State v. Greenawalt, 4611

• Decision Date: 24 February 1981
• Docket Number: No. 4611,4611
• Citation: 626 P.2d 118,128 Ariz. 388
• Parties: , 7 Media L. Rep. 1038 STATE of Arizona, Appellee, v. Randy GREENAWALT, Raymond Curtis Tison and Ricky Wayne Tison, Appellants.
• Court: Arizona Supreme Court

Page 118

626 P.2d 118

128 Ariz. 388, 7 Media L. Rep. 1038

STATE of Arizona, Appellee, v. Randy GREENAWALT, Raymond Curtis Tison and Ricky Wayne Tison, Appellants.

No. 4611.

Supreme Court of Arizona, In Banc.

Feb. 24, 1981.

Rehearing Denied March 31, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Bruce M. Ferg, Asst. Attys. Gen., Phoenix, for appellee.

Robert C. Brown, Casa Grande, for appellant Randy Greenawalt.

Platt, Jenson & Johnson by Boyd T. Johnson, Coolidge, for appellant Raymond Curtis Tison.

Echeverria, Glenn & Howard by Phillip W. Glenn and Dwight P. Callahan, Casa Grande, for appellant Ricky Wayne Tison.

STRUCKMEYER, Chief Justice.

This appeal arises from convictions for numerous offenses committed during an escape from the Arizona State Prison in Florence on July 30, 1978, and at a roadblock near Casa Grande on August 11, 1978. We have jurisdiction by A.R.S. § 13-4031. Affirmed.

On July 30, 1978, appellant Greenawalt and Gary Tison, the father of the two other appellants, were incarcerated at the state prison. Greenawalt and Gary Tison were cell mates, serving life sentences for murder. Early that morning, appellant Raymond Tison arrived at the north annex of the prison to visit his father. While these two visited, appellant Greenawalt was in the nearby control room, preparing some prisoners' work rosters. Shortly thereafter, appellant Ricky Tison and his brother, Donald Tison, entered the yard office of the annex, carrying an ice chest. Ricky removed a shotgun from the chest and pointed it at two guards. Donald Tison passed a handgun to Greenawalt, who ordered the two guards to lie on the floor. Greenawalt then passed the gun to Gary Tison and obtained another shotgun. Gary Tison rounded up other guards in the area, escorted them into the yard office and then ordered all of them into a small storage closet. Civilians, who were at the annex to visit other prisoners, were first ordered to stand against a wall. Later they were also taken to the storage closet and locked in with the guards. Greenawalt and the Tisons then fled from the prison.

The five men eluded capture for eleven days, during which time a family of four was murdered near Yuma, Arizona. The convictions and death sentences of appellant Greenawalt for these killings were affirmed in State v. Greenawalt, --- Ariz. ---, 624 P.2d 828 (1981).

In the early morning hours of August 11, 1978, Pinal County sheriffs set up two roadblocks near Casa Grande, Arizona, believing the five men would be traveling through the area. Just before 3:00 a. m., a van approached one of the roadblocks, slowed almost to a stop, then accelerated past the roadblock. Two gunshots were first fired from the van. Later more shots were fired from the van as officers from the roadblock pursued in two police cars. Another roadblock was notified and as the van approached, the officers at the second roadblock heard shots and saw muzzle flashes coming from the van. Believing they were being fired upon, these officers shot at the van. After running the second roadblock, the van turned off into the desert and stopped. In the driver's seat of the van, the pursuing officers found Donald Tison, shot, unconscious and dying. Aided by a helicopter's searchlight, the officers discovered Greenawalt and the two Tison brothers, appellants herein, hiding in the desert close by. No trace was found of Gary Tison until several days later when his body was discovered in a nearby wash.

After a jury trial, appellants were each convicted of seventeen counts of assault with a deadly weapon (A.R.S. § 13-249(B)) ¹ and one count each of possession of a stolen motor vehicle (A.R.S. § 13-672.01) and unlawful flight from a pursuing law enforcement vehicle (A.R.S. § 28-622.01). Appellant Greenawalt was further convicted of escape (A.R.S. § 13-392) and possession of a deadly weapon by a prisoner (A.R.S. § 31-232); while both Tisons were found guilty of aiding and assisting an escape (A.R.S. § 13-391), with Ricky Tison alone being convicted of taking prohibited articles into prison (A.R.S. § 31-230).

The Tisons received sentences of 30 years to life for the assaults, the sentences to be concurrent. For the rest of the offenses, they received sentences of four to five years, these sentences to be served concurrently, but consecutively to the assault sentences.

Greenawalt was sentenced to terms of thirty years to life for the thirteen assaults committed during the escape and for possession of a deadly weapon, along with a four to five-year term for escape, the sentences running concurrently. Greenawalt also received sentences of thirty years to life for the roadblock assaults and sentences of four to five years for possession of a stolen motor vehicle and unlawful flight. These latter sentences are to run concurrently to each other, but consecutively to the sentences for the crimes arising out of the prison escape. All the sentences imposed on Greenawalt in this action will run consecutively to the life term he was serving prior to the escape.

Appellants contend the trial judge erred in denying their motion to change venue or venire, grant a continuance or dismiss the indictment, resulting in a denial of their right to a fair trial. The determinations of motions for a change of venue, change of venire and a continuance rest within the trial court's discretion and will not be disturbed on appeal absent a clear showing of abuse of that discretion resulting in prejudice to the defendant. State v. Greenawalt, supra; Rule 10.3(b), Rules of Criminal Procedure, 17 A.R.S.

Appellants argue the media coverage in this case was so outrageous that prejudice and unfairness must be presumed. We recognized this principle in State v. Smith, 123 Ariz. 231, 236, 599 P.2d 187 (1979), yet we found no such outrageous conduct there. Instead, it has only been found where the "proceedings * * * lacked the solemnity and sobriety appropriate to a judicial proceeding, and, instead * * * developed a carnival-like atmosphere." State v. Greenawalt, supra, at 842; see Dobbert v. Florida, 432 U.S. 304, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Appellants point to nothing as evidence that their trial was conducted in a less than solemn and sober manner. The record itself discloses no outrageous conduct by the parties or the press. Appellants must therefore show specific publicity which has reached prospective jurors and which is so prejudicial that the jurors cannot set it aside. State v. Smith, 116 Ariz. 387, 390, 569 P.2d 817 (1977). Every member of the jury panel knew of the appellants in some way. This is not surprising. The escape of two convicted murderers from the state prison is clearly newsworthy. And when the two and their accomplices are not immediately apprehended, but, rather, are implicated in new murders, extensive coverage of their capture and trial is to be expected. Moreover, the public had a right to a free and open discussion on the issues crystalized by the escape and subsequent incidents; issues which touched all phases of our criminal justice system, notably capital punishment and government officials who allegedly "coddle" criminals.

Publicity about appellants and other criminal defendants serves an important First Amendment interest. See Richmond Newspapers, Inc. v. Virginia, --- U.S. ----, ---- - ----, 100 S.Ct. 2814, 2824-25, 65 L.Ed.2d 973 (1980); Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 587, 96 S.Ct. 2791, 2816, 49 L.Ed.2d 683 (1976) (Brennan concurring). It is in consideration of this First Amendment interest that the law requires a defendant to show the prejudice of the publicity, not simply its extensiveness. Hence, the issue is whether the jurors can actually set aside their knowledge and opinions to render a verdict based solely on the evidence produced in court. See State v. Greenawalt, supra.

While every member of the jury panel had heard about the appellants, the amount of knowledge varied markedly from juror to juror. Some knew details of the crimes, while one juror recalled absolutely nothing about the crimes. The majority of potential jurors remembered the incidents in August, 1978 in only a general and vague way. More important, even though about one-half of the panel admitted to having preconceived opinions on appellants' guilt, half of those swore the opinions were so weak they could be set aside. Veniremen who could not so swear or swore they "would try" to set the opinion aside were excused.

Appellants correctly point out that Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), holds that jurors' assurances of impartiality are not dispositive. Instead, the record of voir dire must be examined to determine if the total circumstances of the case and its publicity exhibit actual prejudice. The most important factors in this determination are the nature of the publicity and the difficulty in selecting a jury.

Appellants state they "were the subject of front page headlines, feature stories, photographs, and editorials on virtually a daily basis from July 30, 1978 through the date of trial" and that the publicity about them was "very intense and often emotion charged." The newspaper articles submitted by appellants do not support these assertions. Nearly all were dispassionate factual summaries of the alleged offenses and the progress of the manhunt. Appellants stopped being "the subject of front page headlines * * * on virtually a daily basis" near the end of August when Gary Tison's body was discovered. The newspapers published only one or two front-page stories each from that time until the December trial.

The only material that could be described as inflammatory appeared in the Yuma Daily Sun, a paper no member of the Pinal County jury panel read, and in editorials and letters to the editor in the Arizona Republic, a Phoenix newspaper. The letters to the editor, on...