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.

Page 1131

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,

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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...