Oryang v. State

• Decision Date: 25 March 1994
• Docket Number: CR-92-1346
• Parties: Benjamin ORYANG v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 989

642 So.2d 989

Benjamin ORYANG v. STATE.

CR-92-1346.

Court of Criminal Appeals of Alabama.

March 25, 1994.

Thomas M. Goggans, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Tracy Daniel, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of the attempted murder of Kelli Lowe Dunn. ¹ He was sentenced to life imprisonment in the state penitentiary, this sentence to be served consecutively with sentences being served by the appellant for his conviction for one count of murder and two counts of attempted murder, arising from the same series of shootings. These other convictions resulted from Oryang's trial in Montgomery County Circuit Court and were affirmed on appeal by this court. See Oryang v. State, 642 So.2d 979 (Ala.Cr.App.1993).

I

The appellant argues that he suffered actual prejudice because of the pretrial publicity which, he says, had saturated the community in which he was tried and had a prejudicial impact on the prospective jurors. He argues that the trial court erred in denying his motion for a change of venue based on extensive pretrial publicity. The appellant raised this same argument concerning his trial in Montgomery County for the other shootings, which occurred on the same night as the attempted murder for which he was convicted in Montgomery County.

At trial and on appeal, the appellant points to a number of newspaper articles concerning the offenses, the investigation, the arrests made pursuant to the investigation. The appellant also refers to several articles that dealt with his trial in Montgomery County and with post-trial matters. A number of the pretrial articles addressed the public's fear of and concern over the nature of these random shootings and gang violence.

The appellant also argues that, because so many potential jurors stated that they had pretrial knowledge of the offense, that it is clear that he suffered actual prejudice from the pretrial publicity.

"[A] change of venue must be granted only when it can be shown that the pretrial publicity has so 'pervasively saturated' the community as to make the 'court proceedings nothing more than a "hollow formality," ' Hart v. State, 612 So.2d 520, 526-27 (Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993), citing Rideau v. Louisiana, 373 U.S. 723, 726 [83 S.Ct. 1417, 1419, 10 L.Ed.2d 663] (1963), or when actual prejudice can be demonstrated. The burden of showing this saturation of the community or actual prejudice lies with the appellant. Sheppard v. Maxwell, 384 U.S. 333 [86 S.Ct. 1507, 16 L.Ed.2d 600] (1966). In order to show community saturation, the appellant must show more than the fact 'that a case generates even widespread publicity.' Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). ' "Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844 [1945]." ' Thompson v. State, supra at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977). Furthermore, in order for a defendant to show prejudice, the ' "proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination." Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978).' Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985)."

Oryang v. State, 642 So.2d at 983.

A review of the newspaper articles contained in the record, as well as those included in the appellant's brief on appeal, indicates that they were predominately factual summaries of the offense, the investigation of the case, and the apprehension of the perpetrators. The articles did not contain accusations against the appellant, nor were they denunciatory. Although there was language reflecting the fear in the community concerning the nature of these offenses, whereby the perpetrators casually and unexpectedly approached other cars on a public road and arbitrarily shot into the cars, "[i]t would be impossible to give an accurate account of this random violence, occurring during Christmas time, without generating public fear. A defendant is clearly not entitled to a change of venue every time his actions cause public fear or apprehension." Oryang v. State, supra, at 984. Moreover, despite the fact that one of the articles contains language from an official referring to the gunman, who was at that time still at large, as a " 'mindless animal,' " this reference does not make the pretrial publicity surrounding the case " 'inherently suspect.' " Cf. Thomas v. State, 539 So.2d 375, 392-94 (Ala.Cr.App.), affirmed, 539 So.2d 399 (Ala.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989).

"Certainly there was widespread media coverage of the events surrounding this case.... However, in order to obtain a change of venue, it must be shown that the pre-trial publicity surrounding the case was inherently prejudicial. Anderson [v. State, 362 So.2d 1296 (Ala.Cr.App.1978) ].

"After our review of the defense's exhibits relating to this issue and the testimony adduced at the hearing on this question, we conclude that the publicity in this case was factual and objective. The bulk of the publicity surrounding this case dealt with the details of the appellant's offense and the developments in his case.

"The appellant seems to contend that the pre-trial publicity made the community fearful of the appellant, and thus, prejudiced him within the community. While we admit the community was afraid of the appellant before his capture, we believe this was due more to the fact that 'there was a killer on the loose' than to statements by the media concerning the appellant.

"The great majority of the publicity in this case occurred between the time of the murders ... and the appellant's capture.... Thereafter, the publicity in this case greatly diminished. The appellant's trial took place ... seven months after the bulk of the media coverage in this case. The passage of time cannot be ignored as a factor in bringing objectivity to a case in which there has been extensive pre-trial publicity."

Holladay v. State, 549 So.2d 122, 125-26 (Ala.Cr.App.1988), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012 (1989). See also, Oryang v. State, supra, at 983.

Similarly, in this case, the majority of the pre-trial articles of which the appellant complains were published at the time of the offense, during the initial investigation, and at the time of the arrests. The appellant was not brought to trial in Elmore County on this charge of attempted murder until April 13, 1993. The offense occurred on December 16, 1991, and the appellant was arrested on December 19, 1991. Thus, approximately one year and four months elapsed from the time of the circulation of these articles to the appellant's trial. Moreover, although the appellant also cites a number of articles that were published around the time of the appellant's trial and conviction on the charges in Montgomery County, the Montgomery trial occurred in May 1992, approximately one year before this trial. The passage of so much time clearly weighs against any prejudicial impact that the articles may have had.

The appellant has also failed to show any actual prejudice resulting from the pre-trial publicity based on the prospective jurors' responses during voir dire examination. See Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). Although a large number of the prospective jurors were familiar with the facts and the circumstances of this offense, those who indicated bias against the appellant or an inability to fairly reach a decision based on the nature of this offense were excused for cause. The appellant argues that the fact that so many prospective jurors were excused for cause based on pre-trial publicity ² demonstrates actual prejudice. Although a juror roster does not appear in the record, in the course of conducting individual voir dire of each juror who indicated any knowledge of the case, the trial court excused those who indicated that they did not know anything of the case until the following morning. He named 30 such individuals. Approximately 40 individuals indicated that they did have knowledge of the case and, other than those 15 who were excused for cause, they indicated that they could fairly and impartially arrive at a verdict based on the evidence introduced at trial alone. Although there were approximately 15 individuals excused for cause because of the pre-trial publicity, a large number of potential jurors remained who were not affected by any such publicity and who indicated that they could fairly try the appellant. The defendant is not entitled to jurors who are totally ignorant of the facts and issues involved in the case or to jurors who never entertained a preconceived notion as to the defendant's guilt or innocence. Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). A defendant is entitled to a trial by jurors who can lay aside any preconceived impressions or opinions and render a verdict based on the evidence which is presented at trial, id. The record in this case indicates that the appellant received such a trial. See also Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961). Because the appellant has failed to show that the pre-trial publicity in this case was "inherently prejudicial," Holladay...