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[T] Dominach v. State

June 16, 1998

GREGORY DOMINACH A/K/A GREGORY ALLEN DOMINACH, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



Before Bridges, C.j., Thomas, P.j., And Herring, J.

The opinion of the court was delivered by: Herring, J., For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 09/28/95

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: MURDER: SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MDOC

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Gregory Dominach was convicted of murder in the Circuit Court of Hancock County, Mississippi, notwithstanding his plea of not guilty by reason of insanity. Following his conviction, Dominach was sentenced to serve a term of life imprisonment. In addition to a number of procedural arguments, Dominach asserts that the jury's verdict was against the overwhelming weight of the evidence. We find that this and other arguments of the Appellant have merit. Thus, we reverse and remand this case for proceedings consistent with this opinion.

A. THE FACTS

On November 24, 1994, the Appellant fatally stabbed and wounded Walter Perkins at a local marina where Perkins had been in the process of launching a boat. Shortly thereafter, Perkins was transported to a local hospital where he bled to death while awaiting surgery. At trial, Dominach never contested the fact that he stabbed Perkins. Instead, he asserted an insanity defense.

Dominach was thirty-nine years old on the day of the incident in question and had been in and out of mental institutions since the age of nineteen. He was diagnosed as suffering from Bipolar Disorder, a condition which afflicts its victims with periods of depression followed by periods of mania, during which they typically exhibit psychotic behavior, such as hallucinations and delusions. A Bipolar Disorder is usually kept in check by a drug and mood stabilizer called Lithium, with which he had been treated for many years. According to Dr. Henry Maggio, a psychiatrist who evaluated Dominach's condition, his psychiatric illness began in 1977 when he was admitted to DePaul Hospital and diagnosed to be suffering from Paranoid Schizophrenia. His second hospitalization was at the Coral Ridge Psychiatric Hospital in Florida in 1979, where he was diagnosed to be suffering from a Manic Depressive or Bipolar condition. Later, he had multiple admissions at Tulane University where he was diagnosed as having a Bipolar Disorder and was treated with Lithium.

From 1984 to 1994, Dominach had frequent admissions at the Charity Hospital in New Orleans, where he was diagnosed as Bipolar Affective Disorder and Drug Abuse (alcohol). Typically, he would have to be hospitalized when he quit taking his Lithium and increased his drinking habits, which, according to Dr. Maggio, "decompensates into a psychotic state." Dominach was a truck driver by trade and owned and operated at a dump truck.

During Thanksgiving week, 1994, the Appellant traveled from New Orleans to Bay Saint Louis, Mississippi, to spend some time at his mother's fish camp. He was accompanied on this trip by James Kenmura, a friend and employee. According to the record, Dominach did not take his medication with him, and the two men began drinking heavily when they arrived at the camp. After a couple of days, Kenmura became concerned because of Dominach's strange and erratic behavior and eventually returned to New Orleans. Kenmura testified that when he was not on his medication, the Appellant typically began pacing the floor and talking quickly and incoherently. Kenmura said that he would try to stay away from Dominach during these episodes.

At approximately 2:30 A.M. on November 25, 1994, Dominach visited a local tavern where he consumed five or six liquor drinks ("wild turkey and coke") during a four hour period. After leaving the tavern on foot, Dominach proceeded to a nearby marina where his boat was moored. At the marina, Dominach encountered Walker Perkins who was in the process of launching a fishing boat. Dominach approached Perkins and stabbed him above the right shoulder with a large knife. According to the pathologist who testified at trial, the knife was thrust deep into Perkins' chest, and cut large veins that led to his heart. Perkins shouted for help after he had been stabbed, while Dominach walked over to a nearby house and sat down on the front porch steps. The marina manager, John Garcia, responded and called 911. According to his testimony, Garcia saw Dominach leave and walk across the street when Perkins fell to the ground. The victim then informed Garcia that Dominach had asked him if he believed in God before he stabbed him.

A law enforcement officer and medical personnel arrived shortly after Garcia made his 911 telephone call. When Sheriff's Deputy Kenneth Hurt arrived, he was directed across the street from the marina to the house which Dominach had entered after the stabbing. Deputy Hurt ordered Dominach out of the house, but Dominach did not comply until Hurt's third request and only after Hurt had drawn his firearm. The Appellant eventually informed Hurt that he had stabbed Perkins and showed him where the knife was located. Dominach was then taken into custody, and Perkins was transported to a nearby hospital. At the hospital, Perkins survived for nearly three hours while awaiting surgery, but eventually bled to death as a result of the injuries inflicted by Dominach.

B. COURSE OF PROCEEDINGS

Dominach was indicted for murder on May 1, 1995. Prior to that time, on April 25, 1995, the State moved the trial court to authorize a mental examination of the Appellant to determine his competency to stand trial. Thereafter, on May 11, 1995, Dominach entered and filed a written plea of not guilty by reason of insanity. Simultaneously, he advised the State that he planned to call medical witnesses concerning his insanity defense, including Dr. Henry Maggio of Gulfport, a psychiatrist. Dr. Maggio's lengthy written report concerning Dominach was attached to the Appellant's witness list which was filed with the circuit clerk. It recited long history of Dominach's problems with a Bipolar Disorder which resulted in his hospitalization for mental problems on numerous occasions and at least once a year for the last ten years.

The trial court executed and filed its order requiring Dominach to undergo a psychiatric examination at the Mississippi State Hospital at Whitfield on June 27, 1995. The State Hospital's report of its mental evaluation of Dominach was sent to the trial court on August 3, 1995, and as shown in its August 3, 1995, report Dominach was "severely mentally ill" and unable to competently stand trial or assist his attorney. In a later letter to the trial court dated September 5, 1995, Dr. McMichael of the State Hospital reported that Dominach was now competent to stand trial. However, Dr. McMichael *fn1 also stated:

We are unanimous in our opinion that Mr. Dominach did not know the nature and quality of his alleged actions at the time of the offense.

We have been unable fully to develop our opinion concerning whether or not Mr. Dominach would have known that his alleged actions were unlawful at the time of the offense because, as he has improved clinically, he has become increasingly reluctant to discuss this with us without his defense attorney being present.

We are also unable fully to develop our opinion concerning the degree to which voluntary intoxication may have contributed to Mr. Dominach's mental state at the time of the alleged offense as he was both acutely mentally ill and intoxicated.

Nevertheless, this action went to trial on September 26, 1995, and Dominach was found guilty of murder on the following day. He was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections on September 28, 1995.

C. THE ISSUES

The following issues or assignments of error, taken verbatim from Dominach's brief, are ...


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