State v. James

• Decision Date: 06 January 1989
• Docket Number: No. 870306,870306
• Citation: 767 P.2d 549
• Parties: STATE of Utah, Plaintiff and Appellee, v. Steven Ray JAMES, Defendant and Appellant.
• Court: Utah Supreme Court

Page 549

767 P.2d 549

STATE of Utah, Plaintiff and Appellee, v. Steven Ray JAMES, Defendant and Appellant.

No. 870306.

Supreme Court of Utah.

Jan. 6, 1989.

Robert W. Gutke and Nathan D. Hult, Logan, for defendant and appellant.

R. Paul Van Dam and Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

HOWE, Associate Chief Justice:

On petition of defendant Steven Ray James, which he filed pursuant to Utah Code Ann. § 77-35-26(2)(c) (1982, Supp.1988), we granted this interlocutory appeal from certain pretrial orders in the instant case in which defendant is charged with first degree murder. He claims two errors: (1) that the trial court abused its discretion in denying his motion for a change of venue; and (2) that his right to a fair trial will be jeopardized by the use of a prior conviction as an aggravating circumstance to be proved in the guilt phase of his trial.

On August 26, 1986, defendant reported that his infant son, Steven Roy James, was missing from a parked car in which he had left him in a store's parking lot in Logan, Utah. Extensive news media coverage began immediately. Some of this news coverage was in connection with information disseminated by the Logan Police Department. Other coverage was in connection with efforts to find the missing child, spearheaded by a local volunteer committee organized for that purpose. Additional coverage was of direct contacts by reporters with the parents of the infant.

On October 11, 1986, the remains of an infant, later identified as Steven Roy James, were found in Cache County, submerged in an area known as the Benson Marina, by a group of duck hunters. The remains had begun to decompose, and identification was made through forensic evidence concerning the infant's hair, footprints and handprints, and identification of the clothing and blanket in which the body was wrapped as being similar to clothing and a blanket belonging to the baby. The Defendant was charged with first degree murder, a capital offense, pursuant to Utah Code Ann. § 76-5-202(1)(h) (1978, Supp.1988). The charge alleged that he intentionally or knowingly caused the death of Steven Roy James and alleged as an aggravating circumstance that defendant had previously been convicted of a felony involving the use or threat of violence to a person. Discovery disclosed that defendant was convicted in 1973 in the state of California of the crime of false imprisonment, which the prosecution argues is a felony involving the use or threat of violence to a person. He allegedly pleaded guilty to false imprisonment pursuant to a plea negotiation in which a charge of kidnapping was dismissed.

actual cause of death was undetermined but listed as a homicide by the state medical examiner. There was no objective evidence, however, as to the cause of death.

CHANGE OF VENUE

Defendant moved for but was denied a change of venue. He argues that the extensive pretrial publicity and the unique circumstances of widespread community involvement in Cache County, a relatively small and homogeneous geographical area, to find the missing child make it extremely difficult for him to obtain a fair trial. Thus, he contends the denial of his motion was an abuse of discretion. The constitutions of Utah and of the United States both guarantee a defendant the right of trial by an impartial jury. Utah Const. art. I, § 12; U.S. Const. amend. VI. This right has been implemented by Utah Code Ann. § 77-35-29(e)(i) and (ii) (1982, Supp.1988), which provides:

(i) If the prosecution or a defendant in a criminal action believes that a fair and impartial trial cannot be had in the jurisdiction where the action is pending, either may, by motion, supported by an affidavit setting forth the facts, ask to have the trial of the case transferred to another jurisdiction.

(ii) If the court is satisfied that the representations made in the affidavit are true and justify transfer of the case, the court shall enter an order for the removal of the case to the court of another jurisdiction free from the objection and all records pertaining to the case shall be transferred forthwith to the court in the other county. If the court is not satisfied that the representations so made justify transfer of the case, the court shall either enter an order denying the transfer or order a formal hearing in court to resolve the matter and receive further evidence with respect to the alleged prejudice.

See Utah R.Crim.P. 29(e)(i), (ii).

Although the statute speaks in terms of the trial court's being "satisfied" that the representations made in the affidavit are true and justify transfer of the case, this Court has apparently never defined the term "satisfied." We note that this term has been employed in our change of venue statute since at least 1888. See 2 Comp. Laws of Utah § 4992 (1888). In the long line of cases which have come to this Court beginning with State v. Carrington, 15 Utah 480, 50 P. 526 (1897), we have held that it lies within the sound discretion of the trial court to determine if a change of venue should be granted on the ground that a fair and impartial trial cannot be had in the county in which the offense has been committed, and this Court will not disturb that decision unless an abuse of discretion is shown. We have in every case which has come to this Court found no abuse of discretion in the denial of a change of venue by the trial court. Only in State v. BeBee, 110 Utah 484, 491, 175 P.2d 478, 481 (1946), did we go so far as to say that "it certainly would not have been error for the court to have granted a change of venue and we are of the opinion that it would have been better if the trial court had granted the change under the circumstances...." The circumstances of that case which prompted that strong statement from this Court were

inflammatory newspaper comments; suggestive remarks of a church official quoted in the paper; the gathering of an armed mob; a comparatively small community, no doubt closely knit by church affiliations; a deceased well known to the community, popular, and having many friends and relatives throughout the county; and an obviously eccentric old man as an accused whose penchant for rhetorical showmanship repulses what little tolerance might otherwise have been accorded him.

BeBee, 110 Utah at 491, 175 P.2d at 481-82. In every other case decided by this Court on this subject, we have simply held that the denial of a change of venue was not an abuse of discretion and that the showing made by the defendant in support of his motion was inadequate. But we have never defined or attempted to indicate other than our expression in State v. BeBee, quoted above, what would be an adequate showing. Even in that case, however, we did not hold that the denial was an abuse of discretion, although we did state that "it would have been better" if the change of venue had been granted.

Although the term "satisfied" is often used in the law to mean something akin to a conviction or belief beyond a reasonable doubt, in the context of change of venue, the term should not be given that meaning. In State v. BeBee, in dictum we indicated that "where there is a probability" that pretrial publicity and prejudice will be given undue consideration or that bias will creep in because of these factors, it would be well for the trial judge to remove the trial to a place far enough away where such influence would be a negligible factor if present at all. Later, in State v. Wood, 648 P.2d 71, 88-89 (Utah 1982), we stated that the affidavit of defense counsel and a newspaper article regarding the victim's father fell far short of demonstrating that there was such a tainted community attitude that a fair and impartial trial was "not likely." In an attempt to more definitely define the standard to be followed by the trial judge in considering a motion for a change of venue, we conclude that the judge should grant the motion whenever he or she finds a reasonable likelihood that a fair trial cannot be had unless the motion is granted. This is the rule fashioned by the Supreme Court of California in Maine v. Superior Court, 68 Cal.2d 375, 438 P.2d 372, 66 Cal.Rptr. 724 (1968), taking its cue from language used in Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In a later case, Frazier v. Superior Court of Santa Cruz County, 5 Cal.3d 287, 486 P.2d 694, 95 Cal.Rptr. 798 (1971), the California court explained that a reasonable likelihood of prejudice does not mean that the prejudice must be more probable than not. In summary, although section 77-35-29(e)(ii) employs language to the effect that the trial court should be "satisfied" that a fair and impartial trial cannot be had in the jurisdiction where the action is pending, the burden on the defendant should be understood to be that he must raise a "reasonable likelihood" that such a trial cannot be afforded him.

We now examine the record in an attempt to isolate the factors which have been considered criteria of the potential for prejudice from pretrial publicity. Factors to be considered include (1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity. Martinez v. Superior Court of Placer County, 29 Cal.3d 574, 629 P.2d 502, 174 Cal.Rptr. 701 (1981). We will discuss the impact of these factors in the instant case, bearing in mind that we take the totality of the circumstances into account. State v. Pierre, 572 P.2d 1338, 1350 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).

Standing of Accused and Victim in Community

Defendant and the victim's mother had lived together in Logan for only two weeks prior to the infant's disappearance. They were not married. Defendant has relatively long hair and at an earlier time wore a stud in one ear. At his preliminary hearing, there was testimony that...