State v. Sandstrom

• Decision Date: 29 June 1978
• Docket Number: No. 14064,14064
• Citation: 35 St.Rep. 744,580 P.2d 106,176 Mont. 492
• Parties: STATE of Montana, Plaintiff and Respondent, v. David SANDSTROM, Defendant and Appellant.
• Court: Montana Supreme Court

Page 106

580 P.2d 106

176 Mont. 492

STATE of Montana, Plaintiff and Respondent, v. David SANDSTROM, Defendant and Appellant.

No. 14064.

Supreme Court of Montana.

Submitted May 3, 1978.

Decided June 8, 1978.

Rehearing Denied June 29, 1978.

Byron W. Boggs (argued), Anaconda, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, John N. Radonich, County Atty. (argued), Anaconda, for plaintiff and respondent.

HARRISON, Justice.

On November 1, 1976, Mrs. Annie Jessen, 89 years of age, was found dead in her home in Anaconda, Montana, the apparent victim of a brutal assault in which she received blows to her head from a shovel, and five stab wounds to her back from a kitchen knife. Mrs. Jessen had, in addition, been sexually assaulted and received a compound fracture to her leg, apparently after the slaying.

On November 22, 1976, defendant, 18 years of age, was arrested for an unrelated crime. Shortly thereafter, and while in custody of the Deer Lodge County sheriff, defendant confessed to the slaying of Mrs. Jessen. The confession was subsequently corroborated by certain physical evidence.

Based upon the confession and supporting evidence, defendant was charged, by an Information filed December 2, 1976, with the crime of deliberate homicide, in violation of section 94-5-102, R.C.M.1947.

At the arraignment on the charge, defendant entered a plea of "not guilty" and filed a notice of intent to rely on mental disease or defect excluding criminal responsibility, as a defense.

Defense counsel subsequently moved for a change of venue, based upon allegedly prejudical pretrial publicity. The motion was heard on July 6, 1977 in the District Court, Deer Lodge County. Defendant presented the testimony of four witnesses. Three of the four witnesses testified that, despite their perception that many Anaconda area residents had formed some opinion concerning the case, the defendant could receive a fair trial in Deer Lodge County. The fourth witness, Oscar Sandstrom, the father of defendant, testified primarily concerning abusive phone calls he had received following his son's arrest. The motion was denied with leave to renew at the time of jury selection.

The trial on the charge commenced on July 18, 1977. Defendant's renewed motion for change of venue was denied. Defendant further moved that the jurors be examined in voir dire individually and in segregation, which motion was also denied. Following voir dire, defendant again renewed his motion for change of venue. The motion was again denied.

In his opening statement, defense counsel informed the jury that defendant no longer intended to rely on the defense of mental disease or defect. The decision to so inform the jury appears to have been based on the reports of two psychiatrists who had examined defendant and determined he was able to appreciate the consequences of his actions, despite his low intelligence level and aggressive/impulsive personality.

The case-in-chief for the state consisted of defendant's confession, together with the corroborating physical and circumstantial evidence. Defendant called as witnesses the two psychiatrists who had examined defendant prior to trial. The witnesses testified that, while defendant may not have had the specific intent to kill at the time of the offense, it was their opinion that he had the intent to "silence" Mrs. Jessen, and was conscious of his activity in bringing about the result.

Following the reception of evidence and upon their deliberations, the jury returned a verdict convicting defendant of the crime as charged. Defendant was subsequently sentenced to 100 years imprisonment in the Montana State Prison.

Defendant appeals the judgment of conviction, entered upon the verdict of the jury.

Defendant raises two issue for review: (1) Did the District Court abuse its discretion in denying defendant's motions for change of venue? and (2) Did the District Court err in giving court's instruction No. 5?

Defendant first argues that the District Court abused its discretion in denying his three motions for change of venue on the grounds an impartial trial could not be afforded defendant in Deer Lodge County. It is maintained the pretrial publicity, given the nature of the crime in this case, rendered selection of an impartial jury impossible.

The applicable statute in this regard, section 95-1710(a), R.C.M.1947, states:

"The defendant * * * may move for a change of place of trial on the grounds that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in such county."

Accordingly, it is well settled that granting a change of venue in a criminal trial is within the sound discretion of the trial court, and the denial of a motion for change of venue will only be reversed upon a showing of an abuse of discretion. State ex rel. Hanrahan v. District Court (1965), 145 Mont. 501, 401 P.2d 770; State v. Corliss (1967), 150 Mont. 40, 430 P.2d 632; State v. Olson (1971), 156 Mont. 339, 480 P.2d 822.

It has been held that mere publication of a news story dealing with the facts and circumstances of the crime is not a sufficient basis for change of venue. Published accounts of crimes are not considered prejudicial unless so passionate as to excite undue prejudice, rendering it impossible to empanel a trial jury free from prejudice against the defendant. State ex rel. Hanrahan v. District Court, supra; State v. Corliss, supra.

Defendant relies on Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1938), and State v. Dryman (1954), 127 Mont. 579, 269 P.2d 796, as authority for reversing a conviction in which change of venue had been denied, despite adverse pretrial publicity. The cases, however, are clearly distinguishable on the basis of the volume and content of the publicity.

Here, the publicity under consideration consists of 17 newspaper articles concerning various aspects of the crime, the investigation, and the subsequent arrest of defendant. Two of the articles, published after defendant's arrest, contain a picture of defendant in police custody.

Considering the nature of the crime involved, we find the reporting extremely objective and factual. Further, we do not consider the amount of publicity given to the crime and ensuing events in this case to be unreasonably voluminous. We conclude that there was no abuse of discretion in the District Court's refusal to grant defendant's motion for change of venue.

It is significant to note that the witnesses at the hearing on defendant's initial motion for change of venue, with the sole exception of defendant's father, testified they believed defendant would receive a fair trial in Deer Lodge County, despite the pretrial publicity and existence of some measure of adverse public opinion.

Further, while certain of the twelve empaneled jurors had read or heard something regarding the crime, there...