State v. Herring
| Decision Date | 05 June 1984 |
| Docket Number | No. 11710,11710 |
| Citation | 486 N.E.2d 119,21 Ohio App.3d 18,21 OBR 19 |
| Parties | , 21 O.B.R. 19 The STATE of Ohio, Appellant, v. HERRING, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In the absence of a clear and manifest showing by the defendant that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act, and in the interest of judicial economy, convenience and expense to the taxpayer, a good faith effort should be made to impanel a jury before the trial court grants a motion for change of venue.
Lynn Slaby, Pros. Atty., for appellant.
Saundra J. Robinson, Akron, for appellee.
The state appeals the order of the trial court granting defendant Samuel J. Herring's motion to change venue. We vacate and remand.
A decision to change venue is within the trial court's discretion. State v. Swiger (1966), 5 Ohio St.2d 151, 164, 214 N.E.2d 417 . An appellate court will not reverse such a decision absent a clear showing that the court abused its discretion.
Here, the trial court granted Herring's motion to change venue without first attempting to seat a jury. In State v. Bayless (1976), 48 Ohio St.2d 73, 98, 357 N.E.2d 1035 , the Ohio Supreme Court stated:
" * * * In general, * * * a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality. * * * "
We note the record only consists of an affidavit by the defendant himself, and copies of five newspaper articles attached to the motion. The defense offered no witnesses, but made a statement in support of the motion in which television and additional newspaper coverage were mentioned.
This case is factually distinguishable from Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, in that it does not involve the death penalty nor any telecast, newspaper or other account of statements or confessions of the defendant. Clearly, the instant record is insufficient to demonstrate that the pretrial publicity was so pervasive and prejudicial as to warrant a finding that a fair trial is not probable in this jurisdiction.
In the absence of a clear and manifest showing by the defendant that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act, we hold that in the interest of judicial economy, convenience, and expense to the taxpayer, that a good faith...
To continue reading
Request your trial
-
State v. Grate
...added in Mammone .) Id. , quoting State v. Warner , 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v. Herring , 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.{¶ 56} Grate argues that Ashland County is a smaller community, where prospective jurors might feel closer t......
-
State v. Clinton
...to seat a jury would be a vain act.’ " State v. Warner , 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v. Herring , 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.{¶ 66} Clinton argues that the extensive pretrial publicity surrounding the murders of Jackson and her ......
-
Parker v. State
...trial judges may be reluctant to hold hearings on the motions prior to actual arrival of the venire. In fact, in State v. Herring [21 Ohio App.3d 18, 486 N.E.2d 119 (1984) ], the trial court's order changing venue was vacated, and the matter was remanded for a 'good faith effort' to seat a ......
-
Mammone v. Jenkins
...a motion for change of venue.'" State v. Warner, 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v. Herring, 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.{ ¶ 56} That said, the United States Supreme Court has held that in certain rare cases, pretrial publicity is so......