concurring.
The substantive appellate issue raised by defendant in her now aborted appeal invokes definitional questions of “in custody” and “interrogation” derived from a suppression hearing within the purview of the constitutional protection criteria of Art. 1, § 6, and Art. 1, § 11 of the Wyoming Constitution and the Fifth Amendment to the United States Constitution. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); Kamisar, Brewer v. Williams, Massiah and Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.L.J. 1 (1978).
The trial court held that the defendant, in a pre-arrest informational exchange was in custody but not interrogated prior to the time that officers, acting under a search warrant, gave her the Miranda warning. The State denies custody as a principal posture of justification for introduction of the pre-warning evidence, but alternatively also questions whether interrogation occurred in this pr e-Miranda warning discussion.
A further issue follows from continued questioning after the Miranda warning was given, which questioning then utilized the original pr e-Miranda warning response of defendant. See United States v. Carson, 793 F.2d 1141 (10th Cir.1986); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The facts will not change upon remand as earlier involved in the statement-suppression questions, those issues being directly represented hereafter in the defendant’s plea decision, or upon trial if that process is the only way for her to test the constitutional issues involved.
I differ with my colleagues since I believe that the evidentiary admissibility of the statements as the substantive issue *1047which brought this case to us on appeal should now be addressed for assistance to both the trial court and defendant.
The factual situation is simple and specific. By failure to address those issues we invite further confusion and leave in question not only the propriety of the trial court’s prior decision but also other constitutional questions that may follow, including the eternal inquiry whether fundamental constitutional error is or is not waived or forfeited by a guilty plea. See United States v. Broce, 753 F.2d 811 (10th Cir.1985).
Consequently, I would reason, in the interest of judicial economy and trial constitutional fairness, that this court should now address the substantive issues on the record before us concurrently with remand on the procedural question.
Additionally, attention could providently be given to Rule 15, W.R.Cr.P., and the different provisions of Rule 11(a)(2), F.R. Cr.P., whether by rule change or reasoned logic, so that Tompkins v. State, Wyo., 705 P.2d 836 (1985), cert. denied — U.S. —, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986), which created this issue ab initio, without briefing by the litigants, should be modified to permit appeal by stipulated resolution if the decision made by the court on the particular issue raised would be dispositive, whether affirmed or reversed.
The complexities and variances existent in criminal pretrial negotiations deserve recognition in consideration of constitutional rights and interest, if not by conditional plea as afforded by federal rules then by appeal in endeavoring to reach procedural equality so as to assure the availability and effectuation of those constitutional rights and limitations to both the charged defendant and to the society which requires enforcement of criminal statutes for its intrinsic protection.
Consequently, I concur with remand, but would have preferred that the court address the substantive issues involved.