*1 No. Sept. 24521. [S.F. 1983.] WILLIAMS, Petitioner,
FREDRICK WINFIELD COUNTY, THE SUPERIOR COURT OF PLACER Respondent; PEOPLE, THE Real in Interest. Party
Counsel Defender, Condit for Petition- Robert J. Public and Thomas W. Trombley, er.
No for appearance Respondent. General, Robert and K. Van de
George Attorneys John Deukmejian Kamp, General, Kremer, H. Attorneys Philibosian and Daniel J. Chief Assistant General, and David Charles P. Just Arnold O. Assistant Overoye, Attorney Alba, General, Interest. De for Real Attorneys Party Deputy Opinion 12, 1980,
BROUSSARD, J. body after dawn on June —Shortly woman, Mead, Ave- found on Industrial white Heather young age Williams, later, Kenneth A few days nue near Roseville in Placer homicide, and man, with the in connection black was arrested circumstances, burglary, kidnaping, with murder with rape, special his broth- arraigned, Kenneth was robbery. After kidnaping robbery Prelim- (defendant identically charged. herein) er Fredrick was arrested for trial. Because over examinations were held and both were bound inary the triggerman, had been it that Kenneth and not defendant likely appeared $10,000 bail. released on Kenneth was denied bail and defendant was 10-month-long tried first. His The trials were severed and Kenneth was all counts in March on trial and resulted conviction May 1981 began selected the death 1982. April 1982. jury penalty *4 arrested, for bur- trial, once While Kenneth on defendant was twice was even- were charges and once for a Both deadly weapon. assault with glary dismissed and has remained on bail. tually defendant to the trial court Several indicated months district ago, deputy defendant, but would seek that he would not seek the death against penalty life nevertheless sought capital without of Defendant possibility parole. court, concluding funds under Penal Code The trial section 987.9. At the same hearing,
case was no denied the longer “capital,” request. publicity. defendant moved for a of venue due to change prejudicial pretrial relief to extraordinary This motion was Defendant then sought also denied. change funds and to trial court to the section 987.9 compel provide writ of mandate. venue for of trial. We issued an alternative purposes of defendant, without the possibility issue whether life facing only under Penal Code section is nevertheless for funds parole, eligible capital Superior in Sand v. been answered in the already negative 987.9 has chosen, ante, 480, We have P.2d (1983) 668 Cal.Rptr. page 787]. [194 grant the trial court however, to writ to compel issue a peremptory of venue in this case.1 change
Discussion media given Between June and June extensive During Williams brothers. to the the two progress proceedings item mentioned Nearly every that time different items appeared. span, of Heather with the murder both brothers and the fact that were they claims that this protest. under He lodged transcript proceeding 1Defendant has change venue issue of our determination of transcript should not be reviewed because may hearing disagree. transcript A evidence. We requires independent an review of the testimony may be relevant. arguments include or and thus Mead. Defendant contends that the material is dissemination of this poten- and he tially prejudicial, therefore cannot receive a fair trial in Placer Coun- ty.
In Maine v.
(1968)
Court
Several
be
factors shall
examined in our determination of the rea
sonable likelihood that defendant will not receive a fair trial in Placer Coun
(1) the nature and
ty:
(2)
extent of the
the size of the population
publicity;
offense,
of Placer
(3)
(4)
the nature
the
the
of
County,
and
of
status
gravity
accused,
the victim and
(5)
of the
and
whether
overtones are
political
prese
nt.2 As we shall
the
in defendant’s
heavily
first four factors
explain,
weigh
favor,
determinative,
and
each factor alone
not be
we con
although
might
clude that a
of venue is warranted in this case.
change
recently
change
Superior
2We
declined to order a
of venue in Odle v.
455,
case,
carefully
Cal.3d 932
examined the
654 P.2d
In that
we
size
225].
accused,
community,
the
publicity,
the nature and extent of the
the status of the
status
victims,
prominence
and
gravity
and the nature and
of the offense. Our assessment
factors, however,
of these
did not
a
likelihood that Odie could not
establish
reasonable
contrary,
community
receive a fair trial
large
in Contra Costa
To the
the
size of the
the passage
length
during
publicity
of a substantial
which
was absent
of time
extensive
jurors
led us to conclude
had been
prospective
that there was no reasonable likelihood that
prejudiced by
given
be
pretrial publicity.
point
We were careful to
out that Odie would
dire,
potential
request
change
questioning
a second chance to
a
of venue
voir
of
at
should
jurors
prejudice.
authority
change
reveal actual
We noted
to
venue at that
that a trial court’s
Court,
recognized
early
late date had been
In this there has been publicity either have items appeared Over 159 inflammatory. of which has been some month in each items appeared or on the radio. Several in newspaper of and December of November (with the this two-year period exception 1980, in June seven 1980, days different 1981): on twelve April 1980, two in October 1980, 1980, four in September one in July August 1981, 1981, March one in 1980, 1981, February three in two in January 1981, 1981, August four 1981, thirteen in July two in four in June May 1981, in November 1981, five 1981, four in October two in September 1982, 1982, 1981, one in February January three in December six in and on two in May in March five in four eight April a short description item contained every different in June 1982.3 days Nearly of the items Many of the murder and the Williams brothers as suspects. the main headline. received some were the subject front-page coverage; Thus, biweekly average weekly the evidence indicates that on a clearly cover- news subjected for a readers and listeners were two-year period, murder, Ken- trial of brother whether fair or age, inflammatory, neth, be tried on same and the fact that defendant Fredrick will soon Moeschler, appeared in the study that items 3A was undertaken Milton who discovered News, Journal, Press-Tribune, Sacra Messenger, Loomis Auburn Roseville Lincoln News Bee, mento Sacramento Union and KAHI-KHYL Radio. two-year period, but over the quantity coverage We note that the had not diminished Cal.3d supra, 32 rather remained 932, unlike Odle v. static. This situation is (although only weeks after arrest coverage given where extensive the initial two through few of Contra Costa papers give portion local continued to area, Here, particular major newspapers of the proceedings). the remainder of the Journal, coverage. gave Auburn continual extensive *6 502], (1981) 629 P.2d Cal.Rptr. v. 574 In Court [174 Martinez Press-Tribune, Journal, (The and Sacra- newspapers we noted that the three main Auburn 36,463, roughly equiv- Bee) County] daily mento “have a in of combined circulation [Placer voting popu- of the county’s upon one-third calculations population. alent to of Based circulation, jurors in the potential newspaper lation and the at least one-half (P. fn. exposed press coverage been to the case.” have [in Martinez’] (the scientific by attorney in this case public opinion survey A undertaken the district potential of large percentage validity today) of which we do not on indicates that pass publicity, due to the may cognizance of the Williams brothers jurors in fact have taken surveyed individuals attorney 117 newspapers from the of the area. The district particularly name, by recognize the case jury percent did not polled, from a former list. Of those 97.4 knowing report did some- recognize by the case name percent but 64 of those who failed to percent, percent 25 Of these 64 thing about the case after it had been described to them. Bee, Press- from the Roseville reading percent 31.6 recalled about it in the Sacramento Journal; Tribune, something on tele- heard percent 30.3 percent and 43.4 from the Auburn Thus, from learning about the case remembered percent polled vision. about 27 of the 117 Press-Tribune, Journal, about Roseville percent about 20 of the 117 from the the Auburn words, Bee, television. In other percent about 20 from percent 16 from the Sacramento major the case from one of hearing four or about person one five could remember Journal, heard from the Auburn giving coverage—the highest percentage sources extensive (and daily) coverage. gave which the heaviest often 590 continual, Such
charges. and at repetitive inflammatory times in- coverage dicates that potential jurors Placer not be able to County may defen- give dant a fair trial.
The public opinion survey (noted undertaken the district fn. ante) in which 117 individuals from former lists were jury questioned, indicates that a significant percentage have potential jurors may already formed on opinions guilt innocence of defendant. to the According 22.4 poll, percent those claimed had questioned they formed such an 64.7 opinion; only of these percent individuals believed that could they their disregard and decide or innocence on opinion guilt based the evidence presented—i.e., of the 117 individuals could not percent dis- questioned And, regard their opinion. only 79.3 felt that could decide the percent they case based on only courtroom, evidence presented regardless what read—i.e., had they heard or one out of five would not be able to give defendant a fair trial.4
The news for the most coverage, consisted of factual accounts of part, Nevertheless, accounts, progress case. even factual if con tinuous and extensive can be “A enough, reasonable potentially prejudicial. likelihood of unfairness exist even may the news was nei though ther inflammatory nor (Corona of overt productive hostility. [Citation.]” Cal.App.3d addition, some of the accounts were a hostile capable eliciting response from their audience.
For sexual example, assault or was referred to 145 times in the rape accounts. “Bullet-ridden body” was used times. “Execution-style” killing was referred to 12 (variations times). times were used additional
The victim was described several times as a woman whose young virginity had been robbed from her before she had been killed. For example, 18, 1982, recently as March the Auburn Journal under a front- reported victim, tall, headline that the page “a but somewhat strong slow-thinking woman who herself for found saving marriage—was sprawled Roseville, the middle of Industrial Avenue near where she had been shot to *7 7, 1982, death.” On April on the of the reporting pro- progress penalty Kenneth, ceeding against the Auburn Journal on page quoted deputy figures significantly higher survey 4These are than those obtained in a similar in the Mar Martinez, dissent, case. pointed by In as out Justice Richardson in his less than 5 tinez Martinez, percent had any opinion guilt percent formed of the or innocence of and they solely presented believed could not decide the case on the evidence that would be Martinez, (one J., seven). (See (Richardson, court out p. of-six Cal.3d at dis.).) ‘“ himself to take took upon defendant district as saying [t]he his own lust satisfy life to her and her Heather Mead’s virginity, property ’ ” trial, the Auburn And, Kenneth’s . . . greed, guilt phase defendant, due to their evidence which linked Kenneth Journal reported found on a bed race, that hairs testified to state rape: “[The criminalist] been left by could have sheet at the home where Mead allegedly raped murder. The brother, Fredrick, accused of or his who also is Williams by left could have been criminalist noted that also [on bed] [the hairs] The criminalist characteristics. else whose hair had the same anyone [1f] (Nov. features; brothers are black.” the hairs had the Williams said Negroid 19, 1981, Kenneth linking noted other evidence Auburn Journal p. a Williams about busi- to the “Defense Greer asked attorney Douglas rape: bedroom, the item in the only ness card found on the in the master bed 1982, under (Jan. story house which carried front-page his fingerprint.” headline.) of the testi-
There were other racial in addition to the report references took allegedly a black man’s hair to the bed where the mony linking rape total, indicated that on nine occasions words or place. separate pictures as white. the Williams brothers are black. Twice the victim was described black, 117,000 In a are such racial where 402 out of only people overtones could have a potentially devastating impact. death, When Kenneth to Couzens was quoted was sentenced Judge “ ‘We of a vulnerable
saying, have . . . the cold-blooded and shooting rape woman, defendant,’ (Auburn ...” unknown to the totally person, headline.) Journal (May 1982) article under front-page venue in the Probably factor towards greatest weighing media, for an entire trial defendant is the extensive coverage by of the trial of of the and death year, phase rape-murder guilt phase penalty brother, attention his Kenneth. The trial was undoubtedly given particular “the the media Kenneth’s trial was longest and its readers and listeners. by of,” Attorney to District according trial Placer that I’ve known County] [in Mr. 1982) (Auburn (Mar. story.) Daniel Journal Higgins. front-page commented in Placer that “the case was the first originating has also Higgins (Press-Tribune (May end four decades.” in a death sentence in Thus, trial and its outcome 1982) of the front-page story.) impact future trial on any could have an of an undeterminable only degree impact trial of coverage to be defendant. We note that extensive given defendant, codefendant, complete to another regardless relationship lead prejudg with an account of the evidence can dangerously presented, or innocence guilt ment the reader or of the news listener Court, (See, of the defendant not tried. yet e.g., Martinez *8 Cal.3d factor: the code- This case adds an additional aggravating that, fendant was defendant’s the due to the danger brother—increasing onto close the in Kenneth’s case will be transferred affinity, guilt finding defendant.
The matter is further the to the two arrests by given complicated publicity of Ken- defendant for and assault with a burglary deadly weapon trial. against neth’s Seven items discussed these additional charges pressed defendant; on were made the fact that defendant out bail references trial for the murder and that brother was on currently his pending charges, times, on (a same few in the same article then focused charges discussion trial). what the were later charges occurred Kenneth’s recently Although dismissed, even ac- the a murder defendant who was publicity regarding of bail could nevertheless cused additional crimes while out on committing a future trial have inflamed Such an influence render may potential jurors. situation, in the from unfair. In an defendant analogous escaped the a wave of alarm and county jail trial. pending escape “provoked General con- Attorney concern the . . . throughout community. [T]he tend was the ‘result’ of peti- publicity concerning escape [ed] misconduct, consideration tioner’s own and hence be excluded from should however, doctrine, is of reason of the That doctrine of invited error. such an limited context. ... A defendant who attempts this application who, than one is no less entitled to a fair and jury escape impartial indeed, inmate—or, than a model attacks a or a fellow example, guard can, course, crime, be If his misconduct to a he of pros- amounts prisoner. therefor, ecuted he not the further and impermissible penalty but suffer may v. (Fain unfair him.” an trial on the original charge against P.2d 2 Cal.3d continual, In of the case summary, repetitive coverage progress brothers, (and daily) sometimes inflammatory two the at times resulting imposition of brother Kenneth’s trial prolonged brothers, and the additional the death fact that the two are very penalty, weighing two arrests are all factors defendant publicity given concerning toward a of venue. heavily defendant’s favor 2. The Placer population size of Court, we recog Maine v. Superior become communities, is more likely
nized that in small crime major Thus, the than in communities. large embedded consciousness public is (117,000 people) small fact that Placer is of relatively population Indeed, we so venue. in favor defendant’s motion to change factor 574, in which Cal.3d concluded in Martinez
593 we ordered a we of venue from Placer We there noted that change had ordered venue previously in cases counties changes involving larger Court, (Fain than Placer such as Stanislaus v. County, County Superior 46) (Frazier Cal.3d and Santa supra, Cruz 5 Cal.3d 486 P.2d 3. The nature and gravity of offense. murder,
The sensational nature of the and the serious- rape, robbery ness these offenses are in favor of de- alleged factors weighing heavily fendant’s motion for of venue.
First, as adduced from the media involves the murder this case coverage, of a white young woman two men who had robbed the black brother; victim of her The death virginity. each penalty sought against Kenneth has already been convicted and received a death It sentence. was only recently that the district announced he would not seek the death half, penalty defendant—but for a and a this case re- year mained a case. The racial and capital sexual overtones what was once a death case add additional penalty sensationalism to element of sen- “[t]he sationalism, always in the present of events reporting concerning capital case . . . .” (Martinez v. 581.) at supra, p. addition, several media accounts referred to the as “cold-blood- killing
ed” or Martinez, “execution-style.” As we noted in 29 Cal.3d supra, such characterizations of a murder create a of sensationalism. high degree
Second, the crimes are of charged the utmost It is well- gravity. settled that a of murder charge with is the special circumstances gravest offense carrying gravest factor in favor of penalty—a weighing heavily Martinez, (Odle, the defendant. 932, 941; supra, 32 Cal.3d 583; Frazier, Fain, Cal.3d at 287; cf. p. supra, Cal.3d The that the People argue gravity offenses instant charged case is lessened because the death is no De- penalty longer being sought. fendant is nevertheless life without he is still facing parole; possibility murder, with charged which we one of the most serious recognize being offenses, Thus, even when circumstances are not we con- special alleged. clude that the fact that despite is no the death prosecutor longer seeking penalty, offenses remain of the utmost gravity.
4. The status the victim and the accused.
Other factors in this case indicate that of venue is nec- present a change essary: victim’s family while prominence community, has defendant is but a to that stranger community. who at- victim, Mead, white student college Heather was a young, uncle, firm of her the engineering in Rocklin. She worked for
tended school *10 a favorable reputation The have Atteberrys Mr. in Roseville. Atteberry, citizens. the and are community, upstanding addition, In he contrast, a of Sacramento In defendant is resident in the com- which has few representatives is a member of a minority group black). are 117,000 of Placer residents 402 out of munity (only nature: bail, of a violent for crimes And, while out on he was twice arrested short, is a young defendant a deadly and assault with burglary weapon. accused of man, twice community, in the black a to and friendless stranger an untarnished crimes, murdering with additional violent raping The community. is family white woman whose upstanding Martinez, we noted where Cal.3d similar to situation is quite addict, heroin an Martinez, alleged minority group that “a member of a of defendant exactly type community,’ ‘friendless represents can most effectively prejudice. [Citation.]” whom pretrial publicity 584-585.) (Pp. The overtones.
5. presence political attorney prosecuting In Maine v. Superior We stated election. in an upcoming and defense counsel were opponents that the circumstances, fear gnawing ... we harbor these “[u]nder inadvertently might election adversaries between two campaign competition ad- also trial which are they intrude the course of proceeding and when in a criminal proceeding, Political factors have no versaries. place reason here, an independent constitute they are to as they likely appear, (P. a venue change.” in this case overtones are present
Defendant that political argues run for office well, unsuccessfully had attorney because prosecuting case, the defense and one of this district attorney during pendency of his opponent. had been a staunch attorneys supporter overtones. involves political notion that the instant case We reject Maine To extend the candidate. not in fact the opposing defense counsel was ability attorney’s an intrude severely upon situation would doctrine this candidate, likely for it is quite if he is also political a case prosecute Rather, opponent. be a supporter counsel will often that opposing when to exist only be found should a conflict an affirmative showing, absent candidates. are in fact the opposing both adversaries and the prosecuting Furthermore, ago, months election ended several between in November held (A runoff election was defeated. and a were opponent candidate.) third Even if overtones present political (which at one time find), we do not their effects are no longer present this case.
Conclusion case, no overtones are in the instant all Although political present other factors indicate that a of venue is important necessary strongly to insure that this defendant been receive a fair trial. This defendant has mentioned, least, continuously on a basis at the weekly biweekly very *11 for the two past in connection with and murder of years Heather rape of, of, Mead and the trial conviction and death sentence received brother on the same The charges. connection between Kenneth and defen dant, result, as a has become so intertwined that a is that danger present will potential jurors transfer the verdict rendered Kenneth onto guilt Furthermore, defendant. the effect of the is likely extensive less publicity to subside in a small such as Placer the crime was of a community County; nature; sensational the offenses are and carry severe grave penal ties; and defendant is friendless in a in which the victim community enjoyed certain, limited, even if prominence.
aLet writ of peremptory mandate issue the trial court to directing grant of venue. The change alternative writ and a is writ discharged peremptory denied, however, in regard to funds under Penal Code receiving capital section 987.9.
Kaus, J.,
J.,
Grodin, J.,
Reynoso,
and
concurred.
factors,
RICHARDSON,
J.
I concurin the
Certain
judgment.
including
offense,
the nature and
gravity
and the extensive local
de-
publicity
offense,
voted to the murder trial of defendant’s brother for the same
dis-
this case
tinguish
(1981)
from
Court
The trial of an unu- defendant’s brother lasted 10 months. That suggests defense, number sually large of witnesses for both the and prosecution since the identical will events are involved here the same witnesses probably be called upon testify this case. logistical problem transporting the numerous witnesses to another times at appropriate an trial, of their lives and employment and the disruption
course unattractive. of venue singularly civic make the duty, change unpleasant Placer Coun- in another county imported If a were jury impanelled are in any jurors generally would be inconvenienced—as ty, only jurors defendant, difficulty moving to the venue event—compared When officers, and exhibits. counsel, records defense security prosecutor, are con- moved, and the defendant for both the People the trial is counsel locale, remained if the trial in the new whereas fined to this one matter other to attend to pressing would be able their home counsel community, business in the hours of recess. public have adopted I call attention to the several states
Once again, (See Use trial venue. instead of changing practice importing juries A.B.A.J. Juries Gains Imported Popularity Richardson, J., concurred. *12 in that
BIRD, J., portion I concur C. Concurring Dissenting. necessary of venue is which concludes that a change majority opinion trial in this case. order that receive a fair petitioner in Sand v. However, dissenting opinion in my for the reasons expressed 480, 668 P.2d ante, 567, 576 pages Penal Code to funds under 787], is entitled I would find that petitioner 987.9 of section meaning case” within the section 987.9. This is a “capital receive a sen- may alleged petitioner since circumstances are special tence of life without parole. possibility