*1 “ * * * nationality The law —what how it, acquired, it is how constitutes internal, rather than part of
lost —is Thus, a state or na-
international, law. own law to determine may apply its
tion its nation- are or are not individuals
what genuine link
als, there exists a provided individual state and the
between ** Law, International *.” 48 C.J.S. 11.
p. have not enrolled Indians Shoshoni tribe, they not in their do enrolled. eligible him to be so
consider basis for af- proper this to be the
believe
firmance.
Terry BENSON, Appellant Curtis
(Defendant), Wyoming, Appellee
The STATE
(Plaintiff).
No. 5538.
Supreme Wyoming. Court
Feb. Counsel, Schilling, Appellate
Michael H. Program, Lara- Wyoming Public Defender Hackl, mie, Public Sylvia Lee Asst. Defender, Pro- Public Defender Wyoming (de- gram (argued), Cheyenne, fendant). Freudenthal, Gen., Atty. Ger- F. Steven Stack, Gen., Atty. Criminal Deputy
ald A.
Johnson,
Division,
Asst.
Allen C.
Senior
(plaintiff).
appellee
Atty.
(argued),
Gen.
J.,
RAPER,
ROSE,
THOM-
Before
C.
BROWN,
AS,
JJ.
ROONEY
*2
RAPER,
plaint,
police
Justice.
officer started his car and
appellant.
followed
receiving
After
radio
Appellant appeals
judgment
from the
and
confirmation of the existence of the war-
following trial
which
by jury
sentence
at
he
rant,
police
pulled appellant
officer
over
being
posses-
of
a
guilty
found
felon in
and arrested him.2 Appellant was
if
firearm,
asked
in
6-11-
sion of a
violation of §
possessed any
W.S.1977,
weapons, to which he
Cum.Supp.1981.1
appeal
His
indi-
ponder
raises two
for us to
and de-
cated
he did
issues
not. The officer was
First,
cide.
we must consider whether
it
at
appellant’s
aware
time
of
trial
error for the
to allow into
for taking
conviction
a shot with
a
testimony relating
evidence
to the nature of
police
at another
officer and also that
Second,
appellant’s prior felony conviction.
in
complaint
municipal court
recited that
we must
whether
decide
the trial court
appellant
gun.
Appellant
a
requested
failing
committed reversible error
to in-
permission to drive
car to
his
his mother’s
struct
an element
the of-
being
nearby house before
taken in. How-
operable.
fense
the firearm
was that
be
ever,
police
explained
officer
this
We will affirm.
possible;
was not
the ear would either have
was,
police
to be left where it
or the
would
8, 1980,
police
On December
officer sat
custody
Appellant
take
and tow it.
sudden-
patrol
in his
monitoring
car
traffic
Fifth
ly
car,
for
ostensibly
hurried
to
it.
lock
Chey-
and
in
Pebrican near Hebard School
officer,
police
appellant
unsure
what
approximately
enne. At
10:15 a. m. he saw
trying
do,
to
by,
began struggling
vehicle pass
appellant.
driven
with
appellant
in
keep
Aware of a warrant
arrest
order to
him from reen-
outstanding municipal
on an
com-
tering
court
the car.3
finally
The officer
succeed-
2. The trial
instruction with
warrant,
Section
which he did
a moment and looked at
have a
“A.
open door of his car.
there was a
“Q. Okay. What occurred then?
again
replied
sudden he
Defendant
rant,
felony.
that incident to arrest that I would have to
assault in the first or second
search
punished by imprisonment
“Q.
for not more than five
gravated assault, robbery, burglary or
guilty
manslaughter,
in his
“A. It was at that
hem,
“(b)
I was
“(a) Any person
Upon
Well,
Would
that I
unless
[*]
advising
or been
asked him he had a
possession any
gun.
and it is not an issue
him,
to the
6-11-115, W.S.1977,Cum.Supp.1981:
replied
the Defendant
hurriedly
remembered the
conviction,
[*]
mention
pardoned,
I asked him if he had a
this?
you
negative.
convicted
assault to commit
pat
gave
respect
who has
part
he did not.
if
[*]
describe the manner in
time,
Defendant about the war-
You
him
turned
relating
firearm is
(5) years.”
the offender
and who uses or has
down,,
said
me,
appropriate limiting
to the
[*]
just
previously pleaded
the Defendant did
in the
murder,
and went
second
and then all of a
‘hurriedly’.
before
degree, may-
stood
complaint
anyways,
[*]
I
to the arrest:
gun,
advised
penitentiary
outstanding
murder,
guilty
voluntary
time
us.
gun
shall
[*]
and he
sexual
him
De-
ag-
be
hands to see what he was
war
front
occurred
“Q.
him
trying
pull him back out of the front-seat area in the
of the vehicle.
serve?
seat area and floorboard area
neath the driver’s seat.
point reached back and locked the back door
“Q.
him and was
“A.
“Q. What did
“A. He was bent over inside the
He was still
“A.
he wasn’t
open
“A.
“A.
“Q.
cle.
“A.
“Q.
scribe for the
Defendant
what his
out of the
just hurriedly
type
kind of
And what did
(By
Finally,
Well,
And
I
What did
I
He
door,
[*]
observed his hands
to
immediately
didn’t
then
Mr.
prevent any
manner,
what,
walking
like
to the front-seat area of his vehi-
attempting
car.”
[*]
trying
actions were that
after some
over the driver’s seat.
Jury,
Smith)
car,
as
to do?
say anything.
you
you
I
if
you
stated,
—he
[*]
back and forth in a
anything,
—went
please, just
do?
followed him.
do then?
you accomplish?
What else did
were
pull
further movement
to reach in and at one
didn’t
tried
[*]
time,
I
moving
him out of
attempted
to his car to the
doing
He
quite run,
[*]
what
you
reaching
you
was able
directly
observe
that?
just
around the
open
observed.
you
you
observe
the car.
[*]
tug-of-
turned
I was
What
door
pull
saw
for.
ob-
but
be-
his
and,
help
supra
endeavor
with
nies listed in
fn.
ed in his
which
arrived,
which had
hand-
police backup
lawfully possessing
thus barred him from
patted
He then
down
cuffed
However,
firearm.
the district court ruled
car.
and searched his
Under
that the
officer
be
should
allowed to
side he found a .22
floor mat on the driver’s
answer the
because the fact that
revolver.
caliber
had been convicted of
*3
County
of Court iden-
firearm,
The Laramie
Clerk
together
assault with a
with the
in
and there was received
evidence
tified
arresting
fact that the
officer
this case
judgment
and sentence entered
copy of
complaint upon
knew that
which the
aggravated
previous
on the
conviction
alleged appellant
warrant was based
had a
appel-
There was no evidence
assault.
why gun, operated
arresting
to show
pardoned. At trial another
lant had been
stopped
when he
officer acted as
who testified con-
police officer was called
appellant’s positions
One
at
felony
1973
conviction
cerning appellant’s
arresting
the trial was that
officer had
weapon. The
dangerous
for assault with a
made an unreasonable search and seizure.
police officer testified the conviction fol-
officer,
An
with such information in his
appellant
an incident in which
lowed
possession, would be ill-advised not to take
him,
appel-
establish
fired a
appropriate protective measures. There
by
lant’s conviction of
assault
necessity
was
under all
circumstances
identifying appellant
person
as the
so con-
present
protect
the officer from assault
Appellant tried to avoid the offi-
victed.
weapon.
with a concealed
Parkhurst v.
testimony
regard by stipulat-
in that
cer’s
State,
(1981);
Wyo.,
convicted felon.
II
was on the
offered until the
officer
question we must ad
The second
for what
stand and had been asked to state
erred
whether the trial court
dress concerns
The district
act
was convicted.4
neces
that a
by failing to instruct
appel
court allowed the
that the
the offense was that
sary
one of the felo-
element of
lant had been convicted of
(1980)
recognized
Wyo.,
procedure
were
firearm be
statute
NRS 202.360.
Cartwright,
See State v.
possession
talks in terms of
120,
firearm.
822,
246 Or.
(Or.1966),
418 P.2d
830-831
operability
No mention is made of an
re-
denied,
937,
rt.
386 U.S.
87 S.Ct.
ce
quirement. This court has held that a fire-
(1967).”
Rusling
L.Ed.2d 810
v.
operable to
arm need not be
constitute a
State, Nev.,
(1980).
P.2d
“dangerous
deadly weapon”
under
6-§
purposes
us,
For the
of the case before
70B,
(now
W.S.1977).
W.S.1957
we see no reason to deviate from the ap-
State, Wyo.,
Evanson v.
“As to second contention that the trial in failing court erred to instruct ROSE, Justice, Chief specially concurring. jury the that the operability of the hand- I am opinion of the judge the trial gun was an essential element of the erred when permitted the State’s wit- crime, we find Appellant no error. of- ness, Terwilleger, Officer testify to concern- indicating fered no evidence the ing appellant’s prior aggrava- conviction for handgun officers, inoperable. Both ted assault. I will therefore concur in the Scholl, gun Shelton and the ap- testified only. result peared operable it contained live case-in-chief, in its Further, called Offi- gun ammunition. the as well as Terwilleger cer of the clip Cheyenne the Police and ammunition were admitted De- partment into to the judg- evidence. It was within the witness stand testify to ment gun conviction, of the to the about prior conclude that a neces- was a firearm within the definition of sary charged element of the offense.1 This following “(a) weapon designed offered the refused Rifle. —A rede- purportedly signed, remade, instruction from 18 taken U.S.C. made or and intended to be 921(a)(3): designed fired from the shoulder and or rede- signed energy and made or any “The term remade to use the ‘firearm’ means includes explosive weapon expel cartridge of the projectile by a fixed which will metallic a the only single projectile explosive.” through to fire a action of an a rifled single pull misrepresents trigger. bore It for each actually of the that section which “(b) Shotgun. weapon designed reads: and re- —A designed, remade, “(3) (A) any made or weap- The term ‘firearm’ means intended to designed (including gun) be fired from the on shoulder and a starter which will or is redesigned designed may readily and made or to or remade to use the be converted to energy explosive expel shotgun projectile explo- in a fixed the action of an through sive; (B) shell to fire a smooth the frame or bore either a receiver of such weapon; (C) any single projectile number of ball shot or a firearm muffler or firearm silencer; single pull (D) any trigger.” each of the destructive device. Such judge apparently adopted antique The trial term does not include an sense of firearm.” handgun. this statute to include a 6. The trial instructed: any weapon “The term ‘firearm’ majority, appellant denotes de- 1. As noted was con- signed expel projectile by 6-11-115, W.S.1977, action an victed of a violation of § explosion, any handgun, Cumm.Supp., and includes According rifle or require- to the shotgun.” obliged ments of this statute the State was prove The firearm in evidence had these characteris- had been convicted of one tics. following murder, or more of the crimes: vol- untary manslaughter, Section W.S.1977: assault to commit mur- was the same officer at whom the transcript witness when the basis upholding appellant had fired a shot in 1973. When admission of the testimony was asserted. prosecutor question asked the witness a It is my therefore conclusion that the ma- concerning the nature of the of- jority opinion countenances the admission fense, but before the was answer- the testimony through imagined justi- ed, stipulate defense counsel offered to fication-one is not reflected in the appellant’s prior stipula- conviction. This record. accepted by
tion —which was
the prosecutor
my judgment,
In
prosecution,
approved by
agreed
court —
agreeing
proposed
to the
stipulation, was
appellant’s prior conviction was for a crime
bound
its terms and it was thereafter
statute,
which is included within the
improper
to offer
concerning appel-
that he was the one who committed it.
prior
lant’s
Griffin,
conviction.
In re
See:
so,
Even
judge permitted
pros-
the trial
Cal.Rptr.
Cal.App.3d
Ct.App.
ecutor to continue to extract detailed testi-
prosecution
If the
wanted to show
mony
having
from the witness
to do with
previously
defendant had
fired a
offense,
prior
including
the fact that it
shotgun
Terwilleger,
at Officer
stipula-
being
involved
fired at
De-
him.
tion should not have been entered into.
fense
persistently objected
counsel
The case law is clear that
the State is not
relevance
the testimony
light
of the
required to
enter into a
offered
stipulation that had been entered into and
prove
offense,
an element
charged
approved by the
court. The trial
it
present
is entitled to
prov-
the facts
admitted the testimony
grounds:
on three
ing
Szeto,
People
that element. See:
*5
(1)
identification;
purposes
(2)
for
652,
20,
Cal.Rptr.
29 Cal.3d
Terwilleger’s prejudiced error
cannot conclude is in this case. burden defendant the com
on the show
plained-of prejudiced him to error such
degree required. that reversal is Belondon 238, City Wyo., P.2d cert. Casper,
v. 456
den., 398 90 26 L.Ed.2d U.S. S.Ct. State, (1969); Wyo., Drummer v. 366 (1961). Here present
P.2d was proving
ed with substantial evidence offense, which, charged
elements of the not
including testimony, suf erroneous
ficient to There no convict about the fact that cir possession firearm. Under the
cumstances, I cannot conclude that possibility,
was a in the reasonable absence error, the verdict in the case
would have been different. Nimmo v.
State,
(1979);
Wyo.,
fore concur result reached
majority.
James C. SHAFFER and Karin G.
Shaffer, Appellants (Defendants) Wyoming, Appellee
The STATE of
(Plaintiff).
No. 5496.
Supreme Wyoming. Court of
Feb.