Walker v. People, No. 22774

Docket NºNo. 22774
Citation169 Colo. 467, 458 P.2d 238
Case DateAugust 25, 1969
CourtSupreme Court of Colorado

Page 238

458 P.2d 238
169 Colo. 467
Joe Sam WALKER, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 22774.
Supreme Court of Colorado, En Banc.
Aug. 25, 1969.
Rehearing Denied Sept. 15, 1969.

[169 Colo. 468] Francis R. Salazar, Robert L. Pitler, Denver, for plaintiff in error.

Page 239

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., for defendant in error.

DAY, Justice.

This writ of error is to the trial court's denial of a motion under Colo.R.Crim.P. 35(b) to set aside the conviction of the defendant, Joe Sam Walker. He was found guilty of second degree murder in 1949 and was sentenced to a term of 80 years to life. His conviction was upheld by this court in Walker v. People, 126 Colo. [169 Colo. 469] 135, 248 P.2d 287. We will refer to that decision as first Walker.

On June 10, 1965, Walker filed a motion which is now the subject matter of this review. He alleged, among a number of contentions in his motion, that he had been denied a fair and impartial trial by reason of massive and hostile publicity concerning him and his case. The trial court denied the motion summarily on the ground that the petition on its face was not legally sufficient to entitle Walker to any relief. Walker was not given an opportunity at that time to present anything of an evidentiary nature in support of his 35(b) allegations that his constitutional rights had been violated. When Walker came to this court at that time challenging the Boulder district court's summary dismissal of the motion, the attorney general advised the court that although most of the matters asserted by Walker had either been considered and rejected by this court in first Walker, or could be summarily disposed of on the basis of the record, the allegation concerning the massive and inflammatory pre-trial publicity and whether it was such as to violate Walker's constitutional right to a fair trial, could only be resolved after a full evidentiary hearing. We thereupon in what we will refer to as second Walker (Walker v. People, 160 Colo. 286, 417 P.2d 14) reversed the trial court and remanded the cause with directions that Walker's allegations be considered under the ruling of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.

The evidentiary hearing on remand was held, and the trial court entered findings of fact and conclusions of law but again denied Walker's motion to set aside the verdict and sentence. So now, in this the third Walker, the latest ruling of the trial court is being challenged. The main point of argument--which is the only one that we will consider--is that the trial court misapplied the rule in Sheppard and failed to follow the guidelines set out therein. Instead, the court applied law that has [169 Colo. 470] been overruled in Sheppard and erroneously determined that it could not apply 'present day standards of newspaper conduct to the happenings in 1949.' We hold that the court erred for reasons hereinafter set out.

The facts of the case are fully set forth in the first Walker and need not be repeated here. A brief quotation from the dissenting opinion in first Walker gives an accurate picture of the problem which now commands the attention of this court:

'* * * We cannot disregard the fact that an atrocious crime was committed; that the seat of the trial was in the same community of irate citizens; and that when the finger of suspicion was pointed in defendant's direction, and when the charge was finally laid against him, all accounts thereof were fully embroidered by the press, which should be the maximum of information and the minimum of comment before trial in criminal cases. With this setting, it is easy for the gossamer thread of prejudice to be invisibly woven into the fabric of guilt through the means of an unfair and partial trial. * * * In such an atmosphere, the following expression of Robert Ingersoll is fitting, 'Prejudice is the spider of the mind, it is the womb of injustice.''

I.

A brief review of the law is necessary to bring into focus why we hold that the trial court misapplied the law and failed to follow our directions to view the facts

Page 240

with the Sheppard case in mind. Traditionally, before Sheppard, defendants had been required to prove a direct connection between the publicity and the alleged denial of the fair trial. See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. This, we are persuaded was the test used by the trial court leading to the conclusionary comments:

'* * * While it is recognized that pretrial publicity in the Walker case was extensive and contained material not admitted at trial, especially that based upon the [169 Colo. 471] reports and activities of pressemployed scientists, still it is difficult to compare the standards of 1948 and 1949 with those of the present day. Sheppard was denied change of venue; Walker did not request it. It is impossible to determine exactly How and in what manner the pre-trial publicity connected with the Walker trial Caused his trial to be unfair and prejudiced.' (Emphasis added.)

The line of cases culminating in Sheppard hold that the publicity in question can be so 'massive, pervasive and prejudicial' that the denial of a fair trial May be presumed. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.

The court, therefore, also erred in holding that a showing must be made that the jurors were actually and directly affected by the publicity. Also the court's finding that 'There is no evidence that prospective jurors were contacted or publicized before the trial' is not a material element in the determination of a case such as presented herein. If it were, the court's finding of 'no evidence' is contrary to the record. The jurors were considerably affected by the pre-trial publicity as will be discussed later.

With the conclusions of law of the trial court, which were predicated on principles no longer recognized in Sheppard and based on findings which were not the true test dictated by Sheppard, a question arises whether we should remand the case to the trial court for a re-evaluation of the record by following Sheppard, or, whether this court must find as a matter of law that the publicity was sufficiently prejudicial to come within the purview of Sheppard. We hold as a matter of law that the community was so permeated with prejudice as to deny a fair trial to Walker. A comparison of the publicity aspects of the Sheppard case and of the case at bar will be helpful to explain this conclusion.

The syllabus of the Supreme Court in Sheppard describes[169 Colo. 472] the publicity prior to Sheppard's arrest and subsequent to his arrest and prior to his trial as follows:

'* * * During the entire pretrial period virulent and incriminating publicity about petitioner and the murder made the case notorious, and the news media frequently aired charges and countercharges besides those for which petitioner was tried. Three months before trial he was examined for more than five hours without counsel in a televised three-day inquest conducted before an audience of several hundred spectators in a gymnasium. Over three weeks before trial the newspapers published the names and addresses of prospective jurors causing them to receive letters and telephone calls about the case. * * *'

The court further noted the following publicity:

'Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made many public statements to the press and wrote feature articles asserting his innocence. During the inquest on July 26, a headline in large type stated: 'Kerr (Captain of the Cleveland Police) Urges Sheppard's Arrest.' In the story, Detective McArthur 'disclosed that scientific tests at the Sheppard home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section.' a circumstance

Page 241

casting doubt on Sheppard's account of the murder. No such evidence was produced at trial. The newspapers also delved into Sheppard's personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that Sheppard had any illicit relationships besides the one with Susan Hayes.'

[169 Colo. 473] Editorially, it was urged that an inquest be had and later that Sheppard be arrested; newspapers played upon Sheppard's refusal to take a lie detector test and that he would not 'take truth serum.' Other significant details of the case are well detailed in the Supreme Court opinion and need not be given amplification. Suffice it to say that on a record surprisingly analogous to what has been presented in the case at bar, the United States Supreme Court held that 'the totality of the circumstances' made it 'inherently impossible for Sheppard to receive a fair trial.'

Although the publicity in Sheppard during the weeks of trial was more damaging than what has been shown in this record, in certain other aspects the news media with relation to the Walker case went Far beyond Sheppard and in a surprising number of areas the publicity was almost identical to that in Sheppard.

II.

In addition to the publicity which was prejudicial and directed at Walker, there was a prologue of publicity which focused great public attention upon the case and was bound in a preliminary sense to affect the members of the community from which the jury was to be selected. What follows immediately are some of the instances of this prefatory publicity which must be considered as a part of the...

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15 practice notes
  • Harper v. People, No. 90SC204
    • United States
    • Colorado Supreme Court of Colorado
    • September 16, 1991
    ...1253, 1256 (Colo.1984) (presumption of prejudice arises if alternate juror was present during jury deliberations). Cf. Walker v. People, 169 Colo. 467, 471, 458 P.2d 238, 240 (1969) (pre-trial publicity so pervasive that actual prejudicial effect need not be shown). The principle to be deri......
  • People v. McCrary, No. 26258
    • United States
    • Colorado Supreme Court of Colorado
    • May 17, 1976
    ...prejudicial publicity as was evidenced in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) and Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), so 'as to create a contamination of the residents of Jefferson County such as to render it impossible for the defendant......
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...was not so extensive, pervasive, and prejudicial, however, that the denial of a fair trial may be presumed, as in Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.......
  • People v. Botham, No. 27525
    • United States
    • Colorado Supreme Court of Colorado
    • June 8, 1981
    ...532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), he must establish the denial of a fair trial based upon a nexus between extensive pretrial publicity and the jury panel. ......
  • Request a trial to view additional results
15 cases
  • Harper v. People, No. 90SC204
    • United States
    • Colorado Supreme Court of Colorado
    • September 16, 1991
    ...1253, 1256 (Colo.1984) (presumption of prejudice arises if alternate juror was present during jury deliberations). Cf. Walker v. People, 169 Colo. 467, 471, 458 P.2d 238, 240 (1969) (pre-trial publicity so pervasive that actual prejudicial effect need not be shown). The principle to be deri......
  • People v. McCrary, No. 26258
    • United States
    • Colorado Supreme Court of Colorado
    • May 17, 1976
    ...prejudicial publicity as was evidenced in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) and Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), so 'as to create a contamination of the residents of Jefferson County such as to render it impossible for the defendant......
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...was not so extensive, pervasive, and prejudicial, however, that the denial of a fair trial may be presumed, as in Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.......
  • People v. Botham, No. 27525
    • United States
    • Colorado Supreme Court of Colorado
    • June 8, 1981
    ...532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), he must establish the denial of a fair trial based upon a nexus between extensive pretrial publicity and the jury panel. ......
  • Request a trial to view additional results

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