State v. Stiltner, 41887

• Decision Date: 16 December 1971
• Docket Number: No. 41887,41887
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Sandra K. STILTNER, Appellant.

Page 47

80 Wn.2d 47

491 P.2d 1043

The STATE of Washington, Respondent, v. Sandra K. STILTNER, Appellant.

No. 41887.

Supreme Court of Washington, En Banc.

Dec. 16, 1971.

Hovis, Cockrill & Roy, Ted A. Roy, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., David K. Crossland, Deputy Pros. Atty., Yakima, for respondent.

SHARP, Justice.

The most important question presented by this appeal is whether the defendant, who was convicted of grand larceny by embezzlement, was denied a fair and impartial trial by the publicity that preceded her trial. While the conviction was set aside by the trial judge for other reasons, the Court of Appeals, by a divided court, reinstated the verdict against her.

The facts are summarized in detail in the Court of Appeals majority and dissenting opinions, reported in State v. Stiltner, 4 Wash.App. 33, 479 P.2d 103 (1971). Briefly, the case involves funds missing from the registry of the Yakima Justice Court. The shortage was discovered by an examiner for the State Auditor and in due course defendant was charged with grand larceny by embezzlement, and with second-degree forgery by 'making a false entry on a public record or account.' The forgery count was dismissed at the conclusion of the trial. After a verdict of guilty on the larceny count, the trial court granted defendant's motion in arrest of judgment and dismissed the case. The state appealed to the Court of Appeals assigning error to the dismissal of the forgery count and to the order in arrest of judgment. The defendant cross-appealed, in the alternative only, from a pretrial order denying her motion for change of venue. The Court of Appeals reinstated the verdict of the jury and ordered judgment thereon. A dissenting opinion, while agreeing with the majority that there was substantial evidence to support all of the elements of the crime charged and therefore that the judgment should not have been arrested on that basis, urged that defendant be granted a new trial in a more neutral location. We also are concerned with the atmosphere in which this trial was held.

The trial court (a different trial judge sitting than the judge who later tried the case) in denying a pretrial motion for change of venue presented some three months prior to trial, entered findings of fact and conclusions of law. The findings relevant to the issue before us are as follows:

Finding of fact 1:

That the Yakima Herald Republic is the only daily newspaper within the County of Yakima and has sufficient general circulation throughout the County to apprise the citizens of Yakima County of its contents.

Finding of fact 2:

That on September 26, 1968, on the front page of the Yakima Herald Republic appeared a news article captioned 'Payment ordered on Court shortages', a part of which read as follows:

'Sums demanded by Carrier from the following were $1,036.45 from Thomas E. Grady, Jr., Justice of Peace Court No. 1; $707.20 from George H. Mullins, Justice of Peace Court No. 2; and clerks, $659.25 from Janice P. Carlson; $707.20 from Gladys Keller; $1,743.65 from Sandra K. Stiltner; $505.05 from Sandra L. Hyde, and $1,333.95 from Jeanette M. Graves.

'Four of the clerks, Mrs. Carlson, Mrs. Keller, Mrs. Graves and Miss Hyde, have voluntarily taken polygraph tests, said Shropshire.

"All four of these clerks have been cleared by the polygraph tests of any knowledge of the shortages,' said Shropshire.'

Finding of fact 3:

That thereafter on September 28, 1968, on the front page of the Yakima Herald Republic appeared the news article entitled 'Justice of the Peace denies shortage' reading in part as follows:

'County Prosecutor Lincoln Shropshire said Friday that he had understood that four of five women employees mentioned in the state examiner's report had taken polygraph tests voluntarily.

'Shropshire said that 'four of the clerks involved had volunteered to take the polygraph, but that only three of them had actually submitted to the tests thus far.'

"The three who have taken the tests were found innocent of knowledge of the shortages,' he said, 'and the fourth, whom I thought already had taken the test, is scheduled to take it voluntarily on Monday.'

'The polygraph tests and Judge Mullins correspondence all relate to an investigation into a state examiner's report issued July 25 reporting shortages in funds of salaried Justice Court in Yakima. The attorney general's office has demanded various sums from bonding companies, the Justices of the Peace and of clerks either now working or who previously worked in the court offices.'

That on January 23, 1969, there appeared in the Yakima Herald Republic in a news article captioned 'Two charges filed against ex-clerk' reading in part as follows:

'Besides Mrs. Stiltner, there were four other clerks who have worked in the Justice Courts records office for Justices Thomas E. Grady Jr. and George Mullins.

'Yakima County Prosecutor Lincoln E. Shropshire said Friday that he had mailed on Dec. 31, 1968, letters to each of the four other clerks who were noted in the examiner's special report.

'The letters went to Mrs. Sandra L. Hyde, Mrs. Jeannette M. Graves, Mrs. Janice P. Carlson and Mrs. Gladys Keller.

'Each letter had the same wording except as to dates.

'Shropshire explained to each woman how they had appeared before a polygraph examiner in Yakima for 'lie detector' tests. 'At the conclusion of this examination he (the examiner) expressed the opinion that you were not involved in either the theft of the falsification of records,' the prosecutor wrote to each of the four women.

'Shropshire also noted in the letters that handwriting specimens had been sent for examination to an Oregon expert. 'He concluded that the handwriting appearing on the falsified records of Yakima Justice Court, Department No. 1 and 2, was not the same handwriting as yours,' he advised each of the four women.

"The foregoing conclusions when coupled with other surrounding circumstances seem to indicate that you were not involved in either the theft of funds from Yakima County Justice Court, Departments No. 1 and 2 or the falsification of records,' the prosecutor added.

'The prosecutor's office said the letters absolving Mrs. Hyde, Mrs. Carlson, Mrs. Graves and Mrs. Keller of blame were written because 'each of the women hold responsible jobs' and need the clearance in order to obtain surety bonds.'

The record discloses more on this issue. In addition to the articles set forth in the findings, the community was exposed to numerous other articles and television and radio releases as the investigation proceeded. The purport of this publicity was to assure the public that the mystery of the missing funds had been solved and the guilt determined.

The defendant was a long-time resident of the Yakima area, having completed her schooling there and having worked in the justice court for many years. While she did resign her position with the court prior to the trial, this was due to ill health rather than to the threat of prosecution, as implied by one of the articles. And in publicizing the cooperation of the other four clerks in submitting to the lie detector, the publicity did not disclose that the defendant's refusal to submit was upon advice of counsel, who very properly refused to agree to the prosecutor's condition that the results of the test would be admitted as evidence in the trial. State v. Rowe, 77 Wash.2d 955, 468 P.2d 1000 (1970). In short, we find that this defendant was brought to trial in a community in which she was well known, and which had been fully advised that four out of the only five possible suspects had been cleared by scientific methods employed by the state's criminal science experts. As the deputy prosecutor arguing the case before us candidly admitted Parenthetically, we are not proud nor do we condone the publicity that was given in this particular case. We see the error in it and would submit that this should not happen again, nor will it.

Nor did he question the obvious effect of this publicity:

I can't disagree with Your Honors that these particular newspaper releases as they were worded narrowed it down to one person.

The trial court, in passing upon the motion for change of venue, found that the quoted news releases were contrary to the Guidelines and Principles for the Reporting of Criminal Proceedings compiled and promulgated for all law enforcement officers and news media by the Bench-Bar-Press Committee of the State of Washington, which guidelines discourage the reporting of results of investigative procedures, lie detector tests or handwriting samples. However, in denying change of venue, he based his conclusion on the fact that 'the said guidelines do not have the force of law.' This is correct, insofar as they are voluntary and neither legislatively mandated nor promulgated by rule of court. That is not to say, however, that particular violations may not also be due process violations in certain instances. ¹

But courts, including this court, have been most reluctant to disturb the trial courts' discretion to decide motions for change of venue. We stated the rule in State v. Malone, 75 Wash.2d 612, 614, 452 P.2d 963, 964 (1969), as follows:

A motion for a change of venue in a criminal case is directed to the sound discretion of the trial court, and its decision with respect thereto will not be disturbed on appeal, absent a convincing showing of an abuse of discretion. State v. Hawkins, 70 Wash.2d 697, 425 P.2d 390 (1967).

However, in exercising their discretion, trial courts must recognize this court's commitment to the principle that the right to a trial by jury includes the right to an unbiased and unprejudiced jury, and that a trial by jury, one or more of whose members is biased or prejudiced, is not a constitutional trial. State v. Parnell, 77 Wash.2d 503, 463 P.2d 134 (1969). We have always insisted that a guarantee of a speedy and public trial by an impartial jury under Const. art....