State v. Jerrett, 228A82

• Decision Date: 27 September 1983
• Docket Number: No. 228A82,228A82
• Citation: 309 N.C. 239,307 S.E.2d 339
• Parties: STATE of North Carolina v. Bruce Franklin JERRETT.
• Court: North Carolina Supreme Court

Page 339

307 S.E.2d 339

309 N.C. 239

STATE of North Carolina v. Bruce Franklin JERRETT.

No. 228A82.

Supreme Court of North Carolina.

Sept. 27, 1983.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Martha E. Johnston, and Donnell Van Noppen, III, Greensboro, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the denial of his pretrial motion for change of venue by Judge Davis and the denial of his motion for change of venue by the trial judge. We find merit in these assignments of error and hold that the denial of these motions requires a new trial.

A motion for a change of venue, or for a venire from another county, is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed absent a showing of abuse of discretion. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. See, 301 N.C. 388, 271 S.E.2d 282 (1980). G.S. 15A-957 provides, in pertinent part:

Motion for change of venue.--If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:

(1) Transfer the proceeding to another county in the judicial district or to another county in an adjoining judicial district, or

(2) Order a special venire under the terms of G.S. 15A-958.

This Court has consistently held that the burden of proving that a fair and impartial trial cannot be received due to pretrial publicity falls on the defendant. State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162 (1982); State v. Oliver, supra. In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the United States Supreme Court held that due process mandates that criminal defendants receive a trial by an impartial jury free from outside influences. The Court also held that where there is a reasonable likelihood that prejudicial pretrial publicity will prevent a fair trial, the trial court should remove the case to another county not so permeated with publicity. In State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976), we adopted this test and held that it applied not only to cases involving pretrial publicity by the media, but also to cases "where the prejudice alleged is attributable to word-of-mouth publicity." Id. at 269-70, 229 S.E.2d at 918.

In support of his motion in instant case, defendant introduced eight newspaper articles which he contends were highly prejudicial and inflammatory. He also presented evidence from Mr. Nelson Harrill, sales manager of WCOK radio station, of radio broadcasts about the murder. These broadcasts were aired numerous times during the weekend following the murder. The contents of these broadcasts were not included in the record. We have reviewed the articles in question and conclude that they were factual, informative, and noninflammatory in nature. Accordingly, these articles do not provide a basis for our holding that the trial court abused its discretion in denying defendant's motion. See State v. Oliver, supra.

Had these articles been the extent of defendant's evidence in support of his motion, resolution of this assignment of error would be short and simple. There was, however, additional evidence pertinent to decision of this assignment of error tending to show that Judge Davis erred in denying defendant's pretrial motion.

After Mr. Harrill testified concerning the broadcasts, he was questioned by the court. In response to these questions, Mr. Harrill indicated that his employment took him to various points throughout Alleghany County. ¹ In his opinion, most county residents had heard about and discussed the case. He did not believe defendant could get a fair trial in the county.

Deputy Sheriff Joe Vickerman also testified. He stated:

In my duties I get a lot of unsolicited information talking to people. They request my views on things, and I have never given my view on the case in question but they give me theirs and I don't attempt to stop them. I've heard it discussed by nearly everyone out in the country who knows I'm a law enforcement officer.

Vickerman stated that he did not believe a jury without prior knowledge of the case could be found. He also stated that he believed "quite a few people" had made up their minds on the ultimate issue in the case.

Woodros Estep, a magistrate, testified that in his capacity as a judicial officer, as well as in other jobs, he had occasions to talk with people throughout the county; that he had heard a lot of discussion about this case from all over the county; and that he did not believe a jury could be found that would be impartial. On cross-examination and recross-examination, he stated that he believed that the jury would follow the law and do their duty as jurors. On redirect-examination, he stated that he did not think a jury could be obtained in Alleghany County which would be totally independent and not know anything about the case.

Mr. Edmund Adams, an attorney who was subsequently appointed to serve as co-counsel for defendant but who had no connection with the case at the time of the hearing, testified that he had often heard this case discussed and that people in the community were intensely interested in the case. In his opinion, it was not possible for defendant to get a fair trial in Alleghany County. He also stated that he believed it would be very difficult to get an impartial jury and that the people in the community were made about the murder of Mr. Parsons. He recalled at least three occasions when people came into his office and said, "I sure do hope they fry this man" (referring to defendant). Adams had also talked to people who purported to know what the actual facts in the case were. Before he was excused, the trial court asked Mr. Adams:

Based on the information which you have heard, ... don't you think the people in this county have a right to be mad?

Adams answered affirmatively.

Mr. Arnold Young, also an Alleghany County attorney, testified that he had heard the case discussed and commented upon by people from all over the county. In his opinion, defendant could not obtain a fair and impartial jury or a fair trial in Alleghany County. The reason for his opinion was that:

Everyone in the county, or at least a great majority of the people, have heard of the case, and, as Mr. Adams said, they're mad about it.

The Court then engaged in the following dialogue with Mr. Young:

COURT: I'd like to ask you a question.

You said the people in this county are real made about somebody committing the crime which was committed, not at this particular individual. Is that correct?

WITNESS: Yes, Sir.

COURT: Don't you think that the people who live in Alleghany County have the unbridled right to try anybody that commits a crime in this county?

WITNESS: Yes, Sir, but I feel that the defendant does have a right to an impartial jury and I don't feel that an impartial jury can be found in Alleghany County in this particular case, Your Honor.

Defendant then indicated that he was prepared to call more witnesses. He stated however, that their testimony would be merely cumulative.

The trial judge questioned Mr. Murray, an attorney who was appearing with the State in behalf of the Parsons family. Mr. Murray stated that he believed it would be difficult to find a jury which "had not heard anything about the case and therefore have formed an opinion." Mr. Murray informed the court that he heard people throughout the county talking about this case. He referred to it as a cause celebre. He further stated:

The combination of events, the combination of the person who was killed, the combination of the regard in which the family is held, I think would make it extremely difficult, if not impossible, to get that many people to make a jury. I think if you got a jury you could be assured of a fair jury. I'm just not sure you could ever find enough people who had not heard something about it and therefore formed an opinion.

Thereafter, the court heard arguments from, and engaged in discussions with, attorneys representing the State and defendant. At one point His Honor stated:

I just don't like to move cases. I think people who live in a county ought to try everybody that commits a crime in that county.

Later on in the discussion, the court said that:

[T]he citizens of this county are entitled to consideration, too, and they shouldn't have to travel all the way to some other county to see a trial of one of their friends and neighbors being tried.

A review of the motion transcript compels us to conclude that in ruling on the motion, the trial court placed undue and prejudicial emphasis on the right of county residents to try a defendant in the county where a crime was committed, even referring to this right as "unbridled." We agree that county residents have a significant interest in seeing criminals who commit local crimes being brought to justice. For this reason, only in rare cases should a trial be held in a county different from the one in which a crime was allegedly committed.

The legitimate concern of county residents in trying criminal defendants locally is not, however, the test for determining whether venue should be changed. The test, as stated above, is whether, due to pretrial publicity, there is a reasonable likelihood that the defendant will not receive a fair trial. Sheppard v. Maxwell, supra; State v. Boykin, supra. Stated otherwise, a defendant's motion for a change of venue should be granted when he establishes that it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed. See State v....