State v. Elmore

• Citation: 201 N.W.2d 443
• Decision Date: 18 October 1972
• Docket Number: No. 54937,54937
• Parties: STATE of Iowa, Appellee, v. James William ELMORE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 443

201 N.W.2d 443

STATE of Iowa, Appellee, v. James William ELMORE, Appellant.

No. 54937.

Supreme Court of Iowa.

Oct. 18, 1972.

Thomas C. Younggren, of Norman & Younggren, Keokuk, for appellant.

Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., and Robert B. Dickey, County Atty., Keokuk, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

REES, Justice.

Defendant, James William Elmore, was charged by county attorney's information with the crime of robbery with aggravation in violation of section 711.2 of the Code, 1971. Information charging the crime of robbery was filed on February 17, 1971. On February 26 a county attorney's true information was filed accusing the defendant Elmore of being an habitual criminal, he having been thrice convicted of a felony; one of the felonies defendant was charged with having been convicted being the robbery allegedly committed on February 11, which crime was charged in the information first filed on February 17. Trial was had to a jury on the offense first charged without reference to the habitual criminal charge, and after the jury had returned with its verdict of guilty, the same jury was again charged with respect to the habitual criminal matter; thereafter, the jury retired, deliberated and returned its findings that the defendant had been twice before convicted of a felony. Defendant was sentenced and now appeals. We affirm the trial court.

The Grand Theatre in Keokuk was robbed by an armed man on February 11, 1971 and very shortly thereafter the defendant was arrested. When he first appeared in court for arraignment, it became apparent the attorney who accompanied him was not in a position to represent him, and his present counsel who represented him on appeal and in the trial of the case later appeared and represented him at the arraignment, at which time he entered a plea of not guilty.

Subsequent to the entry of the plea of not guilty, defendant filed his motion for change of venue upon the ground that excitement and prejudice against the defendant engenered by a constant barrage of news items and special articles appearing in the Keokuk Daily Gate City, a daily paper published in Keokuk, and being broadcast over a local radio station, had made it inconceivable that the defendant could receive a fair trial in Lee County. He further asserted in his motion that, based on all the circumstances of the case, a bias existed in the community, and that the citizenry of the community was prejudiced against the defendant because of such bias and by virtue of the newspaper and radio publicity. Defendant's affidavit and the affidavits of three disinterested citizens of Keokuk were attached to the motion for change of venue.

A resistance to the motion was filed, denying all of the allegations and assertions of the defendant's motion, to which were appended affidavits of four disinterested citizens of Lee County.

Hearing was had on March 5 on the petition for change of venue, and at that time the managing editor of the newspaper and the news director of the radio station were called by the defendant to testify. The general manager of the radio station and the city editor of the newspaper testified on behalf of the State.

The managing editor of the newspaper testified only to the extent of coverage or circulation of his newspaper in Lee County. The news director of the radio station testified to his impressions of the saturation of his station in the area of Lee County and as to the number of times the stories concerning the defendant were broadcast over his station. The general manager of the radio station was interrogated also as to the coverage of his station in Lee County. The city editor of the newspaper, who had in fact written the articles complained of by defendant, was interrogated as to the source of her information concerning the defendant's prior criminal record.

The articles in the newspaper which defendant deemed offensive and upon which he based his motion for change of venue appeared in the issues of February 12, 17, 22 and 26, 1971. Trial of the case began on the morning of March 24, 1971.

Defendant asserts two errors upon which he relies for reversal:

(1) Trial court erred in overruling defendant's request for a change of venue and the court's refusal to grant a change of venue was an abuse of discretion since the defendant was thereby deprived of liberty without due process of law and of a fair trial in violation of the Iowa statutes and the United States Constitution.

(2) Trial court erred in refusing defendant's request that Voir dire examination of prospective jurors be conducted individually beyond the hearing of other prospective jurors, and in limiting the questioning of the jurors as to what they had heard or read concerning defendant and the claimed commission of a public offense, since such rulings deprived the defendant of liberty without due process of law and of a fair trial in violation of the United States Constitution.

I. In its ruling on defendant's motion for change of venue the court found the newspaper articles and the radio broadcasts rather thoroughly discussed the incident of the robbery uut of which the charges were laid against the defendant, and that one small portion of the news article made reference to a parole violation as the reason defendant was not at liberty on bond. The court found that in all other respects the articles appeared to be simply statements of fact, and concluded after an examination of the newspaper accounts and hearing the testimony offered, that there was an insufficient showing of excitement and prejudice in the community against the defendant so as to prevent his receiving a fair trial. The court concluded that most of the testimony at the hearing and the affidavits dealt with the facts as expressed and that there was really nothing in the record from which the court could conclude that there was at the time of the hearing prejudice in the community against the defendant which would deny him a fair trial.

The American Bar Association Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press, section 3.2(c) (1968), enunciates the principle applicable to cases such as the matter before us:

'A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.'

The question for our determination here is whether a reasonable likelihood existed that a fair trial could not be had because of the dissemination of potentially prejudicial material. We are required to make 'an independent evaluation of the circumstances' on change of venue issues in criminal cases involving the right to an impartial jury, i.e., our review is de novo whether the question comes to us on certiorari in advance of trial, or on direct appeal following judgment. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620; State v. Niccum (Iowa 1971), 190 N.W.2d 815, 824; Pollard v. District Court (Iowa 1972), 200 N.W.2d 519. See Maine v. Superior Court, 68 Cal.2d 375, 66 Cal.Rptr. 724, 728--730, ...