dissenting.
This is the third appeal resulting from the Green River, Wyoming Safeway store robbery. In Haselhuhn v. State, 727 P.2d 280 (Wyo.1986), cert, denied 479 U.S. 1098, 107 S.Ct. 1321, 94 L.Ed.2d 174 (1987), (Haselhuhn I), the conviction of Darwin Hasel-huhn was affirmed, in my opinion, in the face of most appalling trial circumstances. Next then In re Contempt of Haselhuhn, 740 P.2d 387 (Wyo.1987), (Haselhuhn II), he was called as a witness publicly before the jury under contended “use immunity” to testify against Rick Prime (Prime) in this case. After the grievous prejudice was committed in jury presentation upon his refusal to testify, he was found in contempt of court and thereafter sentenced for contempt, which decision was reversed by this court.
*1551. JURY SHOW-UP FOR NON-TESTIMONY PRIVILEGE PLEA
Now presented as the separate trial of the alleged co-conspirator, this appeal presents the outrageous results demonstrated in the Engberg death penalty case, Engberg v. State, 686 P.2d 541 (Wyo.), cert. denied 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984), pursued in Haselhuhn I, and now presented in full flower. These include questionable eye-witness identification and hypnotism, but more strikingly, trial process prejudice by presentation to the jury of a recalcitrant, recently convicted witness under suggestion of immunity.1 Like Haselhuhn I, the skunk was thrown into the jury box by prosecutorial conduct, but it was a different skunk by forcing public appearance of an individual recently convicted and frequently named in trial testimony. The smell was amplified by the district court admonition which could only serve to increase the prejudice when the court said:
THE COURT: All right. I find you in direct contempt of Court. I remand you to the custody of the Sheriff to be held there until you answer and/or sworn or sentenced otherwise; is that clear?
MR. HASELHUHN: That’s clear, Your Honor.
THE COURT: All right. Take him out.
And then, after mistrial was denied, the further emphasis afforded:
THE COURT: Ladies and gentlemen, the fact that I found Mr. Haselhuhn in contempt of Court and remanded him to the custody of the Sheriff, has no bearing on the innocence or guilt of Mr. Prime. You will not consider it. You may continue.
Sweetwater County, as a community with a medium-sized population and one major newspaper, belies any possibility that all one dozen of the sitting jurors had not been previously exposed to knowledge *156that Haselhuhn had been convicted for the Green River/Sweetwater County robbery. Prejudice in recalcitrant witness presentation to force privilege exercise publicly before the jury simply should not be acceptable and does not confine itself to equal protection and due process criteria of criminal prosecution. This constitutes the rankest character of prosecutorial prejudice and misconduct. Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App.1972).
I cannot, in repetition from Haselhuhn I, again re-emphasize sufficiently the disapproval I have for this tactic of engendered prejudice by procedure. I would repeat, as recently stated in Corson v. State, 766 P.2d 1155 (Wyo.1988) by a historical quotation from a great American jurist, Judge Jerome Frank:
“A keen observer has said that ‘next to perjury, prejudice is the main cause of miscarriages of justice.’ If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.”
State v. Beuke, 30 Ohio St.3d 29, 526 N.E. 2d 274, 293 (1988) (petition for certiorari filed 10/31/88) (quoting from United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d Cir.), cert. denied 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640, reh’g denied 329 U.S. 826, 67 S.Ct. 182, 91 L.Ed. 701 (1946)). If convictions are to be obtained on facts and not infused prejudice, there is no place in criminal trials for this procedure, and alternatively, there are proper avenues for the exercise of the right not to testify to be recorded out of the presence of the absorbent jury for effect in persuasive character. See Lawrence v. State, 257 Ga. 423, 360 S.E.2d 716 (1987) and Adkins v. State, 72 Md.App. 493, 531 A.2d 699 (1987), cert. granted 311 Md. 445, 535 A.2d 921 (1988).
2.EYE-WITNESS EXAMINATION
As the expression goes, this court has now dropped the second shoe in blindly ignoring solutions to the pervasive eye-witness identification danger resulting in opportunity for false conviction. In Engberg, the majority abjured use of the well-established expert witness and this court now rejects the use of the special instruction launched by United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). Clearly, in context of minority-majority rejection of the well-established and thoughtfully presented Tel-faire instruction, as well as denial of the usage of the expert witness as decreed in Engberg, this state moves back into a century long gone as following a minority of courts who do not recognize either logic or volume of literature on the eye-witness identification quandary.
3.HYPNOTIC INFUSED TESTIMONY
The errors in this record do not there end. The hypnotic activity is still not sanitized since first involved in Engberg, although at least progression occurred from Haselhuhn I in that the expert witness was now permitted. Citations of the court to Rock v. Arkansas, 434 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) does not strengthen the disingenuous posture compulsively continued for this jurisdiction. Comment, Rock v. Kansas: An Individual Inquiry Approach to the Admissibility of Hypnotically Induced Testimony, 37 Cath.U.L.Rev. 1171 (1988). Rock involved the constitutional right of a defendant to testify, as basic in constitutional protection to himself, and did not readjust the clearly apparent problems presented by possible hypnotic tampering of witnesses. At best, or at worst, even in the states affording a more liberal attitude in disapproval of possible alteration of testimony by hypnosis, the levels in Haselhuhn I and Prime here presented do not pass muster. Again, in finite regression, this state will stand far back from majority consensus in its present blindness to a recognized problem inflicting conviction process. People v. Zayas, 116 Ill.2d 574, 113 Ill.Dec. 315, 515 N.E.2d 124 (1987).
4.RIGHT TO COUNSEL
The fourth issue presented attends to the right to counsel when photographic dis*157plays and voice exemplars are used for witness identification. This is not the pre-arraignment, pre-counsel appointment question of initiation of right to counsel raised in the handwriting exemplar identification case of Brunmeier v. State, 733 P.2d 265 (Wyo.1987).2 This appellate issue relates to the right of the defendant to be represented first when he is forced to testify against himself by speaking designed words and then a recording is used with other samples for identification. Likewise, where no time expediency was involved, the opportunity of counsel to be present to see what actually occurred when photographic show of identification processes were pursued simply cannot be rejected if the supposition of a real right to counsel is fairly permitted. Since representation had been secured, I would not find the process to be constitutionally distinguishable from the most recent review of right to counsel by the United States Supreme Court in Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), where examination of the charged individual by a psychiatrist was accomplished in the absence of his attorney.
It is apparent from examining the photographs and in listening to the tape that two features distinguished Prime. As to the photograph, any juror who has experience with criminal processes would have recognized an in-jail identification photograph when the name plate is hung by a chain from his neck, which chain can be clearly seen. The voice identification was also clearly identified since only this witness was given taped instructions as to what he was to say, while obviously such instructions as had been given to the other witnesses were not included on the tape excerpts. Had counsel for Prime been given the opportunity to be present at either incident or to examine the work product to be used, a clean up could simplistically have been provided so that the potentate of non-equivalency and unfairness would have been removed.
Recognizing the conviction to have been fueled and fertilized by what occurred: prejudice by procedure, hypnotism, denied instruction or expert testimony, and ignored post appointed right to effective assistance of counsel, I respectfully dissent from error absolving approval. I would reverse for retrial.
. I also have another serious concern from a speedy trial perspective, although not on issues argued below or presented here on appeal. With an offense that occurred on April 21, 1984, Prime was arrested on June 7, 1984, and was provided a preliminary hearing on June 25, 1984. His date of district court arraignment is not of record but apparently occurred on July 5, 1984. Motion to suppress, motion for preservation of evidence, motion in limine and motion to reveal agreements were filed July 6, 1984, with supporting memorandum filed December 12, 1984. A motion was filed December 27, 1984 by the prosecution for further time to respond up to and including January 10, 1985, which was apparently submitted ex parte and approved by order of the district court. The responsive brief was duly filed, and on January 22, 1985, the district court wrote counsel advising of some relief on the matter and that the prosecuting attorney would prepare an appropriate order which was never done. The prosecuting attorney filed a motion for trial setting on August 22, 1985, the case was then first set for trial April 8, 1986 and actually held on May 13, 1986, or slightly less than twenty-four months after the offense had occurred and slightly more than twenty-two months after arraignment in district court. Rule 204, Wyoming Uniform Rules for the District Courts provides:
(a) It is the responsibility of court and counsel to insure to each person charged with crime a speedy trial.
(b) A criminal charge shall be brought to trial within 120 days following the filing of information or indictment.
(c) The following periods shall be excluded in computing the time for trial:
(1) All proceedings related to the mental illness or deficiency of the defendant.
(2) Proceedings on another charge.
(3) Delay granted by the court pursuant to Section (d).
(4) The time between the dismissal and the refiling of the same charge.
(5) Delay occasioned by defendant’s change of counsel or application therefor.
(d) Continuances may be granted as follows:
(1) On motion of defendant supported by affidavit of defendant and defendant’s counsel.
(2) On motion of the prosecuting attorney or the court if:
(i) The defendant expressly consents; or
(ii) The state’s evidence is unavailable and the prosecution has exercised due diligence; or
(iii) Required in the due administration of justice and the defendant will not be substantially prejudiced.
(e) Upon. receiving notice of possible delay the defendant shall show in writing how the delay may prejudice his defense.
(f) If the defendant is unavailable for any proceeding at which his presence is required, the time period shall begin anew upon defendant's being available.
At least, in this case, Prime was out on bond during the delayed trial period.
. In brief, the State contends:
In the case at bar, the photographic and voice identification procedures were executed before adversarial criminal proceedings were commenced against Appellant, therefore the Sixth Amendment right to counsel did not attach at the time of the identifications.
The offense occurred April 21, 1984, and on June 6, a criminal warrant for aggravated robbery was issued and executed on June 7. On June 11, Mr. Robert J. Reese had entered an appearance as counsel, since the record reflects that he was given copies of documentation except affidavit for arrest warrant. Preliminary hearing was held June 25, and Prime was bound over to district court. The preliminary hearing was obviously a contested proceeding. The district court information was signed and filed July 5, and motions to suppress voice identification and for preservation of evidence and motion in limine were served July 6. Two items of photographic identification were used: State’s Exhibit 43, which is a collection of separate mug shots numbering six; and State’s Exhibit 42, which is a photographic display including the photograph of Prime. It is simply not possible to tell from the record whether the photographic display was composed and then used for identification after Mr. Reese had been appointed to serve as counsel for Prime. As a matter of fact, the record does not even reflect how Mr. Reese came to be appointed.
A careful reading of the entire record as the transcripts then finally reveal that apparently the voice exemplars were played for the two principal witnesses on July 3, 1984, at a date substantially after counsel had been appointed and also after Prime had been bound over for trial to the district court. Clearly, no effort was made to permit defense counsel to either be available when the original search warrant exemplar was obtained from Prime, which date cannot be determined because the search warrant is not available, or when the identification session was conducted by presentation of the tape of the seven individuals to the two witnesses separately on July 3. Consequently, any general discussion in this context as defining an issue of the right to counsel prior to "commencement of adversarial criminal proceedings” against Prime has no factual validity in the record documentation.