State v. Williams

• Decision Date: 27 December 1979
• Docket Number: No. 14871,14871
• Citation: 604 P.2d 1224,36 St.Rep. 2328,185 Mont. 140
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Dionisio WILLIAMS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1224

604 P.2d 1224

185 Mont. 140

The STATE of Montana, Plaintiff and Respondent, v. Dionisio WILLIAMS, Defendant and Appellant.

No. 14871.

Supreme Court of Montana.

Submitted Dec. 10, 1979.

Decided Dec. 27, 1979.

Michael J. Whalen argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, John H. Maynard argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, Robert J. Waller argued, Deputy County Atty., Billings, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant Dionisio (Danny) Williams was found guilty of two counts of conspiracy by a jury in Yellowstone County District Court. The Honorable C. B. Sande entered judgment of conviction and sentenced Williams to five years on Count I and 10 years on Count II, the sentences to be served consecutively. Williams appeals.

Defendant and the State present drastically different versions of the facts. The State's theory is that Williams masterminded a burglary and a theft in Billings, Montana.

The burglary occurred first. The State asserts that on November 10, 1978, Williams drove Mark Alberta and Jack Suiter to a Billings residence and directed them to break in and steal drugs. Alberta and Suiter entered the house but found no drugs. They went back to the car and Williams directed them along with another juvenile, to return to the house and steal a stereo. They returned with the stereo, a pistol and some clothes. Police recovered the stereo from defendant's stepmother's house. The gun was recovered from Denise Barker, with whom Williams had left it.

The robbery of the gas station occurred on November 15, 1978. Alberta and Suiter, together with Mark Best and Williams, were at Williams' apartment where the State contends they planned the robbery. About 2:00 a. m. Best and Williams left the apartment and drove to the gas station. Best told one of the attendants the station would be robbed shortly and warned him not to resist. He also said if the attendants cooperated they would be rewarded with a small amount of marijuana. Best informed the other attendant of this by phone.

Upon returning to the apartment, Williams gave Alberta and Suiter stockings to use as masks, a gun, rope from under the sink and his car keys. Alberta and Suiter committed the crime and returned to defendant's apartment and distributed the money. The rope they used to tie the attendants up was found by the police and the gun was found in a compartment a few feet from Williams' apartment.

When Alberta was first questioned by the police, he did not implicate Williams in either crime. He later changed his story and the facts to which he testified are substantially those summarized above.

Williams denies any agreement to or participation in the crimes. He asserts he was "holding" the stereo equipment found at his stepmother's house while he raised money to buy it from Alberta and Suiter. He also contends that his car was used by Alberta and Suiter but that he had no knowledge they were going to commit a robbery. He testified he went to the gas station with Best but that he did not know about the robbery nor did he have any conversation about it. Best appeared as a rebuttal witness and testified that he and Williams planned the gas station robbery together.

The issues on appeal, as framed by the State, are:

1. Did the District Court's denial of the defendant's motion for change of venue or a continuance deprive him of due process?

2. Did the District Court err in denying defendant's challenge for cause of juror Leona Whetham?

3. Was the testimony of defendant's accomplices adequately corroborated?

4. Did the District Court err in allowing the rebuttal testimony of mark best?

5. Did the District Court err in denying defendant's motion for a mistrial?

6. Did the District Court properly instruct the jury?

Defendant first argues that certain articles appearing in the Billings Gazette were "inflammatory" and "invidious" parts of a campaign staged against him by local law enforcement personnel and the media.

On the basis of this publicity, defendant filed a motion for a change of venue under section 46-13-203, MCA. The premise of such motion was that prejudice against defendant in the county in which he was charged was such that he could not receive a fair trial in that county. Such matters are "addressed to the sound discretion of the trial court, and, unless there has been shown a clear abuse of discretion, its ruling will not be disturbed." See also State v. Hoffman (1933), 94 Mont. 573, 580, 23 P.2d 972, 974; State v. Lewis (1976), 169 Mont. 290, 295, 546 P.2d 518.

In conjunction with the motion for a change of place of trial, defendant alternatively sought a continuance. The thrust of his argument in this regard is that during the continuance the alleged fervor created by the publicity would have died down. This Court has stated:

"Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been a matter of right. (Citation omitted.) The district court cannot be overturned on appeal in absence of a showing of prejudice to the movant. (Citation omitted.)

"Defendant's argument therefore must stand or fall on the issue of prejudice, for the district court can be said to have abused its discretion only if its ruling was prejudicial. We have not found a single case . . . in which the denial of a motion for continuance was reversed without a showing of resulting prejudice to the movant." State v. Paulson (1975), 167 Mont. 310, 315, 538 P.2d 339, 342.

The motions for a change in venue and a continuance were denied. Defendant argues he was thereby denied his right to a fair trial "by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755. We disagree.

"Indicia of this denial of fair trial, resulting from prejudicial publicity, as gleaned from our law, seems to be: Arousing feelings of the community, threat to personal safety of defendant, established opinion of members of the community as to the guilt of the accused, news articles beyond the objectivity of news printing and dissemination, State v. Dryman, 127 Mont. 579, 269 P.2d 796, and difficulty or failure in securing a fair, impartial jury from the community in which the news articles appeared, State v. Davis, supra, 60 Mont. 426, 199 P. 421; State v. Bess, 60 Mont. 558, 199 P. 426.

"Our court looks for a chain reaction. It starts with the basic premise that the accused is entitled to a fair trial. Next it checks the publicity complained of, as to its contents and more important, as to its total effect upon the 'fair trial right.' Further, it looks at effects in the form of the discriminating marks we have discussed. Finally, it objectively considers the end result was a fair trial denied as a result of the publicity and its effects? If its findings are negative it refuses to find abuse of discretion on the part of the trial Court." State v. Board (1959), 135 Mont. 139, 143-144, 337 P.2d 924, 927.

Defendant's assertion that prejudice flowed from the article is unsupported by affidavit or otherwise. An affidavit Must accompany a motion for a change of venue, section 46-13-203, MCA, and for this reason alone, that motion could have been properly denied. However, our decision rests on the fact that, even if the community was aroused by the publicity or if there was an opinion regarding defendant's guilt within the community, the facts do not indicate he was denied a fair trial. Of the twelve jurors and one alternate selected, nine could not recall having heard or read anything about the case and three remembered only defendant's unusual name or that the gas station had been robbed. One juror was not asked any questions at all. There was no abuse of discretion in denying the motions.

In connection with this matter, we feel compelled to issue a warning to prosecuting attorneys and law enforcement officers concerning statements to the news media prior to trial. A criminal defendant is guaranteed the right to a trial by an impartial jury in a court of law. U.S.Const., Amend. VI; 1972 Mont.Const., Art. II, § 17. Extrajudicial statements by prosecutors and law enforcement personnel prejudicial to defendant and which are disseminated in the news media prior to trial may under some circumstances destroy the impartiality of prospective jurors. Certain extrajudicial statements that were made in this case following defendant's release on his own recognizance prior to trial appeared in the Billings Gazette on March 9, 1979:

"Several Billings police officers, who said they did not know Williams was out of jail until the beating incident, expressed dismay that 13th District Judge C. B. Sande approved his release.

". . .

"One Billings detective who has helped track Williams down twice in the last three months, said, 'Why are we doing this again? He'll probably only be let out again.' "A deputy county attorney said of Williams' release, 'I think it's a mistake, a big mistake.' "

The making of statements like the ones in this case indicates a disregard for principles embodied in our system of law. In the long run, such statements are harmful to law enforcement and potentially damaging to the right of an accused to a trial before an impartial jury. In this case, the publication of the comment did not contaminate the jurors because they remembered so little about the pretrial publicity in the case. However, under other circumstances and in a different context, these or similar comments might deny an accused his right to a fair trial before an impartial jury or require the place of trial to be changed at considerable expense and delay.

Defendant next argues that the presence of Leona Whetham on the jury deprived him of his right to trial by a fair and impartial jury. Her prejudice, according to defendant, was revealed on voir dire:

"Q. (By defense counsel Wha...