State v. Andrews, s. 13902 and 13903

• Decision Date: 27 February 1978
• Docket Number: Nos. 13902 and 13903,s. 13902 and 13903
• Citation: 576 P.2d 857
• Parties: STATE of Utah, Plaintiff and Respondent, v. William ANDREWS, Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Dale S. PIERRE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 857

576 P.2d 857

STATE of Utah, Plaintiff and Respondent, v. William ANDREWS, Defendant and Appellant.

STATE of Utah, Plaintiff and Respondent, v. Dale S. PIERRE, Defendant and Appellant.

Nos. 13902 and 13903.

Supreme Court of Utah.

Feb. 27, 1978.

John T. Caine of Public Defender Assn. of Weber County, Ogden, for andrews.

Randall T. Gaither of Athay, Brown & Van Sciver, Salt Lake City, for Pierre.

Robert B. Hansen, Atty. Gen., Earl F. Dorius, Robert R. Wallace, Asst. Attys. Gen., Salt Lake City, for Nos. 13902 and 13903.

WILKINS, Justice:

By petitions for rehearing, defendants challenge the opinions of this Court rendered on November 25, 1977. See State v. Pierre, Utah, 572 P.2d 1338 (1977) and State v. Andrews, Utah, 574 P.2d 709 (1977). After considering points raised by the petitions, and finding them without merit, the petitions were denied on January 17, 1978. An explanation, however, is given in this supplemental opinion to this order of denial concerning one point raised by the petitions, viz., the defendants' contention that this Court erroneously stated that the defendants claimed no actual prejudice as a result of the District Court's failure to sequester them. Defendants contend they did claim actual prejudice because of this failure, which resulted in these jurors being exposed at one of their luncheon recesses to a napkin with a drawing of a stick figure hanging from a gallows and an inscription reading "Hang the niggers."

The incident involving the napkin was discussed under point 5 of Defendant Pierre's brief on appeal (and incorporated by reference in Defendant Andrews' brief) which was entitled:

THE TRIAL COURT DEPRIVED THE APPELLANT OF A FAIR TRIAL AND VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BY FAILING TO PROTECT THE APPELLANT FROM INHERENTLY PREJUDICIAL PRETRIAL PUBLICITY.

Although in No. 5 of the Pierre brief, he does claim actual prejudice at one point, this Court in the prior opinions, ante, treated the matter of the napkin incident, inter alia, in the context of inherently prejudicial publicity. And our analysis and conclusion in the prior opinions on this type of publicity remain unchanged.

The defendants urged us in their petitions for rehearing to pinpoint consideration of their contention of actual prejudice of the napkin incident.

The District Judge became aware of the incident through a disclosure by the court bailiff who was in charge of the jury during a luncheon recess. Immediately after this recess, the Court had a hearing, out of the presence of the jury, with defendants and counsel present. The bailiff was sworn and testified. It was revealed that: the dining area of the cafe where the jury had lunch was excluded by drawn curtains, and there was absolute privacy; the jurors did not communicate with others at the cafe; nevertheless, when one juror overturned his napkin at the beginning of the meal, he discovered the writing and drawing; only the jurors on each side of the napkin probably saw the writing; and the napkin was...