Nickell v. Com.

• Citation: 371 S.W.2d 849
• Parties: Cecil K. NICKELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 18 October 1963
• Court: United States State Supreme Court (Kentucky)

Page 849

371 S.W.2d 849

Cecil K. NICKELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 18, 1963.

John Y. Brown, Sr., John Y. Brown, Jr., Lexington, for appellant.

John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., for appellee.

WILLIAMS, Judge.

The appellant, Cecil K. Nickell, was tried in the Perry Circuit Court on the charge of armed robbery. He was found guilty and sentenced to life imprisonment. On his appeal he complains of the fact that he was not granted a change of venue.

Prior to appellant's trial a hearing was held pursuant to his petition for a change of venue. His attorneys stated that they had been unsuccessful in their attempt to obtain affidavits to the effect that he would not receive a fair and unbiased trial in Perry County. Sworn statements of the attorneys indicate that they spent at least a month attempting to find persons to sign the affidavits, and that individuals contacted generally believed the appellant would not get a fair trial but were unwilling to sign an affidavit.

Appellant introduced certain newspapers at the venue hearing. One paper carried a front page picture of him with handcuffs on, and other editions of the paper carried news stories which discounted his plea of not guilty. His attorneys stated that radio and television stations had given undue prominence to the crime.

Appellant was an itinerant salesman living in Lexington and unknown in Perry County. The victim of the armed robbery was a doctor who was prominent in the community. This fact is alleged to have been sufficient to cause bias against appellant. Along the same line it is appellant's contention that the order of the circuit judge that he be sent to an out-of-county jail and be denied bail indicates the hostility of the community toward him. We held the denial of bail to be proper in Nickell v. Kelly, Ky., 357 S.W.2d 856.

When the case was called for trial the circuit court dismissed the entire jury panel when one of them stated in open court she thought the appellant was guilty. New names were drawn from the wheel and a jury was impaneled after 49 prospective jurors were examined. Appellant argues that this number is excessive and tends to show the extent of community bias.

The Commonwealth's Attorney made a statement in his closing argument (no objection was made to the statement) which pointed out that the armed robbery had received publicity not only in local papers but in other papers of greater circulation. It is maintained by the appellant that the statement conclusively emphasizes the fact that news coverage of the events was extraordinary. As another indication of bias on the part of the jury appellant claims that the evidence was insufficient to have convicted him except for the fact that the jury was biased.

At the venue hearing before the circuit judge the Commonwealth countered statements made by appellant's attorneys by the introduction of seven witnesses, each of whom testified that a fair...