State v. Nebinger

• Decision Date: 24 June 1987
• Docket Number: No. 85-1018,85-1018
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Rick Dewayne NEBINGER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 180

412 N.W.2d 180

STATE of Iowa, Plaintiff-Appellee, v. Rick Dewayne NEBINGER, Defendant-Appellant.

No. 85-1018.

Court of Appeals of Iowa.

June 24, 1987.

Kent A. Simmons of Liebbe & Simmons, Davenport, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., and James Hoffman, Asst. Scott County Atty., for plaintiff-appellee.

Heard by DONIELSON, P.J., and SNELL and SACKETT, JJ.

SNELL, Judge.

On March 15, 1985, the appellant, Rick Dewayne Nebinger, was charged by joint trial information with murder in the first degree, see Iowa Code §§ 707.1, 707.2 (1985), and robbery in the first degree. See Iowa Code §§ 711.1, 711.2 (1985). These charges were made in connection with the killing of seventy-nine-year-old Floyd Brown, whose body was found in a bedroom of his Davenport home. Brown had been bound and repeatedly stabbed. There was evidence that Brown's home had been robbed. Nebinger's codefendant, Christine Marie Lockheart, was charged along with Nebinger for the same crimes. The district court severed the defendants' trials. Following separate and simultaneous trials, both defendants were found guilty as charged. Nebinger was sentenced to concurrent terms of life imprisonment and twenty-five years. Although both defendants have appealed, Lockheart's separate appeal is not a concern of this opinion.

I.

Nebinger contends the district court abused its discretion by refusing to grant his request for a change of venue. Nebinger argues the district court's abuse of discretion resulted in a denial of his right, grounded in the federal and state constitutions and in state statute, to a fair and impartial trial. Iowa Rule of Criminal Procedure 10(10)(b) provides in pertinent part as follows:

If the court is satisfied from a motion for a change of venue and the evidence introduced in support of the motion that such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county, the court either shall order that the action be transferred to another county in which the offensive condition does not exist ..., or shall order that the trial jury be impaneled in and transferred from a county in which the offensive condition does not exist,....

Our review is a de novo determination of whether the trial court abused its discretion by ruling, in substance, that Nebinger failed to demonstrate a "substantial likelihood" he would not receive a fair and impartial trial in Scott County. See State v. Chadwick, 328 N.W.2d 913, 915 (Iowa 1983). Because Nebinger seeks reversal of his conviction on the basis of the district court's denial of his change of venue motion, he must show either actual prejudice on the part of the jury or that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed. State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986); State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). Nebinger attempts to characterize his case as one in which prejudice must be presumed. In such cases the appropriate venue determination may be based on such evidence as qualified public opinion surveys, individual opinion testimony, or the court's evaluation of the nature, frequency, and timing of the material involved. Pollard v. District Court of Woodbury County, 200 N.W.2d 519, 520 (Iowa 1972).

Nebinger's motion was based upon the content of a radio talk show which aired between 8:30 a.m. and 10:00 a.m. on February 18, 1985, the morning after Nebinger was arrested. The topic of discussion for the call-in show was capital punishment. The moderator used an explicit factual description of the present crime as a premise in support of his conclusion that Iowa should reinstate the death penalty. Neither the defendant's nor the victim's name was used. Nebinger's criminal incarceration and treatment history, however, were discussed. As the State concedes in brief, and we find, a number of the comments made by the program moderator and callers were, in fact, inflammatory. For example, at one point during the program the moderator suggested that a fitting sentence in the present case would be to tie up the defendant in the courtroom and cut his throat, a demise similar to that suffered by the victim. The moderator also advocated the fairness of a return to a system where persons were dropped "thirteen feet through a trap-door by your neck." In addition, at several points during the program the judicial system was lambasted for its insensitivity to the rights of victims.

The inflammatory nature of pretrial publicity is not, however, the sole focus of a court in ruling on a motion for change of venue. A court's determination of prejudice must also take account of the pervasiveness of such publicity. See Robinson, 389 N.W.2d at 403; Spargo, 364 N.W.2d at 207. The State, in its motion resisting Nebinger's request for venue change, offered the results of a telephone survey of a sample of potential jurors. The survey was prepared by an independent research firm and was designed to gauge the influence of pretrial publicity on potential jurors. The survey was taken from April 25 to April 30, 1985. The sample for the survey consisted of three hundred Scott County residents who were eligible for jury duty. According to the survey, 161 of the sample of 300 indicated that they were familiar with the murder, the victim, or the defendants. Of these 161 persons, 45 indicated that they generally listen to the radio talk show program at issue here. This represents 28% of those familiar with the murder, victim, or defendants and 15% of the total sample. Of the 161 persons familiar with the murder, victim, or defendants, 37 indicated they had either listened to the program at issue here or had heard or read about the program. This amounts to 23% of those familiar with some aspect of the case and 12% of the total sample. Of those 37 who either heard or were familiar with the particular program at issue here, only 8 indicated they would not be able to set aside their personal opinion and serve impartially as a juror. This number represents 5% of those familiar with some aspect of the case and 3% of the total sample. Of the 161 persons familiar with some aspect of the case, 27 indicated they had formed an opinion as to the guilt or innocence of the defendants. This figure represents 27% of those familiar with the case and 9% of the total sample.

Although jury voir dire was not recorded in the present case, the jury selection challenge sheet reveals that only three panel members were stricken for cause. "Cause" would include such prejudice as Nebinger complains of on this appeal. See Iowa R.Crim.P. 17(5)(k). Our courts have said that jury voir dire should be trusted to expose any substantial prejudice among potential jurors. State v. Ware, 338 N.W.2d 707, 713 (Iowa 1983). Our review of the community survey and pertinent voir dire papers persuades us that this case is substantially different from such cases as State v. Robinson, 389 N.W.2d 401 (Iowa 1986), in which our supreme court has found the type of error claimed here by Nebinger. In Robinson, the record evidence demonstrated that the relevant, sparsely-populated county had been "saturated" with publicity implicating the defendant; that nearly everyone on the jury panel was familiar with the case; and that ten of the first sixteen potential jurors questioned had already formed an opinion on the defendant's guilt or innocence. Id. at 403. Here, we think Nebinger has failed to show that prejudice was so pervasive as to deny him a fair trial. See State v. Wilson, 406 N.W.2d 442, 445-47 (Iowa 1987).

In addition to the survey and jury voir dire record which both suggest the absence of reversible prejudice, we note the passage of over three months between the February 18 airing of the program and Nebinger's May 29 trial date. Our courts have previously stated that similar time lapses were sufficient to dissipate any prejudicial effect that may have been created initially by adverse publicity. Spargo, 364 N.W.2d at 208 (two to three months); State v. Cornelius, 293 N.W.2d 267, 269 (Iowa 1980) (two months); State v. Pelelo, 247 N.W.2d 221, 223 (Iowa 1976) (three months). Also, our conclusion is not altered by the program's discussion of Nebinger's criminal record. It is well established that community knowledge of a defendant's prior criminal record does not create a presumption of prejudice. Spargo, 364 N.W.2d at 208.

We find Nebinger's first contention to be without merit.

II.

(A)

Nebinger maintains the district court abused its discretion in excluding from evidence certain testimony concerning Lockheart's alleged prior conduct and acts. He contends the district court's abuse of discretion resulted in a violation of his right to present a defense as secured by the federal and state constitutions. The district court ruled the evidence at issue inadmissible both by pretrial order and by denying Nebinger's motion following the close of the State's evidence. Nebinger argues these rulings constitute error and that the proffered evidence is admissible to demonstrate Lockheart's ability and opportunity to commit the crimes alone and to identify Lockheart as the guilty party. Nebinger invokes Iowa Rule of Evidence 404 as an avenue paved for the admissibility of the several items of evidence.

Iowa Rule of Evidence 404 provides as follows:

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim.

(A) In criminal cases. Subject to rule 412, Iowa Rules of Evidence, evidence of a pertinent trait...