Chase v. State, 6875

• Decision Date: 09 March 1984
• Docket Number: No. 6875,6875
• Citation: 678 P.2d 1347
• Parties: Alan R. CHASE, Jr., Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1347

678 P.2d 1347

Alan R. CHASE, Jr., Appellant, v. STATE of Alaska, Appellee.

No. 6875.

Court of Appeals of Alaska.

March 9, 1984.

Christine S. Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

On May 1, 1981, Alan Chase was indicted on charges of first-degree murder, first-degree sexual assault, arson, and other related charges in connection with the death of Dawn Klinkhart. Prior to and during the trial the defendant made three motions for change of venue, all of which were denied by Superior Court Judge Justin Ripley. In addition, Chase moved to suppress a statement which he made to Investigator Charles Miller, on the ground that it was given involuntarily. This motion was also denied. After a jury trial, Chase was found guilty on all counts. On April 21, 1982, Judge Ripley sentenced Chase to seventy-five years' imprisonment. The defendant appeals Judge Ripley's denial of his motion to change venue and the motion to suppress his confession. He also argues that Judge Ripley erred in denying three of his challenges for cause of prospective jurors. We affirm.

On the night of April 18, 1981, sixteen-year-old Dawn Klinkhart had a party at her home. Her parents were out of town. One of the people at the party was the defendant, Alan Chase. Chase and Klinkhart, who had never met before, apparently spent some time together during the evening. According to the statement Chase made to the police, he had consensual sexual relations with Klinkhart. He left the Klinkhart residence after midnight, but returned later. He entered the house through a side door and went up to Klinkhart's bedroom. He undressed, got into bed with Klinkhart and attempted to have sexual intercourse with her. She responded violently, hitting Chase and telling him that she was going to call the police and charge him with rape.

The two fought and ended up on the floor. Chase tied Klinkhart's neck and wrists with a pair of pantyhose. Chase said he did this to keep her from hitting him. Chase inserted a plastic container into Klinkhart's vagina. He then went to the garage and returned with a can of paint thinner and other flammable liquids. He splashed these substances around the room, ignited them, and left the house.

Firefighters responded to the fire early on the morning of April 19, and found Klinkhart's body. An autopsy showed the cause of death to be strangulation. Klinkhart had been severely beaten, and had chemical burns on her skin. The autopsy also showed that matches used to ignite the chemicals had been dropped directly onto her body, and that the burns and other injuries had been inflicted while Klinkhart was still alive.

In an attempt to interview everyone who had been at the party, police investigators contacted Chase. An investigator noticed scratches and what appeared to be a bite mark on Chase's hand. This and other information led the police to obtain a court order requiring Chase to submit to a physical examination and to provide other physical evidence. As part of the physical examination, Dr. Thomas Richardson, a forensic odontologist, compared the bite marks on Chase's hand with impressions of Klinkhart's teeth and bite pattern. Dr. Richardson told Investigator Miller that in his opinion the marks on Chase's hand matched the impression of Klinkhart's teeth and bite pattern. Investigator Miller then talked to Chase about the bite marks and the other evidence in the case and Chase admitted to Miller that he had killed Klinkhart. Chase's defense at trial was that because he did not intend to kill Klinkhart, he was therefore only guilty of the lesser-included offense of manslaughter. The jury rejected this defense.

CHANGE OF VENUE MOTIONS

Chase made several motions for a change of venue based upon AS 22.10.040(1) which allows the court to change venue "when there is reason to believe that an impartial trial cannot be had." A change of venue may be necessary to insure the defendant's right to be tried by an impartial jury. U.S. Const.amend. VI; Alaska Const. art. 1, § 11. The standard which we apply to review a trial judge's denial of a change of venue motion is whether the denial amounted to an abuse of discretion. Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980).

This case did receive considerable publicity. The evidence presented by the defendant shows that between the time of Klinkhart's death on April 19, 1981, and January 12, 1982, approximately three weeks prior to trial, the case received media attention at least sixty-two times. This breaks down to seventeen newspaper articles, fourteen television spots, and thirty-one radio broadcasts.

Three Alaska Supreme Court cases set forth the standards which a trial judge should apply in deciding whether to grant a defendant's motion for a change of venue due to pretrial publicity. Those cases are Oxereok v. State, 611 P.2d 913 (Alaska 1980); Mallott v. State, 608 P.2d 737 (Alaska 1980); and Brown v. State, 601 P.2d 221 (Alaska 1979). These cases establish that a trial judge will seldom be found to have abused his discretion in denying a motion for change of venue prior to jury voir dire. In Mallott, 608 P.2d at 746, the court stated:

Whether pretrial publicity is so prejudicial and so pervasive that no such jury could be selected to try a particular case in a particular locale is a determination that is exceedingly difficult to make prior to the questioning of potential jurors. Therefore almost without exception trial courts have been permitted the discretion to rely on voir dire rather than their own speculation as to the impact of pretrial publicity. ¹ [Footnote omitted.]

The court in Mallott then set out the standard to be applied by the trial judge in deciding whether to grant a change of venue motion after completion of voir dire:

The ultimate burden imposed on a defendant by the Supreme Court with respect to transfer of venue has been to demonstrate that pre-trial publicity actually resulted in "a partiality that could not be laid aside" in those jurors finally seated to adjudicate guilt or innocence. Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595 (1975). Under such a standard Mallott's claim would most certainly fail, since he cannot and does not maintain that the voir dire examination of his jury panel revealed even a shred of evidence that any of the impaneled jurors were predisposed to convict him.

As we have noted above however, the voir dire process is not an infallible Geiger counter of juror prejudice, and to rely excessively on its efficacy in uncovering "actual prejudice" places an unrealistic burden on a defendant. Where there has been intensive pretrial publicity, and a substantial number of venirepersons appear to have been prejudiced by the publicity, the probability that similar prejudices are shared by, but have not been extracted from, impaneled jurors cannot be ignored. We therefore adopt the A.B.A. proposal that

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had ... A showing of actual prejudice shall not be required.

Id. at 748, citing ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press § 8-3.3(c) (2d ed. Approved Draft 1978).

As in the Mallott case, the jurors who sat on Chase's jury indicated that they could be fair and impartial. The question before us is whether, from the nature of the publicity, and the nature of the responses of the jurors who comprised the entire jury panel, there was a substantial likelihood that the jury which tried Chase was not impartial. Although we have made an independent review of the record in deciding whether Chase's jury was impartial, we recognize that the trial judge has a significant advantage in being able to detect the presence or absence of juror prejudice in evaluating the circumstances surrounding the trial. See Brown v. State, 601 P.2d at 230.

We conclude that Judge Ripley did not abuse his discretion when he refused to grant the change of venue motion. Chase was tried by a group of jurors who indicated that they could be fair and whom Chase passed for cause. A great deal of the publicity in this case took place within a few weeks of the time of the incident, and Chase was tried more than eight months later. Therefore, there is a substantial chance that any negative effect of the publicity on the trial had greatly diminished by the time of trial even though there was continuing press coverage. See Mallott v. State, 608 P.2d at 747. We believe that it was reasonable for the trial judge to conclude, from the responses which he received in voir dire, that any negative effects of the publicity had worn off. Although most of the jurors had heard of the charges against Chase, most jurors could recall little of what they had heard. It appears that those potential jurors who had fairly detailed memories of the case were excused. See Mallott v. State, 608 P.2d at 749. Furthermore, we do not believe that the information which the jurors had been exposed to and reported consisted of "highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflamatory material...." Id., quoting ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press § 8-3.5(b) (2d ed. Approved Draft 1978). Had Chase's statement admitting that he killed Klinkhart been suppressed, given the number of jurors who had heard a...