. Const. Amend. XIV; * * *.
Cole, 584 P.2d at 77-78 (footnotes omitted), Carrigan, J., concurring in part and dissenting in part.
In Herman, 544 F.2d at 797, it was said: The rule’s central feature is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement. Such candid discussion will often include incriminating admissions.
Ross, 493 F.2d at 775 provided further insight:
If, as the Supreme Court said in San-tobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.
With the two specific prohibitory Wyoming rules precluding introduction of evidence of either the denied plea or the text of statements made, the failure of defense counsel to object is unexplained. Under the circumstance of this conspiracy case, the introduction of that knowledge to the jury could not have been less than devastating. The devastation was anchored by the confused and highly acrimonious testimony, frequently vulgar and heavily emotional, by Rands who descriptively communicated his obvious hatred for the prosecutor. This evidentiary admission of the prior events in violation of the two explicit rules clearly reaches the plain error criteria of W.R.Cr.P. 49(b) and cannot be considered to be harmless beyond a reasonable doubt. Campbell v. State, 589 P.2d 358 (Wyo.1979); United States v. Brooks, 536 F.2d 1137 (6th Cir.1976).
The philosophic principle for the eviden-tiary exclusion rule was recognized in Boone, 327 A.2d at 666:
The problem with revealing a prior guilty plea to the jury is that it is too prejudicial, and it “may induce the jury to become reckless in its consideration of the other evidence.” State v. Thomson, supra, 278 P.2d [142] at 150 [ (Or.1954) ] (Rossman, J., concurring).
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The devastating effect of disclosure of a prior guilty plea to a jury was discussed by the court in People v. Haycraft, [76 Ill.App.2d 149, 221 N.E.2d 317 (App.Ct.1966) ]. In concluding that any evidence of a withdrawn guilty plea must be excluded, the court observed:
It is also difficult to conceive a disclosure more apt to influence a jury than the information that the accused had at one time pled guilty to the commission of the crime with which he stands charged. * * * The human mind is not a blackboard from which unwanted information can be erased at will. We can think of nothing more damaging to an accused in the minds of the jury than the disclosure, however brief, that he had admitted guilt ... and once that disclosure has been made we cannot say that he has received the fair and impartial trial to which he is entitled. 221 N.E.2d at 319.
*54The societal problem with this conviction and life sentence is that Rands is directed to spend the rest of his life in confinement for an offense he consistently denies committing, believing he is subjected to that result by an unfair system and, in realistic tenor of the evidence, probably did not intend to commit.3 It is the injustice, not his status as a life’s loser, that precludes my concurrence in affirming the conviction. I also have difficulty with a conviction of conspiracy for both participants where the hard factual evidence was actual commission of a crime which was either attempted murder or completed aggravated assault. Obviously, defense counsel had access to the Ellett/Jones criminal file which was not noticed for judicial information and is not available for review in this appeal. Consequently, we are not informed about what Ellett/Jones said when his Rule 15 plea colloquy was considered and sentence was entered about his night time shooting at the car on that country road. In this record, we only find a handwritten statement signed by Ellett/Jones that states Rands was not responsible for the shooting.
I would affirm the burglary conviction and reverse the conspiracy conviction to be remanded for retrial on an offense which may have been committed.
. Ellett/Jones, on June 20, 1990 after the Rands conviction, entered a guilty plea to the same offenses, conspiracy to commit murder in the first degree and aggravated burglary, and similarly received a life sentence on the conspiracy to commit murder charge and a consecutive term of ten to thirteen years on the aggravated burglary guilty plea. Consequently, both the shooter and the driver were charged with conspiracy and neither was charged with the aggravated assault/attempted murder offense actually committed. Ellett/Jones was not called to testify at the Rands trial, although two of his statements were included in this record indicating he had been coerced into untrue accusations against Rands.
. Countervailing authority permitted rebuttal use to impeach the credibility of the accused as delineated in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). A short answer to the Harris decision is found in comment that the current text of F.R.Cr.P. 11 was in part adopted to reverse Harris. 2 Weinstein’s Evidence, supra, § 410[01]. See also F.R.E. 410 and W.R.E. 410 which provide an identical admissibility preclusion.
. The length of the sentence, seventeen to twenty years for aggravated burglary, a life sentence for conspiracy to commit first degree murder to be served consecutively, with a concurrent nine to ten years for attempted escape, is not necessarily the issue. Aiding and abetting aggravated assault or a similar offense, not to ignore the aggravated burglary for which there was a conviction, in conjunction with the previous record of Rands would have sufficed under the Wyoming habitual criminal statute, W.S. 6-10-201, to justify a life sentence, W.S. 6—10—201(b)(ii). In Wyoming, a life sentence is a life sentence, subject only to pardon or commutation. Osborn v. State, 806 P.2d 259, 262 (Wyo.1991).