specially concurring.
I specially concur by agreement that plain error was not presented in statements made in prosecutorial argument.
I write additionally to emphasize that counsel, not the judge, has first responsibility for deterrence of improper conduct of opposing counsel. It is the duty of the trial court to facilitate the orderly progress of the trial while maintaining the appearance of strict impartiality. United States v. Davis, 752 F.2d 963, 975 (5th Cir.1985). If objection is made, correction is immediately and more easily accomplished. Lindsey v. State, 725 P.2d 649 (Wyo.1986); Bennett v. State, 377 P.2d 634 (Wyo.1963). In the absence of acuity of counsel shown by objection, the concept of plain error under W.R.Cr.P. 49(b) (identical to F.R.Cr.P. 52(b)) is difficult to establish for reversal on appeal.1 Goodman v. State, 601 P.2d *86178 (Wyo.1979). See Horn v. State, 12 Wyo. 80, 73 P. 705 (1903). In times past, including when this writer started practice, the discipline of trial practice rejected opposing counsel objections during opening and closing arguments unless the statements or conduct were absolutely egregious. That gentleman and lady-like attribute will no longer suffice for proper legal representation. It is not suitable to expect the .trial judge to not only act as the unbiased supervisor, but also the super-attenuated advocate for each litigant to access and determine “plain error” in argument and examination.2 Procedurally and more determinatively, assessment of hesitancy to ask the presiding judge to do what counsel has neglected to do denies trial time opportunity to correct improprieties of counsel behavior when correction is easier, faster and less expensive. Decision is immediately obtained by objection at trial instead of cultivated to flower into a future appeal. Browder v. State, 639 P.2d 889 (Wyo.1982).
A random selection of recent national cases should highlight the need for proper assertion of defense counsel responsibility by objecting to claimed improprieties by the prosecuting attorney. See Leonard v. State, 551 So.2d 1143 (Ala.Cr.App.1989), inadequate objection to preserve error alleged in final objection about production of tangible items as possible evidence and Minnick v. State, 551 So.2d 77 (Miss.1988), contended improper argument, both in guilt and penalty phase, to be either waived or not considered to be prejudicial. Failure to object to statements in closing argument was determinative in People v. McCall, 190 Ill.App.3d 483, 137 Ill.Dec. 438, 546 N.E.2d 62, 68 (1989), although the court reflected that “statements made in closing argument which serve no purpose except to inflame the jury constitute error.” See likewise State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989); and State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895, reh’g denied 46 Ohio St.3d 717, 546 N.E.2d 1335 (1989). In Artis, 384 S.E.2d at 496, the appellate court perceived the responsibility of counsel for defendant:
“Counsel for each side may argue to the jury the fact in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his or her side of the case.” [State v.] Huffstetler, 312 N.C. [92] at 112, 322 S.E.2d [110] at 123 [1984], Whether an advocate has abused this privilege is left largely to the sound discretion of the trial court. Id. Where the defendant has failed to object to an alleged impropriety in the state’s argument and so flag the error for the trial court, an appellate court may review the argument notwithstanding. But “the impropriety ... must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.” State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).
Failure of counsel for defendant to object raises the second appellate issue of ineffectiveness of counsel. See, for example, where harmless error was found in Schlup v. State, 771 S.W.2d 895 (Mo.App.1989), when the court did find ineffectiveness from other appellate representative omissions in the case when provided by appointed counsel. See also United States v. Kornegay, 885 F.2d 713 (10th Cir.1989).
The assessment of responsibility for trial counsel was recognized by the United States Supreme Court as is frequently the *87ease where an appellate court decision to confirm the conviction is made. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618, reh’g denied 483 U.S. 1056, 108 S.Ct. 30, 97 L.Ed.2d 819 (1987). It is stated in People v. Bell, 49 Cal.3d 502, 262 Cal.Rptr. 1, 778 P.2d 129, 147 (1989):
We observe initially that defendant failed to object to some of the statements and argument he now claims as prejudicial misconduct. Because “ ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect [of misconduct] upon the minds of the jury’” (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468), a defendant will be deemed to have waived the objection if he fails to raise the matter at trial. “[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected ...; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.” (Id. at p. 34, 164 Cal.Rptr. 1, 609 P.2d 468. * * *.)
Conversely, with similar responsibility, it is also considered that the prosecuting attorney occupies a quasijudicial responsibility in the criminal trial. State v. Wilson, 32 Wyo. 37, 57, 228 P. 803 (1924); State v. England, 376 S.E.2d 548 (W.Va.1988); Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U.Pa.L.Rev. 1365 (1987).3
Often stated, the question for resolution is not the culpability of the prosecutor, but rather the fairness of the trial. Kornegay, 885 F.2d at 719. Similarly, this court said in Goodman, 601 P.2d at 188 (emphasis in original):
Moreover, reversal and remand for a new trial because of prosecutorial misconduct will not be ordered as punishment for a prosecutor's misdeeds but only because such misdeeds deny a fair trial.
There comes a time, however, if the misconduct is sufficiently severe, damage control by objection and special instruction may not suffice to avoid mistrial or reversal. Browder, 639 P.2d 889; United States v. Murrah, 888 F.2d 24 (5th Cir.1989).
Within the ambient of the veritable forest of appellate cases considering ineffectiveness of defense counsel — prosecutorial misconduct, either or both — harmless and no plain error or lack of prejudice is frequently applied to judicially authenticate affirming the conviction. See State v. Deboue, 552 So.2d 355 (La.1989). Cf. United States v. Goff, 847 F.2d 149 (5th Cir.), cert. denied — U.S. -, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988). See also the plain error discussion in People in the Interest of B.R., 447 N.W.2d 922 (S.D.1989).
Unfortunately, it is not easy to differentiate what is unprofessional in conduct of the prosecuting attorney from what is unconstitutional or unduly prejudicial in result. All are wrong. This court’s recent case of Tennant v. State, 786 P.2d 339 (Wyo.1990) provides an example. We found the conduct to be unprofessional. In the face of obvious guilt, we found the conduct not to be reversible error when no *88objection was made. The validity of the question in many cases cannot be denied. If there is obvious guilt, why should excesses in oral argument be attempted? Compare Schmunk v. State, 714 P.2d 724 (Wyo.1986) and Browder, 639 P.2d 889 with Coleman v. State, 741 P.2d 99 (Wyo.1987) and Lindsey, 725 P.2d 649.
In Wyoming historical perspective, the moralistic concept was recited from 22 R.C.L. 104:
“The prosecuting attorney, in a criminal case, represents the people, and having no responsibility, except fairly to discharge his duty, should put himself under proper restraint, and should not, in his remarks before the jury go beyond the evidence or the bounds of a reasonable moderation. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases properly to represent the public interest. * * * If a conviction in a criminal case follows an improper and dangerous appeal to the prejudice of the jurors, made by the prosecuting attorney, and it is reasonably certain that his course brought about such result, the judgment will be reversed for such error whenever it is raised by a proper exception.”
Wilson, 32 Wyo. at 57, 228 P. at 809. The distance between censure, State v. Sorenson, 34 Wyo. 84, 241 P. 705 (1925), and reversal, State v. Thomas, 38 Wyo. 72, 264 P. 1017 (1928); Rosencrance v. State, 33 Wyo. 360, 239 P. 952 (1925), was even at that earlier time not so easy to measure.
Undoubtedly, the boundary line from proper practice or harmless error into prejudice and plain error can be difficult to discern and unexpectedly crossed. Goff, 847 F.2d 149. Courts have engaged in hand-wringing, but some have agreed with the author in Reiss, supra, 135 U.Pa.L.Rev. 1365, that action is required and perhaps fairness mandates and enforcement of the message demands reversal in more cases. See United States v. McBride, 862 F.2d 1316 (8th Cir.1988), final argument reference to dismissed counts; United States v. DiLoreto, 888 F.2d 996 (3rd Cir.1989), closing rebuttal argument “we don’t put liars on the stand”; Dean v. Com., 777 S.W.2d 900 (Ky.1989); Caldwell error, Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in final argument; State v. Belgarde, 110 Wash.2d 504, 755 P.2d 174 (1988), argument about conduct of defendant at arrest; Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989), penalty phase argument in death case; Murrah, 888 F.2d 24, argument referenced to non-introduced evidence and attack on defendant and his counsel; State v. Keenan, 779 S.W.2d 743 (Mo.App.1989), error in denied mistrial after municipal ordinance violation was brought before the jury for improper purposes; People v. Threadgill, 166 Ill.App.3d 643, 117 Ill.Dec. 96, 520 N.E.2d 86 (1988), support law enforcement in the community as an argument; Com. v. Gallego, 27 Mass.App. 714, 542 N.E.2d 323 (1989), comment about public anxiety concerning the drug problem; and Duggan v. State, 778 S.W.2d 465, 468 (Tex.Cr.App.1989), the “duty to correct known false evidence is not only a prosecutorial ethic, but a constitutional requirement.”
These cases, which are not necessarily representative of current appeals, demonstrate a growing judicial impatience with warning as the only corrective action.4 All participants in the trial have a contributory responsibility for the essential fairness of the process. Proper trial objection made immediately and incisively serves in first responsibility to deter inappropriate conduct and short circuit subsequent issues on *89appeal. Irrelevance and prejudice should not be exploited by any litigant in final argument. Com. v. Hoppin, 387 Mass. 25, 438 N.E.2d 820 (1982). See Schmunk, 714 P.2d 724 and Browder, 639 P.2d 889.
In this case, I concur because counsel for defendant did not object and not necessarily because a Bundy argument is justifiable, appropriate or even acceptable.
. In sheer number, ineffectiveness of defense counsel and prosecutorial overreaching in argument and examination are large among the more numerous issues presented for criminal case appellate review. Failure of defense counsel to object to what the prosecutor may be doing encompasses a significant part of both arguments. The failure to object to improper argument which converts the misconduct consideration into an examination of waiver or plain error has an extensive recent Wyoming history. Tennant v. State, 786 P.2d 339 (Wyo.1990); McLaughlin v. State, 780 P.2d 964 (Wyo.1989); King v. State, 780 P.2d 943 (Wyo.1989); Coleman v. State, 741 P.2d 99 (Wyo.1987); Lindsey, 725 P.2d 649; Story v. State, 721 P.2d 1020 (Wyo.1986); MacLaird v. State, 718 P.2d 41 (Wyo.1986); Wheeler v. State, 691 P.2d 599 (Wyo.1984); Jeschke v. State, 642 P.2d 1298 (Wyo.1982); Barnes v. State, 642 P.2d 1263 (Wyo.1982); Jones v. State, 580 P.2d 1150 (Wyo.1978); Bennett, 377 P.2d 634; Cavaness v. State, 358 P.2d 355 (Wyo.1961).
Somewhat differently emplaced is the direct constitutional inquiry required when comment by the prosecutor is made in some fashion regarding the election of the defendant not to testify. Wyoming progressed to the per se Westmark v. State, 693 P.2d 220 (Wyo.1984) rule when nothing else seemed to work. Richter v. State, 642 P.2d 1269 (Wyo.1982); Parkhurst v. State, 628 P.2d 1369 (Wyo.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); Clenin v. State, 573 P.2d 844 (Wyo.1978); Jersk*86ey v. State, 546 P.2d 173 (Wyo.1976); Gabrielson v. State, 510 P.2d 534 (Wyo.1973). Cf. Summers v. State, 725 P.2d 1033 (1986), opinion confirmed 731 P.2d 558 (Wyo.1987).
. However, nothing is easy. See United States v. Wallace, 889 F.2d 580, 584 (5th Cir.1989), where the decision recites:
As to his conviction Wallace finally argues that he was denied a fair trial because the trial court admonished his attorney not to make unnecessary objections during the government's closing argument. The argument is devoid of merit.
It is nearly axiomatic that what the trial court might prefer may not necessarily be what the appellate process requires.
. The author introduces his 112 page article:
Few officials can so affect the lives of others as can prosecutors. Yet few operate in a vacuum so devoid of externally enforceable constraints. Indeed, contemporary efforts to constrain the discretion of actors in the criminal justice system have not only bypassed the prosecutor, they have tended to expand her power by squeezing the system's seemingly insoluble bubble of discretion her .way.
The courts are the most important, and in many instances the only, check on prosecuto-rial misbehavior; and the Constitution is a major source of judicial authority over prose-cutorial practices. Surprisingly, however, the there has been virtually no systematic examination of the manner in which courts enforce the constitutional proscriptions that circumscribe the prosecutor’s considerable power. Instead, courts and commentators have tended to view various prosecutorial abuses as discrete problems to be analyzed and resolved on an atomistic basis.
+ Reiss, supra, 135 U.Pa.L.Rev. at 1365-66 (footnotes omitted).
. The failure of appellate court warnings and no prejudice exculpation of improper conduct is illustrated by Lindsey, 725 P.2d 649, Urbigkit dissenting. In the absence of reversal, the answer for defense counsel in criminal cases may be ingrained in proper trial procedure to automatically first object and then immediately approach the bench and move for a mistrial. Perhaps the answer for this court is to say what was done was either constitutionally, ethically or professionally acceptable, i.e., McLaughlin, 780 P.2d 964, and, if not, to do more than apply harmless error, plain error and no prejudice absolutions. See ABA Monogram, The Judicial Role in Identifying and Referring Prosecutorial Misconduct (1989).