State v. Austin, Cr. N

Decision Date24 August 1994
Docket NumberCr. N
Citation520 N.W.2d 564
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Kevin W. AUSTIN, Defendant and Appellant. o. 930261.
CourtNorth Dakota Supreme Court

John P. Van Grinsven III (argued), Asst. State's Atty., Minot, for plaintiff and appellee.

Gary H. Lee (argued), Olson Burns Lee & Larson, Minot, for defendant and appellant.

LEVINE, Justice.

Kevin Austin appeals from a judgment of conviction entered upon a jury verdict finding him guilty of two counts of murder. We affirm.

On February 8, 1985, Charles and Cora Abernathy, an elderly couple, were murdered in their rural Ward County home. Both victims had been shot in the head and their throats were slashed. The home was ransacked and approximately $300 was stolen.

In September 1985, Calvin Newnam confessed that he and Austin had murdered the Abernathys. Austin was arrested and transferred from the State Penitentiary, where he was incarcerated for unrelated crimes, to Minot. Austin and Newnam were charged with robbery, felonious restraint, and two counts of murder.

Newnam was tried separately and convicted on all four counts in May 1986. See State v. Newnam, 409 N.W.2d 79 (N.D.1987). Newnam thereafter refused to testify against Austin. Without Newnam's testimony, the State dismissed without prejudice all charges against Austin in August 1986.

In 1991, Newnam agreed to cooperate with authorities and testify against Austin in exchange for the possibility of a reduction in his sentences. Through Newnam's assistance, officers recovered two .22 caliber handguns from the attic of Newnam's parents' home. Ballistics tests confirmed that these weapons had been used in the Abernathy killings. Evidence at trial also demonstrated that Austin had stolen these two weapons from a local residence in August 1984.

In an effort to secure additional evidence, law enforcement officers enlisted the aid of Werner Kunkel, an inmate at the State Penitentiary. Kunkel and Austin had met in 1985 while serving time in the penitentiary, and in 1992, Austin was married to Kunkel's ex-girlfriend. Kunkel, wearing a recording device, met with Austin on three occasions during September, 1992, at Austin's workplace in Bismarck. Although Austin did not directly admit his involvement in the Abernathy killings, he did not deny his involvement when Kunkel repeatedly asked about it. The conversations were recorded and transcribed.

Austin was subsequently arrested and charged with two counts of murder. At Austin's jury trial, Newnam testified in detail about Austin's participation in the killings. The taped conversations with Kunkel were admitted into evidence. Austin testified, denying any involvement in the murders. The jury returned verdicts of guilty on both counts, and Austin received two consecutive life sentences.

On appeal, Austin raises the following issues:

(1) Did the trial court abuse its discretion in refusing to change venue?

(2) Did the trial court err in admitting into evidence the taped conversations?

(3) Did the trial court commit obvious error in instructing the jury that all witnesses are presumed to have told the truth?

(4) Was the evidence sufficient to sustain Austin's convictions?

I. VENUE

Austin asserts that the trial court abused its discretion in denying his motions for change of venue made before and after voir dire of the jury panel. After considering the effect of pretrial publicity and hearing the panel members' answers on voir dire, the trial court concluded that a fair and impartial jury could be selected in Ward County. Austin asserts that the court should have granted his motions because there was excessive prejudicial pretrial publicity and because the voir dire demonstrated that the cumulative effect of the prospective jurors' prejudice against Austin made it impossible to seat an impartial jury.

Change of venue for prejudice is governed by Rule 21(a), N.D.R.Crim.P.:

"(a) For Prejudice in the County or Municipality. The court upon motion of the defendant shall transfer the proceeding as to that defendant to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial."

We have identified eight factors to guide trial courts on motions for change of venue under Rule 21(a): (1) whether the publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for dissemination of the objectionable material; (3) the extent of inconvenience to the prosecution; (4) whether a substantially better panel could be sworn elsewhere; (5) the nature and gravity of the offense; (6) the size of the community; (7) the defendant's status in the community; and (8) the popularity and prominence of the victim. State v. Purdy, 491 N.W.2d 402, 406-407 (N.D.1992); Olson v. North Dakota District Court, 271 N.W.2d 574, 580 (N.D.1978). See also Rule 21, N.D.R.Crim.P., Explanatory Note.

A defendant seeking a change of venue under Rule 21(a) bears the burden of demonstrating a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. State v. Engel, 289 N.W.2d 204, 207 (N.D.1980); Rule 21, N.D.R.Crim.P., Explanatory Note. The ultimate question for the court to decide is whether it is impossible to select a fair and impartial jury. State v. Engel, supra, 289 N.W.2d at 207; Rule 21, N.D.R.Crim.P., Explanatory Note. Although prejudice to the defendant may be so obvious that a change of venue should be ordered immediately, it is generally more appropriate to wait until voir dire to determine whether it is possible to select a fair and impartial jury. State v. Norman, 507 N.W.2d 522, 526 (N.D.1993); Rule 21, N.D.R.Crim.P., Explanatory Note. The motion for change of venue is addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal absent a showing of an abuse of discretion prejudicial to the defendant. State v. Norman, supra, 507 N.W.2d at 526; State v. Leidholm, 334 N.W.2d 811, 822 (N.D.1983).

Austin asserts that the extensive media coverage of the murders and the general sense of panic and outrage in the community in 1985 and 1986 created such great public sentiment against him that a change of venue is required. Austin also stresses that the media frenzy at that time caused the trial court to change venue in Newnam's 1986 trial from Minot to Williston.

We have no doubt that media coverage of the heinous nature of these crimes and the seven-month delay before suspects were arrested created some degree of community anxiety in 1985. However, Austin's trial in June and July of 1993 took place more than eight years after the murders, and more than seven years after Newnam's 1986 trial. Austin presented no evidence documenting media coverage of the murders in the intervening years until Austin's rearrest in 1992, nor any evidence demonstrating continued community awareness or attitudes during those years. The voir dire responses of potential jurors who had lived in Minot in 1985-1986 generally showed that, although they remembered vague generalities about the murders and the media coverage, they did not recall specifics or harbor strong feelings about Austin's guilt or innocence. The trial court, having heard the potential jurors' responses on voir dire, was in a far better position to assess the effect of the original publicity upon Austin's 1993 trial, and the court concluded that the original publicity would not prevent the selection of a fair and impartial jury. We find no abuse of the court's discretion in that conclusion.

Austin also asserts that the media coverage, following his rearrest in 1992, was highly prejudicial and "deeply antagonistic." In support of his motion to change venue, Austin provided copies of twelve articles that ran in the Minot newspaper between September 1992 and February 1993.

We have previously commented upon the showing required to establish unfair prejudice from pretrial publicity:

"Publicity per se is not necessarily prejudicial or damaging to a criminal defendant.... Before a change of venue because of pretrial publicity is proper, it must be shown that the publicity was in fact prejudicial to the defendant. It is therefore not the quantity of media coverage which controls a change of venue motion, but rather the likelihood that any degree of adversity toward the defendant which was caused by that publicity will prevent him from receiving a fair trial.

"The record before us in the instant case did not support a conclusion that the television, radio, and newspaper reports at issue constituted prejudicial pretrial publicity against Houle. The testimony of the five media witnesses showed that the reports were all either factual accounts of the incidents which surrounded the alleged murder and the apprehension of the defendant, or statements of the various legal proceedings and their outcome in this case. Thus, the information in the challenged news reports was much the same as would be given any prospective juror when the criminal complaint was read and the opening argument of counsel made."

Houle v. North Dakota District Court, 293 N.W.2d 872, 874 (N.D.1980). See also State v. Purdy, supra, 491 N.W.2d at 407; State v. Page, 277 N.W.2d 112, 115 (N.D.1979). In this case, the twelve articles printed in the Minot newspaper over a six-month period were not inflammatory, sensationalistic, or biased, but generally reported factual accounts of the murders and of the ongoing criminal proceedings. The trial court reviewed them and concluded that they did not demonstrate unfair prejudice. We agree.

A defendant seeking a change of venue for prejudicial pretrial publicity and community bias bears the burden of demonstrating that...

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