State v. Stubbs

• Decision Date: 30 September 2005
• Docket Number: No. 20040108.,20040108.
• Citation: 2005 UT 65,123 P.3d 407
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Parley Parker Pratt STUBBS, Defendant and Respondent.
• Court: Utah Supreme Court

123 P.3d 407

2005 UT 65

STATE of Utah, Plaintiff and Petitioner, v. Parley Parker Pratt STUBBS, Defendant and Respondent.

No. 20040108.

Supreme Court of Utah.

September 30, 2005.

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, Leo G. Kanell, Beaver, for plaintiff.

Edward K. Brass, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

INTRODUCTION

¶ 1 Parley Parker Pratt Stubbs was accused of rape in the small town of Beaver, Utah. Before the jury was seated for his trial, Mr. Stubbs moved for but was denied a change of venue. He was convicted, and then he appealed. The court of appeals reversed Mr. Stubbs's conviction and remanded for a new trial, directing the trial court to grant Mr. Stubbs's motion for a change of venue.

¶ 2 We are asked to decide which of two tests should be used to evaluate the merits of a motion to change venue made before the jury is seated, but brought to us to review after the defendant's conviction: the James test, applicable to pretrial motions brought to us for interlocutory review, State v. James, 767 P.2d 549, 551-54 (Utah 1989), or the Widdison test, applicable to post-conviction venue appeals, State v. Widdison, 2001 UT 60, ¶ 38, 28 P.3d 1278.

¶ 3 We granted certiorari to review the court of appeals's ruling that the trial court abused its discretion by failing to properly apply the evaluative model we set forth in James. We affirm, although on alternate grounds. We hold that based on the procedural facts of this case, both tests provide relevant evaluative guidance and may properly be used to assess venue.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Mr. Stubbs was charged with one count of rape and one count of forcible sexual abuse in Beaver, Utah. The alleged victim was a seventeen-year-old woman. Her family members were well-known and well-regarded members of the community: her mother was the Beaver County treasurer, her grandmother had been a schoolteacher and president of the Beaver Education Association, and her grandfather had also been a schoolteacher and coach of the local high school football team. Mr. Stubbs, on the other hand, was not a resident of Beaver. At the time of the alleged rape, he was staying at a local motel while he worked a temporary job pouring concrete.

¶ 5 The other important facts in this case are procedural. Six days before trial, Mr. Stubbs filed a change of venue motion suggesting that because of the young woman's standing in the community, the court would not be able to seat an unbiased jury. The trial court conducted a status conference concerning the motion the day before trial, but with the agreement of counsel, deferred its decision until jury selection began the next day.

¶ 6 During jury selection, Mr. Stubbs renewed his motion and argued that application of the pretrial test for change of venue required by State v. James, 767 P.2d 549 (Utah 1989), would mandate a change in venue. The questions and answers exchanged during voir dire indicated that a large number of the potential jurors knew members of the victim's family or had relationships with the prosecution's witnesses. Four of the eight chosen jurors stated that they knew either the victim or the prosecution witnesses.¹ Nevertheless, the trial court denied Mr. Stubbs's motion. The trial court did not reference the venue considerations we set out in James, discussed infra, but said it would be unreasonable to change venue every time the victim was a prominent member of the community. The trial court reinforced this practical rationale with the opinion that Beaver County juries would not favor locals over outsiders. Mr. Stubbs was convicted of rape, acquitted of forcible sexual abuse, and sentenced to five years to life in prison.

¶ 7 Mr. Stubbs appealed the trial court's denial of his motion to the court of appeals. State v. Stubbs, 2004 UT App 3, ¶ 11, 84 P.3d 837. The court of appeals concluded that the trial court erred when it failed to apply the James venue test. It reversed Mr. Stubbs's conviction and remanded for a new trial, directing the trial court to grant Mr. Stubbs's change of venue motion. Id. at ¶ 23. We granted certiorari to review the decision of the court of appeals.

STANDARD OF REVIEW

¶ 8 A decision to grant or deny a motion to change venue is within the trial court's sound discretion and will not be disturbed absent a finding that the court exceeded its discretion. State v. Widdison, 2001 UT 60, ¶ 38, 28 P.3d 1278. However, on certiorari, we review the court of appeals's conclusions of law for correctness. State v. Geukgeuzian, 2004 UT 16, ¶ 7, 86 P.3d 742.

ANALYSIS

¶ 9 The right to trial by an impartial jury is guaranteed by both the United States Constitution and the Utah Constitution. See U.S. Const. amend. VI; Utah Const. art. I, § 12. To protect that right, rule 29(d) of the Utah Rules of Criminal Procedure permits a trial court to change venue if the court believes a fair and impartial trial cannot be had in the jurisdiction where the action is pending.² Utah R.Crim. P. 29(d); State v. Widdison, 2001 UT 60, ¶ 33, 28 P.3d 1278. The phrase "fair and impartial" has been part of our change of venue rules since at least 1888. See 2 Comp. Laws of Utah § 4992 (1888); State v. James, 767 P.2d 549, 551 (Utah 1989).

¶ 10 Almost without exception, challenges to denial of venue motions have come to us after a jury has convicted the defendant. In this setting, our analysis has been guided by the straightforward retrospective test of "whether [the] defendant was ultimately tried by a fair and impartial jury." Widdison, 2001 UT 60 at ¶ 38, 28 P.3d 1278; State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988) ("The ultimate test of whether a failure to change venue constitutes an abuse of discretion is whether the defendant was tried by a fair and impartial jury."). However, James presented us with a unique circumstance: the motion for change of venue was brought to us as an interlocutory appeal, before the trial took place. 767 P.2d at 550. Because the trial had not yet commenced, and the jury had not been impaneled, we could not apply the Widdison retrospective assessment of fairness and impartiality. Although it rendered our traditional test unworkable, we welcomed the interlocutory review of a venue challenge because it presented us with "the opportunity to review the denial before any error committed would be prejudicial to [the] defendant."³ Id. at 555.

¶ 11 Due to its unique procedural posture, James required that we articulate the considerations that a trial court ought to take into account when assessing the merits of a motion for a change of venue. We isolated four considerations for trial courts to apply in the context of the totality of the circumstances: "(1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity." Id. at 552. We "conclude[d] that the judge should grant the motion whenever he or she finds a reasonable likelihood that a fair trial cannot be had unless the motion is granted." Id.

¶ 12 The implementation of the James venue test shifted the focus of appellate review. Rather than evaluating whether the trial court exceeded its discretion using the retrospective "ultimately tried by a fair and impartial jury" test given in Widdison, we turned our attention to the trial court's exercise of discretion in applying certain pre-impanelment guidelines. We assessed the facts in James using these guidelines and determined that there was a reasonable likelihood that the defendant could not receive a fair and impartial trial. Id. at 554. We reversed the trial court's denial of the defendant's motion and returned the case to the trial court for the purpose of changing venue. Id. at 557.

¶ 13 We have expressly limited our review under the James test to interlocutory appeals, stating that "[o]n appeal from a jury verdict, we do not look to the James factors to determine whether the trial court abused its discretion in denying a change of venue." Widdison, 2001 UT 60 at ¶ 38, 28 P.3d 1278. Instead, on direct appeal from a conviction, we implement the traditional test of "whether [the] defendant was ultimately tried by a fair and impartial jury." Id.

¶ 14 This distinction has a practical explanation. A trial court must evaluate a pretrial motion for change of venue based on demographic, geographic, and cultural evidence unrelated to the identity and potential for bias of an actual jury venire. In a pretrial setting, the trial court should consider the James guidelines to assess whether a jury selected from the prospective juror population would be reasonably likely to fall short of the standards for fairness and impartiality to which a defendant is entitled. Such a pretrial venire evaluation contrasts markedly from the Widdison circumstance where appellate review occurred after the jury was selected, the trial was completed, and the defendant was convicted. In a post-conviction challenge to venue, the appellate record is not limited to descriptive data about the characteristics of the community in which the trial is to take place and from whose citizens the jury will be culled. Rather, the appellate court is able to review whether the jurors who were ultimately selected were fair and impartial.

¶ 15 The parties here dispute whether the denial of Mr. Stubbs's venue motion should be reviewed under James or Widdison. The court of appeals concluded that the complex procedural circumstances of Mr. Stubbs's case warranted the application of the James factors, distinguishing it from the post-trial appeal presented in Widdison:

Even though Stubbs takes his appeal from a jury verdict, we apply the James factors because they were never appropriately considered by the trial court. Further, the court began jury voir dire before even ruling on Stubbs's motion for a...