State v. Blankenship, 1469

• Decision Date: 14 October 1965
• Docket Number: No. 1469,1469
• Citation: 99 Ariz. 60,406 P.2d 729
• Parties: STATE of Arizona, Appellee, v. Joe Ernest BLANKENSHIP and William Lee Blankenship, Appellants.
• Court: Arizona Supreme Court

Page 729

406 P.2d 729

99 Ariz. 60

STATE of Arizona, Appellee, v. Joe Ernest BLANKENSHIP and William Lee Blankenship, Appellants.

No. 1469.

Supreme Court of Arizona, In Banc.

Oct. 14, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, Former Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy County Atty., for appellee.

Walter M. Stevenson, Tucson, for appellants.

McFARLAND, Justice.

Appellants, Joe Ernest Blankenship and William Lee Blankenship, were charged and tried by a jury along with Winifred Obia Norris, on three felony counts, to-wit: obstructing justice, in violation of A.R.S. § 13-541; assault with intent to commit a felony, in violation of A.R.S. § 13-245, as amended; and, riot, in violation of A.R.S. § 13-631. A motion to dismiss all three counts was granted as to co-defendant Norris. The jury found both appellants guilty on each of the three counts. The court suspended sentence on the count for riot, reduced the other two counts to misdemeanors, and sentenced appellants thereon to sixty days on each count, to run concurrently. The trial court denied appellants' motion for new trial. From the judgment and sentence, and denial of their motion for a new trial, appellants appeal.

On the afternoon of June 8, 1963, at approximately 2:30 p. m., two plain-clothes officers from the Tucson Police Department were conducting an investigation to determine if stolen property was present at the County Club Trailer Resort, 2627 Benson Highway, Tucson, Arizona. The officers, detective James F. Gaston, and detective Billy Edwards, were driving an unmarked car. They pulled up to a large building in which the trailer court office was located, and entered a foyer containing mail boxes for trailer court tenants. A door off the foyer opened into a small room. The officers, without entering this room, looked in and found Paul Blankenship, elderly arthritic father of appellants, lying on a bed, and Louie Blankenship, Paul's brother, sitting next to him. The officers inquired as to the whereabouts of the owner of the trailer court, and stated they believed him to be Joe Blankenship. Louis assured them Joe was the owner, and stated he was probably at the trailer court swimming pool, a short distance away. The officers then left the building.

Gaston remained outside the office while Edwards proceeded to the pool area in search of Joe. Edwards was unable to locate him, but did find the brother Bill, co-appellant. Bill informed Edwards that he did not know where Joe was. Edwards then assured him that he, Edwards, only wanted to talk with Joe, and that there was no trouble. Edwards did not identify himself to appellant as a police officer at this time.

Edwards then returned to the office building, and related to Gaston what had occurred. During the seven to eight minutes Edwards had been gone Gaston had seen several people go in and out of the office on various errands, but he did not know if Joe Blankenship was one of these. The two officers then re-entered the building, and again went up to the door of the little room. Both Paul and Louie Blankenship were still in the room, but Paul was standing up with the aid of crutches. The officers again asked where they could locate Joe Paul Blankenship became excited, and told them to leave or he would call the police. Gaston and Edwards then identified themselves as police officers, exhibiting their identification cards, but this only aggravated Paul further. He began to move toward the officers, and as he lifted one crutch he lost his balance and fell against the open door sliding to the floor. Both Gaston and Edwards testified that at no time prior to Paul's falling did either of them theraten or touch him. In fact, until he fell, neither officer had entered the little room. The officers offered assistance but this only agitated Paul, and on the advice of Louie they left the office. Edwards, again leaving Gaston outside the building, left the trailer court premises to telephone his supervisor to inform him of their progress, and returned several minutes later. Gaston then drove to the swimming pool, leaving Edwards outside the building, again in an effort to locate Joe Blankenship.

A few minutes later a pick-up truck came speeding from the direction in which Gaston had left, and William Blankenship jumped out, and went into the building. One Alfred Cameron, a resident of the trailer court, testified for the state that he had gone into the little room and found Paul lying on the floor. He testified that William came in, asking what happened, 'if those flatfeet had hurt him?'. Cameron testified that Paul told his son he had fallen, and that the officers had nothing to do with his fall.

Immediately after the pick-up appeared another car drove up, containing defendant Winifred Norris and Louie. William then came out of the building, and went up to Edwards and told him it was a 'hell' of a thing to do to an old man. He told Edwards to come in and see what he had done. Both Edwards and Cameron testified they saw appellants' mother fall as she ran to the office. A scuffle then ensued between Edwards and William. At this time Joe appeared on the scene. Edwards testified that while scuffling some one other than William struck him from behind with a hard object, stunning him. Edwards broke away, and ran in the direction of the pool in search of Gaston. At this time he was bleeding, and his clothes were torn and disarranged. He found Gaston at the pool, and both got into the car to call for assistance on the two-way radio.

The two appellants followed Edwards, and ran up to the driver's side of the car where Gaston was seated. Gaston testified that he noted at that time that Joe was carrying what appeared to be a four-by-six-inch piece of cinder block. Gaston testified further that Joe yelled: 'You guys have put my father in jail before. I have had enough of this. I am going to kill you lousy bastard cops.' Gaston then opened the car door, shoving appellants backward, and got out, removing his service revolver and yelled to Joe to drop the brick. It was at this time that a crowd began to gather--estimated at from fifty to a hundred persons. William attempted to quiet his brother, but then Edwards got out of the car, and told them they were both under arrest. Appellants then 'jumped' Edwards and began to hit him. Gaston pulled the men apart, and it was at this time that various law-enforcement vehicles began to arrive in answer to the radio call put out by Gaston and Edwards.

Appellants' first assignment of error is that the trial court erred in failing to grant a new trial on grounds of newly-discovered evidence. This evidence consisted of affidavits of various persons who had witnessed the events leading up to appellants' arrest.

Rule 310 of the Arizona Rules of Criminal Procedure, 17 A.R.S., provides, in part:

'Mandatory Grounds for New Trial

'The court shall grant a new trial if any of the following grounds is established:

* * *

* * *

'3. That new and material evidence, which if introduced at the trial would probably have changed the verdict or the finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.'

On an appeal from an order denying a new trial to the defendant in a criminal case, the matter is largely one of discretion with the trial court, and the denial will not be grounds for reversal unless it appears affirmatively that the court abused its discretion, and acted arbitrarily. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Turner, 92 Ariz. 214, 375 P.2d 567; Morgan v. United States, 301 F.2d 272 (9th Cir., Ariz., 1962). A motion for new trial will not be granted on the ground of newly- discovered evidence where such evidence is merely cumulative, State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245; impeaching, State v. Peters, 60 Ariz. 102, 131 P.2d 814; Indian Fred v. State, 36 Ariz. 48, 282 P. 930; contradictory, Talley v. State, 18 Ariz. 309, 159 P. 59, or would probably not have changed the verdict or findings of the court. Flowers v. State, 27 Ariz. 70, 229 P. 1028.

Careful examination of the various affidavits in the light of the above principles reveals that the trial court did not abuse its discretion in denying appellants' motion. Several of the affidavits contained statements that Alfred Cameron, witness for the state, was not present, or was not seen by the affiant. These statements are contradictory, thus not sufficient to warrant a new trial. One affidavit contains hearsay testimony, inadmissible because incompetent, if a new trial were granted. The affidavits also contain cumulative evidence. The only affidavits offered by appellants which contain any 'new evidence' are those of two boys, Douglas Murphy, twelve, and Louis Green, thirteen.

The two boys made affidavits concerning what occurred, stating that one of the officers hit one of appellants on the mounth. This evidence is at variance with other testimony offered in the case. There was no claim made by appellants that either of them had been hit, and no testimony in this regard. The affidavits also showed that the boys were at some distance when the events they witnessed began. The general rule is stated in 2 Underhill's Criminal Evidence (5th Ed.), § 433, at pages 1098-1099:

'The new evidence must be such as would have probably resulted in the acquittal of the accused had it been produced at the trial, and it is therefore necessary that it shall appear to the court hearing the motion that it is probably true. The witness who is expected to testify must appear to the court to be credible. His credibility is to be determined by the judge hearing the motion. * * * The refusal of a new trial for newly-discovered evidence on an affidavit incredible in view of the claim made and evidence at the trial is not error.'

This court, in the early case of Talley v. State, supra, stated:

'The...