State v. Kahey

• Decision Date: 27 June 1983
• Docket Number: No. 82-KA-1034,82-KA-1034
• Citation: 436 So.2d 475
• Parties: STATE of Louisiana v. Vivian Lee X KAHEY and Sheral Diana Watson X Kahey.
• Court: Louisiana Supreme Court

Page 475

436 So.2d 475

STATE of Louisiana v. Vivian Lee X KAHEY and Sheral Diana Watson X Kahey.

No. 82-KA-1034.

Supreme Court of Louisiana.

June 27, 1983.

Rehearing Denied Sept. 1, 1983.

William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

Richard V. Burns, Alexandria, for defendant-appellant.

DENNIS, Justice.

The defendants, Vivian and Sheral Kahey, husband and wife, lived together with two other adult women and thirteen minor children in Sabine Parish. The defendants are members of the Islamic religion.

On October 31, 1980, one of the children, twelve year old Arthur Armstead, was found unconscious on the floor. His mother and defendant, Vivian Kahey, tried unsuccessfully to revive him. Arthur was pronounced dead on arrival at a hospital.

The autopsy revealed that Arthur had suffered torture and extreme hunger. His scarred body weighed less than forty-five pounds. His hands and feet bore marks indicating that he had been bound. The child had experienced a severe loss of muscle tone, dehydration, stress ulcers, severe shock, low blood pressure, faulty clotting mechanisms in his blood, and damaged capillaries. These conditions led ultimately to his heart failure and death.

Other witnesses testified that the defendants, and at times the child's mother, subjected Arthur to physical abuse as a result of their religious beliefs. As punishment for his moral shortcomings, Arthur was regularly deprived of food, severely whipped with an extension cord, and bound at his hands and feet.

The defendants were indicted for the second degree murder of Arthur Armstead. They were tried before a judge and convicted as charged. Each was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On appeal the defendants raise numerous assignments of error. Because we find no reversible error in these assignments, we affirm the defendants' convictions and sentences.

ASSIGNMENT NUMBER ONE

In this assignment of error, the defendants complain of the trial judge's denial of their motion for a change of venue. The motion was based on articles published in the Shreveport Times and the Sabine Index newspapers which identified the defendants as "Black Muslim" murder suspects. At the hearing on the motion, the newspaper articles were introduced into evidence. One defendant, Vivian Kahey, who is a black man, testified that he believed white people were "devils," but that he was not a Black Muslim. The trial judge denied the motion for change of venue, finding that the defendants had not proved that the newspaper articles had any impact upon the general population. Further, the judge concluded that the news information or articles themselves were not sufficient to create a presumption of inflammation of the public against the defendants. The defendants noted for the record their rights under Louisiana Code of Criminal Procedure article 621 to reurge the motion prior to the swearing of the first witness. Subsequently however, thirteen days before trial, the defendants waived their rights to a trial by jury.

The first question is whether the waiver of the trial by jury effects a waiver of a defendant's right to a change of venue. We conclude that it does not.

Our change of venue rule is not restricted to jury trials. Compare La.C.Cr.P. 622 with Fla.Rules of Crim.Proc., Rule 3.240(a) ("The defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason other than the interest and prejudice of the trial judge"). Moreover, the grounds for change of venue are broader than those of many jurisdictions and include a consideration of "whether the prejudice, the influence, or the other reasons are such that they will affect the ... testimony of witnesses at the trial." La.C.Cr.P. art. 622. That a case will be tried before a judge instead of a jury does not render the venue question moot under our law. ¹

The approach of Article 622 is consistent with the view of a majority of jurisdictions and a leading law reform agency. The A.B.A. Standards Relating to Fair Trial and Free Press § 3.2(e), at 119-20 (App. Draft 1968), provide that "the claim that the venue should have been changed or a continuance granted shall not be considered to have been waived by the waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges." The rationale supporting the standard is contained in its accompanying comments:

(T)he subsection provides that the right to a continuance or transfer shall not be deemed to have been waived by waiver of a jury or by failure to exhaust all peremptory challenges. The suggestion of some courts that such conduct amounts to a waiver seems to require the defendant to take unnecessary risks. If the defendant has satisfied the criterion for the granting of relief, it should not matter that he has subsequently waived a jury, perhaps out of fear that even a jury meeting accepted standards will not be truly free from bias, or has failed to use his peremptory challenges, perhaps because he prefers the ills he has to others he has not yet seen.

Two of the three reported cases that have been decided since the adoption of the A.B.A. standard appear to have adopted its position. See State v. Johnson, 318 N.W.2d 417 (Iowa 1982); ² Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). Contra, Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971), holding that the waiver of the jury rendered a venue question moot.

The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595 (1975); Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642, 61 L.Ed.2d 751 (1961); State v. Morris, 429 So.2d 111 (La.1983); State v. Goodson, 412 So.2d 1077 (La.1982).

At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights. Murphy v. Florida, supra. If the defendant can demonstrate the actual existence of a fixed opinion as to the defendant's guilt, the individual juror may be excluded by a challenge for cause. If the defendant can demonstrate that actual prejudice, influence, or other reasons exist which will affect the answers of the jurors on the voir dire examination or the testimony of the witnesses at trial, the court must take this into consideration in deciding whether to grant a change of venue. La.C.Cr.P. art. 622; State v. Morris; supra; State v. Goodson, supra; State v. Rodrigue, 409 So.2d 556 (La.1982).

Moreover, although extensive knowledge in the community of either the crimes or the putative criminal and his prior crimes is not in itself sufficient to render a trial constitutionally unfair, unfairness of a constitutional magnitude may be presumed so as to require a change of venue if the "trial atmosphere" has been "utterly corrupted by press coverage." Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, supra; State v. Morris, supra; State v. Goodson, supra.

The record in this case does not justify a presumption that the defendant could not obtain a fair trial because of a trial atmosphere utterly corrupted by press coverage. The only publicity brought to the court's attention was a series of newspaper articles in the Shreveport Times and the Sabine Index. The articles appeared during a period of about five weeks following the death of the victim. The most strenuous complaint by the defendant relates to an article in the Sabine Index, which appeared on the front page of the November 6, 1980 edition alongside two other stories concerning the alleged murder. The headline read "Black Muslim Charged in Death." The articles explained the tenets of the Black Muslim faith, including the belief that "Christianity was a white man's religion, and the white man was a devil." The defendants complain that this article was especially prejudicial since they are not Black Muslims. The last of these articles appeared fourteen months prior to the beginning of the trial. While the defendant demonstrated that the circulation of the Sabine Index was 4,300 copies, under the circumstances of this case we cannot presume that the trial atmosphere was "utterly corrupted by press coverage."

In State v. Goodson, supra, we found that the introduction of thirty-five newspaper articles and one hundred and eight triple-spaced pages of transcripts of newscasts by local television stations publicizing the famed "Highland rapist" did not warrant a presumption of prejudice, since it did not appear that a Bossier Parish jury would be affected by the Shreveport news media's reports of crimes that occurred in Caddo Parish. In State v. Morris, supra, newspaper and radio publicity, as late as the morning of the trial, which simply announced that the defendant was being tried for the second time, did not justify a presumption of prejudice. The record of the voir dire demonstrated that the defendant was able to select an impartial jury. In State v. Wilkerson, 403 So.2d 652 (La.1981) the introduction in a case involving kidnapping of policemen of newspaper accounts linking the defendants to the "Dixie Mafia," and characterizing both codefendants as fugitives from other states did not justify a presumption...