State v. Boykin

• Decision Date: 07 December 1976
• Docket Number: No. 29,29
• Citation: 291 N.C. 264,229 S.E.2d 914
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Margie C. BOYKIN.

Page 914

229 S.E.2d 914

291 N.C. 264

STATE of North Carolina v. Margie C. BOYKIN.

No. 29.

Supreme Court of North Carolina.

Dec. 7, 1976.

Atty. Gen. Rufus L. Edmisten by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

Knox V. Jenkins, Jr., and Thomas S. Berkau, Smithfield, for defendant-appellant.

COPELAND, Justice.

Defendant contends that the trial court erred in denying her motion for a change of venue as provided in G.S. 15A--957 or in the alternative, for a special venire panel under G.S. 15A--958. At the pretrial motion hearing, defense counsel argued that prejudice against the defendant in Johnston County would not allow her to obtain a fair and impartial trial. In support of his motion, counsel filed five affidavits and seventy-three unsworn statements of county residents. The form statements, printed in advance, contained a number of rumors concerning the defendant which had allegedly circulated throughout Johnston County. The person being asked to sign a statement was apparently requested to choose from the following rumors about the defendant those he had heard: '(1) That she hired some blacks to kill her husband; (2) That she killed her first husband; (3) That she killed her husband's brother-in-law and fed him to some hogs; (4) That she killed an individual formerly married to her daughter; (5) That she had performed abortions and a girl died; (6) That she was instrumental in the death of her son's former fiancee who was killed in an automobile accident; (7) That she was involved in the theft of television sets from Sylvania.' Defendant had never been charged with or convicted of any of these crimes, other than those involved in the present case. The trial judge agreed to consider the unsworn statements in support of defendant's motion.

Defendant also offered as Exhibit No. 80 a 'color-coded' map of townships in Johnston County. We were not provided a key to the map and thus cannot determine its significance. At the motion hearing the trial judge indicated that he would exclude jurors from 'two particular townships in that area,' provided the defendant and the district attorney agreed. Whether or not this precaution was followed does not appear of record. Presumably, Exhibit No. 80 had something to do with this.

"A motion for change of venue or for a special venire panel 'is addressed to the sound discretion of the trial judge, and abuse of discretion must be shown before there is any error.' State v. Harrill, 289 N.C. 186, 190, 221 S.E.2d 325, 328 (1976); accord State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

At the pretrial hearing no mention was made of any adverse publicity in newspapers, magazines, radio or television. In fact, defendant candidly admits that newspaper accounts in this case have not been inflammatory. All of our previous criminal cases were directed toward this type of unfavorable publicity. We find no criminal cases in North Carolina or elsewhere dealing with word-of-mouth publicity.

"Due process requires that the accused receive a trial by an impartial jury free from outside influences.' Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966). While every criminal case that we have been able to find in which change of venue was in issue has dealt with prejudice resulting from pretrial Media publicity, we believe the constitutional requirement of a fair trial is not so limited. Nor are our statutes which require a change of venue or a special venire panel where prejudice is so great as to prevent a fair trial, restricted to media inspired prejudice. As the late Mr. Justice Holmes once wrote:

'The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by outside influence, whether of Private talk or public print.' (Emphasis added.) Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907); accord, Sheppard v. Maxwell, supra, 384 U.S. at 351, 86 S.Ct. at 1516, 16 L.Ed.2d at 614.

The burden of showing 'so great a prejudice against the defendant that he cannot obtain a fair and impartial trial' falls on the defendant. G.S. 15A--957. In Sheppard v. Maxwell, supra, involving pretrial press publicity, the United States Supreme Court held, where there is a 'reasonable likelihood' that prejudicial news prior to trial will prevent a fair trial, the trial judge should transfer the case to another county not so permeated with publicity. The same standard of proof should apply where the prejudice alleged is attributable to word-of-mouth publicity. If, under the evidence presented, there is a reasonable likelihood that a fair trial cannot be had, it is an abuse of discretion to fail to grant a change of venue or a special venire panel.

In considering the type of prejudice here alleged for the first time this court is sensitive to the difficulty of proving prejudice generated by 'private talk.' At the same time, this court must be solicitous of the potential for manufacture and manipulation of proof of this type of prejudice. By this statement we do not imply that the able trial counsel engaged in this type of conduct. In the case of adverse media publicity, a trial judge in arriving at his determination can easily examine the allegedly inflammatory articles and take evidence on the number of copies circulated in the county and the number of county residents. These figures are objective.

With printed statements of rumors as were used in this case, defense counsel should, at a minimum, introduce evidence of the number of persons approached, if any, who had Not heard the rumors concerning this defendant. Here no evidence was offered of the total number of persons contacted before seventy-three individuals returned statements saying that they had heard at least one prejudicial rumor about the defendant. Nor was any evidence persented as to how the individuals 'solicited' were chosen. Were they selected at random from voter registration lists or off the streets from all sections of the county?

In essence, defendant attempted with her unsworn statements to introduce a public opinion poll without giving the trial judge the vital statistics necessary for him to judge the likelihood of pretrial prejudice throughout the county. It should also be remembered that the critical questions are whether the person interviewed thought the defendant was guilty of the crimes charged and whether the person questioned believed the defendant could receive a fair trial in the county. None of the affiants or statement makers indicated that they had any preconceived opinion as to defendant's guilt. With the exception of defense attorney's own affidavit, none of the statements or affidavits expressed any opinion on the possibility of defendant's receiving an impartial trial in Johnston County.

A disturbing aspect of this case involves the type of prepared statements used by defense counsel. The forms printed in advance with seven rumors about the defendant obviously helped to resurrect and disseminate stories about the defendant. Certainly, when anyone who had never heard the rumors was shown one of the forms, he could no longer truthfully say he had not heard them and probably he and others who viewed the form went on to spread the rumors to even greater audiences.

We note that all jurors questioned on voir dire stated that they could give the defendant a fair trial and that defendant did not exhaust her peremptory challenges.

Although the trial judge would have been fully justified in allowing either of defendant's motions, we cannot say he abused his discretion in denying the motions under the circumstances. While recognizing that there may be cases where widespread, word-of-mouth publicity may be as that there may be cases where widespread, trial as mass media publicity, we will be reluctant to conclude that there was a 'reasonable likelihood' that a fair trial could not be had until defendant has demonstrated that steps were taken to insure the reliability of the opinion poll and that defendant did not aggravate the publicity problem. No abuse of discretion having been shown, the assignment of error is overruled.

At the pretrial hearing, the trial judge indicated that defense counsel would have the opportunity to ask each juror whether or not he could give the defendant a fair and impartial trial and that if the juror could not do so, then he would be subject to challenge for cause. In the course of the hearing, counsel for defendant, inquired of the court 'Can I ask them what they have heard about it, about her?' The court replied: 'No, Sir. That would not be a competent question to pose to the jurors or prospective jurors.' Defendant contends that the court committed error in this ruling.

The...