Nelson v. State, 1 Div. 350

• Citation: 440 So.2d 1130
• Decision Date: 31 May 1983
• Docket Number: 1 Div. 350
• Parties: Michael Anthony NELSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1130

440 So.2d 1130

Michael Anthony NELSON v. STATE of Alabama.

1 Div. 350.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

Certiorari Denied Nov. 23, 1983

Alabama Supreme Court 82-964.

Joseph P. Givhan, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard D. Melson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Michael Anthony Nelson was indicted for the murders of Joseph Couey and James Evans in violation of § 13A-5-31(a)(10) (now § 13A-5-40(a)(10), Code of Alabama 1975.

The jury found the appellant "guilty of the Capital Felony as charged in the indictment." The trial judge followed the jury's recommendation and sentenced the appellant to life imprisonment without parole.

Since the issues raised on appeal do not turn on the facts, we will discuss only those facts necessary for our decision.

I

The appellant contends he was denied a fair and impartial trial due to the extensive pre-trial publicity concerning the appellant's participation in these murders and therefore, the trial judge erred by refusing to grant the appellant's motion for a change of venue.

One of the basic tenets embodied in the United States Constitution is the right to a jury trial. This right guarantees that an accused shall receive a fair trial by a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Section 15-2-20, Code of Alabama 1975 states that a defendant is entitled to a change of venue to another county if he can show to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had in the county in which the indictment is found. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978).

However, merely because jurors are not totally ignorant of the facts and issues involved in a particular case does not mean that an unbiased verdict cannot be expected in such case.

"In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. 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."

Irvin v. Dowd, supra.

There are two situations in which a change of venue is mandated. The first is when the defendant can show that prejudicial pre-trial publicity "has so saturated the community as to have a probable impact on the prospective jurors" and thus renders the trial setting "inherently suspect." McWilliams v. United States, 394 F.2d 41 (U.S.C.A. 8th Cir.1968); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In this situation, a "pattern of deep and bitter prejudice" must exist in the community. Irvin v. Dowd, supra.

The second situation occurs when the defendant shows "a connection between the publicity generated by the news articles radio and television broadcasts and the existence of actual jury prejudice." McWilliams v. United States, supra.

The United States Supreme Court, on numerous occasions, has reversed convictions which occurred within a trial setting utterly corrupted by the press. See cases cited in McWilliams v. United States, supra. The case at bar does not approach the magnitude of those cases that have been condemned by the United States Supreme Court.

"Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975)."

Anderson v. State, supra.

The appellant introduced copies of nine newspaper articles and transcripts of three television news segments in support of his motion for change of venue. All of the publicity surrounded the trial of his co-defendant, David Beech. We have examined the newspaper articles and the television broadcasts and believe they were factual accounts of the trial proceedings in David Beech's case and objectively reported. The appellant was mentioned only as Beech's cohort and the emphasis of the articles concerned Beech and the appellant was only mentioned incidentially. We do not believe that the publicity which the appellant received created an inherently prejudicial atmosphere at this trial. The appellant has failed to show that he did not get a fair and impartial trial as a result of the publicity concerning the murders he allegedly committed.

The appellant claims that because the community was so aware of the charges against him and of the details of the murders that the juror panel had a pre-conceived bias against him. The fact that the jurors had knowledge of his case doesn't necessarily mean that they were biased against the appellant when they were impaneled. Anderson v. State, supra. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

The appellant has failed to establish any indication of actual prejudice against him by the jurors who were impaneled or any unfairness in the juror selection process. The trial judge personally asked each juror about his or her knowledge of the case. All of the jurors, even those who were aware of these murders, indicated they could and would disregard anything they had heard about the appellant's case and could render an impartial verdict based solely on the evidence presented to them at trial. They further stated that if they did not do so, it would violate their oaths as jurors. Therefore, we are of the opinion that the jury was impartially selected and that they rendered their verdict based solely on the evidence adduced at this trial.

Moreover, the determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), cert. denied, (Ala.S.Ct., 82-582, May 6, 1983).

This court will not review the trial judge's decision in such case in the absence of gross abuse. Botsford v. State, supra. There was none shown here.

For the reasons herein stated above, we hold the appellant's motion for change of venue was properly...