State v. Blodgette

• Court: Arizona Supreme Court
• Writing for the Court: STRUCKMEYER; CAMERON
• Citation: State v. Blodgette, 121 Ariz. 392, 590 P.2d 931 (Ariz. 1979)
• Decision Date: 08 February 1979
• Docket Number: No. 4374,4374
• Parties: STATE of Arizona, Appellee, v. Edward Lloyd BLODGETTE, Appellant.

Page 931

590 P.2d 931

121 Ariz. 392

STATE of Arizona, Appellee, v. Edward Lloyd BLODGETTE, Appellant.

No. 4374.

Supreme Court of Arizona, In Banc.

Feb. 8, 1979.

John A. LaSota, Jr., former Atty. Gen., Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Garth Nelson, Yuma, for appellant.

STRUCKMEYER, Vice Chief Justice.

Edward Lloyd Blodgette appeals from convictions for first degree burglary and grand theft. Affirmed.

Appellant urges that the court below erred in denying his motion for a continuance to produce a witness and in allowing the prosecution to argue inferences which the witness could have rebutted under these facts. In the early morning hours of June 23, 1977, Allen Strasburg drove to the Yuma County Sheriff's Department substation in northern Yuma County and reported that an air compressor and air tank had been taken from the T&L Gas Station near Parker, Arizona. Strasburg related that he had seen an older model blue pickup truck parked near the gas station, and that after hearing car doors slam, saw the truck drive away with the compressor and tank in the back. Strasburg, to confirm his suspicions, went to the station to investigate, then drove to the sheriff's office. On the way, he passed the truck parked just off the road. Daniel Hal Collett, the deputy on duty, received a request over his radio to investigate. He immediately spotted the truck, stopped his vehicle, and approached appellant who was standing beside the pickup. In response to Collett's questions, appellant identified himself as John B. Phillips, and stated that the compressor was in the truck when he borrowed it from a friend in Phoenix. In the presence of appellant, Collett verified by radio that a compressor was taken from the gas station. Soon thereafter, appellant explained that he bought the compressor from two unknown persons in a bar in Kingman for $400.00. Collett arrested appellant and he was taken to jail in Parker.

Subsequent investigation at the gas station disclosed tire tracks outside the room from which the compressor was taken and footprints on the oily floor of the room. The officers concluded the tire tracks matched those of the pickup driven by appellant, and that the footprints at the scene matched the shoes appellant was wearing when he was arrested.

At the substation the following day, James Rahn, the owner of the truck, inquired whether "Eddie", the driver of the truck, was in custody. Shortly thereafter, appellant admitted his true name, explaining he had used another name because he was on federal probation pursuant to a conviction for possession of illegal firearms.

At trial, after appellant's motion for a directed verdict at the end of the State's case was denied, appellant offered the testimony of James Rahn and Allie Rahn, James' mother. James Rahn testified of his four-year friendship with appellant and confirmed that he allowed appellant to take his truck for a trip to Lake Havasu. In explaining his appearance at the sheriff's substation on the morning following appellant's arrest, Rahn testified that he received a telephone call from one Paul Hutman at his home in Peoria at approximately 7:00 a. m. on June 23, 1977. According to Rahn, Hutman was driving through Parker on his way home from California when he saw Rahn's pickup truck in the parking lot by the Parker jail. Rahn testified that he immediately drove to Parker and went to the sheriff's substation.

Rahn also testified that two individuals parked across the street from the jail showed what he described as an unusual interest in his truck, and he reported this to the Parker deputies. He identified these men as the individuals later described by appellant in his testimony.

Allie Rahn testified that her son was at home on the evening of June 22, and in the early morning hours of June 23.

Appellant testified on his own behalf, describing an industrial accident in April, 1977, which resulted in a compensable back injury. He also related the following alibi. On his return from Lake Havasu, he made a rest stop in a vacant area along the highway north of Parker, when he was approached by two men who said they were interested in purchasing the truck. Later in the conversation, the men offered to sell a compressor to appellant. Due to the late hour, the men declined to take appellant to see it, but offered to pick it up and bring it to him for inspection if he would allow them to use his truck. Appellant agreed. One of the men, who was barefooted, explained that it was rocky where the compressor was located, so appellant lent him his tennis shoes. The men left their car and its keys with appellant and went to get the compressor. The men returned in the truck with the compressor about forty-five minutes later and advised appellant that his keys and shoes were in the truck. After inspecting the compressor, appellant agreed to pay $250.00 for it. When appellant opened his wallet to pay for the compressor, one of the men grabbed the wallet, and both men jumped into their car and drove away. When appellant checked his vehicle, he found his shoes, but the truck keys were missing. Deputy Collett arrived soon thereafter.

On rebuttal, Collett testified it was impossible for a person driving through Parker on the main highway to see a vehicle parked near the jail. The State rested, and before closing arguments, the following discussion took place "THE COURT: Mr. Nelson, you had a matter you wanted to bring up?

MR. NELSON: Yes, Your Honor. The State's rebuttal evidence here appears to have been offered for the purpose of rebutting or attacking the testimony of defense witness Jim Rahn about the circumstances under which he became aware of the pickup being at the sheriff's station in Parker. I would also gather from the line of the State's questioning in this area it is to be contended that Mr. Rahn was in fact a participant and confederate in the commission of this offense.

Now in between yesterday's proceedings and this morning I have discussed this matter with Mr. Rahn. He went back to Phoenix and made contact with the friend Paul about whom he testified in his testimony and determined from him the circumstances under which he saw and reported the vehicle. The substance of that was that he had been returning to Phoenix from California, was driving through Parker, and while he was on the highway he drove off from the highway looking around for a store that was open.

In the process of doing that he drove in this general area. He saw this vehicle parked in the sheriff's parking lot, went on back to Phoenix, and gave Rahn a call after he got back. And Mr. Rahn is in the courtroom who can testify to that, but it's clearly hearsay testimony. If the State will not consent to offering surrebuttal evidence in that matter, in the alternative I would move this trial be continued until this afternoon or tomorrow morning to give me an opportunity to have a subpoena issued and obtain the presence of the Paul referred to to appear and testify under these circumstances.

THE COURT: Well, Mr....