Harmless Error and Plain Error

(a) Harmless error. — Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. (b) Plain error. — Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Cross references. — As to harmless error, see Rule 9.04, W.R.A.P. As to plain error, see Rule 9.05, W.R.A.P. Compare. — Rule 52, Fed. Rules Cr. Proc. I. GENERAL CONSIDERATION Effect on substantial rights. — Whether prosecutorial misconduct is reviewed on the basis of harmless error under subdivision (a) or on the basis of plain error under subdivision (b) the focus is whether such error affected the accused’s substantial rights. Earll v. State, 2001 WY 66, 29 P.3d 787, 2001 Wyo. LEXIS 81 (Wyo. 2001). Whether prosecutorial misconduct is re- viewed on the basis of harmless error under W.R.C.P. 52(a) and W.R.A.P. 9.04 or on the basis of plain error under W.R.C.P. 52(b) and W.R.A.P. 9.05, an appellate court focuses on whether such error affected the accused’s sub- stantial rights. Before an appellate court will hold that an error has affected an accused’s substantial right, thus requiring reversal of a conviction, it must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. White v. State, 2003 WY 163, 80 P.3d 642, 2003 Wyo. LEXIS 200 (Wyo. 2003). The adoption of this rule is procedural. — Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974). And the substantive law as it existed in this state was in no manner altered or diminished thereby. Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974). Failure to object considered as a waiver of whatever error is said to have occurred at trial, unless some plain and fundamental error was committed. Leeper v. State, 589 P.2d 379, 1979 Wyo. LEXIS 349 (Wyo. 1979); Bradley v. State, 635 P.2d 1161, 1981 Wyo. LEXIS 391 (Wyo. 1981). Failure to timely interpose an objection con- stitutes a waiver, unless the misconduct is so flagrant as to constitute plain error. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982). An inexcusable and unreasonably delayed objection may constitute a waiver of any error. Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982). Must satisfy “harmless error” even if 137 RULES OF CRIMINAL PROCEDURE