State v. Salem, 52928

• Decision Date: 23 October 1981
• Docket Number: No. 52928,52928
• Citation: 634 P.2d 1109,230 Kan. 341
• Parties: STATE of Kansas, Appellee, v. Richard SALEM, Appellant.
• Court: Kansas Supreme Court

Page 1109

634 P.2d 1109

230 Kan. 341

STATE of Kansas, Appellee, v. Richard SALEM, Appellant.

No. 52928.

Supreme Court of Kansas.

Oct. 23, 1981.

Syllabus by the Court

1. To obtain a change of venue under K.S.A. 22-2616(1) the defendant must satisfy the court that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.

2. To establish the existence of prejudice against a defendant sufficient to justify a change of venue, specific facts and circumstances must be established to indicate it will be practically impossible to obtain an impartial jury to try the case. Such a showing may not be based on speculation.

3. A person accused of crime has an obligation to hire his own counsel if financially able to do so, and if he fails or refuses to use his own assets and income for such purpose he may be considered to have waived his right to counsel intentionally, provided these circumstances are spread on the record.

4. If a defendant's finances and income are not sufficient to pay for the entire cost of an adequate defense, the court may find him partially indigent and require partial payment or payments from him to be made toward the cost of a defense before appointing counsel as provided in the aid to indigent defendant statutes, K.S.A. 22-4501, et seq., as amended.

5. Exhibits which depict the scene of a crime and which are relevant to matters in issue, such as the cause and manner of death, aid in understanding the testimony and are admissible even though considered gruesome or inflammatory by defendant.

6. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction in the trial court, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?

7. In considering the sufficiency of evidence on appeal to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence, and if the essential elements of the charge are sustained by any competent evidence the conviction must stand.

Glenn I. Kerbs, Patton & Kerbs, Dodge City, for appellant.

Curtis E. Campbell, County Atty. (argued), Robert T. Stephan, Atty. Gen., on brief, for appellee.

FROMME, Justice:

Richard Salem appeals from guilty verdicts and a judgment of conviction of first degree murder, aggravated burglary, aggravated kidnapping, and kidnapping. The crimes and convictions occurred in Gray County, Kansas. Alan Watson was killed in his own home and his wife Patty Watson was kidnapped and assaulted.

It is apparent from the record that Richard Salem and his accomplice, Rudolph Barron, Jr., committed these senseless crimes in an effort to repay Patty Watson for a beating Salem had received at the hands of Patty's former husband. Neither Salem nor Barron were acquainted with Patty's current husband, Alan Watson.

A brief summary of these occurrences is as follows:

At 4:30 a.m. on August 6, 1980, Patty Watson was wakened by a knock at her door. She went to the door, saw Richard Salem, anticipated trouble, slammed the door in his face and locked it. He immediately proceeded to kick the door in and entered the house. Alan Watson was ordered out of his bedroom at the point of a gun. Barron then entered the home, made a search of the house, and at Salem's instruction cut the drapery cords and tied Alan's hands behind his back. Alan was made to lie on the floor. The telephone wires were cut and at Salem's direction Patty was led outside by Barron. As she was leaving Patty overheard Salem telling Alan to crawl on the floor "like a worm." Alan Watson was discovered sometime later that morning by the sheriff. Alan was in the bedroom lying across the bed in a pool of blood. His hands and feet were tied and he had a bullet hole between his shoulder blades at the base of his neck and another bullet hole just above and to the back of his left ear. He was taken to the hospital but died sometime later.

When Barron led Patty from the house he forced her into the backseat of Salem's car. They waited for sometime and when Salem failed to appear Barron drove around outside the Cimarron city limits, then stopped a mile north of the city where he was supposed to meet Salem. Barron then tied Patty up in the car. When Salem did not show up, Barron drove around some more, assaulted Patty, then drove back to Cimarron and let her out of the car. She ran to a friend's house and called the sheriff.

Barron and Salem eventually got together and drove to Wichita. After they were picked up Barron gave a statement to the police. He stated that on the way to Wichita Salem admitted shooting Alan Watson twice and Salem said he had killed Watson. Patty recovered from her ordeal and testified at the trial. Salem was tried separately.

The first claim of error is based on the refusal of the court to grant defendant's motion for a change of venue. In support of this motion defendant's counsel attached twenty-four newspaper articles which had appeared in the Cimarron, the Dodge City, and the Wichita papers. These articles appeared from August to the first of November, 1980. The trial was held December 8 through 11, 1980. In addition seven affidavits were filed. These were signed by defendant's attorney and six residents of the Cimarron community. The affiants all concluded that Salem could not receive a fair trial in Gray County because of the publicity which the case had received from the news media.

We have many cases in which the requirements for a change of venue have been discussed; among them are State v. McLaughlin, 207 Kan. 594, 597, 485 P.2d 1360 (1971); State v. Gander, 220 Kan. 88, Syl. P 6, 551 P.2d 797 (1976); State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977); and State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). To obtain a change of venue under K.S.A. 22-2616(1) the defendant must satisfy the court that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.

In our cases it has been held (1) the burden to establish prejudice is on defendant, (2) not only prejudice must be shown but the prejudice must be such as to make it reasonably certain the defendant cannot receive a fair trial, (3) speculation as to possible prejudice is not sufficient, (4) the State is not required to produce evidence to refute affidavits obtained by defendant, (5) the granting of a change of venue lies within the sound discretion of the trial court, and (6) the trial court's ruling thereon will not be disturbed absent a showing of prejudice to the substantial rights of the defendant. See State v. Sanders, 223 Kan. at 280, 574 P.2d 559.

To establish the existence of prejudice against a defendant sufficient to justify a change of venue, specific facts and circumstances must be established to indicate it will be practically impossible to obtain an impartial jury to try the case. Such a showing may not be based on speculation. State v. Myrick & Nelms, 228 Kan. at 417, 616 P.2d 1066.

The publicity in this case occurred a month or more before the trial. The charges of first degree murder of the husband and aggravated kidnapping of the wife which were filed against defendant in this rural community were shocking because of their general nature, and they evoked a feeling of outrage because both those accused and the victims were known in the community. However, the articles published were largely factual reports of the action being taken by the law enforcement officers, which information was available to any person who cared to visit the court and inspect the records. The news articles were objective in nature and for the most part merely recited the progress of proceedings in court. The same was true of the articles concerning the preliminary hearing. The preliminary hearing testimony was quoted as coming from a particular witness or witnesses. Other facts were characterized as being alleged and not known by the news media reporters. The nature of the publicity was neither inflammatory nor accusatory. The news releases were of factual happenings and contained no derogatory personal references to the defendant. Conclusions which might be drawn from the reported happenings were left to the judgment of the listener, viewer or reader. The reporting was generally such that we find no evidence of an attempt by the media to influence the outcome of the trial.

The manner of handling challenges for cause during the jury voir dire, and the amount of time required to obtain the proper number of jurors may also be considered in determining the presence of possible prejudice arising from the publicity. The jury voir dire in this case began in court around 9:45 a. m. and was concluded by 3:00 p. m. of that same day. This is not an excessive time for selecting a jury for a murder trial. Twelve jurors and one alternate were selected after each side had exercised the statutory number of peremptory challenges.

We have carefully examined the voir dire proceedings appearing in the record. Each time a prospective juror expressed a concern about his or her open-mindedness or impartiality that juror was discharged for cause without intensive questioning by counsel and without hesitation on the part of the judge.

Publicity in this case extended over a major portion of the state. There is no reason to believe that a jury from another county in this or any adjacent judicial district would have rendered different verdicts. The evidence was compelling and convincing beyond a reasonable doubt. The appellant has failed to sustain his burden of proof for a change of venue. He has failed to show that such prejudice...