Olson v. North Dakota Dist. Court, Richland County, Third Judicial Dist.

• Decision Date: 31 October 1978
• Docket Number: No. 9548,9548
• Parties: Gary Dean OLSON, Petitioner, v. NORTH DAKOTA DISTRICT COURT, RICHLAND COUNTY, THIRD JUDICIAL DISTRICT, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 574

271 N.W.2d 574

Gary Dean OLSON, Petitioner, v. NORTH DAKOTA DISTRICT COURT, RICHLAND COUNTY, THIRD JUDICIAL DISTRICT, Respondent.

Civ. No. 9548.

Supreme Court of North Dakota.

Oct. 31, 1978.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for petitioner; argued by John E. Rowell, Fargo.

Mervin D. Nordeng, Cass County State's Atty., Fargo, for respondent; argued by Joseph A. Turman, Asst. State's Atty.

SAND, Justice.

The defendant, Gary Dean Olson, charged with murder, and contending he has no adequate speedy remedy at law, petitioned this Court in an original proceeding for an appropriate supervisory writ directing the trial court to grant his motion for a change of venue from Wahpeton, Richland County, North Dakota, to Minot, Ward County, North Dakota.

Olson is charged with the murder of a West Fargo girl named Pollie Johnson. He filed a motion for a change of venue from the First Judicial District, Fargo, to the Fifth Judicial District, Minot, on the grounds there existed in the "First Judicial District of North Dakota so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." Olson on the same day also filed a motion to allow him to hire, at State expense, a public opinion research expert for the purposes of laying a further factual foundation in support of the motion for a change of venue should the trial court determine an insufficient foundation existed for that motion.

In support of his motion for a change of venue, Olson filed an affidavit of former District Court Judge Ralph B. Maxwell, along with affidavits from the news directors of KTHI, WDAY, and KXJB television stations, and the librarian from the Fargo Forum newspaper. Olson also filed scripts of broadcasts made by the three television stations along with copies of articles from the newspaper pertaining to Gary Dean Olson, the murder of Olson's wife, Dixie, and the murder of Pollie Johnson.

On 27 July 1978 Judge Robert L. Eckert of the Third Judicial District, Wahpeton, assigned to this case by the Supreme Court, denied the motion for a change of venue to Ward County and for a State-financed public opinion research expert. Judge Eckert, however, ordered a change of venue from Cass County, Fargo, to Richland County, Wahpeton.

On 15 August 1978, Olson filed a new motion for a change of venue from Richland County, Wahpeton, to Ward County, Minot, and again made a motion to hire, at State expense, an expert in the field of public opinion research to lay a further foundation for the change of venue motion should the court determine an insufficient foundation for the motion existed. In support of his second set of motions, Olson submitted affidavits showing the coverage area of the Fargo news media included Richland County. The second set of motions was denied on 30 August 1978. Olson then petitioned this Court for an appropriate writ directing the district court to grant a change of venue to Ward County, Minot.

Gary Dean Olson is currently serving a life sentence of imprisonment for the murder of his estranged wife Dixie Olson, found bludgeoned to death in her home in West Fargo on 24 January 1977. Prior to that date, on 8 August 1976, Pollie Johnson was found murdered in her family's home just north of West Fargo. She was shot twice in the head.

Public interest, sparked by the brutal nature of the crimes and the rarity of such crimes in the community, caused considerable news coverage to be given to each slaying. Pollie Johnson, the sixteen-year old daughter of a local Highway Patrol officer, was described as a popular girl, being a former West Fargo cheerleader, an outstanding gymnast, and a member of a number of school organizations. Following Pollie's death a number of persons were held and questioned in connection with the murder. At no time, however, was Gary Dean Olson's name mentioned as a possible suspect. A reward fund for any information leading to the arrest and conviction of Pollie's killer was established by a West Fargo service organization and two local banks. Although the reward fund reached a total of $6,500 the investigation continued to be fruitless.

On 24 January 1977 Gary Dean Olson's estranged wife, Dixie, was found beaten to death in bed. Local rumor (news item) suggested Dixie's murder might be linked with the earlier death of Pollie Johnson as law enforcement officials indicated after initial investigation of both cases that burglary appeared to be the motive behind the deaths. Gary Dean Olson was arrested on 23 March 1977 for the death of his wife, Dixie. Although some rumor of a possible connection between the two cases continued to exist in the community, the burglary theory in the Olson case was dismissed as simply a cover-up and law enforcement officials stated at the time of Olson's arrest that there was no evidence whatsoever to link the two cases.

Gary Dean Olson was found guilty by a jury of his wife's murder on 21 June 1977, and sentenced to a term of life imprisonment under the North Dakota special dangerous offender statute.

Later, on 16 December 1977, Gary Dean Olson was charged with the murder of Pollie Johnson. The complaint charging Olson with the murder of Pollie Johnson was supported by an affidavit of Earl Larson, Jr., the chief investigating officer in the Pollie Johnson murder case. The affidavit contained a summary of evidence gathered and statements taken that linked Olson with the Pollie Johnson homicide. This affidavit provided much of the information the news media used to cover Olson's arrest, and served as the basis for stories describing the theory of the murder as developed by law enforcement officials. Many of these articles discussed and compared the charges against Olson with his prior conviction of the murder of his wife, Dixie. Some of these articles also referred to the fact that he was found to be a dangerous special offender and sentenced accordingly for the murder of his wife.

Olson's petition invoking the jurisdiction of this Court basically rests upon § 86 of the North Dakota Constitution, as amended, which provides that the Supreme Court "shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." Section 27-02-04, NDCC, in furtherance of the original jurisdiction, provides, in pertinent part:

". . . in the exercise of its original jurisdiction, and in its superintending control over inferior courts, it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. . . ."

The jurisdiction of this Court to exercise general superintending control over inferior courts can be distinguished from its appellate and original prerogative jurisdictions. State ex rel. Jacobson v. District Court, 68 N.D. 211, 277 N.W. 843 (1938). The superintending power allows this Court to control the course of litigation in district courts to prevent injustice in cases when there is no appeal, or when the remedy by appeal is inadequate. State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381 (1921). The power of this Court to issue supervisory writs is discretionary, however, and accordingly it will determine for itself in each case, not only if a particular case is within its jurisdiction, but also if it will exercise its discretion in granting this extraordinary measure of relief. State ex rel. Lyon v. Guy, 107 N.W.2d 211 (N.D.1961). Being a prerogative writ, the supervisory writ is to be used, like all prerogative writs, with caution and forbearance for the furtherance of justice, and to secure order and regularity in judicial proceedings when none of the ordinary remedies provided by law are adequate. Zinn v. District Court, 17 N.D. 128, 114 N.W. 475 (1908). Application for a supervisory writ will thus be denied in those instances where the petitioner failed to show that an action by the district court has resulted in a grave or serious prejudice to him for which he has no adequate remedy. Ingall v. Bakken, 167 N.W.2d 516 (N.D.1969).

Olson bases his justification for the petition in this case on the denial of his pretrial order for a change of venue which ordinarily is not reviewable except on appeal from a final judgment. State v. Duffy, 65 N.D. 671, 261 N.W. 661 (1935). Availability of appeal after final judgment often falls short of sufficient protection, however, as the burden, expense, and delay involved in a trial renders an appeal from a final judgment an inadequate remedy. Maine v. Superior Court of Mendocino County, 68 Cal.2d 375, 66 Cal.Rptr. 724, 438 P.2d 372 (1968). As the United States Supreme Court said in Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966):

". . . reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception."

Thus we find there are instances when an appeal from a conviction is an inadequate remedy and the invocation of this Court's original jurisdiction is required to protect the defendant's fundamental right to a fair trial. In the interest of the petitioner and in the sound administration of justice where substantial probability and likelihood of pretrial prejudicial publicity exists, it is preferable to consider and determine the change of venue and make whatever corrections are necessary rather than wait until after trial when the likelihood of reversal and new trial will produce added expense and effort to both the State and the defendant. See State v. Thompson, 266 Minn. 385, 123 N.W.2d 378 (1963). We are not disregarding that additional evidence generally is available through voir dire. ¹

In the absence of the existence of extensive and prejudicial pretrial publicity so that prejudice to the defendant is probable, the usual practice is for the trial court to defer final ruling on a motion for change of...