State v. Bell

• Decision Date: 31 March 1975
• Docket Number: No. 55652,55652
• Citation: 315 So.2d 307
• Parties: STATE of Louisiana v. John J. BELL et al.
• Court: Louisiana Supreme Court

Page 307

315 So.2d 307

STATE of Louisiana v. John J. BELL et al.

No. 55652.

Supreme Court of Louisiana.

March 31, 1975.

Rehearing Denied April 25, 1975.

Dissenting Opinion April 29, 1975.

Murphy W. Bell, Director, R. Judge Eames, Baton Rouge, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

On January 10, 1972, North Boulevard, a thoroughfare in downtown Baton Rouge, was blocked by cars parked across the street. When the police attempted to remove the cars and disperse 'muslim' demonstrators blocking the street, violence ensued. Five men were killed--two deputy sheriffs and three of the defendants' alleged co-conspirators; one reporter for a local television station was severely beaten some time before the 'riot' and remains unconscious to this date. This outbreak of violence had significant effects upon the community which were the subject of extensive national and local publicity.

Defendants were indicted for having violated Acts 1969, No. 176 ¹ (R.S. 14:329.1--329.8) by having incited and participated in a riot in which the death of a person occurred. A motion for change of venue was timely filed. After a hearing, this motion was denied and defendants applied to this court for the issuance of supervisory writs reversing the trial court's decision. This application was denied. Immediately prior to trial a supplemental motion for a change of venue was filed, heard and denied. After an extensive voir dire selection process, defendants were tried April 24--30, 1973, fifteen months after the incident. All the defendants were found guilty and sentenced under the penalty provisions of R.S. 14:329.7 to serve twenty-one years at hard labor.

On appeal defendants urge ninety-nine of the one hundred eight bills of exceptions reserved at trial; these bills have been organized on appeal into sixteen arguments. We confine our discussion to the first argument dealing with the denial of defendants' first application for change of venue (Bills of Exceptions Nos. 1--10), finding reversible error.

A defendant is guaranteed an impartial jury and a fair trial. To accomplish this end the law provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of original venue. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); ² Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); ³ Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

The specific provision of Louisiana law providing for a change of venue is found in C.Cr.P. 622:

'A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

'In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.'

This article was adopted as part of the Code of Criminal Procedure in 1966. It changed the test used previously in this State to determine whether a change of venue was necessary. The former rules had been concisely stated in State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959):

'The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him. The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any reasonable doubt arising either from the evidence or the lack of it. . . . The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.'

Because of the deficiencies in this judicial interpretation of the change of venue provisions (see Rideau v. Louisiana, supra), the legislature, in the 1966 article (C.Cr.P. 622), clearly intended that grounds for challenge for cause of jurors and grounds for a change of venue be separate and different concepts. The burden of proof and discretion accorded the trial court was not changed. The expression of the legislative intent is contained in the Official Revision Comment to article 622:

'(a) Although all American jurisdictions contain change of venue statutes, the tests provided are in most cases not as strongly worded as in this article, which is taken in part from Art. 292 of the 1928 Louisiana Code of Criminal Procedure.

'(b) A careful search of all cases reported on the appellate level on the subject of change of venue in Louisiana did not reveal a single instance in which a new trial was granted on the ground that the lower court had improperly refused an application for a change of venue. This is not unique to Louisiana. See Bailey and Golding, Remedies for Prejudicial Publicity--Change of Venue and Continuation in Federal Criminal Procedure, 18 Fed.B.J. 56 (1958). This results from the fact, no doubt, that the test for a change of venue, as interpreted by the jurisprudence, is much weaker than was intended by the express language used in former R.S. 15:292. In State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959), the court stated the test to be as follows:

'The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and the evidence, uninfluenced by what they may have heard of the matter and who will give the accused the full benefit of any reasonable doubt arising either from the evidence or the lack of it.'

'See also State v. Faciane, 233 La. 1028, 99 So.2d 333 (1958), and cases cited therein.

'The difficulty with the test in the Scott case is that it confuses the grounds for challenges for cause with grounds for change of venue. In effect the test is nothing more than valid grounds for challenges for cause. These leads to the conclusion that if the defendant cannot successfully challenge for cause he has no grounds for a change of venue; and furthermore, that if he does challenge for cause and the objectionable jurors are thus removed he has no grounds for change of venue. Logically, therefore, change of venue did not exist as a concept separate from challenge for cause. It may be noted, however, that other states having statutory language similar to that of Louisiana have also refused changes of venue, reasoning that it was possible ultimately to empanel a jury, each member of which was not subject individually to the charge of unfairness or partiality so as to subject them to a challenge for cause. See People v. Mendes, 35 Cal.2d 537, 219 P.2d 1 (1950); Powell v. State, 131 Fla. 254, 175 So. 213 (1937); People v. Sleezer, 9 Ill.2d 57, 136 N.E.2d 808 (1956).

'The foregoing suggests that the emasculated change of venue test as announced by the supreme court has no value. It is thus clear that the change of venue concept must be one which overrides the challenge for cause concept and is to be superimposed upon the entire proceeding. A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.

'It is the purpose of the second paragraph of this article to effect such a policy and to overcome the jurisprudence in the cases cited above.'

Some relevant factors ⁴ in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation, 33 A.L.R.3d 17 (1970).

Defendants filed applications for a change of venue on February 20, 1973 and supplemental applications on March 9 and March 26, 1973. ⁵ On February 26, 1973 a hearing was held on the defendants' first petition (February 20, 1973) in which they contended that the publicity surrounding defendants' alleged activities had so inflamed and prejudiced the citizens of East Baton Rouge Parish that it was impossible for them to secure an unbiased jury or a fair and impartial trial. They further alleged that government officials had commented publicly at the time of the riot that they were satisfied the defendants were guilty of the crime charged, should be severely punished and that the citizenry was ready and waiting should other black muslims come to Baton Rouge. Finally, they alleged that the district attorney had prepared a bill of information charging the defendants with the attempted murder of Bob...