State v. Clark

• Decision Date: 28 November 1983
• Docket Number: No. 83-KK-1607,83-KK-1607
• Citation: 442 So.2d 1129
• Parties: STATE of Louisiana v. Colin CLARK.
• Court: Louisiana Supreme Court

Page 1129

442 So.2d 1129

STATE of Louisiana v. Colin CLARK.

No. 83-KK-1607.

Supreme Court of Louisiana.

Nov. 28, 1983.

Lewis O. Unglesby, Baton Rouge, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.

CALOGERO, Justice.

We granted defendant's writ application to examine the serious contention that he is entitled to a change of venue for his retrial on the charge of first degree murder, a charge for which he was once convicted and sentenced to death in Baton Rouge, Louisiana. Upon review, we conclude that the venue should be changed, and therefore remand the case to the district court for appropriate action in that regard.

Colin Clark's retrial on the charge of first degree murder which resulted from the 1978 killing of a Baton Rouge restaurant manager came about as a result of the following events.

The grand jury of East Baton Rouge Parish indicted defendant Colin Clark for first degree murder, in violation of La.R.S. 14:30. Following trial, the twelve member jury returned a unanimous verdict of guilty as charged and then recommended the death penalty. This Court affirmed defendant's conviction and sentence. State v. Clark, 387 So.2d 1124 (La.1980), cert. denied 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 830; rehearing denied 450 U.S. 989, 101 S.Ct. 1530, 67 L.Ed.2d 825 (1981). This Court also denied Clark post-conviction relief. Clark then filed a post-conviction application with the federal courts. Throughout these legal processes, however, Clark remained steadfast in expressing a preference for execution rather than life imprisonment, which posture afforded him massive media coverage. At one point when he was still scheduled for execution, Clark held a press conference during which he admitted his part in the armed robbery which had resulted in the restaurant manager's death; he apologized to the victim's family.

Shortly thereafter, however, a stay of execution was granted by the United States Fifth Circuit Court of Appeals to review Clark's conviction and sentence. That Court ultimately reversed his conviction and ordered a new trial. Clark v. Louisiana State Penitentiary, 694 F.2d 75 (1982). ¹ Clark then filed a motion for a change of venue in the East Baton Rouge District Court. After a delay of three months, the trial judge denied the motion. ² The First Circuit Court of Appeal denied defendant's application for review. ³ Defendant argued to this Court that the trial court erred in not granting a change of venue. We granted his application to consider that question. 435 So.2d 469 (La.1983).

Clark's motion in the trial court for a change of venue after the U.S. Fifth Circuit reversed defendant's conviction referred to several specific items of media coverage and alleged that these, along with the remaining extensive coverage, would make it impossible for defendant to receive a fair trial in East Baton Rouge Parish. The trial judge conducted a hearing on the motion, at which hearing a "dry run" voir dire took place and Dr. Zimmerman, a psychologist qualified as an expert in public opinion polls, testified concerning the publicity's impact on the community. At the hearing defendant introduced into evidence several television scripts, numerous newspaper articles and four video-tapes: two marked WBRZ-TV; one marked WDSU, special, 8-18-82; and one marked Colin Clark Press Conference.

In denying the change of venue, the trial judge reviewed the recent jurisprudence of this Court in the area and concluded that, given the nature of the publicity and the degree of its circulation in the community, and given the fact that the publicity was promoted by the defendant himself (with particular reference to the news conference) the jurors could set aside what they had heard about the case and be unaffected by any prejudice or pressure from outside influences.

The grounds for a change of venue are set forth in La.C.Cr.P. art. 622 which provides:

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.

In deciding whether to grant defendant's motion for a change of venue, therefore, the trial judge must consider if prejudice, undue influence, or any other reason will deny the defendant a fair trial in the parish in which the prosecution is pending. The judge must also decide if such prejudice or influence will affect either the answers of the jurors on the voir dire examination or the testimony of the witnesses at trial. La.C.Cr.P. art. 622; State v. Goodson, 412 So.2d 1077 (La.1982); State v. Rodrigue, 409 So.2d 566 (La.1982); State v. Felde, 382 So.2d 1384 (La.1980); State v. Bell, 315 So.2d 307 (La.1975). The burden of proof is on the defendant to show that such prejudice exists in the collective mind of the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Adams, 394 So.2d 1204 (La.1981); State v. Williams, 385 So.2d 214 (La.1980), cert. denied 449 U.S. 1017, 101 S.Ct. 580, 66 L.Ed.2d 478 (1980); Felde, supra. Upon review, we find that the defendant has sustained his burden in that regard in this case, and we disagree with the trial judge that Clark's calling his press conference and causing attending publicity should preclude his being granted a change of venue.

The newspaper clippings, television scripts and video-tapes extensively document the widespread publicity surrounding Colin Clark from the time of the armed robbery and murder to the present. Additionally the testimony of news professionals at the hearing on the motion for change of venue support Clark's contention.

John Spain, News Director of Channel 2, WBRZ Baton Rouge, testified that his station had 60% of the audience for the 6 and 10 p.m. news, 70% at 5 p.m. and approximately 90% for the morning news. Station viewing area to the south is to Morgan City and the Gulf; to the west as far as Crowley; to Bougalusa on the east and to McComb on the north. The station also goes, via cable, into Oakdale and Alexandria. Mr. Spain played two of the video tapes included as exhibits. One of these aired as a two-part series on consecutive nights (Nov. 3 and 4 of 1982). He said that all the stories were "top blockers" which he explained meant that they played in the top five minutes of the program. He characterized the news coverage of Colin Clark as "significant" and said that the number of cases falling into the same category you "could probably count on one hand." When asked whether he anticipated that the coverage would continue, he replied that the story was being covered the day of the hearing.

Chris McDaniel, Assistant News Director of WAFB, Channel 9 Baton Rouge, agreed with Spain that the coverage of Colin Clark has been substantial, and he, too, anticipated that it would continue. McDaniel played a video tape from February 14, 1983, containing a statement by Ossie Brown and showing his picture. McDaniel estimated that his station was received in 105,000 homes for the 6 p.m. news and a few thousand less at 10 p.m. His station's coverage area included Point Coupee, St. Helena, St. Mary, West Baton Rouge, Iberville and Assumption Parishes, as well as East Baton Rouge Parish. The station goes into Alexandria and Lafayette on cable. Although he had no record of it, he was sure that stories of Colin Clark were provided to other stations in the state, such as those in Shreveport. His station last ran a story on Clark on April 1, 1983, and was covering the hearing on the change of venue.

Bob Nesse, Assignments Editor of WRBT, Channel 33 Baton Rouge, played a tape of the press conference with Clark when his execution was scheduled--October, 1981. The tape also had 23 stories dealing with the death penalty, but his file did not go back to the time of the trial or include the crime. To his knowledge the last coverage on his station occurred on February 17, 1983, "talking about Mr. District Attorney, Ossie Brown, seeking the death penalty when Colin Clark gets a new trial." He stated his opinion that the fact that Clark's execution "was going to be the first execution in twenty years ... made it a very significant news story." Discussing Clark's press conference, he said that Channels 2 and 9 from Baton Rouge were present as well as public television, three New Orleans channels, N.B.C. (and he thought C.B.S.). In fact, N.B.C. coordinated it with his channel and played it on national news in addition to furnishing the tape to its local affiliates. All three wire services were also represented at the conference. Although his station has only a 50 mile signal radius, Neese said that it goes on cable to Bogalusa, Lafayette, Morgan City and into Mississippi.

Yvonne Foreman, the reporter for the Baton Rouge Morning Advocate assigned to cover the Nineteenth Judicial District Court, stated that in her seven years with the paper she could not recall the paper providing so much coverage for a criminal trial as it did for Colin Clark. She termed the case a very significant one. The prosecutor stipulated that the State-Times and Morning Advocate, the two major papers in Baton Rouge, reach over 200,000 homes.

On the "dry run" voir dire which the trial judge conducted thereafter, thirty eight potential jurors were questioned. Two were questioned individually. Then three consecutive groups of twelve were interviewed. Of the first fourteen, only one juror did not recall anything in particular about the Colin...