State v. Powers, 11217

• Decision Date: 08 July 1975
• Docket Number: No. 11217,11217
• Citation: 537 P.2d 1369,96 Idaho 833
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Danny R. POWERS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1369

537 P.2d 1369

96 Idaho 833

The STATE of Idaho, Plaintiff-Respondent, v. Danny R. POWERS, Defendant-Appellant.

No. 11217.

Supreme Court of Idaho.

July 8, 1975.

Craig Marcus, Marcus & Marcus, Boise, for defendant-appellant.

W. Anthony Park, Atty. Gen., James P. Kaufman, Asst. Atty. Gen., Boise, for plaintiff-respondent.

A petition for rehearing was denied, the original opinion is withdrawn and this opinion substituted therefor.

McQUADE, Chief Justice.

In September, 1972, Danny Ray Powers (hereinafter appellant) was tried for the murder of William Butler, an inmate at the Idaho State Penitentiary. A jury found appellant guilty of murder in the first degree upon which a judgment was entered. It is from that judgment that this appeal was taken. We affirm the judgment of conviction.

On the night of August 14, 1971, the body of William Butler, who had been an inmate at the Idaho State Penitentiary, was found by prison officials rolled up in a floor mat against the wall in the gymnasium area of the prison. An autopsy conducted on the following day, disclosed that the cause of death was multiple stab wounds with massive hemorrhage resulting from one stab wound to the heart and massive head injuries. Appellant along with fifteen other inmates at the Idaho State Penitentiary, old site, was moved to the maximum security unit at the site of the new penitentiary the day after Butler's body was found. The Ada County Sheriff's office was called in to investigate the murder, and questioned the inmates who were confined to the maximum security unit in the course of its general investigation.

On September 24, 1971, Paul W. Bright, Ada County Sheriff, received word that appellant wanted to talk to him. Sheriff Bright brought a tape recorder and visited appellant in his cell. Sheriff Bright testified that he asked appellant why he wanted to see him, and appellant said it was about the Butler murder. The Sheriff then said, 'What about it?' and appellant replied, 'Well, I done it.' This exchange took place before the tape recorder was turned on, and before appellant was afforded his Miranda warnings.

Immediately thereafter, and before any other statements were made, appellant was apprised of his Miranda rights, which appellant stated that he understood. Appellant still wished to talk to the Sheriff, and made a statement confessing to the commission of the murder. At appellant's request, he was removed from the Idaho State Penitentiary and brought to the Ada County Sheriff's office the following day on September 25, 1971. Appellant made another statement, which was an elaboration of his first statement given the previous day, after again being afforded his Miranda rights and waiving them. On September 26, 1971, appellant made a final statement to the Sheriff, after again being read the Miranda warnings, which appellant acknowledged that the understood.

Appellant was jointly charged along with Ronald Macik and William Burt, for the murder of William Butler. A preliminary hearing was held on November 23, 1971. Following this hearing, appellant was held to answer in the District Court. On February 28, 1972, the Ada County Prosecuting Attorney filed an information charging the appellant with first degree murder. Appellant was arraigned before the District Court on March 2, 1972. At that time and before appellant entered a plea, appellant made a motion to strike the information on the ground that it was not timely filed. That motion was denied. On March 15, 1972, appellant filed an affidavit in support of a motion to change the venue, or in the alternative, to secure funds to conduct a survey in the community to ascertain whether a fair and impartial trial could be received in Ada County. He also filed another motion to strike the information. These motions were denied. On March 21, 1972, appellant filed a notice of his intent to rely upon mental illness as an affirmative defense. On April 21, 1972 the court appointed a duly qualified psychiatrist to examine the appellant and report upon his mental condition. On August 15, 1972, appellant filed a motion to suppress the statements made by him to the Ada County Sheriff. This motion was denied. A motion for judgment of acquittal based upon mental disease was filed pursuant to I.C. § 18-213 on September 8, 1972, upon receipt of the psychiatric evaluation of the appellant. The court denied this motion.

The trial began on September 11, 1972. The jury found the appellant guilty of murder in the first degree. Appellant filed a motion for judgment of acquittal and in the alternative for a new trial. Both of these motions were denied, and a judgment of conviction was entered. From that judgment this appeal was taken.

I.

In his first two assignments of error, appellant argues that the trial court erred when it refused to grant his motion for a change of venue, on the ground that prejudicial news publicity prior to his trial made it impossible for him to receive a fair and impartial trial in Ada County. Appellant at trial accompanied his motion with affidavits from the Boise newspaper, television and radio media, attesting to the number of people who were exposed to stories regarding the murder of William Butler. Also included in his motion were newspaper clippings, and verbatim transcripts of television and radio news accounts surrounding the Butler murder. We have reviewed the record, and find no abuse of the trial court's discretion in denying appellant's motion for a change of venue.

I.C. § 19-1801 provides for a change of venue in criminal actions where,

'* * * a fair and impartial trial can not be had in the county where the indictment is pending.'

This Court has held on numerous occasions in construing this statute,

'* * * that the granting of a change of venue lies within the discretion of the trial court and where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal.' ¹

The news disseminated to the public through the media contained only dispassionate and objective factual accounts of the events that were then occurring. We fail to find any editorial comments or other opinions which gave rise to feelings of passion or outrage against appellant thus compromising his right to a fair trial. ² Most of the news accounts that appellant alludes to, appeared almost a year before the date of his trial. Appellant makes no allegation nor is there any indication in the record that there was difficulty in impaneling a jury. The record as a whole, fails to show that he was not afforded a fair and impartial trial in Ada County.

II.

In his assignments of error numbered three through eight, appellant contends that the trial court erred when it refused to grant him public funds to conduct a community survey, for the purpose of determing whether he could obtain a fair and impartial trial in Ada County. Appellant maintains that when the trial court refused to change the venue, it was under an affirmative obligation to grant funds necessary to poll the community. Appellant advances support for this position on two grounds. First, he believes that the failure of the trial court to allocate funds for the community poll, denied to him his right to the effective assistance of counsel as embodied in I.C. § 19-852(a) ³ and the 6th Amendment to the United States Constitution. Second, he insists that he was denied equal protection of the laws ⁴ since the county provides investigative assistance to those indigents who are represented by the Public Defender's office, but denied similar assistance to indigents who are represented by court-appointed private counsel as he was. Appellant was represented by private counsel because the Public Defender was forced to withdraw his representation due to a conflict of interest between appellant and another defendant. We do not agree with appellant's arguments.

An indigent defendant's right to counsel is the right to effective conunsel. ⁵ This state has recognized that in certain instances appointing an attorney to represent a destitute defendant does not go far enough to safeguard this right. Statutory provision has been made to provide an impoverished defendant, in addition to a lawyer, '* * * the necessary services and facilities of representation (including investigation and other preparation). * * *' ⁶ This section was adopted from the Uniform Law Commissioners' Model Defense of Needy Persons Act. It recognizes that there may be cases where the right to counsel would be rendered meaningless, unless the lawyer has funds to provide the speciailized aid which the case required. ⁷ Financial assistance is not automatically mandatory, but rather depends upon needs of the defendant as revealed by the facts and circumstances of each case. Before authorizing the expenditure of public funds for a particular purpose in an indigent's defense, the trial court must determine whether the funds are necessary in the interest of justice.

We have not been presented with, nor has our research unearthed any cases dealing with the allocation of funds to an indigent defendant for the purpose of conducting a community survey to determine whether a fair trial could be held. The cases cited in appellant's brief do not stand for that proposition. They deal with instances where the court felt that to deny the requested funds would be tantamount to preventing counsel from preparing a defense. That is not the situation in this instance.

Appellant claims that a survey was indipensible to establish the bias against him in the community. He asked the trial court to determine what sum would be appropriate to pay for a commercial survey firm. He did not submit a reasonable estimation of the costs of such a survey for the trial court's consideration. Appellant loses sight of the viable alternatives available to a defendant in a criminal ...