Clifton v. Superior Court

• Decision Date: 05 May 1970
• Docket Number: Cr. 8742
• Citation: 86 Cal.Rptr. 612,7 Cal.App.3d 245
• Court: California Court of Appeals Court of Appeals
• Parties: Jerry L. CLIFTON, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF HUMBOLDT, Respondent; The PEOPLE of the State of California, Real Party in Interest. Clarence Olien JOHNSON, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF HUMBOLDT, Respondent; The PEOPLE of the State of California, Real Party in Interest. In re Jerry L. CLIFTON on Haveas Corpus. Civ. 27871, 27893

Page 612

86 Cal.Rptr. 612

7 Cal.App.3d 245

Jerry L. CLIFTON, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF HUMBOLDT, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Clarence Olien JOHNSON, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF HUMBOLDT, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

In re Jerry L. CLIFTON on Haveas Corpus.

Civ. 27871, 27893; Cr. 8742.

Court of Appeal, First District, Division 4, California.

May 5, 1970.

Robert W. Hill, James R. McKittrick, Mathews, Traverse & McKittrick, Eureka, for petitioner Jerry L. Clifton.

Robert C. Dunn, John R. Morrison, Eureka, for petitioner Clarence Olien Johnson, Jr.

Thomas C. Lynch, Atty. Gen. of State of California, Derald E. Granberg, John T. Murphy, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

CHRISTIAN, Associate Justice.

Petitioner Jerry Lee Clifton is charged with murder (Pen.Code, § 187) and robbery (Pen.Code, § 211). Petitioner Clarence Olien Johnson, Jr., is charged in a separate information with murder (Pen.Code, § 187) and two counts of robbery (Pen.Code, § 211). After denial of their motions in the trial court, they seek mandate to compel change of venue from Humboldt County and suppression of evidence. Clifton also seeks an order permitting his attorney's investigator to meet with him in the Humboldt County Jail.

Petitioners contend that they cannot obtain a fair trial in Humboldt County because of prejudicial publicity. Maine v. Superior Court of Mendocino County (1968) 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 729, 438 P.2d 372, 377, established the standard 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 Reasonable likelihood that in the absence of such relief, a fair trial cannot be had. * * * A showing of actual prejudice shall not be required." (Emphasis added.) In making that appraisal, an appellate court must make an independent evaluation of the facts. (Fain v. Superior Court (1970) 2 Cal.3d 46, 51, 84 Cal.Rptr. 135, 465 P.2d 23; Maine v. Superior Court, Supra, at p. 382, 66 Cal.Rptr. 724, 438 P.2d 372.)

Petitioners base their contention primarily on newspaper articles appearing in the Humboldt Times-Standard, the only daily newspaper published in the county. The newspaper claims a readership of more than 90,000 persons in Humboldt and Del Norte Counties. Petitioners have also submitted copies of articles from the Arcata Union, a weekly newspaper, and transcripts of television and radio broadcasts. The authenticity of these materials is not challenged.

On December 5, 1969 the Times-Standard carried an 8-column front page headline, 'McKinleyville Man Brutally Slashed--3 Held in Arcata Death.' The lead paragraph read: 'Three men, all of whom Sheriff Gene Cox said today are members of the 'Death Riders' motorcycle gang of McKinleyville, are being held in the Humboldt County jail in connection with the savage early morning murder of Wescent Kolshinski, 54, North Arcata service station operator.' The article continued:

'In custody and announced by Cox as being responsible for the murder are Jerry Lee Clifton, 22, Clarence O. Johnson, 20, and Ronald L. Johnson, age not listed. * * *

'Kolshinski was found in the lubrication room * * * the top of his head mangled with a heavy instrument, numerous knife slashes across his face, and a crucifix-type cross cut in his throat.

'Unofficial reports said a pickup truck on a lube rack also was lowered onto the victim's head, which Arcata mortician Tom Field said today looked 'like it had been run over with a truck.'

'The three arrests, which Cox said stemmed from 'information,' came within an estimated five to six hours after what Cox called 'the most brutal murder I have ever seen.''

Subsequent articles also mentioned the brutality of the killing and the defendants' membership in a motorcycle gang. For example, the lead paragraph of a front page Times-Standard article on December 6, 1969 stated: 'Questioning of possible witnesses to what one mortician referred to as the 'second most brutal slaying of a 27 year career in the business' continued last night in the Humboldt County Sheriff's Office, as Sheriff Gene Cox, deputies and detectives prepared a murder case against three youthful members of a motorcycle gang.'

The preliminary hearing was closed to the public and news media at the request of the defendants, a fact prominently mentioned in newspaper articles. The hearings on petitioners' motions to suppress evidence were public, and the January 13, 1970 edition of the Times-Standard reported testimony of prosecution witnesses that Johnson had confessed and implicated Clifton. The article stated:

'Monday's daylong proceedings in court brought out that the Johnson brothers insist that Clifton was the one who plotted the robbery and attack, and induced them to participate * * *

'Hickok (chief investigator of the district attorney's office) quoted Clarence Johnson, Jr. as implicating Clifton with these words: 'He is the one who planned this thing--he is the one who made us do it.''

On January 14, 1970 a Times-Standard article reported that 'All (defendants) admit having been at the scene of the crime. Clarence Johnson is quoted as having accused Clifton of being the leader who made the Hohnsons 'do it,' while Clifton denies any part in the attack that led to Kolshinski's death.'

There is no indication in the record that petitioners' membership in a motorcycle group was relevant to the killing; witnesses testified at the preliminary hearing that the suspects left the scene in an automobile. The frequent description of the petitioners as members of the 'Death Riders' must be considered potentially prejudicial. (Cf. People v. McKee (1968) 265 Cal.App.2d 53, 59, 71 Cal.Rptr. 26.)

Publicity about a defendant's confession is also a significant factor in determining a change of venue motion. (Fain v. Superior Court, Supra, 2 Cal.3d 46, 52, 84 Cal.Rptr. 135, 465 P.2d 23; Maine v. Superior Court, Supra, 68 Cal.2d 375, 386, 66 Cal.Rptr. 724, 438 P.2d 372.) In Maine, the Supreme Court stated, 'This disclosure received substantial attention in the local newspaper, and it is undoubted that the existence of a confession is now common knowledge in the community. The admissibility of the confession into evidence has not been tested in a judicial hearing, however, and its premature release must be regarded as potentially prejudicial to petitioners. When such a disclosure occurs in a small community, The only effective remedy, if the defense so requests, is to change the venue.' (68 Cal.2d at p. 386, 66 Cal.Rptr. at p. 731, 438 P.2d at p. 379; emphasis added.)

Petitioner Johnson has challenged the confession, claiming it was elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Regardless of whether the confession is ultimately admitted as to Johnson, it cannot be admitted against Clifton. (Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.) Yet the pretrial disclosure of the confession through newspaper articles may already have accomplished what Aranda sought to prevent.

The Attorney General argues that petitioners have failed to present proof that potential jurors have actually been exposed to the publicity or that they would be unable to evaluate the evidence in an impartial manner. It is argued that petitioners should be required to submit evidence such as qualified opinion surveys or opinion testimony as suggested in Maine. Maine states that a determination may be based on opinion surveys or testimony 'or on the court's own evaluation of the nature, frequency, and timing of the material involved.' (68 Cal.2d at p. 383, 66 Cal.Rptr. at p. 729, 438 P.2d at p. 377; emphasis added.) It must be remembered that the test is not actual prejudice, but a reasonable likelihood that a fair trial cannot be had. Because of the frequent front page coverage in the only daily newspaper in the county, it is highly probable that the case is well known in the community. The extent of community interest is indicated by a statement in the December 14, 1969 Times-Standard: 'Yesterday's hearing (brief as it was) was attended by a large array of officials and legal functionaries as well as the public occupying every seat and packing the aisle almost to the barrier guarding the essential court area. Sheriff's officers and marshals of the court were seen in strategic positions in the room and corridor.' It does not require an opinion poll to ascertain that a community would be outraged when three members of a motorcycle gang are accused of brutally murdering a local resident.

The Attorney General also argues that by the time of the trial, the public will have forgotten the publicity. A similar argument was rejected in Maine v. Superior Court, Supra, 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372. The court noted: 'While a lengthy continuance might sufficiently protect the accused in some cases, it does not do so here. Delays may be an efficacious antidote to publicity in medium-size and large cities, but in small communities, where a major crime becomes embedded in the public consciousness, their effectiveness is greatly diminished.' (68 Cal.2d at p. 387, 66 Cal.Rptr. at p. 732, 438 P.2d at p. 380.) ¹ Finally the Attorney General suggests that petitioners be required to make a good faith attempt to impanel an impartial jury; they could then renew their motion for change of venue if the attempt is unsuccessful. This procedure was also rejected in Maine. (68 Cal.2d at pp. 380--381, 66 Cal.Rptr. 724, 438 P.2d 372.)

Petitioners are charged with murder. The giavity...