State v. Blakley
| Decision Date | 17 March 2003 |
| Docket Number | No. CR-00-0360-AP.,CR-00-0360-AP. |
| Citation | 204 Ariz. 429,65 P.3d 77 |
| Parties | STATE of Arizona, Appellee, v. Michael Gene BLAKLEY, Appellant. |
| Court | Arizona Supreme Court |
Janet A. Napolitano, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Monica B. Klapper, Assistant Attorney General, Phoenix, Attorneys for Appellee.
J. Conrad Baran, Flagstaff, Attorney for Appellant.
¶ 1 Michael Gene Blakley was convicted of one count of first degree murder and two counts of sexual assault. He was sentenced to death on the murder conviction and to two consecutive life sentences without the possibility of parole for thirty-five years on the remaining counts. An automatic appeal to this court was filed pursuant to Arizona Rule of Criminal Procedure 31.2(b). This court has jurisdiction under Article VI, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 13-4031 and -4033 (2001).
¶ 2 The defendant Blakley met Melissa Behunin in April 1998. Less than a week later, he was living with Behunin and her sixteen-month-old daughter, Shelby. After Blakley lost his job at a fast food restaurant, the couple moved to a room at the Arizona Clearwater Hotel in Bullhead City. Behunin started employment at a nearby assisted living facility and the defendant began taking care of Shelby while her mother was working.
¶ 3 Around 5:00 a.m. on July 18, 1998, Shelby's crying awakened her mother. The little girl had apparently fallen off the sofa sleeper and suffered a bruise over her left eye. Behunin left for work that day at approximately 12:45 p.m. She testified that before she left, Shelby was acting normally.
¶ 4 At about 4:20 p.m. the defendant called the hotel manager to report that the child was not breathing. He requested that 911 be called, and the manager promptly complied. The 911 dispatcher called the defendant's room and instructed him in CPR. When the paramedics arrived, Shelby was rushed to a local hospital. Because of the severity of her condition, the girl was taken by helicopter to Sunrise Hospital in Las Vegas, Nevada. A few hours after arriving there, she was pronounced dead. Dr. Diane Lipscomb, a pediatric critical care physician, noticed bruising and signs of trauma to the child's vagina and rectum. The medical examiner who later conducted an autopsy testified that Shelby died of anoxic encephalopathy—lack of oxygen to the brain. He found evidence of head trauma, a vaginal abrasion, and a 3/8 inch tear of the rectum. In his opinion, the genital injuries appeared to have been inflicted within the same general time frame as the head injuries. He opined that the child had suffocated, most likely by having her mouth and nose covered.
¶ 5 On July 21, 1998, Blakley and Behunin voluntarily went to the Bullhead City Police Department to be interviewed. Blakley was questioned by two detectives and two Child Protective Services (CPS) investigators. He was read and waived his Miranda rights. Initially he stated that after Behunin left for work he washed the dishes and gave Shelby a bath. He then laid down with her on the bed. Several minutes later, he got up for a drink and noticed that she was not breathing.
¶ 6 When the police confronted him with the three hours unaccounted for in his story, Blakley admitted that he had digitally penetrated the victim's rectum and vagina, and had placed his penis in her rectum. He stated that after he did this she was "fussing," and when he laid her down to take a nap she was crying. He said that he placed his hand over her mouth and possibly her nose for five minutes and she quieted down. After the interview, the defendant was placed under arrest.
¶ 7 Blakley moved for change of venue based on pretrial publicity. In support, he attached several newspaper articles, along with transcripts of radio stories dealing with his case. Many of these articles referred to him as the "alleged baby-killer." At a hearing on the motion, the defendant seemed most concerned with headlines such as "Judge Accepts Blakley Confession" and "Baby Tried to Fight Off Her Attacker Police Interrogation Transcript Revealed."
¶ 8 The trial court denied the motion, finding that although some of the stories "verge on yellow journalism and were overly inflammatory," a fair and impartial jury could likely be found. It ruled that Blakley had not met his burden under Arizona Rule of Criminal Procedure 10.3(b).1
¶ 9 On voir dire, the judge questioned each panel member who had seen or heard anything about the case. Without getting into specific details, the court asked every panelist the source of any such information and whether he or she could be fair and impartial despite knowing something about the case.
¶ 10 In total, seventeen prospective jurors were excused because of their admitted inability to be fair and impartial based on pretrial publicity. Approximately twelve prospective jurors were excused solely because of their adverse reaction to the nature of the charges. Two additional panel members were dismissed. One, a former co-worker of Blakley, stated that he could not be fair. The other was a CPS worker who had read the CPS file a week before trial. The judge did not ask any questions concerning information contained in the file.
¶ 11 The trial court denied a renewed motion for change of venue and motion for mistrial, ruling that although some jurors had heard about the case, all avowed they could be fair. He noted that those dismissals occasioned by sensitivity to the nature of the case would have occurred in any county because of the particular issues involved.
¶ 12 The defense asked to individually question each juror who had seen news coverage of the case. The judge denied this request, failing to see how additional information would assist the attorneys in making their peremptory challenges. The defense also asked to question prospective jurors who may have spoken to other members of the panel about the case. That request was denied as well.
¶ 13 Blakley argues that his motion for change of venue should have been granted. The state responds that the trial court did not abuse its discretion in denying the motion. We examine this ruling for a clear abuse of discretion and resulting prejudice to the defendant. State v. Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992). Our task is to determine "whether, under the totality of the circumstances, the publicity attendant to defendant's trial was so pervasive that it caused the proceedings to be fundamentally unfair." State v. Atwood, 171 Ariz. 576, 630, 832 P.2d 593, 647 (1992) (citing Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975)).
¶ 14 Prejudice may be presumed if publicity "was so extensive or outrageous that it permeated the proceedings or created a `carnival-like atmosphere.'" Atwood, 171 Ariz. at 631, 832 P.2d at 648. In making this determination a court must review the entire record. State v. Murray, 184 Ariz. 9, 26, 906 P.2d 542, 559 (1995); State v. Bible, 175 Ariz. 549, 564, 566, 858 P.2d 1152, 1167, 1169 (1993).
¶ 15 The defense provided the trial judge with approximately 33 newspaper articles from Kingman, Mohave Valley, Bullhead City, and Lake Havasu City, as well as transcripts of ten radio clips concerning the case. Although some used inflammatory language, we find no evidence that they significantly affected the proceedings or the atmosphere surrounding the trial. Many of the articles appeared at or near the time of the crime in July 1998 or during the pretrial stages, rather than close to the trial which began in February 2000. Based on the record before us, prejudice cannot be presumed.
¶ 16 Therefore, the defendant has the burden of showing actual prejudice. Murray, 184 Ariz. at 26, 906 P.2d at 559. He must demonstrate that the jurors "formed preconceived notions concerning the defendant's guilt and that they [were unable to] lay those notions aside." Id. (quoting State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272 (1984)). We have held, however, that "[p]rior knowledge of a case, by itself, is ... insufficient to disqualify a juror." State v. Befford, 157 Ariz. 37, 39, 754 P.2d 1141, 1143 (1988).
¶ 17 Blakley argues that he was denied a fair trial because he was not allowed to individually question those panelists who were exposed to pretrial publicity. This court has indicated that "[a]n examination of the jurors, through voir dire process, is an effective means by which to determine the effects or influence of pretrial publicity on the jurors." State v. Greenawalt, 128 Ariz. 150, 163, 624 P.2d 828, 841 (1981); see also Salazar, 173 Ariz. at 406, 844 P.2d at 573 ().
¶ 18 Here, the judge questioned each prospective juror and, although it was in the presence of other panelists, he did it in such a manner as to prevent cross-contamination.2 Almost as many people were dismissed because of their stated aversion to the nature of the charges as were excused by virtue of exposure to pretrial publicity. Only three members of the final jury had indicated some knowledge of pretrial publicity. Two had seen a short article a few days before trial; the third remembered an article around the time of the crime and a few articles between then and the time of trial. The defendant has not demonstrated actual prejudice.
¶ 19 We are concerned, however, that counsel were not permitted to conduct individual voir dire of the prospective jurors. See Ariz. R.Crim. P. 18.5(d) ( ). Such...
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