State v. Devlin
| Decision Date | 27 January 2009 |
| Docket Number | No. DA 07-0761.,DA 07-0761. |
| Citation | 2009 MT 18,201 P.3d 791 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Charles Jay DEVLIN, Defendant and Appellant. |
| Court | Montana Supreme Court |
¶ 1 The State charged Charles Devlin in the Twentieth Judicial District Court, Lake County, with bail-jumping. Devlin filed a motion for change of venue, which the District Court denied. Thereafter, he entered into a plea agreement with the State and pleaded guilty to the charge. Devlin now appeals the denial of his motion for change of venue. We affirm the District Court's decision.
¶ 2 Prior to the bail-jumping charge, the State charged Devlin in June 2006 with kidnapping, driving under the influence of alcohol or drugs, failure to provide proof of liability insurance, and obstructing a peace officer. These charges and the underlying facts are the subject of a separate appeal presently before this Court. See State v. Devlin (DA 07-0760).
¶ 3 On June 15, Devlin entered a plea of not guilty to all four charges, and the District Court scheduled an omnibus hearing for July 6. Devlin posted bond and was released from custody on the condition that he attend all scheduled court dates in person. Devlin failed, however, to appear at the omnibus hearing on July 6. As a result, the District Court issued a warrant for his arrest. In addition, the State commenced the instant action on July 25 by filing an information charging Devlin with bail-jumping, a felony, in violation of § 45-7-308(1), MCA. Devlin pleaded not guilty to this charge.
¶ 4 Devlin's trial on the kidnapping, DUI, no proof of insurance, and obstruction charges began on March 26, 2007; however, the District Court declared a mistrial based on improper testimony by the State's first witness. Devlin was again brought to trial in April 2007, after which the jury found him guilty on the charges of kidnapping and obstructing a peace officer and not guilty on the charges of driving under the influence of alcohol or drugs and failure to provide proof of liability insurance.
¶ 5 On May 24, 2007, Devlin filed a motion in the present matter to change venue due to what he characterized as "inaccurate," "inflammatory," and "prejudicial" pretrial publicity. Devlin argued that the type and amount of reporting about him, combined with his and his family's notoriety in the community, made it impossible for him to receive a fair trial by an impartial jury in Lake County. In support of his motion, Devlin attached three newspaper articles from the Lake County Leader & Advertiser.
¶ 6 The first article, published August 31, 2006, reported that while being held in the Lake County Jail, Devlin had "run up a $17,816 medical bill which comes at taxpayer expense." The article contained assertions that Devlin had made repeated "false" medical complaints, and the article quoted Dr. Stephen Irwin, the Lake County Jail physician, as labeling Devlin "a manipulator supreme" and "a sociopath working the system every way possible." Dr. Irwin related that he had visited Devlin in the Missoula County Jail 20 years earlier and that Devlin's "pattern" over the years had not changed. Irwin also stated that one of the primary purposes of his job is to "make sure [Devlin] doesn't rake taxpayers over the coals." In short, the first half of the article suggested that Devlin had cost the taxpayers "more than $17,000 in less than three months" in largely unnecessary medical expenses.
¶ 7 On the other hand, the latter portion of the article reported Devlin's side of the story, including the fact that Devlin "maintains his innocence in any alleged faking of heart attacks" and Devlin's assertion that the prosecution was trying to "discredit" him. It also related Devlin's explanation of the events underlying the pending charges against him. The article referred to Devlin's "extensive criminal background," including a "history of bail jumping," but also reported Devlin's explanation that his past crimes were attributable to post-traumatic stress disorder and his assertion that the pending charges against him were "trumped up" and "inflated."
¶ 8 The second Leader article was published March 29, 2007. This article reported on the mistrial and recited details from the prosecutor's and defense counsel's respective opening statements. In addition, the article highlighted the particular testimony by the State's first witness which had caused the mistrial—specifically, testimony that Devlin was on probation at the time of the alleged kidnapping.
¶ 9 The third Leader article, published April 19, 2007, reported that Devlin had been found guilty of the kidnapping and obstruction charges. Devlin asserts in the present appeal that this article inaccurately summarized the trial testimony and the attorneys' respective arguments. Furthermore, Devlin points out that the article incorrectly reported that he faced 2 to 10 years imprisonment. (The State was seeking to treat Devlin as a persistent felony offender under § 46-18-502, MCA, which carries a sentence of up to 100 years.) According to Devlin, the Bigfork Eagle carried this same story.
¶ 10 Aside from these articles, Devlin contended in his motion that a local radio station and local television stations had reported similar details concerning the mistrial, the retrial, and the verdicts in the kidnapping case. Moreover, in response to the State's acknowledgement that "the press coverage may contain some factual errors," Devlin argued in his reply brief that the reporting "went far beyond that." He pointed out that the articles contained references to his prior criminal record, and he contended that the problems he had experienced arising out of his service in Vietnam had been reported in a "sensational manner."
¶ 11 The District Court summarily denied Devlin's motion, and the matter proceeded to trial on July 23, 2007. At the outset, the court granted Devlin's request to conduct individual voir dire. The first juror, Susan, stated that she did not know Devlin or his family personally or professionally and that she was not aware of the mistrial in the kidnapping case. She did indicate, however, that she had read about the kidnapping case in the newspaper and had seen news reports on television about this matter. Moreover, she stated that her son was the news director for the local radio station and that she had heard things from him related to the case. Although she could not remember any particular details about the charges against Devlin, Susan acknowledged that she probably would remember more as the trial progressed.
¶ 12 Defense counsel moved the court to excuse Susan. He argued that because Susan had stated she watches the television news "nightly" and reads each edition of the newspaper "cover to cover," she necessarily had read and heard reports related to Devlin and the kidnapping case. Counsel contended that this information was "somewhere in her mind" and that it constituted "a potential bias and prejudice" against Devlin. The District Court, however, responded that it would not "assume, on the basis of the fact that someone represents that they see the news, that they then, by virtue of that, are prejudiced." Moreover, the court reasoned that under defense counsel's argument, "no juror could ever sit on any case because there is always the possibility that they might have heard something somewhere." The court stated that it would not allow a challenge for cause based on the responses elicited from Susan thus far.
¶ 13 Figuring that other members of the venire had heard or read about Devlin's case, and in light of the court's ruling with respect to Susan, defense counsel requested time to consult with Devlin. Shortly thereafter, counsel informed the court that Devlin would be changing his plea to guilty pursuant to a plea agreement reached with the prosecution. The District Court accepted Devlin's plea and, on October 4, 2007, sentenced him as a persistent felony offender to the Montana State Prison for a term of 20 years with 15 years suspended, said sentence to run concurrently with the sentences imposed for the kidnapping and obstruction charges. Devlin now appeals.
¶ 14 Devlin raises the following issue on appeal: Did the District Court abuse its discretion when it denied Devlin's motion for change of venue?
¶ 15 We review for abuse of discretion a trial court's ruling on a motion for change of venue. See State v. Link, 194 Mont. 556, 558, 640 P.2d 366, 367 (1981); State v. Moore, 268 Mont. 20, 51, 885 P.2d 457, 477 (1994), overruled in part on other grounds, State v. Gollehon, 274 Mont. 116, 121-22, 906 P.2d 697, 700-01 (1995). A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Mackrill, 2008 MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451. Moreover, in exercising its discretion, the court is bound to uphold the defendant's constitutional right to a trial by an impartial jury. See Moore, 268 Mont. at 51, 885 P.2d at 477 (); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) ( ...
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