State v. May

• Decision Date: 01 March 1980
• Docket Number: No. 51055,51055
• Citation: 607 P.2d 72,227 Kan. 393
• Parties: STATE of Kansas, Appellee, v. Darwin Wayne MAY, Appellant.
• Court: Kansas Supreme Court

Page 72

607 P.2d 72

227 Kan. 393

STATE of Kansas, Appellee, v. Darwin Wayne MAY, Appellant.

No. 51055.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon the defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial.

2. The publication of newspaper articles in the local papers does not establish prejudice per se.

3. In the absence of any evidence, affidavits or otherwise, of community prejudice that would substantially effect a defendant's rights to a fair trial, a trial court's ruling denying funds to an indigent defendant to conduct an opinion poll in the community will not be disturbed on appeal.

4. Where sentence is rendered by a judge without jury participation, a prosecutor may make a recommendation as to the sentence where his opinion is requested by the trial court.

5. In a criminal case, the record is examined and it is held the trial court did not err in: 1) denying the motion for change of venue, and 2) denying the motion for funds to conduct an opinion poll. The prosecutor's remarks do not warrant a resentencing of defendant.

James W. Morrison, Manhattan, argued the cause and was on the brief for appellant.

Dennis C. Sauter, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

HERD, Justice:

Darwin Wayne May was convicted by a jury of the kidnapping (K.S.A. 21-3420) of a small child. He appeals and we affirm.

On October 4, 1978, at approximately 11:30 a. m., Gary Hadley Thomason, age five, was kidnapped near his home on Beechwood Terrace, Manhattan. May was one of the three men who planned the crime which was to culminate in the receipt of a $30,000 ransom. He was to act as the pickup man for the money and receive $5,000 as his share. The pickup place was the men's room of the Walk-In Lounge, a tavern in Junction City. The day before the kidnapping the defendant made arrangements for one of the kidnappers to use the car of a friend the following day. The other two went to Manhattan on October 4 and seized the child at 11:30 a. m. They then drove to Wakefield where one of them made the ransom call to Gary's parents. The Thomasons were instructed to place the money in a brown paper bag and drop it at the pickup point no later than 8:00 p. m. that day. The other kidnapper called May and told him they had the child and the money would be dropped as planned. The little boy's father obtained the ransom money and made the drop himself. The Riley County Police, the K.B.I. and the F.B.I. initiated a surveillance plan for the drop area, stationing officers inside the tavern shortly before 8:00 p. m. Defendant May was later identified as having been in the lounge when Gary's father made the drop. May abandoned his attempt to pick up the ransom when he realized the place was surrounded by police. The child was released in the Junction City area at 10:00 p. m. that evening and the ransom money was recovered and returned to Mr. Thomason.

The investigation of the kidnapping terminated in the arrest of all three defendants on October 11, 1978. One of the defendants was identified the day before as having been at the restaurant in Wakefield when the ransom call was made. As a result, the other two kidnappers were questioned on the 11th and both admitted their participation as well as implicated the defendant May.

The trial was held in February, 1979. May was convicted by the jury of kidnapping and was sentenced on April 9, 1979, to a minimum term of 9 years to a maximum of life, an identical sentence to that of the other two kidnappers.

May first contends the trial court erred in denying him a change of venue. Prior to trial he filed a motion for change of venue pursuant to K.S.A. 22-2616. He supported the motion with evidence of newspaper accounts of the kidnapping published in the Manhattan Mercury and the Kansas State Collegian; transcripts of broadcasts on radio stations KMAN and KMKF; oral testimony of the news director of radio stations KMAN and KMKF; and transcripts of news broadcasts of TV station KTSB, Topeka. The trial court denied the motion as not showing sufficient prejudice to warrant a change of venue.

We set forth the law on change of venue in State v. Porter, 223 Kan. 114, 117, 574 P.2d 187, 189 (1977), where we stated:

"A change of venue in a criminal case lies within the sound discretion of the trial court. (Citations omitted.) The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. (Citations omitted.) Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury."

See State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978); State v. Gilder, 223 Kan. 220, 222-223, 574 P.2d 196 (1977).

In State v. McLaughlin, 207 Kan. 594, 598, 485 P.2d 1360, 1363 (1971), we stated:

"Furthermore, prejudice must be established 'not as a matter of speculation but as a demonstrable reality.' "

In Gilder, the defendant was charged with aggravated robbery, aggravated sodomy, and rape of an elderly woman who stopped at a highway rest area west of Parsons. The trial was held in "a rather sparsely populated community," as noted by the court. In upholding the trial court's denial of the motion for change of venue, this court stated 223 Kan. at page 223, 574 P.2d at page 201:

"In this case defendant presented only newspaper articles in support of his motion for change of venue. No evidence or affidavits were introduced to establish the effect publicity might have on prospective jurors. It does not appear that jury selection was inordinately difficult due to pretrial publicity, or that jurors were even aware of the publicity. The trial court properly denied a motion for change of venue under those circumstances."

Defendant cites the case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), in support of his argument. This is the celebrated case of Dr. Sam Sheppard, who was accused of murdering his wife, Marilyn. The case is easily distinguishable from the case at bar. The newspaper and television coverage was massive with headlines constantly stressing the doctor's lack of cooperation with police and other officials. Every detail of the trial was reported. Representatives of the newspapers and wire services, as well as television and radio reporters were present. Many had assigned seats in the courtroom. Private telephone lines and telegraphic equipment were installed in courthouse news media rooms so reports from the trial could be speeded to the news outlets. Station WSRS was permitted to set up broadcasting facilities on the third floor of the courthouse next door to the jury room, where the jury rested during recesses and later deliberated. Although a courthouse rule prohibited picture taking in the courtroom, it was never enforced. Daily records of the proceedings were made available to all media people with pictures of everyone involved in the case. In effect, Sheppard was brought to trial, tried and convicted by the media before an actual trial occurred.

It is clear the circumstances of the instant case are not comparable to those present in the Sheppard case. The defendant offered only copies of the newspaper articles and evidence that local radio and television stations broadcast the story to the public. We have examined the articles and the transcripts of television and radio broadcasts and find the stories were factual, in temperate language and did not draw conclusions of guilt. In State v. McCorgary, 218 Kan. 358, 367, 543 P.2d 952, 961 (1975), cert. denied 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976), this court said:

"The publication of newspaper articles in the local papers does not establish prejudice per se."

See also State v. Goering, 225 Kan. 755, 760, 594 P.2d 194 (1979). We hold the defendant May did not sustain the burden of proving prejudice entitling him to a change of venue. Defendant's contention is without merit.

May's next issue presumes our holding his evidence of prejudice inadequate and contends the trial court committed reversible error in denying his motion for funds to conduct a scientific public opinion poll to determine if community prejudice existed. He argues his position is supported by ABA Standards, Fair Trial and Free Press § 3.2(b) (1968), which states: "In addition . . . qualified public opinion surveys shall be admissible as well as other materials having probative value." Appellant argues it is inconsistent to impose the burden of proving community prejudice on him and then to deny him the resources to obtain the evidence to meet that burden, particularly where the costs would be minimal. In addition, he argues voir dire later confirmed that the publicity had an adverse effect on defendant's ability to select a fair and impartial jury. He states that prejudice would have been avoided by a...