State v. Link
| Decision Date | 23 June 1981 |
| Docket Number | No. 80-374,80-374 |
| Citation | 640 P.2d 366,194 Mont. 556,38 St.Rep. 982 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Lonnie LINK, Defendant and Respondent. |
| Court | Montana Supreme Court |
Mike Greely, Atty. Gen., Chris Tweeten argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Carroll Blend argued, Deputy County Atty., Great Falls, for plaintiff and appellant.
Michael S. Smartt argued, Public Defender, Great Falls, for defendant and respondent.
The State appeals from an order entered in District Court, Cascade County, granting defendant's motion for a change of venue. We reverse.
Defendant was arrested February 25, 1980, in Great Falls, Montana, and was charged with felony theft. He pleaded not guilty and was released on his own recognizance. Trial was set for June 30, but was vacated and reset for August 25, 1980. On August 11, 1980, defendant was arrested for robbery. Both crimes were reported in the Great Falls Tribune. One article, published 12 days before trial, pictured defendant in handcuffs, and in an article appearing a week before trial, several community businessmen were reported as being critical of the presiding district judge for having released defendant on his own recognizance. The remaining articles were routine news releases concerning the crimes allegedly committed by defendant.
On August 25, the day of trial, defendant filed a motion and affidavit with the District Court requesting either a change of venue, or the postponement of the trial to allow time for the publicity to die down. Following hearing, the district judge granted defendant's motion for a change of venue. The State appeals.
The parties raised several issues which we frame as follows:
1) Did the district judge abuse his discretion in granting the change of venue?
2) Should this Court reconsider the standard used to determine whether a change of venue should be granted?
The State contends that the district judge abused his discretion in granting the change of venue, because there was not a showing of existing prejudice in the community. A mere showing of publication does not prove that prejudice results, which will bias the trial. Defendant argues that the State has a heavy burden to show abuse of discretion by the judge. He contends that the articles published and the information which the judge was aware of were sufficient to allow him to make a determination that defendant could not get a fair trial.
The statute authorizing a change of venue requires a showing of existing prejudice:
"(3) If the court determines that there exists in the county in which the prosecution is pending such prejudice that a fair trial cannot be had, it shall transfer the cause to any other court of competent jurisdiction in any county in which a fair trial may be had." (Emphasis added.) Section 46-13-203, MCA.
The findings of the district judge do not indicate that he found existing prejudice. Rather, he found that "the publicity incident to these particular cases, without more, is sufficient to warrant a change of venue." Noting that two charges were pending against the defendant in Cascade County at this time, the district judge determined that judicial time and economy would be best served by ordering a change of venue.
This Court has indicated that where the evidence is inconclusive on the issue of prejudice, the district judge's discretion should be relied on. His ruling should not be disturbed unless an abuse of discretion is shown. State v. Bashor (1980), Mont., 614 P.2d 470, 476, 37 St.Rep. 1098, 1100. Under the facts of this case we find an abuse of discretion.
This Court has discussed the showing that must be made before a change of venue is granted:
"The cases in Montana have established that before a district judge can exercise his discretion in granting a change of venue there must be more than (1) affiant's unsupported opinion, (2) the fact that the account of a crime has been published, that said published accounts of the crime are not prejudicial unless they are passionate enough to excite undue prejudice, to the extent of rendering it impossible for the accused to have a jury free from prejudice." State ex rel. Hanrahan v. District Court, (1965), 145 Mont. 501, 508, 401 P.2d 770, 774.
See also State v. Corliss (1967), 150 Mont. 40, 430 P.2d 632; State v. Sandstrom (1978), 176 Mont. 492, 580 P.2d 106, 35 St.Rep....
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