State v. Butler

• Decision Date: 11 July 1974
• Docket Number: No. 895--III,895--III
• Citation: 11 Wn.App. 605,524 P.2d 488
• Parties: STATE of Washington, Respondent, v. George Elmer BUTLER, Appellant.
• Court: Washington Court of Appeals

Page 605

11 Wn.App. 605

524 P.2d 488

STATE of Washington, Respondent, v. George Elmer BUTLER, Appellant.

No. 895--III.

Court of Appeals of Washington, Division 3.

July 11, 1974.

Rehearing Denied Aug. 7, 1974.

As Corrected Sept. 9, 1974.

[524 P.2d 489] John D. MacDougall, Colville, for appellant.

Fred L. Stewart, Pros. Atty. for Stevens County, Colville, for respondent.

MUNSON, Judge.

Defendant appeals from a judgment and sentence entered upon a jury verdict of guilty for the crimes of robbery and attempted rape.

Defendant assigns error to: (1) The trial court's failure to grant his motion for change of venue because of alleged The crime occurred on November 13, 1972, beginning at the Clayton Market in the town of Clayton, Washington, a small community in Stevens County near the Spokane County boundary. An article on the front page of the Chewelah Independent, a newspaper published in Chewelah, Stevens County, Washington, dated Thursday, November 16, 1972, vividly recited the state's case:

prejudicial pretrial publicity; (2) alleged improper pretrial photographic identification; and (3) an alleged inflammatory statement made by a prosecution witness.

Robbery, Abduction at Clayton

By Bina G. Luiten

A warrant has been issued for the arrest of George Butler, 39 of Mead, in connection with the armed robbery of the Clayton Market Monday and the abduction of the owner reports Stevens County Sheriff Chan St. Clair.

Butler is alleged to have robbed the store at about 4 p.m. Monday, taking the owner, Mrs. Margaret Tobeck, as hostage to a wooded area near Jump Off Joe Lake. He held her for some two hours during which time he choked her twice into unconsciousness. He then changed his mind about killing her she said and returned her to Clayton.

Stevens County sheriff's officers worked all night long on clues said Sheriff St. Clair finding that the robber had been working in the Springdale area logging and had just lost his job there. St. Clair expressed his gratitude to Deputies Fred Mataya, Ken Meyer and Jerry Muggas for their cooperation. Butler had been seen in that area prior to the robbery, in a tavern in Springdale.

His car, a tan 1966 Chevrolet with Oregon license plates, was noticed in both Springdale and Clayton because of its noisy muffler said Sheriff St. Clair.

From contacts in Springdale the sheriff's department found his name and address in the Mead area and two Stevens County units and one unit from the Spokane Sheriff's office met in Mead and held an all night stakeout said Sheriff St. Clair.

They discovered Tuesday, through Butler's three teenage stepchildren left at the home, that he had returned after the time of the robbery, had one of his stepsons fix the muffler on the car, and then he and the mother left.

A picture of the suspect, found in the home, was identified by the robbery victim said Sheriff St. Clair. He said Butler, a former Salem, Ore., resident, has a prior arrest record of armed robbery and assault.

The robbery occured (sic) after he had entered the Clayton Market for the second time on Monday, according to Mrs. Tobeck. The first time he purchased two bottles of beer and then a short time later returned and informed her--' this is a stickup lady.' He asked for all of the paper money in the till which came to some $90 she said. He then informed her that she was to go in the car with him so that he could 'get away easier.'

He drove her north on Highway 395 to the Jump Off Joe Lake turnoff and into a wooded area where he attempted to take her life. When he quit choking her, she said he stated: I can't do it. I can't kill you.'

He offered her some coffee he had in the car and 'then we made a deal,' said the petite 4 11 , 100 lb. Mrs. Tobeck. 'I said he could keep the money if he would just release me. He agreed to drive me back to Clayton and also said he's (sic) pay me back the money. He had me count it because he said he was starting a job the next day and would mail the money back when he got it.'

The robber then drove her back to Clayton intending first to return her to the store but a sheriff's car was parked there so he drove past dropping her off at St. Joseph's Catholic church.

In the meantime family members had discovered the store untended, the till empty and Mrs. Tobeck missing and had notified law enforcement authorities who were searching for her when she returned.

She was taken to Tri-County Hospital in Deer Park for a checkup but did not require hospitalization. She is currently at the Clayton home of her son, Cecil, and is only able to talk in whispers because of her bruised throat.

The Statesman-Examiner, published in Colville, Stevens County, Washington, printed a similar article on its front page November 16, 1972, although more brief in form. The last paragraph of that article stated:

The officers then obtained a picture of Butler, which was then identified by Mrs. Tobeck. Butler was found to have a previous record of armed robbery and assault.

When the picture was identified by the victim, the warrant was issued.

On November 23, 1972, the Statesman-Examiner published a three-paragraph story, noting the arrest of the defendant on November 18 in the state of Minnesota, the third paragraph concluding:

Butler lists a long record with the law dating back to 1950. He is accused of entering the Clayton Market and robbing and abducting the owner, Mrs. Margaret Tobeck assaulting her and attempted to strangle her before changing his mind and turning her loose.

About December 29, 1972, defendant filed his motion for change of venue, together with affidavits of defendant and one of his counsel and a memorandum of authorities in support thereof. On January 12, 1973, defense counsel filed a supplementary memorandum of authorities in support of that motion.

The motion and affidavits of defendant and his counsel made reference to the three Stevens County newspaper articles referred to above. Defense counsel's affidavit, attached to the motion, stated that he had taken his own poll of some 40 people, 20 in the town of Chewelah, and 20 in the town of Colville. The poll was taken December 20 and 21, 1972. This poll evidenced that 39 of the 40 received or read either the Chewelah Independent or the Colville Statesman-Examiner. Of these 39, 37 remembered reading an article about a robbery and abduction in the Clayton area, while two did not. Only one of 37 remembered the name of the person alleged to have commited the crime. Based upon the article, 20 had an opinion as to whether the individual named was guilty or innocent of the crime, while 17 had no opinion. Of those 20, 18 believed he was guilty, and two believed he was not guilty.

In the supplementary memorandum, defense counsel referred to a continuing series of accounts on the progress of the case over the local radio station, Station KCVL. The memorandum contains a list of the dates--from November 14, 1972, through January 1, 1973, upon which that radio In defendant's appellate brief, he alleges that in a period of 17 days there were 68 separate stories concerning this matter by this local radio station. Copies of a number of the broadcasts are included as an appendix to his appellate brief. Inasmuch as copies of the radio reports were not before the trial court, we do not consider them, other than hereinafter noted.

station did broadcast reports on the robbery and assault and the status of the proceeding against defendant Butler. After each date dedfense counsel gave a short summary of the content of each news report. He stated that the information had been supplied to him by the news director for KCVL.

There are occasions when the court will have no difficulty in ascertaining that pretrial publicity is of such a prejudicial nature as to be obvious to everyone. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); People v. Luedecke, 22 A.D.2d 636, 258 N.Y.S.2d 115 (1965); People v. Martin, 19 A.D.2d 804, 243 N.Y.S.2d 343 (1963); See Delaney v. United States, 199 F.2d 107, 39 A.L.R.2d 1300 (1st Cir. 1952). No claim of actual prejudice is made by this defendant.

In reviewing the denial of defendant's motion for change of venue, we must determine whether the trial court abused its discretion. State v. Braun,82 Wash.2d 157, 509 P.2d 742 (1973); State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043 (1971); State v. Malone, 75 Wash.2d 612, 452 P.2d 963 (1969); State v. Dimmer, 7 Wash.App. 31, 497 P.2d 613 (1972).

In State v. Stiltner, Supra, the court stated at page 54 of 80 Wash.2d at page 1047 of 491 P.2d:

(T)he constitutional principle that a denial of due process in cases involving the publicity of criminal matters may be found even without an affirmative showing of actual prejudice. Indeed, Where the circumstances involve a probability that prejudice will result, it is to be deemed inherently lacking in due process. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (Italics ours). In Sheppard v. Maxwell, 384 U.S. 333, at page 362, 86 S.Ct. 1507, at page 1522, 16 L.Ed.2d 600 (1966), the court stated:

(1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances . . . But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. . . . But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at...