State v. Hall

• Decision Date: 28 October 1986
• Docket Number: No. 15362,15362
• Citation: 727 P.2d 1255,111 Idaho 827
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Patrick E. HALL, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1255

727 P.2d 1255

111 Idaho 827

STATE of Idaho, Plaintiff-Respondent, v. Patrick E. HALL, Defendant-Appellant.

No. 15362.

Court of Appeals of Idaho.

Oct. 28, 1986.

Petition for Review Denied Jan. 16, 1987.

Lance D. Churchill, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., by Lynn E. Thomas, Sol. Gen., and A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

On a Saturday night at a Rexburg bar, four men argued over relationships with a woman. Words turned to violence. The altercation spilled into a parking lot. Gunshots rang out. Two men fell dead; another lay critically wounded. The fourth man, Patrick Hall, was arrested and charged with first degree murder. Despite a claim of self-defense, a jury eventually found Hall guilty of second degree murder (two counts) and of aggravated battery. He has appealed.

We are asked to decide (1) whether excessive publicity denied Hall a fair trial; (2) whether the surviving victim should have been allowed to testify about "dreams" of the shootings; (3) whether the trial judge erred in admitting pretrial statements by Hall to the police; and (4) whether the jury received proper instructions regarding "diminished capacity" due to intoxication. For reasons explained below, we affirm the judgment of conviction.

I

We first consider the question of news coverage. The shootings were extensively publicized by the local news media. Before trial, Hall's defense attorney moved for a change of venue. The motion was denied.

Pretrial publicity is a stubborn problem in the administration of criminal justice. It is a product of differing institutional perspectives and conflicting constitutional values. Journalists, motivated by competitive pressures of the marketplace and by the "public's right to know," assert a right under the First Amendment to report accusations of criminal conduct long before the issue of guilt has been resolved. Defense counsel, motivated by a client's self-interest and by deeper concerns about the fairness of our criminal justice system, argue that pretrial publicity abridges the accused's Sixth Amendment right to an impartial jury as well as his closely related Fourteenth Amendment right to due process. When asked to change venue in a criminal case, the trial judge faces the difficult task of balancing these competing forces. Because the task necessarily is imprecise, turning upon circumstances peculiar to each case, it is committed to the trial judge's sound discretion. E.g., State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975).

Like most discretionary decisions, the judge's ruling on a motion for change of venue is subject to legal limits. An accused person's distress at becoming the object of news media attention--while wholly understandable--affords no basis, by itself, to change venue. On the other hand, a defendant's inability to make a detailed and conclusive showing of prejudice is not a proper ground for refusing to change venue. Prejudice seldom can be established or disproved with certainty. Rather, it is sufficient for the accused to show "a reasonable likelihood that prejudicial news [coverage] prior to trial will prevent a fair trial." Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966) (emphasis added). There can be no fair trial unless the issue of guilt is decided by impartial finders of fact. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Consequently, the question posed by a motion to change venue is whether a "reasonable likelihood" exists that pretrial publicity has affected the impartiality of prospective jurors.

Impartiality may be affected adversely by the quality or the quantity of pretrial media coverage. Qualitatively, the courts must be concerned with news stories and editorials that are inflammatory, inaccurate or beyond the scope of admissible evidence. E.g., State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973). The quantitative impact also must be recognized. When prospective jurors are incessantly exposed to news stories selectively packaged for mass consumption, they may become subtly conditioned to accept a certain version of facts at trial. Such repetitive exposure may diminish the jurors' ability to separate information absorbed before trial from information presented during trial. State v. Brooks, 103 Idaho 892, 655 P.2d 99 (Ct.App.1982) (concurring opinion).

When a trial judge finds a reasonable likelihood that qualitative or quantitative elements of pretrial publicity have affected the impartiality of prospective jurors, the constitutional balance swings in favor of assuring a fair trial. "[T]he trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. at 362, 86 S.Ct. at 1522. The judge should continue the case until the impact of publicity abates or should transfer the case to another county where publicity has been less pervasive. Id. Idaho judges have authority, under I.C. § 19-1801 and I.C.R. 21, to change venue in such situations. ¹

When reviewing a judge's denial of a motion to change venue, we independently examine the record to determine whether there was a "reasonable likelihood" that pretrial publicity adversely affected juror impartiality. Among the factors considered are the existence of affidavits indicating prejudice, or lack of prejudice, in the community where the defendant was tried; testimony at voir dire as to whether any jurors had formed an opinion of the defendant's guilt or innocence based on pretrial publicity; whether the defendant challenged for cause any of the jurors finally selected; the nature and content of the pretrial publicity; and the length of time elapsed between the pretrial publicity and the trial. State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). We also consider any assurances given by the jurors themselves concerning their impartiality. State v. Brooks, supra (lead opinion). However, such assurances are not dispositive. Sheppard v. Maxwell, supra; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).

In the present case, Hall presented no affidavits demonstrating community prejudice arising from media coverage of the case. However, through counsel, he did engage in extensive voir dire of prospective jurors. More than 65 persons were questioned. Of these, 29 were individually sequestered in the judge's chambers and queried on the record about their exposure to pretrial publicity. All 29 professed some recall of news stories concerning the case, but their recollections were vague and nonspecific. Only one person said he had formed an opinion as to Hall's culpability; he was dismissed for cause by the court. Although both the defense and the prosecution used every available peremptory challenge, the record contains no expression by the defense of dissatisfaction with the final twelve jurors selected.

As noted earlier, news coverage of the killings was widespread. Stories appeared in several area newspapers and in radio and television newscasts. The reports were factual and noninflammatory, with one arguable exception. In a television broadcast, a magistrate was quoted as saying that bail would be denied due to "the great amount of evidence which has been collected in this case already." ² The use of this quotation was an unfortunate lapse in journalistic restraint. Nevertheless, it appears that no harm resulted. None of the jurors expressed any recollection of the broadcast.

Moreover, the bulk of media coverage occurred within two months of the shootings. The trial did not commence until nearly a year had elapsed. Although defense counsel made a commendable effort to demonstrate the quantitative impact of media coverage in this case, the record does not show that prospective jurors were incessantly exposed to news stories throughout the pretrial period. The intensity of the initial coverage was dissipated by the passage of time.

The trial judge gave a comprehensive summary of reasons for denying the motion for change of venue. His explanation was consistent with our analysis today. He prudently noted that the motion could be renewed if evidence of prejudice later became available. No such evidence was presented. We conclude that the judge acted within his sound discretion by denying the motion.

On a related point, Hall asserts that even if he was not entitled to a change of venue in light of pretrial publicity, a motion to sequester the jury should have been granted in order to prevent outside influence during the trial. The decision whether or not to sequester a jury--like the decision on changing venue--is committed to the sound discretion of the trial judge. I.C. § 19-2126. Here, the judge decided against sequestration. However, he undertook to protect the jury from outside influence by studiously and continuously admonishing them to avoid all discussions about the case and to refrain from reading or listening to any media reports during the trial. The transcript is replete with the judge's admonitions each time the jury prepared to leave the courtroom. In contrast, the record is devoid of any suggestion that the jury actually was exposed to prejudicial information or other improper influence during the trial. Under these circumstances, although it might have been appropriate to sequester the jury, we cannot say that the judge abused his discretion by failing to do so. We conclude that the judge's rulings on venue and sequestration did not deprive Hall of a fair trial.

II

We next address Hall's contention that the trial judge should have excluded testimony from the victim who survived the shootings. The witness, Johnny Pacheco, had been shot in the head. He testified about events before the shootings and about his physical sensations of being wounded. But he expressed uncertainty as to...