State v. Wilson

• Decision Date: 13 May 1987
• Docket Number: No. 86-781,86-781
• Citation: 406 N.W.2d 442
• Parties: STATE of Iowa, Appellee, v. Ricky Laverne WILSON, Appellant.
• Court: Iowa Supreme Court

Page 442

406 N.W.2d 442

STATE of Iowa, Appellee, v. Ricky Laverne WILSON, Appellant.

No. 86-781.

Supreme Court of Iowa.

May 13, 1987.

As Corrected May 13, 1987.

Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Patrick McCormick, Co. Atty., and Gregory E. Jones, Asst. Co. Atty., for appellee.

Considered by McGIVERIN, P.J., and LARSON, CARTER, WOLLE and LAVORATO, JJ.

LAVORATO, Justice.

Following a jury trial, the defendant Ricky Laverne Wilson was found guilty of three crimes: first-degree murder, first-degree robbery, and second-degree theft. See Iowa Code §§ 707.1, .2(1)-(2), 711.1-.2, 714.1(1), .2(2) (1983). The court sentenced Wilson to life in prison for the murder conviction and added concurrent indeterminate twenty-five and five-year terms for the other convictions.

On appeal from his convictions and sentence, the defendant asserts three grounds for reversal: (1) the district court abused its discretion in overruling the defendant's pretrial motion for change of venue; (2) the district court erred in excluding evidence of the victim's alleged proclivity toward aberrant sexual behavior and pedophilia; and, (3) the district court abused its discretion in ordering the defendant to wear leg shackles during his trial.

Viewing the facts in the light most favorable to the jury's verdict, we believe the jury could have found the facts as follows. On November 10, 1981, Raymond Smith was murdered in his Sioux City home. The police found Smith's body lying at the foot of the basement stairs of his house. Smith had been stabbed thirty-one times in the chest and had sustained a skull fracture due to a severe blow or blows to the head. Underneath his men's trousers and sweater, the deceased was found to be wearing a dress and ladies' bloomer-type underwear.

On November 12, 1981, police found papers, including a payroll check, savings bonds, and insurance papers, belonging to the deceased. The papers were found on the bank of the Missouri River near a barge-loading dock.

The police also searched the deceased's home and, upon entering three locked rooms upstairs, discovered large quantities of pornographic material: magazines, photographs and posters depicting nude children and adults, and sexual manipulation devices. The deceased also possessed several life-size dolls and articles of children's clothing. There were fifty-nine nonpornographic photographs of children in the deceased's living room, more pornographic magazines in the basement, and a calendar in the kitchen on which the birthdays of various children were noted. Evidence of these pornographic items and of the fact that the deceased was wearing ladies' clothing was the subject of the State's motion in limine, which was granted by the court.

On June 7, 1983, Ricky Laverne Wilson was charged with the murder, robbery, and theft of Raymond Smith. At trial in April 1986, Wilson's accomplice, Donald Fueston, testified he and Wilson went to Smith's home to rob him on November 10, 1981. Wilson was acquainted with Smith and knew that Smith did not like to keep his money in banks. He also knew Smith possessed at least one handgun. Wilson and Fueston visited with Smith for a while. Then Wilson hit Smith in the head with a tire iron and stabbed him repeatedly with a paring knife. Wilson pushed the body downstairs, and he and Fueston left the house.

Fueston and his girlfriend, who had been waiting outside Smith's house in a car, also testified they and Wilson drove to the river. There, Wilson and Fueston went through a security box that Wilson had taken from Smith's house.

Wilson's former jailmate testified Wilson admitted murdering Smith.

Wilson's defense at trial was that he did not commit the murder and was not with Fueston and his girlfriend on November 10, 1981. Wilson did not remember where he was on that evening.

I. Change of Venue.

The defendant, who was incarcerated pending trial in this matter, allegedly escaped from the Woodbury County jail on July 13, 1985. He was recaptured in Sioux City two days later on July 15. On August 6, 1985, the defendant moved for a change of venue pursuant to Iowa Rule of Criminal Procedure 10(10)(b). Rule 10(10)(b) provides that a court shall grant a change of venue where the evidence introduced in support of the motion shows "that such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county...." Wilson alleged that local media coverage of his escape from custody was so prejudicial that he could not receive a fair trial in Woodbury County.

On August 28, 1985, the district court, Judge Michael S. Walsh presiding, heard the arguments of counsel and received evidence regarding the venue motion. The court overruled the motion for change of venue on September 4, 1985.

A defendant seeking reversal of a conviction on the basis of a denial of a motion for change of venue "must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed." State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986). The defendant makes no claim of actual prejudice. Thus, the defendant has the burden to show the reports are so pervasive and inflammatory that prejudice must be presumed.

We view the record de novo to determine whether the district court abused its discretion in denying the request for change of venue. Id. The media coverage to which the defendant objects was reported between July 13, 1985, and August 8, 1985. Media accounts that are factual and informative in tone do not support a claim that they must be presumed to have created prejudice against a defendant. See State v. Spargo, 364 N.W.2d 203, 208 (Iowa 1985). We agree with the district court that the newspaper articles and television broadcasts are, with three exceptions, factual in tone and not inflammatory.

The first nonfactual report involves television and newspaper coverage of the county sheriff's statement that Wilson is "one of the most dangerous inmates we've had here since I've been sheriff." The district court found the remark is not inflammatory.

The second nonfactual report is a comment that the defendant has a violent history. The court found that remark was made only once and was made in the context of a television news report regarding the defendant's escape while he was still at large.

The third nonfactual broadcast is a commercial promotion for station KTIV's television news program. The thirty-second commercial aired twenty-nine times from July 19 to July 23, 1985. The commercial gives examples of the station's on-the-scene coverage of various recent events, including the defendant's escape and recapture. The commercial refers to the defendant as "convicted murderer Rick Wilson." Regarding this coverage, the court stated:

[T]here is no showing that this particular incident of misinformation had any effect on the public to the extent that there is a substantial likelihood that the defendant would not receive a fair and impartial trial. The particular incident can be remedied by appropriate voir dire, and the court is confident that it will become obvious to any members of the prospective jury who heard the commercial promotion and believed it, that it is incorrect because the trial of the defendant has not yet taken place.

We believe these three nonfactual reports are inflammatory and, to some extent, are prejudicial. The reports are not so pervasive, however, as to warrant a presumption of prejudice. The district court found the defendant failed to show he could not receive a fair trial, "[g]iven the large population of Woodbury County, the opportunity to draw a jury from a large panel of prospective jurors, and the opportunity to challenge for cause as well as to strike prospective jurors [the defendant] may feel are prejudiced as a result [of the adverse publicity]."

Although the publicity is inflammatory and contains prejudicial material, it does not rise to the level of pervasive and inflammatory publicity that would deny the defendant a fair trial. See State v. Marr, 316 N.W.2d 176, 181 (Iowa 1982).

The defendant also presented fifteen affidavits to the court in support of his motion for change of venue. The defendant's attorney allegedly handed the affidavits to the first people he saw on August 27, 1985. The affidavit form states the affiant personally heard or read certain listed news reports or advertisements which would influence the affiant's "opinion and thinking about the defendant and could influence my [the affiant's] attitude as to his guilt or innocence." Of the fifteen affiants, ten admitted hearing the factual reports or the sheriff's opinion that Wilson is one of the most dangerous inmates ever incarcerated in Woodbury County. Four admitted hearing that Wilson is a convicted murderer, and one had no personal knowledge of the media coverage. One of the affiants, whom the court recognized as a local criminal defense attorney, adds that in his opinion the coverage "would no doubt influence prospective jurors."

We agree with the district court's conclusion that these affidavits, which are not the result of an independent scientific survey, are neither helpful nor persuasive in determining what the general public may have heard about the defendant from the news media coverage.

The district court noted that the trial, which at that time was set for October 1, 1985, would take place at least two months after the news coverage at issue. The defendant does not allege that the publicity continued past August 8, 1985. We have stated in earlier cases that the separation in time from the publicity to trial may be sufficient to dissipate any prejudicial effect that might...