State v. Berry, 57202

CourtSupreme Court of Louisiana
Citation329 So.2d 728
Docket NumberNo. 57202,57202
PartiesSTATE of Louisiana v. Stephen BERRY.
Decision Date29 March 1976

L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

On April 2, 1975, defendant Stephen Berry was convicted by an Orleans Parish jury of armed robbery, a violation of La.R.S. 14:64, and was sentenced to 99 years at hard labor. He reserved eleven assignments of error but on appeal urges only two of these: Assignment of Error No. 2 pertains to the trial court's denial of a motion for change of venue; Assignment of Error No. 11 complains of a denial of a motion for new trial also based upon the failure to grant defendant a change of venue.

In a previous prosecution unrelated to the instant case, defendant was convicted on July 27, 1974 of the rape-murder of a student nurse in a housing project in Orleans Parish. The case received extensive notoriety because it involved a brutal crime perpetrated against a relative of a prominent public official. For the rape-murder conviction defendant received a sentence of life imprisonment.

In support of his motion for a change of venue in the instant armed robbery case, defendant introduced evidence of newspaper and television publicity which occurred between January 1, 1975 and the commencement of the trial on April 2, 1975. At the hearing on the motion, the defendant did not attempt to introduce any other evidence, but chose to rest his case on the content of this publicity.

The grounds for change of venue are set forth in Article 622 of the La. Code of Criminal Procedure:

'Art. 622. Grounds for change of venue

'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.'

Some relevant factors 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. State v. Bell, 315 So.2d 307 (La.1975).

Other factors considered by courts in various jurisdictions include the degree to which the publicity has circulated in areas to which venue could be changed, the care exercised and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors, and the peremptory challenges and challenges for cause exercised by the defendant in the selection of a jury. See, generally, Annotation 33 A.L.R.3rd 17 (1970).

In a motion for change of venue the defendant has the burden of showing that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Stewart, La., 325 So.2d 819, decided Jan. 19, 1976; State v. Dillard, 320 So.2d 116 (La.1975); State v. Bell, supra; State v. Richmond, 284 So.2d 317 (La.1973). Article 622 of the La. Code of Criminal Procedure requires more than mere knowledge by the public of the facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Stewart, supra; State v. Dillard, supra; State v. Flood, 301 So.2d 637 (La.1974).

Under the test adopted by the La.Code of Criminal Procedure, the fact that a jury can be selected because the requisite number of prospective jurors are not subject to a valid challenge for cause does not establish that a change of venue is not necessary. As we stated in State v. Bell, supra, quoting from Official Revision Comment (b) to La.C.Cr.P. art. 622:

'* * * 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...

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26 cases
  • State v. Johnson
    • United States
    • Iowa Supreme Court
    • April 21, 1982
    ...U.S. 887, 87 S.Ct. 184, 17 L.Ed.2d 115 (1966) (no error in denying motion where publicity recited prior criminal record); State v. Berry, 329 So.2d 728, 730 (La.1976) (no error in denying motion where publicity detailed earlier convictions of murder and rape); State v. Lee, 556 S.W.2d 25, 2......
  • State v. Sheppard
    • United States
    • Louisiana Supreme Court
    • September 19, 1977
    ...mind that a fair and impartial trial cannot be obtained in the parish. State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976). The granting or denial of the motion for change of venue rests within the sound discre......
  • State v. Jenkins
    • United States
    • Louisiana Supreme Court
    • October 14, 1976
    ...art. 622. We have reviewed the evidence in light of the standards set forth in State v. Bell, 315 So.2d 307 (La.1975) and State v. Berry, 329 So.2d 728 (La.1976). We find that defendants established there was widespread news coverage at the time of the offense in December, 1973. News of the......
  • State v. de la Beckwith
    • United States
    • Louisiana Supreme Court
    • February 28, 1977
    ...in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Berry, 329 So.2d 728 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); S......
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