State v. Brooks

• Citation: 103 Idaho 892,655 P.2d 99
• Decision Date: 07 December 1982
• Docket Number: No. 13297,13297
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rory BROOKS, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 99

655 P.2d 99

103 Idaho 892

STATE of Idaho, Plaintiff-Respondent, v. Rory BROOKS, Defendant-Appellant.

No. 13297.

Court of Appeals of Idaho.

Dec. 7, 1982.

John C. Lynn, of Lynn, Scott & Hackney, Boise, for appellant.

David H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., Boise, for respondent.

WALTERS, Chief Judge.

Rory Brooks appeals the conviction and his sentence to an indeterminate twenty-year term for murder in the second degree of Enrico Flory. He raises six issues. (1) He contends that venue of his trial should have been changed because of extensive pre-trial publicity. (2) He claims error in the admission of testimony concerning conspiracy to commit the murder. (3) He argues that the trial court erred in denying his motion for acquittal for failure of the state to prove corroboration of the testimony of an accomplice. (4) He cites error to the failure of the court to instruct the jury, as a matter of law, concerning the status of one of the witnesses as an accomplice. (5) He contends that prejudicial and misleading remarks were made by the prosecuting attorney in the opening statement to the jury, regarding the testimony expected to be given (but later recanted) by one of the state's witnesses. (6) He asserts that the trial court abused its discretion by imposing an indeterminate sentence of twenty years. We affirm the conviction and sentence.

Enrico Flory, seventy-six years old, lived alone in a small, one-bedroom house on Bella Street in Boise's North End. He depended on his monthly Social Security check to meet his living expenses. Flory was well-known and well-liked, paying his monthly bills routinely, entertaining the neighborhood youth with his story telling, and caring for homeless cats. This latter practice earned him his nickname, "Cat Man of Bella Street." On June 4, 1976, one of the neighborhood boys found him lying peacefully on the bed in his small house, dead of apparently natural causes. At least that was the county coroner's initial determination, because the body appeared to be resting in a natural state with no signs of foul play indicated.

Two months later, teenager Darren McLenna confessed to Boise police that he and three other teenage boys had visited Flory on June 3, had smothered the old man to death, and had stolen his Social Security money, which amounted to approximately $50.00. McLenna and Demetrio (Mitch) Esquivel were both committed in juvenile court to the custody of the Idaho Health and Welfare Department, under the Youth Rehabilitation Act. Petitions under the Act were also filed against Steven Wolf, age fifteen, and Rory Brooks, age seventeen, alleging their involvement in the death of Flory. A magistrate judge subsequently ruled that Wolf and Brooks were suitable for trial as adults and waived jurisdiction under the Act. An appeal of this ruling delayed trial for nearly two years. The Idaho Supreme Court eventually affirmed the ruling. See Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978). After that appeal, Steven Wolf pled guilty to second degree murder and was sentenced to an indeterminate term not to exceed thirty years.

In February, 1979, a jury found Rory Brooks guilty of murder in the second degree for the killing of Enrico Flory. The trial court entered a judgment of conviction and sentenced Brooks to an indeterminate term not to exceed twenty years.

I. CHANGE OF VENUE

The first issue we address is whether the trial court erred in denying Brooks's motion for change of venue based on the pre-trial publicity. The case was extensively publicized in a newspaper--the Idaho Statesman--and by news reports on various television and radio networks in Ada County. Brooks relies on photocopies of numerous articles from the Idaho Statesman published from May, 1977, to December, 1978, on copies of news script read over local television stations, and on the testimony of Howard Schragg, a communications expert, to support his position that the local publicity effectively denied him a fair trial.

The right to a trial by an "impartial jury," guaranteed by the Sixth Amendment of the United States Constitution, is made applicable to the individual states through the Fourteenth Amendment. Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). In Idaho, when one who is criminally accused believes a fair and impartial trial cannot be had in the county with venue, he may, by statute and by rule of criminal procedure, seek a change of venue. I.C. § 19-1801; I.C.R. 21. Upon motion, if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending, the proceeding shall be transferred to another county. Id.

In State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979), our Supreme Court set forth guidelines for determining change-of-venue issues on appeal. The Court said:

[t]his Court has held on many occasions that the decision to grant or deny a change of venue rests within the sound discretion of the trial court. [Citations omitted.] Further, where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, the trial judge's refusal to grant a change of venue is not a ground for reversal. Among the factors which this Court will consider in determining whether a criminal defendant actually received a fair trial are affidavits indicating prejudice or an absence of prejudice in the community where the defendant was tried, testimony of the jurors at voir dire as to whether they had formed an opinion of the defendant's guilt or innocence based upon adverse pretrial publicity, whether the defendant challenged for cause any of the jurors finally selected, the nature and content of the pretrial publicity, and the amount of time elapsed from the time of the pretrial publicity to the trial itself. [Citation omitted.] Publicity by itself does not require a change of venue.

We will proceed to analyze Brooks's venue issue in light of the above criteria. We note that the record indicates that radio and television broadcasts resembled the newspaper articles in content and frequency; for the purpose of this analysis, therefore, we discuss only the nature of the newspaper articles.

The murder of the Cat Man attracted great public interest and the local news media gave the story extensive coverage, heaviest in May, June, and July of 1977. In May, a front page headline in the Idaho Statesman discussed the facts of the case, the juvenile records of Brooks and co-defendant Steven Wolf, and the waiver of juvenile status. The article stated the boys' juvenile records included kidnapping, rape, and robbery, including a conviction for a rape-kidnapping during the interim period between Flory's death and the filing of murder charges against Brooks and Wolf. The article then discussed the magistrate order that waived the juvenile status based on the juvenile records and on psychological evaluations indicating the two boys were not suitable for rehabilitation within the juvenile system.

In June, a flurry of articles appeared in the Statesman, mostly due to Wolf's escape from the Ada County Jail. For the five days Wolf was free, the news media focused on the escape, rumors of Wolf sightings, the manhunt, and his eventual capture. Wolf's picture was often published and his name was captioned in the headlines many times. The articles submitted with the record on appeal were not of a sensational tone, nor were there any editorial opinions aimed at impassioning the public against Brooks. However, the details of the murder were related many times within the news stories, Brooks's name appearing as one of the accused.

From July, 1977, through September, 1978, newspaper articles on the case were sporadic. There appears to have been no sensationalism or overplay. In September, Brooks requested a change of venue. He argued that, due to pervasive publicity of the case, it was impossible for him to receive a fair and impartial trial in Ada County. The motion was denied.

In November, 1978, three months before Brooks was to go to trial, co-defendant Wolf pled guilty to second degree murder of Enrico Flory. The plea made the Statesman's front page. The article outlined the entire course of events as narrated by Wolf from the witness stand when he entered his guilty plea. Wolf admitted that he and three others were involved. The article then went on to say that two youths, McLenna and Esquivel, had been previously "convicted" of the murder in juvenile court and that Rory Brooks awaited trial for murder as an adult in district court. These matters were reiterated in an article appearing on December 30, after Wolf was sentenced. Brooks was again implicated by the article as one of the four boys involved, and it was again stated that he awaited trial.

In February, 1979, a few days before his trial, Brooks renewed his motion for change of venue based on the publicity surrounding the case in Ada County. A hearing on the motion was held. The trial court heard oral testimony from editors and directors of the local news media regarding the content and extent of their publications on the murder case. Exhibits of newspaper articles and scripts for radio and television news broadcasts were admitted as evidence.

Howard Schragg, a psychologist specializing in learning and motivation, also testified. He reviewed the contents of the news coverage and characterized it as objective and factually based, with no sensationalism evident. However, he also expressed his expert opinion that people hearing the news broadcasts and reading the news articles would likely form an opinion that Brooks was guilty. Further, Schragg...