Joiner v. StateJoiner v. State
Thе appellant, Mark Leslie Joiner, was convicted of arson in the second degree, a violаtion of
The appellant‘s sole contention on appeal is that the trial court erred in denying his motion for a change of venue. On October 5, 1993, the appellant filed a motion seeking a change of venue or a continuance of his November 29, 1993, trial date because of pretrial publicity. The court granted the continuance and reset the appellant‘s trial for the following term.
On March 2, 1994, the appellant filed another motion for a continuance based on pretrial publicity. To his motion, the appellant attached copies of two Prattville Progress newspaper articles concerning the burning of Marbury School. The appellant‘s name was not mentioned in either article. The cоurt denied the appellant‘s motion for the second continuance on March 3, 1994, stating that it would “review the need to change venue if a fair jury [could not] be provided to the defendant.”
After extensive vоir dire, the court denied the appellant‘s motion for a change of venue, stating:
“The Court is of the оpinion after individual voir dire examination that the jury panel that exists now, after the Court has granted the defendant‘s motions for challenges for cause and having made some strikes from the panel on its own mоtion, is a fair and impartial panel consisting of jurors that can hear the evidence in this case аnd make a decision based on the evidence and the evidence alone. All of them have indicated that they can disregard anything that they did read, see, or hear about the case and use only the evidence that‘s admitted in reaching a verdict in the case. The Court was very liberal in its assessment of those that have been challenged for cause or released on the court‘s own motion. In sizing up the jury, the Court was careful to observe the demeanor of each one of the jurors. And on the onеs where on my own motion I struck them from the list, it was because of some sense or intuitiveness that I had about thе demeanor of that witness, not necessarily their actual responses to the questions that led the Court to make that decision.”
“[A] change of venue must be granted only when it can be shown that the pretrial рublicity has so ‘pervasively saturated’ the community as to make the ‘court proceedings nothing more than a “hollow formality,” ’ Hart v. State, 612 So.2d 520, 526-27 (Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993), citing Rideau v. Louisiana, 373 U.S. 723, 726, 10 L.Ed.2d 663, 83 S.Ct. 1417 [1419] (1963), or when actual prejudice can be demonstrated. The burden of showing this saturаtion of the community or actual prejudice lies with the appellant. Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507 (1966). In order to show community saturation, the appellant must show more than the fact ‘that a case generates even widesprеad publicity.’ Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App. 1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). ’ “Newspaper articles alone would not necessitate a change of venuе unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844 [1945].” ’ Thompson v. State, supra at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala. 1977). Furthеrmore, in order for a defendant to show prejudice, the ’ “proper manner for ascertaining whеther adverse publicity may have biased the prospective jurors is through the voir dire examination.” Anderson v. State, 362 So.2d 1296, 1299 (Ala.Cr.App. 1978).’ Ex parte Grayson, 479 So.2d 76, 80 (Ala. 1985), cert. denied, 474 U.S. 865, 88 L.Ed.2d 157, 106 S.Ct. 189 (1985).”
Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App. 1993).
The appellant presented absolutely no evidence that the pretrial publicity had saturatеd the community or that the pretrial publicity biased the members of the venire against him. The newspaper articles presented to the trial court with the motion for a continuance did not even mention thе appellant‘s name. There was no indication that the appellant could not receive a fair trial in Autauga County. Based upon a review of the entire record, we hold that the trial court did nоt err in denying the appellant‘s motion for a change of venue.
For the foregoing reasons, the appellant‘s conviction is due to be affirmed.
AFFIRMED.
All the Judges concur.