State v. Domme

Decision Date06 March 1975
Docket NumberNo. 2797,2797
Citation532 P.2d 526,111 Ariz. 464
PartiesSTATE of Arizona, Appellee, v. Albert Lowell DOMME, Appellant.
CourtArizona Supreme Court

N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.

Lieberthal & Kashman by Howard A. Kashman, Tucson, for appellant.

HAYS, Justice.

The defendant was charged with first degree murder with an allegation of a prior conviction. He was found guilty by a jury of involuntary manslaughter. ARS § 13--456. The prior conviction of a felony, aggravated battery, was admitted. The trial judge sentenced Domme to a term of from twenty to thirty years in the Arizona State Prison. ARS § 13--457; § 13--1650. Domme now appeals.

The first issue presented concerned the absence of a written presentence report. Since the briefs were filed, such a report has been found and is before this court. It consists of biographical data and an FBI report. Transcripts of the trial indicate that both counsel knew of the FBI sheet, as did the court. Rules 26.4 and 26.6, 1973 Rules of Criminal Procedure, 17 ARS, did not apply to this case. Although in State v. Pierce, 108 Ariz. 174, 494 P.2d 696 (1972), similar requirements were adopted, we find nothing in the presentence report of which defendant's counsel was unaware during the proceedings. Failure to disclose the report does not under these circumstances require a remand.

The defendant next contends that the trial judge committed an error in not declaring a mistrial Sua sponte when testimony was introduced linking Domme to a bag of pills. The testimony was sought to prove the complete story of the crime, but when it became clear that it was irrelevant, the judge ordered any such references stricken and admonished the jury to disregard that portion of the evidence. Any prejudice that might have resulted was minimal in light of the substantial evidence of the defendant's guilt and the appropriate admonition to the jury. State v. Thornburg, 111 Ariz. 254, 527 P.2d 762 (1974). The error is therefore harmless within the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). It was unnecessary for the court to declare a mistrial.

The defendant also raises as error the use of a prior felony conviction for impeachment purposes. Domme pled guilty in 1966 in New Mexico to a 1964 charge of aggravated battery. He was placed on probation, a condition of which was sixty days in jail, which was successfully completed. On cross-examination of Domme, the trial judge allowed the following:

'Q. In March of 1966, in New Mexico, you were convicted of a felony, is that correct?

'A. Yes.'

(R.T. 545)

A witness' credibility may be impeached by a prior felony conviction. State v. King, 110 Ariz. 36, 514 P.2d 1032 (1973). In deciding whether a prior conviction can be utilized for impeachment purposes, the trial court takes into account many factors such as the remoteness of the conviction, the nature of the prior felony, the length of the former imprisonment, the age of the defendant, and his conduct since the prior offense. State v. King, Supra. There are no set guidelines. Because of the many factors to be taken into consideration, the admissibility of prior convictions is left to the sound discretion of the trial judge whose decision will not be overturned in the absence of an abuse of discretion. We find no evidence of such an abuse in this case.

The defendant urges that the imposition of a 20- to 30-year sentence for involuntary manslaughter is excessive or cruel and unusual under the circumstances. We do not agree. There was no request for a mitigation hearing and the court obviously considered the prior felony conviction for assault in arriving at the sentence.

We said in State v. Masters, 108 Ariz. 189, 494 P.2d 1319 (1972):

'This court has consistently held that the trial court has wide discretion in the pronouncement of a sentence and that we will uphold a sentence if it is within the statutory limits, unless the sentence under the circumstances is so clearly excessive as to constitute an abuse of...

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17 cases
  • State v. Harding, 5742
    • United States
    • Arizona Supreme Court
    • May 30, 1984
    ...had a pristine past or that his actions reflecting negatively on his credibility were mere isolated incidents. See State v. Domme, 111 Ariz. 464, 465, 532 P.2d 526, 527 (1975) (one of the factors to consider is the defendant's conduct since the prior offense). The court considered the matte......
  • State v. Williams
    • United States
    • Arizona Supreme Court
    • April 17, 1985
    ...of defendant's testimony, and the "centrality of the credibility issue." Mahone, 537 F.2d at 929; see also State v. Domme, 111 Ariz. 464, 465, 532 P.2d 526, 527 (1975). Although the foregoing factors are not to be considered exclusive of any others, they do provide useful guides for the tri......
  • State v. Britson, 4056
    • United States
    • Arizona Supreme Court
    • October 14, 1981
    ...At the time of appellant's trial, the admissibility of prior convictions for impeachment purposes was controlled by State v. Domme, 111 Ariz. 464, 532 P.2d 526 (1975), which held that admissibility was "left to the sound discretion of the trial judge whose decision will not be overturned in......
  • State v. Sullivan
    • United States
    • Arizona Supreme Court
    • October 15, 1981
    ...be overturned unless an appellant can show an abuse of discretion. State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980); State v. Domme, 111 Ariz. 464, 532 P.2d 526 (1975). In the present case, we find no abuse of discretion in the ruling of the trial judge. We think that the probative value o......
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