State v. Wilkerson

• Decision Date: 08 September 1981
• Docket Number: No. 80-KA-2386,80-KA-2386
• Citation: 403 So.2d 652
• Parties: STATE of Louisiana v. Clarence Everett WILKERSON.
• Court: Louisiana Supreme Court

Page 652

403 So.2d 652

STATE of Louisiana v. Clarence Everett WILKERSON.

No. 80-KA-2386.

Supreme Court of Louisiana.

Sept. 8, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Loftin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.

James W. Berry, Rayville, for defendant-appellant.

BLANCHE, Justice. ^*

A Richland Parish jury tried and convicted defendant Clarence Everett Wilkerson and a co-defendant, Bobby Joe Fabian, of the June, 1970 aggravated kidnapping of a Delhi, Louisiana town marshall and a state trooper. The jury returned a verdict of guilty without capital punishment and on October 22, 1970, the court sentenced defendant to life imprisonment at hard labor. At that time, defendant indicated to the court that he did not desire to appeal his case, but on November 4, 1970, defendant made a motion for an appeal which the court denied. Defendant motioned through retained counsel for an out of time appeal on November 16, 1979 and the court also denied this motion. Defendant reurged the motion in the summer of 1980, the court granted defendant's request on July 25 and the case is now before this Court on an out of time appeal. Defendant assigns four specifications of error on appeal and for the following reasons, we find no merit to these assignments and affirm defendant's conviction and sentence.

Evidence produced at trial shows that shortly after midnight on the morning of June 5, Wendell Lewis of the Louisiana State Police and Jasper Curry of the Delhi Police pursued and stopped a vehicle in Richland Parish which they believed to be recently stolen. The occupants of the car, identified as the defendant and his co-defendant, drew handguns and disarmed the law enforcement officers when they approached the car. They forced the policemen into the back seat, drove around for a while, then stopped in a bean field. The officers were ordered out of the vehicle and then shot several times each by both defendant and his co-defendant. (Both officers survived the shootings.)

Defendant and co-defendant then fled. The automobile they were operating was later found abandoned with a flat tire, and they were tracked and discovered hiding in a thicket by law enforcement officials.

Assignment of Error Number 1

Defendant first alleges that the trial court erred in failing to grant his October 7, 1970 pre-trial motion for a change of venue. That motion alleged that the Richland Parish public was prejudiced against him and that he could not receive a fair and impartial trial in that venue, largely due to publicity surrounding the capture and arrest of defendants in connection with the alleged June 5, 1970 kidnapping of law enforcement officers. At the October 8 trial of this motion, the defense called as witnesses twenty-three Richland Parish residents who were potential jurors for the fall term, the time defendant was scheduled for trial, and three members of the media. Defendant introduced three exhibits at this hearing: a June 11, 1970 "Delhi Dispatch" newspaper; excerpts from KNOE radio news copy for June 5 and 6, 1970; and films of television broadcasts (the latter is not included in this transcript). A review of this evidence shows that the trial judge's ruling was not erroneous and there was no abuse of judicial discretion in denying defendant's motion for a change of venue.

Louisiana Code of Criminal Procedure art. 622 provides that:

"A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

"In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial."

The burden is on the defendant in a motion for a change of venue to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. C.Cr.P. art. 622; State v. Monk, 315 So.2d 727 (La.1975). Defendant must prove that there exists such prejudice in the collective mind of the community that a fair trial is impossible, and it is not sufficient to show a mere knowledge by the public of facts surrounding the offense. The judgment of the trial court will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion. State v. Adams, 394 So.2d 1204 (La.1981).

At the hearing of defendant's motion for a change of venue the testimony of potential jurors for the fall term when defendant was scheduled for trial was overwhelming in establishing the fact that the defendant could receive a fair trial in Richland Parish. Defendant's evidence fell far short of showing that there existed in the collective mind of the community such prejudice that a fair trial was impossible. Although a few of the witnesses testified that they had formed an opinion in the case and it would take evidence to convince them otherwise, no witness testified that, in their opinion, the defendant would be unable to get a fair trial. We also note that the witnesses' knowledge of the offense and of defendant's alleged involvement in the offense was not detailed nor common to all witnesses. In fact, three witnesses had never heard of the offense for which defendants were to be tried. We have reviewed the nature of the publicity surrounding the offense and have found it neither inflammatory nor sensational.

The June 11 article in the Delhi Dispatch was entitled "State Trooper-Deputy Marshal Shot". It was a one-column front-page story in this publication circulated in Richland Parish, and was no more prominent in text or title than other local news stories which shared the front page. The article contained a fairly detailed factual account of the kidnapping of the two officers, the shooting and the capture of the men identified as Bobby Joe Fabian and Clarence Everett Wilkerson, the eventual defendants in this case. The article stated that these individuals were wanted in several states on numerous charges. Kenneth O'Neal, publisher of the paper, testified that coverage of the event was no different from any other where someone was shot.

The KNOE radio news copy dated June 5 and June 6 briefly related that the two named individuals were wanted in connection with the shooting of a state trooper and a town marshall. There were also statements in the copy that when the men were apprehended they were armed with hand grenades and a Browning rifle and that they were also wanted for questioning in connection with an Arkansas bank robbery. The copy was apparently read several times on June 5 and 6 over KNOE radio, reaching audiences in Richland Parish.

The television film was shown four times on KNOE television. There is no indication in the record of what the film portrayed.

Defendants later filed two more motions for a change of venue, one just prior to the selection of the jury in the case and another following jury selection and prior to the actual trial of the case. Both motions were denied by the trial judge. The bases for these motions were allegedly prejudicial publicity just prior to defendants' trial date and during jury selection, and the contention that the amount of jurors excused for cause indicated prejudice against the defendants. Defendants introduced four Monroe newspapers as exhibits in connection with these motions.

Exhibit D-4 is a copy of the Monroe Morning World circulated October 12, 1970, one day before defendant's trial began. A front page article entitled "Dixie Mafia Link Found in Area Jail" appeared in the newspaper. The article states that Bobby J. Fabian, co-defendant of appellant Wilkerson, claimed to be a trigger man in the pistol slaying of a Memphis businessman. Practically the entire article dealt with Fabian, his possible link with the Dixie Mafia, and his involvement in the Memphis shooting. The article specifically stated that Wilkerson was not believed to be connected with the slaying and no connection with Wilkerson and the Dixie Mafia was implied. There was a very brief account of the capture of defendants following the kidnapping and a statement that defendants were wanted in connection with robberies in Arkansas and Mississippi.

Exhibits D-5 and D-6 were published respectively the day before and the day of trial. These small articles simply stated when the trial began and gave a very brief actual summary of the case. The last two exhibits were papers dated the afternoon of the first day of trial and the next morning. Again, the status of the trial was discussed and there was a brief summary of the capture of defendants and of the charge against them. These articles also referred to the fact that defense attorneys had requested a change of venue and that the judge had denied the request.

Finally, in support of defendants' motion for a change of venue on the day of the trial, counsel orally alleged that prejudice was apparent since 20-25 of 82 or 83 jurors testified they were prejudiced against defendants. In defendant Wilkerson's current argument before this Court, he alleges that 35 prospective jurors were excused for cause on voir dire. There is no indication of which potential jurors were excused for cause because of prejudice against defendant and no evidence, other than counsel's allegations, that 20-25 jurors stated on voir dire that they were prejudiced against defendant. In any event, the cumulation of evidence does not prove the requisite community prejudice or undue influence or any other reason which would entitle defendant to a change of venue.

In State v. Bell, 315 So.2d 307 (La.1975), this Court set out certain factors to be considered in determining whether a change of venue is warranted. An application of...