State v. McDougald

• Decision Date: 17 October 1978
• Docket Number: No. 7812SC378,7812SC378
• Parties: STATE of North Carolina v. Terry Wayne McDOUGALD.
• Court: North Carolina Court of Appeals

Page 72

248 S.E.2d 72

38 N.C.App. 244

STATE of North Carolina v. Terry Wayne McDOUGALD.

No. 7812SC378.

Court of Appeals of North Carolina.

Oct. 17, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Mary Ann Tally, Public Defender, Twelfth Judicial Dist., Fayetteville, for defendant-appellant.

MITCHELL, Judge.

The defendant first assigns as error the failure of the trial court to take judicial notice of radio and television broadcasts concerning this case. This assignment is without merit.

Courts may take judicial notice of facts generally known from radio, television and press coverage. Courts may also take notice of the fact that news media broadcasts have occurred. State v. Williams, 263 N.C. 800, 140 S.E.2d 529 (1965). However, the decision as to whether judicial notice of facts should be taken is left to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion.

The failure of the trial court to take judicial notice of news broadcasts in the present case did not deny the defendant the opportunity to prove the occurrence of such broadcasts or their contents. Such facts could have been easily proven by witnesses ordinarily available. There was no showing of abuse of discretion by the trial court. Therefore, the trial court did not err in failing to take judicial notice that the case was the subject of radio and television broadcasts.

The defendant next assigns as error the trial court's denial of his motion for a change of venue on the ground that prejudicial pretrial publicity would prevent his receiving a fair trial in Cumberland County. In support of this assignment, the defendant contends that the denial of the motion by the trial court was an abuse of discretion.

The burden of proof in a hearing on a motion for change of venue is upon the defendant. State v. Brown, 13 N.C.App. 261, 185 S.E.2d 471 (1971), Cert. denied, 280 N.C. 723, 186 S.E.2d 925 (1972). In order to prevail, the defendant must show that there is a reasonable likelihood that the prejudicial publicity complained of will prevent a fair trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). The determination of whether the defendant has met this burden rests within the sound discretion of the trial court. Absent a showing of abuse of discretion, its ruling will not be overturned on appeal. State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976); State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

We recognize that, in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the Supreme Court of the United States engaged in what amounted to a presumption that jurors who actually sat on a jury and participated in the rendering of a verdict could not have rendered a fair and impartial verdict. That case, however, involved a factual situation in which the defendant's televised confession was participated in by law enforcement authorities and was shown repeatedly to the local viewing audience. The Supreme Court of the United States held that, as three members of the jury which rendered the verdict against the defendant resulting in his being sentenced to death had been exposed repeatedly and in depth to his personal and detailed confession, the failure of the trial court to grant his motion for change of venue, even though the defendant made no further showing, constituted a denial of due process of law.

We feel that Rideau is an aberration which should be confined to its facts and not brought into play here. Instead, we apply what we believe to be the correct rule and hold that the defendant in the present case was required to go forward with evidence tending to affirmatively show that prospective jurors in his case were reasonably likely to base their verdict upon conclusions induced by outside influences rather than upon conclusions induced solely by evidence and arguments presented in open court. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). In addition to being constitutionally correct, we feel that the application of this standard will have the salutary effect of avoiding the potential for needless friction between the rights of a free press guaranteed by the First Amendment to the Constitution of the United States and the defendant's right to trial by an impartial jury guaranteed by the Sixth Amendment.

Having set forth the general standard by which we are guided, it is necessary to turn to a consideration of the facts presented by this case. The defendant's evidence in support of his motion for change of venue consisted of seventeen newspaper articles from the "Fayetteville Observer" and the "Fayetteville Times." Additionally, the defendant introduced the testimony of Dr. Paul Brandes who qualified as an expert in the field of content analysis and communicology. Dr. Brandes testified that, in his opinion, the articles introduced would be in certain respects biased against both the defendant and the State. He further testified, however, that there were more statements in the articles which would result in bias against the defendant than those which would result in bias in his favor. Dr. Brandes also testified that he conducted a poll of students at the University of North Carolina and found that the articles would arouse more bias and prejudice in students from Cumberland County than in students from Hoke or Bladen Counties. Dr. Brandes also concluded from the poll that students from Cumberland County had heard more rumors about the case than the other students.

On the basis of this evidence, the trial court entered findings of fact and conclusions of law. The trial court determined that the defendant's evidence did not constitute a showing that reasonable likelihood existed that prejudicial newspaper publicity prior to trial would prevent a fair trial in Cumberland County. Therefore, the trial court denied the defendant's motion for a change of venue.

We fail to see how the testimony of Dr. Brandes could have been of significant assistance to the court. It would seem apparent that publicity indicating the defendant had been charged with murder would tend, with regard to him, to be more unfavorable than favorable. Nor can we say that the quite predictable fact, that students from the county in which the crime charged was alleged to have occurred had heard more rumors about the case than students from elsewhere, may be taken as determinative of the issue raised. We cannot say that the testimony of Dr. Brandes tended to show that potential jurors would base their conclusions in this case on prior news coverage or would otherwise be unable to give the defendant a fair trial. We may not conclude solely upon a review of the pretrial publicity that prejudice resulted. United States v. Haldeman, 181 U.S.App.D.C. 254, 284, 559 F.2d 31, 61 n. 32 (1976), Cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250, Reh'g denied, 433 U.S. 916, 97 S.Ct. 2992, 53 L.Ed.2d 1103 (1977).

Upon questioning of prospective jurors, several indicated they had been exposed to publicity surrounding this case. Most of the prospective jurors stated specifically that the publicity would have no effect upon them and that they would base their verdict upon the evidence and give the defendant a fair trial. At least one, however, indicated he had formed a preliminary opinion concerning the case. Upon further questioning, he specifically stated that he could put all such opinions or predispositions from his mind and give the defendant a fair trial upon the evidence presented in open court. We cannot say on these facts that the trial court erred in denying the motion for change of venue. As the Supreme Court of the United States has specifically stated:

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. . . .

Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961).

Inevitably cases of great public interest will receive thorough coverage by the press and electronic news media, and potential jurors will often be aware of such cases due to this news coverage. A defendant has not borne his burden of showing that he will be denied an impartial jury solely by introducing evidence that his case has received widespread news coverage or that some prospective jurors have been exposed to such coverage and formed or expressed opinions based upon their exposure. The defendant must additionally show that it is reasonably likely that prospective jurors would base their conclusions in his case upon pretrial information rather than evidence introduced at trial and would be unable to put from their minds any previous impressions they may have formed. Where, as here, the defendant fails to show that potential jurors would base their conclusions and verdict upon pretrial publicity and preconceived impressions, he has failed to show a reasonable likelihood that pretrial publicity will prevent a fair trial even though the case has received widespread publicity and some prospective jurors have formed or expressed opinions about the case. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Haldeman, 559 F.2d 31 (D.C.Cir. 1976), Cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250, Reh'g denied, 433 U.S. 916, 97 S.Ct. 2992, 53 L.Ed.2d 1103 (1977). See Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (En banc ), Cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d...