dissenting.
My analysis has not changed since the opinion was written in Engle v. State, 774 P.2d 1303 (Wyo.1989) (Engle I) that this hapless individual committed the offense of joyriding for which by now, during two tours in the Wyoming State Penitentiary, he has been more than adequately punished and not rehabilitated in any regard. See Wyo. Const. art. 1, § 15.
Whatever the taxpayer burden for his support and maintenance at the penitentiary may be, Engle will be released as neither reformed nor mentally treated to cure his long-standing, clearly obvious illness. Required medical care and needed occupational training aside, in my opinion, this unfortunate individual simply did not commit a vehicle taking offense with intent to either abandon his existence in Casper or permanently deprive the owner of the use of the vehicle. See Comment, Mens Rea: The Impasse of Law and Psychiatry, 26 Gonzaga L.Rev. 613 (1990-91).
How we get to this second conviction and extended prison sentence for this mentally *1290disturbed near twenty-nine year old man as a felony offense conviction is no more justified by the technical issues now presented in this appellate briefing. This is particularly true with the exercise of judicial discretion which limited Engle’s expert witness from giving clearly appropriate expert testimony. That inquiry addressed this mentally disturbed individual’s capacity to develop the specific intent necessary to commit the offense.
Again, I see a two standard justice result with what is permissible for the prosecution is deemed unacceptable within even equal protection and due process constitutional guarantees for the defendant to use to defend. Price v. State, 807 P.2d 909, 917 (Wyo.1991), Urbigkit, J., dissenting; Lively and Plass, Equal Protection: The Jurisprudence of Denial and Evasion, 40 Am.U.L.Rev. 1307 (1991). Cf. Brown v. State, 736 P.2d 1110, 1117 (Wyo.1987), Urbigkit, J., dissenting; Scadden v. State, 732 P.2d 1036 (Wyo.1987); and Lessard v. State, 719 P.2d 227 (Wyo.1986).
Furthermore, in the almost frantic search to affirm this second conviction, I cannot agree that the self-standing hearsay so-called medical report from the absent prosecutorial witness should have been utilized as proving evidence of sanity when the powerful process for truth’s search— cross-examination — was denied. Holm v. State, 404 P.2d 740 (Wyo.1965); Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). If the patient’s (now convict) historical record of mental treatment means anything, then it is most likely that the hospital evaluation report is not even either true or valid.
The report was, of course, hearsay and I fail to find clear legislative intent or deeply rooted tradition justifying admissibility under standards derived from the Fourteenth Amendment of the United States Constitution, decisions of the United States Supreme Court and certainly not under the rights appropriately providing protection as included in the Wyoming Constitution. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
What we have here is the State’s hearsay evidence elicited from the partisan representative from the Wyoming State Hospital and Engle’s expert witness denied equivalent testimonial opportunity even when appearing in person. This case personifies a blatant violation of constitutional rights implicit in confrontation of which cross-examination is an important constituent. Maryland v. Craig, — U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
I would reverse the conviction and remaining sentence with the observation that Engle has been adequately punished for his disturbed mind and drinking-caused crime. As for reformation, preventive medical attention and occupational training, it would certainly serve society better to have the costs expended for constitutional rehabilitation instead of warehousing by incarceration.
As we now have this case defined and delineated, undoubtedly when Engle is released from penitentiary confinement without proper care or training, as the unfortunate human being that he is, he will in generally unsocial behavior and suffering from severe mental instability then return to the kinds of problems from which all of this arose. We do another tour with a historical refrain only too well known — the Wyoming State Hospital’s representative provides the conclusion that the accused is mentally competent so that the Wyoming State Penitentiary, not the state’s mental health facility, will be the recipient of his present and intermediate future, care, custody and control. Justice fails in both criminal law and mental health responsibilities of our society.
I dissent.