State v. Crudup

• Decision Date: 10 July 1974
• Docket Number: No. 731--III,731--III
• Parties: STATE of Washington, Respondent, v. Zadie CRUDUP, Appellant.
• Court: Washington Court of Appeals

Page 583

11 Wn.App. 583

524 P.2d 479

STATE of Washington, Respondent, v. Zadie CRUDUP, Appellant.

No. 731--III.

Court of Appeals of Washington, Division 3.

July 10, 1974.

Crane Bergdahl of Leavy, Taber, Schultz & Bergdahl, Pasco, for appellant.

Arthur Eggers, Pros. Atty., Carl L. Johnson, Deputy Pros. Atty., Walla Walla, for respondent.

McINTURFF, Judge.

Defendant was charged with second-degree murder in connection with the shooting death of her husband John Crudup. She appeals from a verdict of guilty of the crime of manslaughter.

John Crudup was killed by a single bullet to the head on October 29, 1971. Defendant claimed decedent had produced a gun after an argument and while she struggled with it, the gun discharged twice, the second shot hitting decedent. Autopsy of the victim revealed a blood-alcohol reading of .25 percent.

State's witness Dexter (Don) Lincoln, an individual found 'passed out' from the effects of alcohol at the scene of the death, testified that the defendant produced the gun, said she was going to kill her husband, and did so. The physical evidence is inconclusive because there are no identifiable fingerprints on the weapon, and powder residue from the discharge of the weapon was found on both the defendant's and the decedent's hands.

Prior to trial defendant moved for a change of venue, arguing that numerous articles printed in the local newspaper, the Walla Walla Union Bulletin, constituted prejudicial pretrial publicity, effectively denying defendant the right to a trial by an unbiased and unprejudiced jury. Defendant's motion for change of venue was denied.

The newspaper articles giving rise to the claimed prejudicial pretrial publicity read in pertinent part:

October 31, 1971--front page headline: 'Woman Held in Husband's Death'

. . . John Crudup, 46, was shot and killed Friday night at his home 1 1/2 miles south of Walla Walla.

Held pending investigation of murder is Crudup's wife, 39-year-old Zadie, according to sheriff's deputies.

Deputy Prosecutor Jerry Votendahl said Saturday Mrs. Crudup will be arraigned Tuesday or Wednesday on a charge of second degree murder. . . .

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Department reports said Ernest Norris, a neighbor of the black couple, called the sheriff's office at 10:43 p.m. Friday, stating Mrs. Crudup had come to his home and 'said she just shot her husband.'

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Votendahl said items that had been stop a television set where Crudup fell were broken, but 'other than that there was no evidence of a struggle.'

November 4, 1971--front page article, headline: 'Crudup Murder Plea: Not Guilty'

Mrs. Zadie Crudup pleaded innocent Wednesday to a second degree murder charge in the shooting death last Friday of her husband, 46-year-old John Crudup.

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'I do know she does have an FBI number,' Votendahl said when queried by Judge Tuttle concerning bail reduction. 'But we don't have the rap sheet back yet.'

December 29, 1971--front page article, headline: 'Crudup Death Inquest Begin.'

A coroner's inquest will be conducted Wednesday in the case of State v. Mrs. Zadie Crudup, charged with second degree murder.

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No motive for the murder has ever been released by officials.

December 29, 1971--front page article, headline: 'Crudup Inquest Begins'

A description of Mrs. Zadie Crudup as 'very upset and confused' after the Oct. 29 shooting of her husband was presented Wednesday at the coroner's inquest into John Crudup's death.

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Mrs. Crudup, 39, has been charged with second degree murder in connection with the 46-year-old contractor's death.

'She stated she had killed John,' testified a neighbor, Mrs. Ernest Norris, Two Acre Lane.

Mrs. Norris said the statement was made by Mrs. Crudup after the victim's wife came to the Norris' home about 10:30 p.m. that night, requesting aid.

'She seemed puzzled that she had done this,' Mrs. Norris said.

She said Mrs. Crudup had stated, 'John's the best thing that ever happened to me and now I've killed him.'

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Contradictory results were obtained from two polygraph tests administered 10 days apart to Mrs. Crudup, according to testimony.

December 31, 1971--front page article, headline: 'Zadie Crudup Says Death Came in 'Tussle' Over Gun'

January 1, 1972--front page article, headline: 'Verdict Crudup Death 'Homicide"

Homicide 'without excuse of justification and with criminal liability' by Zadie Crudup was the verdict Thursday of a coroner's jury investigating the shooting of John Crudup.

Mrs. Crudup, 39, charged with second degree murder in the case, was not present, Thursday afternoon when the six-member panel announced the verdict.

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Zadie Crudup stated while testifying that her husband had named her the beneficiary of his $30,000 indemnity insurance policy after the pair wed last May in Mississippi.

She told jurors her husband was shot following a quarrel between them over financial problems.

Defendant urges that the trial court erred in denying the defendant's motion for a change of venue.

The trial court's decision on a motion for change of venue will not be disturbed absent on abuse of 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). Due process of law requires the granting of a motion for change of venue when a probability of prejudice is shown; actual prejudice need not be shown. State v. Stiltner, Supra; Sheppard v. Maxwell 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). in Stiltner the court stated at page 54, at page 1047 of 491 P.2d:

(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.

Common criteria or factors generally utilized by courts in determining the propriety of an order granting or denying a motion for change of venue based on alleged prejudicial pretrial publicity are: (1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn. Annot. 33 A.L.R.3d 17, 33 (1970). See also Pretrial Publicity-Fair Trial, Annot. 10 L.Ed.2d 1243 (1964).

Defendant argues this action is in many ways factually similar to State v. Stiltner, Supra, in that: (1) both cases received extensive pretrial publicity; (2) both instances involved criminal charges brought in small, closely-knit communities; (3) defendant in Stiltner, and the decedent in the present action, were well known within these communities; and (4) in both instances improper statements appeared in the local press which were prejudicial to the defendant's rights to a fair trial. Defendant urges the present action goes beyond Stiltner in that a highly publicized coroner's inquest lasting 2 days was conducted, rsulting in a finding that John Crudup's death was the result of the homicide.

The present case is significantly different than State v. Stiltner, Supra. Reporting in the present action was a noninflammatory factual reporting of the pretrial criminal procedure, including reporting of the coroner's inquest, while the reporting in Stiltner constituted a positive action by the press, eliminating all but one possible defendant in the case.

In denying the motion for change of venue the trial judge stated that he was 'not convinced that there is either a high probability or a probability that a jury cannot be obtained in Walla Walla County which can fairly try Mrs. Crudup.' Judge Tuttle made other pertinent and quotable observations. ¹ He concluded his decision denying the change of venue by saying:

(I)f counsel is right in saying that there's a high probability that we'll be unable to select a jury in this county which can fairly try Mrs. Crudup, then I think that in the selection process of the jury we are going to find this out. If it appears to the Court that counsel's fears are justified and that the Court's conclusions about a fair trial are unjustified, why at that point certainly either I or whoever the judge is whose (sic) trying the case will transfer the venue on the basis that too many people have read the article and remembered it and have formed conclusions. I will just conclude by saying that in my opinion that will be a surprising situation to me if there are many people who have read these articles and who remember very much about them.

The court's opinion proved correct. Voir dire examination of the members of the jury who tried defendant disclosed no specific recollection and little general remembrance of the content of the publicity, so there was no resultant effect upon their ability to fairly try the defendant. Further, the voir dire of each juror was extensive, but the defendant exercised only two peremptory challenges and only three jurors were excused for cause. This indicates a jury could be obtained, as Judge Tuttle predicted, without exhausting challenges. Additionally, over 4 months elapsed from the last publicity to the date of trial, and over 6 months from the date of the incident.

We find no probability of prejudice and no abuse of discretion in denying defendant's motion for a change of venue.

Defendant next argues...