State v. Kiser
Decision Date | 13 December 1974 |
Docket Number | No. 2718--2,2718--2 |
Citation | 111 Ariz. 316,529 P.2d 215 |
Parties | The STATE of Arizona, Appellant, v. Harry Earl KISER, Appellee. |
Court | Arizona Supreme Court |
Gary K. Nelson, Former Atty. Gen., N. Warner Lee, Atty. Gen., Phoenix, Dennis DeConcini, Pima County Atty., by Stephen M. Weiss, Grove M. Callison, and William L. Scholl, Deputy County Attys., Tucson, for appellant.
Chandler, Tullar, Udall & Richmond, by Robert E. Lundquist, Tucson, for appellee.
This is an appeal from an order of the Superior Court granting defendant Harry Earl Kiser's motion for a new trial.
We must answer only one question on appeal and that is: When a defendant takes the stand and testified and is impeached by a prior felony conviction which prior conviction is on appeal and that prior felony conviction is later reversed by the appellate court and the matter later dismissed, may the defendant be granted a new trial.
The facts necessary for a determination of this matter on appeal are as follows. Defendant was charged with unlawful sale of narcotics in violation of § 36--1002.02 A.R.S. He entered a plea of not guilty. At the trial before a jury he interposed an entrapment defense. He took the stand and testified in his own behalf. The prosecutor attempted to impeach his credibility by showing the prior felony conviction of assault with a deadly weapon. This prior judgment was at the time of the trial on appeal to this court. On 10 January 1973 the defendant was convicted of unlawful sale of narcotics as charged.
This court, on 28 May 1973, in the case of State v. Kaiser (sic), 109 Ariz. 244, 508 P.2d 74 (1973), reversed the defendant's prior felony conviction and remanded the matter 'to the Superior Court for further proceedings consistent with this opinion.' The trial court subsequently dismissed wiping out any prior felony conviction. Defendant then moved for a new trial based on the grounds that the use of the prior but reversed felony conviction to impeach him resulted in substantial prejudice and denial of his right to a fair trial. On 23 October 1973 the trial court granted defendant's motion for a new trial and the State appealed. § 13--1712(2), as amended, A.R.S.
This court has held that a witness may be impeached by the showing of a prior felony conviction, State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081 (1959), and this is true even though the prior felony conviction relied upon is on appeal at the time of the impeachment. In other words, a conviction even though on appeal is a complete and final conviction for purposes of impeachment:
* * *'State v. Johnson, 99 Ariz. 52, 54, 406 P.2d 403, 404, 16 A.L.R.3d 723 (1965).
And the 9th Circuit Court has stated:
United States v. Allen, 457 F.2d 1361, 1363 (9th Cir. 1972).
The prosecutor then may use a judgment on appeal for impeachment purposes. This is not a privilege which is without some risk, however. Should the prior felony conviction be reversed on appeal or as in this case...
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State v. Gomez
...of or indicted for" does not mean has ever been convicted, but rather that there is an existing conviction. Cf. State v. Kiser, 111 Ariz. 316, 317, 529 P.2d 215, 216 (1974) (noting that when fact of prior conviction is offered for impeachment, a reversal means "[i]t is as if the prior felon......
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...for impeachment purposes, even where the conviction was later reversed on appeal. See 16 A.L.R.3d 726 (1967); cf. State v. Kiser, 111 Ariz. 316, 529 P.2d 215 (1974); State v. Murray, 12 Wash.App. 328, 529 P.2d 1152 (1974). Contra, Adkins v. Commonwealth, 309 S.W.2d 165 (Ky.Ct.App. 1958); St......
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