STATE OF MONTANA, PLAINTIFF AND APPELLANT, v. JAMES E. PAISLEY, DEFENDANT AND RESPONDENT.
No. 83-10.
Supreme Court of Montana
Submitted on Briefs March 25, 1983. Decided May 19, 1983.
663 P.2d 322 | 191 Mont. 191
Keller & Gilmer, Kalispell, for defendant and respondent.
MR. JUSTICE MORRISON delivered the opinion of the Court.
Defendant was arrested on Jаnuary 17, 1982, and charged by information with one count of sexual intercourse without consent. An amended information wаs filed March 19, 1982, charging defendant with one count of sexual intercourse without consent, a felony, one cоunt of sexual assault, a felony and one count of sexual assault, a misdemeanor. All of the charges stem from defendant‘s actions toward three female patients in his Flathead County, Montana, dental office.
After his аrrest and the filing of the additional charges, defendant‘s dental business decreased substantially. On April 6, 1982, defense counsel mailed letters to over seven hundred of defendant‘s patients clarifying defendant‘s position regarding the charges. Defendant‘s dental business once again increased.
Defendant‘s trial on the misdemeanor charge began in jus
The felony charges against defendant wеre scheduled to be tried in the Eleventh Judicial District Court, Flathead County. On October 15, 1982, defendant made a motion fоr change of place of trial. A hearing on the motion was held November 15, 1982. The motion was granted at the close of the hearing. Pursuant to
Defendant‘s motion was supported by his defense counsel‘s affidavit stating facts in support of the prejudice alleged; by copies of the newspaper accounts of the September trial in justice court; аnd by a written report of criminologist Dr. Richard Vandiver‘s survey of the opinions of Flathead County‘s registered voters rеgarding the guilt of this defendant.
The State filed a motion in opposition on November 5, 1982, containing four responses to defendant‘s motion:
- Defense counsel acted inappropriately in sending the letters to defendаnt‘s clients. The letters attracted the attention of the news media. Defendant should not now be able to benefit from his own wrong.
- The news media covered defendant‘s trial in a fair and objective manner. The publicity did not affеct defendant‘s chances of receiving a fair trial in Flathead County.
- The criminologist‘s survey indicated that a mаjority of the respondents believed they could decide the case solely on the basis of the evidence presented at trial.
- The District Court should reserve ruling on defendant‘s motion until voir dire of a Flathead County jury pаnel.
At the November 15, 1982 hearing on the motion for change of venue, defendant testified regarding the impact
Absent abuse of discretion, the District Court‘s ruling on a motion for change of venue will be affirmed. State ex rel. Coburn v. Bennett (1982), 202 Mont. 20, 655, P.2d 502, 506, 39 St.Rep. 2300, 2306. To grant such a motion, there must be “reasonable grounds to bеlieve that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial triаl.” State v. Link (1981), Mont., 640 P.2d 366, 368, 38 St.Rep. 982, 985, quoting People v. Berry (1967), 37 Ill.2d 329, 226 N.E.2d 591, 593. When prejudicial pretrial publicity is alleged, the publicity must be inflammatory and create a reasonаble apprehension that a fair trial is not possible before the motion will be granted. State v. Ritchson (1982), 199 Mont. 51, 647 P.2d 830, 832, 39 St.Rep. 1201, 1203-04.
In the written report of his survey, Dr. Vandiver concluded:
“The results of this survey do not overwhelmingly indicate either the likelihood or imрrobability of Mr. Paisley receiving a fair jury trial in Flathead County. It is obvious that the publicity given the case by the locаl media has been widespread and effective . . .
“It was not clear that people‘s opinions arе set regarding guilt or innocence nor does there appear to be a strong perception of agreement in the community about the case. Thus while it might be possible for Mr. Paisley to receive a fair jury trial in Flathead County the likelihood of that will undoubtedly be affected by the extent and nature of further publicity in this case.”
The survey was conducted prior to defendant‘s trial in justice court. The trial was given extensive coverage by thе media. Regarding the guilty verdict, the Daily Inter Lake reported that the justice court judge told the defendant: “The evidence рresents you as being guilty of more than
The extent of the further publicity was great. Its nature was inflammatory. Clearly, the District Court judge did not abuse his discretion in granting defendant‘s motion for change of venue.
Finally, in State ex rel. Coburn v. Bennett, 202 Mont. 20, 655 P.2d at p. 508, 39 St.Rep. at p. 2308, we stated:
“Not every venue case requires thаt voir dire be employed to determine whether prejudice still ‘exists and that by reason of the prejudice thеre is a reasonable apprehension that the accused cannot receive a fair and impartial trial.’ While the determination of whether widespread prejudice prohibits selection of an impаrtial jury is usually made during voir dire, each case must turn on its special facts. United States v. Engleman (E.D.Mo. 1980), 489 F.Supp. 48.”
The District Court‘s ruling on defendant‘s motion was within the bounds of properly exercised discretion.
Affirmed.
MR. JUSTICES HARRISON, SHEA and SHEEHY concur.
MR. JUSTICE GULBRANDSON, dissenting:
I respectfully dissent on the basis that the change of venue order is premature.