State v. Soule
| Decision Date | 16 January 1979 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 121 Ariz. 505,591 P.2d 993 |
| Parties | STATE of Arizona, Appellee, v. David Michael SOULE, Appellant. 3152. |
| Court | Arizona Court of Appeals |
A jury convicted the appellant/defendant David Soule of murder in the second degree, and he was sentenced to ten to eighteen years in prison.
Defendant now appeals his conviction and sentence and alleges as error:
1. The trial court abused its discretion in allowing the state to introduce three prior convictions.
2. The verdict is not supported by the law and the evidence.
Defendant filed a motion In limine to block the introduction of three prior convictions for impeachment purposes. After a hearing on the motion it was denied, and upon cross-examination at the trial the defendant admitted the following convictions: assault with a deadly weapon (1969); aggravated assault (1974); and grand larceny (1975). The defendant argues that the trial court abused its discretion in the admission of these prior convictions because of prejudice to the defendant outweighed any probative value of such evidence. The defendant, In propria persona, makes the further argument that the aggravated assault conviction was a misdemeanor and should not have been admitted for impeachment as a prior felony conviction. These issues are governed by 17A A.R.S. Rules of Evidence, Rule 609:
Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that The probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment. (Emphasis added.)
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
The law of this state prior to September 1, 1977, the effective date of Arizona's new rules of evidence, appears to be in general agreement with Rule 609 in holding that a prior felony conviction may be utilized for impeachment purposes. State v. King, 110 Ariz. 36, 514 P.2d 1032 (1973). In State v. Domme, 111 Ariz. 464, 532 P.2d 526 (1975), the Arizona Supreme Court stated that because there are so many factors to be taken into consideration, any decision of whether a prior conviction should be used for impeachment purposes must be left to the sound discretion of the trial judge. It is our opinion that the determination, as required under Rule 609, of whether the probative value of admitting such evidence outweighs its prejudicial effect, is also a decision which must be left to the sound discretion of the trial judge. In Domme the trial court in a homicide case admitted a prior conviction of aggravated assault for impeachment purposes. The Arizona Supreme Court upheld such action, and stated there are no set guidelines to determine when a witness may be impeached by a prior felony conviction, although it was proper to consider such factors 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. We find no abuse of discretion in this case.
We must now address the contention raised by the defendant in his supplemental brief that his aggravated assault, open-end, conviction under A.R.S. § 13-245(B) 1 was a misdemeanor because he was not sentenced to prison but was instead fined in the sum of $500 and placed on probation for two years.
A similar question arising in a homicide case was presented to the Arizona Supreme Court in State v. Tuzon, 118 Ariz. 205, 575 P.2d 1231 (1978). The court in Tuzon upheld the admission into evidence, for impeachment purposes, of a prior open-end second degree burglary conviction. The...
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State v. Harding, 5742
...upheld on several occasions. See, e.g., State v. Woratzeck, 130 Ariz. 499, 502, 637 P.2d 301, 304 (App.1981); State v. Soule, 121 Ariz. 505, 507, 591 P.2d 993, 995 (App.1979). Further, the question is whether the trial court abused its discretion in finding that the probative value of the c......
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State v. Thompson
... ... See e. g., United States v. Ortiz, supra (in a distribution of ... cocaine trial, allowed prior narcotics conviction); State v. Soule, 121 Ariz. 505, 591 P.2d 993 (1979) (in second degree murder trial, allowed prior assault with a deadly weapon, aggravated assault and grand larceny convictions); State v. Brouillette, supra (in criminal sexual conduct in the fourth degree trial, upheld the admissibility of prior conviction for ... ...
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State v. The Honorable Gregory Martin
...P.2d 1231, 1235 (1978) (impeachment by a prior conviction of open-ended second-degree burglary was proper); State v. Soule, 121 Ariz. 505, 507-08, 591 P.2d 993, 995-96 (App. 1979) (open-ended conviction considered a felony for purposes of impeachment). We find this argument unpersuasive. In......
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State v. Noble, 4924-PR
... ... Soule, 121 Ariz. 505, 591 P.2d 993 (App.1979). We have stated: ... "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 ... ...