State v. Johnson

• Citation: 479 A.2d 1284
• Parties: STATE of Maine, v. Jeffrey JOHNSON.
• Decision Date: 13 August 1984
• Court: Supreme Judicial Court of Maine (US)

Page 1284

479 A.2d 1284

STATE of Maine, v. Jeffrey JOHNSON.

Supreme Judicial Court of Maine.

Argued June 18, 1984.

Decided Aug. 13, 1984.

Paul Aranson, Dist. Atty., Laurence Gardner, Asst. Dist. Atty. (orally), Portland, for plaintiff.

Richardson, Tyler & Troubh, John S. Whitman (orally), Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

McKUSICK, Chief Justice.

After a jury trial in Superior Court (Cumberland County) defendant Jeffrey Johnson was convicted of one count of manslaughter, Class C, 17-A M.R.S.A. § 203 (1983) (current version at 17-A M.R.S.A. § 203 (Supp.1983-1984)), ¹ and two counts of aggravated assault, Class B, 17-A M.R.S.A. § 208 (1983). He now appeals, contending that the presiding justice erred 1) in denying his motion for a change of venue and 2) in admitting hearsay testimony. Finding no merit in these contentions, we deny the appeal.

On December 8, 1982, defendant was indicted by a Cumberland County grand jury for one count of manslaughter and two counts of aggravated assault. Those charges stemmed from an automobile accident that occurred on November 19, 1982, on Blackstrap Road in Falmouth. The accident involved a collision between two cars, one occupied by defendant and his brother, Joseph Johnson, and the other occupied by Dr. Robert Sbrilli, his wife, Beverly, and their daughter, Laurie. As a result of the accident Dr. and Mrs. Sbrilli were seriously injured and Laurie was killed. There was evidence that the Johnson brothers had consumed a substantial quantity of alcohol before the accident and that their car was being operated in a reckless manner.

I. Juror Prejudice

Three weeks prior to trial defendant filed a motion pursuant to M.R.Crim.P. 21(a) seeking a change of venue from Cumberland County on the ground of prejudicial pretrial publicity. The presiding justice deferred consideration of the motion pending voir dire and selection of the jury. On the first morning of trial, after voir dire and jury selection had been completed, the presiding justice denied defendant's motion. On appeal defendant argues that the record demonstrates that the jury panel was so affected by pretrial publicity that it was impossible for him to receive a fair trial without a change of venue.

We will reverse the trial court's denial of a motion for a change of venue based on juror prejudice in three circumstances: 1) when the publicity in the case so taints the atmosphere surrounding the trial that it must be presumed under principles of constitutional due process that the jury was prejudiced; 2) when the defendant demonstrates actual prejudice on the part of the venirepersons sufficient to require reversal as a matter of due process; or 3) when denial of the motion amounted to an abuse of discretion under state law. See State v. Ledger, 444 A.2d 404, 408-09 (Me.1982); State v. Grant, 418 A.2d 154, 157-58 (Me.1980); State v. Clark, 386 A.2d 317, 319-21 (Me.1978); State v. Littlefield, 374 A.2d 590, 593-96 (Me.1977).

A. Presumptive Prejudice

It is well established that

[a] due process violation can occur when the publicity surrounding the case is of such an extensive and invidious nature as to constitute prejudice per se, in which case actual prejudice need not be shown.

State v. Ledger, 444 A.2d at 408 (quoting State v. Grant, 418 A.2d at 158); see State v. Tracy, 415 A.2d 824, 827 (Me.1980); State v. Clark, 386 A.2d at 319-20; State v. Littlefield, 374 A.2d at 593-94; State v. Ifill, 349 A.2d 176, 179-80 (Me.1975). Thus, in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), where, prior to the selection of the jury the public was exposed to repeated telecasts of the defendant's detailed confession to the police, the United States Supreme Court, "without pausing to examine a particularized transcript of the voir dire examination," held that due process mandated a change of venue. Id. at 727, 83 S.Ct. at 1419 see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (pretrial disclosure of inadmissible evidence and names of prospective jurors as well as disruptive press participation during trial and lack of juror sequestration).

Any argument that defendant may have that the publicity in this case was so prejudicial as to render a fair trial within Cumberland County an impossibility is defeated by defendant's failure to make a record of any pretrial publicity. See State v. Grant, 318 A.2d at 157-58; cf. State v. Clark, 386 A.2d at 319; State v. Littlefield, 374 A.2d at 593; State v. Ifill, 349 A.2d at 179; State v. Beckus, 229 A.2d 316, 317 (Me.1967); State v. Coty, 229 A.2d 205, 208 (Me.1967) (record of pretrial publicity made in Superior Court). The only indication of pretrial publicity in the record, other than the responses of venirepersons that will be discussed below, consists of a nontestimonial statement made by defense counsel on the first day of trial that he had seen an inflammatory television news broadcast about the case the evening before. According to defense counsel, the broadcast cited "unnamed court sources" as saying that Joseph Johnson had agreed to take a blood-alcohol test following the accident but Jeffrey had refused one, and also stating that Jeffrey was contending that Joseph had been the driver of the car. The presiding justice acknowledged that he too had seen a news broadcast in which statements and information were attributed to a court source. The justice did not, however, confirm defense counsel's account of the contents of the broadcast.

Even if defense counsel's statement could be considered sufficient to place the contents of the news broadcast in the record, the existence of the broadcast, standing alone, fails to demonstrate that pretrial publicity in the case was sufficiently extensive or invidious to render any jury drawn in Cumberland County presumptively prejudiced. See State v. Ledger, 444 A.2d at 408. According to defense counsel's account of the broadcast, it did contain potentially inadmissible evidence that was prejudicial to defendant. However, the inflammatory potential of the broadcast was far less than that posed by the publicity present in cases such as State v. Coty, State v. Clark, and State v. Littlefield, where this court upheld denials of motions for change of venue. More importantly, the broadcast was not aired until after the jury had been selected and had been instructed by the court not to watch television news. None of the jurors selected to sit on the case saw the broadcast.

B. Actual Prejudice

Where the circumstances endangering community impartiality do not reach the level where it must be presumed that any jury drawn from the locale is prejudiced, the defendant must show actual prejudice among the venirepersons. See Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); State v. Clark, 386 A.2d at 321; State v. Littlefield, 374 A.2d at 594; State v. Stoddard, 289 A.2d 33, 35 (Me.1972). Of the 52 prospective jurors in the original panel, 33 had some knowledge of the case and 15 had formed some opinion about the case. Although these figures indicate considerable public awareness, they are not out of line with those present in cases such as State v. Littlefield, 374 A.2d at 595 (47 of 55 prospective jurors with knowledge of the charges), and State v. Clark, 386 A.2d at 321 (26 of 116 prospective jurors with opinion about case), in which we have rejected assertions of actual prejudice. In any event, "some knowledge--even a preconception (which the juror avers can be put aside)--is not inconsistent with constitutional due process of law requirements." State v. Littlefield, 374 A.2d at 595 (citing Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962)); see State v. Ledger, 444 A.2d at 409. Significantly, only 2 of the 52 potential jurors felt they would be unable to render a fair verdict. We are unable to conclude from these figures that the

examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors and would be compelled to find bias or preformed opinion as a matter of law.

Beck v. Washington, 369 U.S. at 557, 82 S.Ct. at 964.

Turning to the jurors actually selected to sit on the case, none of those 14 jurors had an opinion about the case, and only 3 of the 14 had any knowledge of the case. Of those 3 jurors who had knowledge of the case, one was never challenged for cause, and challenges for cause made against the other 2 were withdrawn by defense counsel. Cf. id. at 557-58, 82 S.Ct. at 964; State v. Clark, 386 A.2d at 321. Defendant used three of his peremptory challenges against jurors with no prior knowledge of the case.

Defendant makes much of the fact that all but 7 of the original panel and all but 2 of the 14 jurors selected had heard of the organization known as Mothers Against Drunk Driving (MADD). Defendant contends that these statistics are significant because of an alleged connection between the case, the Sbrillis, and MADD. However, defendant is able to point out only one venireperson, who incidentally was not selected, who was aware of any connection between MADD and the case. We cannot conclude that a showing of mere awareness on the part of the jury of a well-known organization such as MADD is sufficient to demonstrate actual prejudice requiring reversal as a matter of constitutional due process.

C. Abuse of Discretion

Denial of a motion for change of venue may also be reversed on the ground that such denial exceeded the scope of permissible discretion exercisable under state law. State v. Grant, 418 A.2d at 158; State v. Clark, 386 A.2d at 321; State v. Littlefield, 374 A.2d at 595; State v. Coty, 229 A.2d at 210-13. The Superior Court's denial of defendant's motion...