People v. McCrary

• Decision Date: 17 May 1976
• Docket Number: No. 26258,26258
• Citation: 549 P.2d 1320,190 Colo. 538
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sherman Ramon McCRARY, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1320

549 P.2d 1320

190 Colo. 538

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sherman Ramon McCRARY, Defendant-Appellant.

No. 26258.

Supreme Court of Colorado, En Banc.

May 17, 1976.

Rehearing Denied June 7, 1976.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Gregory L. Williams, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Myers, Woodford, & Hoppin, Frederick J. Myers, Denver, for defendant-appellant.

HODGES, Justice.

Defendant McCrary was convicted by a jury of kidnapping ¹ and first-degree murder ² in connection with the robbery at a donut shop and the subsequent abduction and killing of the waitress, Leora Rose Looney. He was given a life sentence on the murder charge ³ and a consecutive sentence of 29--30 years ⁴ on the kidnapping charge. He appeals and urges reversal of the trial court's judgments of conviction on the basis of several alleged errors by the trial court.

The defendant contends that the trial court erred (1) by denying his motion for change of venue on account of prejudicial pretrial publicity, (2) by denying his motion to appoint a public opinion pollster at state expense to determine the effect of pretrial publicity, (3) by failing to dismiss several jurors for cause because of their exposure to pretrial publicity, (4) by failing to suppress certain post-indictment statements made by him to the police, (5) by refusing to grant a severance of the charges against him, (6) by not ordering a mistrial as a result of the prosecuting attorney's improper references to 'rape' in his closing arguments before the jury, (7) by failing to direct a verdict of acquittal when the facts failed to support a felony-murder, and (8) by admitting into evidence an allegedly inflammatory, nonprobative picture of the strangulation marks on the victim's neck.

These foregoing contentions have been ably argued and thoroughly briefed by both defense counsel and the People. We conclude that no reversible error exists in the trial court's resolution of these issues and we therefore affirm the trial court's judgments.

There follows a resume of the facts surrounding the crimes and other factors pertinent in the consideration of the issues posed on this appeal. On the evening of August 20, 1971, Miss Looney was reported missing from a donut shop in Lakewood, Colorado where she was employed. The report was made when the donut shop was found to be unattended. It was noted also that Miss Looney's purse was left open and that her car remained parked near the shop. The cash register drawer was open and approximately $100 had been taken therefrom. Several persons, later called as witnesses, reported seeing two men in the donut shop just prior to Miss Looney's disappearance. They identified these men as defendant McCrary and his son-in-law Carl Taylor. One of the witnesses also placed Carl Taylor at the cash register when he waited on a customer who had purchased some donuts. Three days later, Miss Looney's nude body was found in a remote field in Weld County. She had been shot twice from close range, and her neck showed signs of strangulation.

Over a year later, on November 14, 1972, the defendant, his wife, and Carl Taylor were indicted by a Jefferson County grand jury for the kidnapping and murder of Leora Rose Looney. Two days later, while in a California jail where he was serving a sentence on an unrelated charge, the defendant made certain inculpatory statements to Colorado officers. These statements were later admitted at trial.

In these statements, defendant McCrary related the following account of the day of the murder. He and Taylor had driven down to Denver from a motel in Cheyenne, Wyoming, where his family was staying, to 'look for a place to rob or highjack.' After several hours of drinking and not finding a suitable place to rob, he and Taylor went into the donut shop for a cup of coffee. When they started to leave, Taylor went back in 'to get something else.' Defendant then realized the gun was missing from the car and he 'knew what was happening.' In a few minutes, Taylor motioned for defendant McCrary to drive the car around back where he forced Miss Looney into the car and he handed the defendant a donut sack of money. They then headed back to Cheyenne using back roads. They stopped for 20 to 30 minutes so that defendant could get something to drink because Taylor had 'done got (him) scared up.' After getting into the car again, defendant asked Taylor what he was going to do with the girl, to which Taylor replied that he was 'going to take her out of town thereaways and tie her up' and before 'she can get back to town, well, we'll be gone.' A police car pulled up alongside them and a police officer looked over at them. They then drove onto a side road into a field. Defendant got out of the car to see if there were any houses nearby. The waitress did not want him to leave because, while he was in the bar, 'Carl had made a few passes at her or messing (sic) with her or something.' McCrary had previously warned Taylor 'to keep his hands off of her.' While defendant was gone, he heard several shots and returned to the car. After telling Taylor that some houses were possibly nearby, Taylor dragged the girl's body off the road, and they resumed their trip back to Cheyenne.

Both defendant McCray and Taylor were returned to Colorado from California to stand trial after they had waived extradition. The case received considerable publicity because of the nature of the crimes. As a result of pretrial discovery and extensive hearings on defendant's various pretrial motions, the trial court ruled that evidence of other alleged similar transactions would be inadmissible at trial; that a change of venue was unnecessary; and that defendant McCrary's statements would be admissible. Before the commencement of trial, defendant McCrary's wife entered a plea of guilty to the charge of accessory after the fact to murder. The trial of defendant and Taylor was severed during voir dire of the jurors, and it proceeded against McCrary individually on both charges.

I.

At the pretrial hearing on the defendant's motion for a change of venue, the trial court considered numerous affidavits from various citizens in the community and heard testimony from defense attorneys and newsmen as to whether or not defendant could receive a fair trial despite the pretrial publicity. Many newspaper clippings and broadcast transcripts were presented. A few of the stories mentioned the itinerant life-style of the McCrary family, their possible connection with crimes in other states, and the possible rape of Miss Looney. Defense counsel specially drew attention to a story which indicated that the McCrarys may have been connected with as many as 22 murders across the country, and to a story which reprinted a California probation report which gave unfavorable personality profiles of the McCrary family.

The trial court denied the motion for change of venue after making extensive findings of fact upon which it based its conclusions that there was not the massive, pervasive and prejudicial publicity as was evidenced in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) and Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), so 'as to create a contamination of the residents of Jefferson County such as to render it impossible for the defendant to obtain a fair and impartial trial.'

Defendant argues that the trial court applied an overly stringent standard for determining whether a change of venue should be granted, and also misconceived the extent and prejudicial quality of the pretrial publicity. As to the former argument, defendant contends that the trial court abused its discretion by requiring the defendant to demonstrate the 'massive, pervasive and prejudicial publicity' as in Sheppard and Walker since a venue change should be a prophylactic measure to prevent an unfair trial from occurring as in those cases. Also, he alleges the court erred by requiring the defendant to show that such publicity made a fair trial 'impossible' as opposed to just proving that a 'reasonable likelihood' existed that a fair trial could not be had. ⁵

It is true that a trial judge has much discretion to order a change of venue upon a showing of widespread pretrial publicity and may find it prudent to do so in order to facilitate the process of voir dire, especially when no hardship is thereby imposed on the witnesses. ⁶ We have generally held, however, that this court will not reverse a denial of a change of venue by reason of pretrial publicity unless the defendant can demonstrate that the publicity had an actual adverse effect upon the jury panel or portion thereof. See, e.g., Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970). In rare cases, a denial of a change of venue will also be reversed upon a showing of 'massive, pervasive and prejudicial publicity' where a denial of a fair trial could have been 'presumed,' or, in other words, where a reasonable likelihood existed that a fair trial could not be had. See, e.g., Sheppard, supra, and Walker, supra.

The constitutional standard of fairness requires that a defendant have a panel of impartial and unbiased jurors. However, an important criminal case can be expected to generate much public interest and usually the best qualified jurors will have heard or read something about the case. To hold that jurors can have no familiarity through the news media with the facts of the case is to establish an impossible standard in a nation that nurtures freedom of the press. It is therefore sufficient if jurors can lay aside the information and opinions they have received through pretrial publicity. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Only when the publicity is so ubiquitous and vituperative that most...