Kaplan v. State

• Decision Date: 29 October 1980
• Docket Number: No. 12590,12590
• Citation: 618 P.2d 354,96 Nev. 798
• Parties: Morey KAPLAN, also known as Harold Hartz, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 354

618 P.2d 354

96 Nev. 798

Morey KAPLAN, also known as Harold Hartz, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 12590.

Supreme Court of Nevada.

Oct. 29, 1980.

Johnson, Belaustegui & Robison, and Kent R. Robison, Reno, for appellant

Richard H. Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Dist. Atty., and Edwin T. Basl, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

MOWBRAY, Chief Justice:

Morey Kaplan appeals from the district court's order denying his motion for change of venue of his trial from Washoe County. Kaplan was charged in an indictment with the murder of Peggy Jean Davis. After a jury trial in 1979 Kaplan was found guilty. However, because of certain prejudicial statements made by the special prosecutor concerning Kaplan's prior criminal record which were published by the media, Kaplan was granted a new trial.

After the date for his second trial was set, Kaplan moved for a change of venue from Washoe County. Following selection of the jury the motion was argued and denied. This appeal followed.

Kaplan contends the district judge erred in denying his motion for change of venue because a fair trial cannot be had in Washoe County in view of the "influence of the pervasive publicity" surrounding the murder of Peggy Davis, Kaplan's alleged involvement in the crime, his conviction following the first trial, and his prior criminal record. To support this contention Kaplan argues that of the twelve jurors selected for his second trial, eight have been exposed to publicity concerning the case, four are aware of his first trial and conviction, three know of his prior criminal record, and four have already formed opinions that Kaplan is guilty of the crime.

A defendant is entitled to have a panel of impartial jurors. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). However, a qualified juror need not be totally ignorant of the facts and issues involved.

"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Id. at 800, 95 S.Ct. at 2036, quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

Under certain circumstances, as the Court noted in Murphy v. Florida, supra, prejudice will be presumed, i. e., where the influence of the news media is so outrageous that it pervades the proceedings and utterly corrupts the trial atmosphere. See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, supra.

Here, Kaplan does not argue that the content of the news concerning this case was so biased or inflammatory as to utterly corrupt the proceedings, and thus we will not presume that juror exposure to information about Kaplan's prior conviction or to news accounts of the crime with which he is charged alone deprives him of due process. Murphy v. Florida, supra. Kaplan's contention that he cannot receive a fair trial in Washoe County is based on the assertion that publicity in the community was so extensive that most of the present jurors have some knowledge of the case and some have already formed opinions that Kaplan is guilty.

We do not agree with Kaplan's argument that he cannot receive a fair trial in Washoe County. The portions of the voir dire...