State v. Wixon
| Decision Date | 03 August 1981 |
| Docket Number | No. 7547-1-I,7547-1-I |
| Citation | 631 P.2d 1033,30 Wn.App. 63 |
| Parties | , 7 Media L. Rep. 1964 STATE of Washington, Respondent, v. Todd James WIXON, Appellant. STATE of Washington, Respondent, v. Steven Earl BROWN, Appellant. |
| Court | Washington Court of Appeals |
Lewis H. Nomura, Seattle, King County Public Defender Ass'n, Tim Fogh, Seattle (appointed), for appellants.
Norman K. Maleng, King County Pros. Atty., Phillip Killien, Deputy Pros. Atty., Seattle, for respondent.
This case involves a consolidated appeal from verdicts in two murder trials in which the principal issues concern media publicity. Todd J. Wixon appeals his conviction for first degree murder, second degree burglary, attempted second degree burglary, taking a motor vehicle without permission, and possessing stolen property in the second degree. Steven E. Brown appeals his conviction for second degree murder, attempted second degree burglary, and taking a motor vehicle without permission. We affirm.
The victim, a prominent Seattle citizen, was last seen alive on the evening of October 25, 1978. His body was found in the locked trunk of his car, which had been abandoned in West Seattle, on the following afternoon. An autopsy revealed death was caused by a single bullet wound in the neck. Police were initially baffled concerning the motives and identities of the killers. They soon found evidence that the killers had attempted to break into the victim's home on the evening he was killed. Later, the police recovered the CB radio stolen from the victim's car. Each of these events was reported by the Seattle news media in accounts which the trial judge found to be factual and neither sensational nor prejudicial. Few of the newspaper stories were on the front pages or otherwise conspicuously placed, and none of these stories, of course, referred to either Wixon or Brown by name.
Wixon, Brown, and Alan Toshi, who later testified on behalf of the State, were arrested on November 29 and 30. On December 6, Wixon and Brown were formally charged. These events were also reported in news accounts which the trial judge found to be factual and nonsensational.
The exhibits include only two news accounts between December 11 and the opening of Brown's trial on February 16. A 4-paragraph article on January 25, not front page, reports the setting of the trial date and briefly reviews the allegations of the information and affidavit of probable cause. A newspaper article dated January 28 refers to neither defendant and mentions this case only in passing.
The trial judge granted separate trials for the two codefendants. Brown's trial in King County Superior Court began on February 16, and a guilty verdict was returned on February 24. The presentation of evidence, including Alan Toshi's testimony implicating both Wixon and Brown, was reported by the news media. Most news accounts mentioned Wixon as Brown's codefendant who was to be tried later. Only after voir dire and opening arguments disclosed that both the State and the prosecution theorized that the victim may have allowed Wixon and Brown to enter his car because he expected to engage in sexual relations with the defendants was this aspect of the case publicized by the media.
Wixon moved for a change of venue because of pretrial publicity. Jury selection began on March 5, and the trial judge reserved ruling on the motion until voir dire was completed, in order to determine if an unbiased jury could be empaneled. Following individual voir dire, the trial judge denied the motion based upon his evaluation of the nature of the publicity, the selection of an apparently unbiased jury, and the benefits and burdens to the parties of granting a change of venue. We presume that Wixon's trial was the subject of ongoing news reports, although the record on appeal does not indicate their content.
Wixon and Brown first contend the trial-related publicity precluded their obtaining a fair trial by an impartial jury and thereby denied them due process of law. Wixon also contends more specifically that the trial judge erred in denying his motion for a change of venue on account of the publicity. We do not agree.
In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, (1966), the Supreme Court held that where trial-related publicity creates a probability of prejudice to the defendant, the defendant is denied due process of law if the trial judge does not take steps sufficient to ensure a fair trial for the defendant. Accord, State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043 (1971). Brown and Wixon contend that, here, a combination of " '(m)urder and mystery, society, sex and suspense," Sheppard v. Maxwell, supra, 384 U.S. at 356, 86 S.Ct. at 1518, as in Sheppard, resulted in a trial colored by prejudicial publicity. But it is the nature of the publicity and not the nature of the crime which primarily concerns us. Any excesses in media coverage of this case pale in comparison to press coverage accorded Sheppard's trial. 1
"An apparent probability of prejudice must be shown to demonstrate that a denial of a change of venue motion violated due process." State v. Gilcrist, 91 Wash.2d 603, 609, 590 P.2d 809 (1979). In State v. Crudup, 11 Wash.App. 583, 587, 524 P.2d 479 (1974), the criteria applicable to determination of whether a probability of prejudice exists on account of trial-related publicity are stated to be:
(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.
An appellate court must make an independent review of the record to determine if the publicity gave rise to a probability of prejudice. State v. Stiltner, supra.
Our review of the record persuades us that the nature of the publicity in this case was factual and neither sensational nor inflammatory. With several isolated exceptions, reporting was restrained, especially given the nature of the crime. At Brown's sentencing hearing, his counsel could cite no specific example of media coverage which was either inflammatory or inaccurate.
Wixon and Brown focus considerable attention upon media references to them as being members of a youthful street gang and several other stories at approximately the same time which referred to criminal activity of street gangs generally and linking the gangs to Seattle's "unacceptable," Exhibit 1, robbery rates. But we discern neither a pattern of reports nor more than a single isolated instance in which media coverage suggested Wixon or Brown were or might be involved in other crimes for which they were not being tried. 2
Wixon and Brown also contend that television appearances by the senior deputy prosecutor (who later tried the case), in which he read the affidavit of probable cause referring to statements and admissions of Brown, created a probability of prejudice. We do not agree.
Nevertheless, the practice is a questionable one which should be discouraged. The State's association with trial-related publicity is one factor to be considered in determining if a probability of prejudice has been created. State v. Crudup, supra. The State thus has an important responsibility in avoiding conduct which could reduce the likelihood of a fair trial, and the impact of television coverage of prosecutorial statements may in some cases be the decisive factor in persuading a court that a probability of prejudice exists.
The State asserts that the Code of Professional Responsibility, DR 7-107(C) (9), which permits prosecuting attorneys to quote from the public record, authorizes such statements. The disciplinary rules merely establish standards which, if violated, subject the attorney to discipline. They do not establish the parameters of the constitutional right to a fair trial. Also, DR 7-107(B) (1)-(6) identifies certain types of extrajudicial statements more likely to prejudice the defendant's right to a fair trial. DR 7-107(B)(3) specifically provides that an attorney associated with the prosecution of a criminal case shall not, in any extrajudicial statement, refer to admissions or statements given by the accused. We do not discern that the possibility of prejudice to the defendant is any less merely because those statements are enclosed within and quoted from a public record in the case.
Wixon and Brown also point to a number of reports dealing with the evidence of homosexuality presented in this case. The reports were factual, not inflammatory, and with one possible exception, 3 cannot be considered sensationalized coverage of a sensitive subject.
Brown points to a report in the Seattle Times on February 17 (at page A6) headlined, "Jury being chosen in death trial," Exhibit 2, and containing two photographs, one of each defendant apparently in handcuffs and being led from the courtroom. The article also reported statements by the two prosecutors assigned to the case that the murder weapon had been found in a vehicle allegedly stolen by Wixon; that Brown and Wixon had been identified as the persons who sold the CB radio stolen from the victim's car, and that Brown had told a friend that the victim was killed during an attempted robbery and that Brown was holding the gun when it went off.
We find no apparent probability of prejudice based on this article. The report followed by 1 day the first day of jury voir dire, and...
To continue reading
Request your trial
-
State v. LeFever
...or for any other purpose. Instruction 5. We must presume that the jury heeded the court's cautionary instruction. State v. Wixon, 30 Wn.App. 63, 75, 631 P.2d 1033 (1981). In view of the highly probative nature of LeFever's heroin addiction and the trial court's cautious treatment of its pre......
-
Bouwkamp v. State
...one or more of the acts charged. Id. at 1339 (quoting State v. Oswald, 306 S.W.2d 559, 563 (Mo.1957)). See also State v. Wixon, 30 Wash.App. 63, 631 P.2d 1033, 1040 (1981), which also followed the repugnancy With the Arndt split court decision in place, the Green cases followed. State v. Gr......
-
State v. Mak
...v. Jeffries, supra; State v. Leuch, supra; State v. Gosser, supra.36 Dictado, 102 Wash.2d at 299, 687 P.2d 172; State v. Wixon, 30 Wash.App. 63, 74, 631 P.2d 1033 (1981).37 State v. Benjamin Ng, 104 Wash.2d 763, 776, 713 P.2d 63 (1985); Dictado, 102 Wash.2d at 299, 687 P.2d 172.38 See Wixon......
-
State v. Ford
...exception is inadequate to apprise the judge of certain points of law, those points will not be considered on appeal); State v. Wixon, 30 Wash.App. 63, 78, 631 P.2d 1033, review denied, 96 Wash.2d 1012 (1981) (where review of record of murder prosecution indicated counsel objected to testim......