No. 82-27
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1982
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
VS.
JAMES T O A RITCHSON,
H M S
D e f e n d a n t and A p p e l l a n t .
Appeal from: District Court of t h e Third J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f P o w e l l
H o n o r a b l e Mark S u l l i v a n , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
C. F. Mackay, Anaconda, Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Ted M i z n e r , County A t t o r n e y , Deer Lodge, Montana
S u b m i t t e d on b r i e f s : May 1 3 , 1982
Decided: J u l y 6 , 1982
Filed: JUL 6- 1982
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a judgment of the District
Court, Third Judicial District, State of Montana, in and
for the County of Powell. Following a jury trial on January
14, 1982, the defendant was found guilty of possession of a
weapon by a prisoner. He was sentenced to ten years in the
state prison to be served consecutively to the sentence he
was serving at the time of this conviction.
The appellant, a prisoner in the Montana State Prison,
was found in possession of a concealed nine-inch ice pick
during a shake-down search. Before trial, appellant moved
for a change of venue from Powell County, alleging that news-
paper articles had prejudiced the jury, that "the climate of
Powell County is such as to cause a prejudgment of guilt,"
and that "local prejudice will operate detrimentally to the
rights of the accused." Attached to his motion were copies
of several newspaper articles pertaining to recent security
incidents at the prison, none of which involved the appel-
lant, and an affidavit stating counsel's conclusion that
prejudice so existed in Powell County that the appellant
could not receive a fair trial.
At voir dire the defense counsel questioned twenty-
eight prospective jurors about their knowledge of recent
problems at the prison and their attitude toward prisoners
in general. No questions regarding the particular news
articles filed with appellant's motion were asked, nor were
any questions asked concerning the guilt of the defendant or
the charge that he faced. Following voir dire four jurors
were excused for cause: one because he was a deputy sheriff
of Powell County; the second because her daughter worked in
t h e p r i s o n and was a s s o c i a t e d w i t h i n m a t e s ; t h e t h i r d be-
c a u s e s h e was a member of a c i t i z e n s p r o t e c t i v e a s s o c i a t i o n
i n t h e c o u n t y and l i v e d c l o s e t o t h e p r i s o n ; and t h e f o u r t h ,
who l i v e d a s u b s t a n t i a l d i s t a n c e from t h e p r i s o n , b e c a u s e
h e r s t a t e m e n t s i n d i c a t e d t h a t s h e had formed an o p i n i o n t h a t
t h e d e f e n d a n t was g u i l t y b e c a u s e he w a s c h a r g e d . A l l four
of t h e s e j u r o r s were c h a l l e n g e d by t h e d e f e n s e c o u n s e l and
dismissed. Defense c o u n s e l p a s s e d t h e rest o f t h e p a n e l f o r
c a u s e and no j u r o r who s a t on t h i s c a s e was e i t h e r a member
of t h e c i t i z e n s p r o t e c t i v e a s s o c i a t i o n , had r e l a t i v e s working
a t t h e p r i s o n , o r any c l o s e f r i e n d s i n p r i s o n .
S e c t i o n 46-13-203, MCA, is our s t a t u t o r y provision
f o r changing t h e p l a c e o f t r i a l . This s t a t u t e provides:
" ( 1 ) The d e f e n d a n t o r t h e p r o s e c u t i o n may move
f o r a change of p l a c e of t r i a l on t h e ground
t h a t t h e r e e x i s t s i n t h e c o u n t y i n which t h e
c h a r g e i s pending s u c h p r e j u d i c e t h a t a f a i r
t r i a l c a n n o t b e had i n such county. The mo-
t i o n must be made a t l e a s t 1 5 d a y s p r i o r t o
t r i a l e x c e p t t h a t , i f good c a u s e i s shown, it
may b e made t h e r e a f t e r .
" ( 2 ) The motion must be i n w r i t i n g and s u p p o r t e d
by an a f f i d a v i t which must s t a t e f a c t s showing
t h e nature of t h e prejudice alleged. The de-
f e n d a n t o r t h e s t a t e may f i l e c o u n t e r a f f i d a v i t s .
The c o u r t s h a l l c o n d u c t a h e a r i n g and d e t e r m i n e
t h e m e r i t s of t h e motion.
" ( 3 ) I f t h e c o u r t determines t h a t t h e r e e x i s t s
i n t h e c o u n t y i n which t h e p r o s e c u t i o n i s
pending s u c h p r e j u d i c e t h a t a f a i r t r i a l can-
n o t be had, it s h a l l :
" ( a ) t r a n s f e r t h e c a u s e t o any o t h e r c o u r t o f
competent j u r i s d i c t i o n i n any c o u n t y i n which
a f a i r t r i a l may b e had;
" ( b ) d i r e c t t h a t a j u r y be s e l e c t e d i n any
county where a f a i r t r i a l may be had and t h e n
r e t u r n e d t o t h e c o u n t y where t h e p r o s e c u t i o n
i s pending t o t r y t h e c a s e ; o r
" ( c ) t a k e any o t h e r a c t i o n d e s i g n e d t o i n s u r e
t h a t a f a i r t r i a l may be had."
Here, t h e d e f e n s e c o u n s e l , i n a t i m e l y f a s h i o n b e f o r e
t r i a l , moved f o r change o f venue c l a i m i n g t h a t p r e j u d i c e
existed in the community and appellant was, therefore, unable
to obtain a fair trial. This motion was argued before the
court and denied by the Honorable Mark P. Sullivan, the dis-
trict judge presiding. Immediately prior to trial, on
November 17, 1981, the motion was renewed and again denied by
the presiding judge.
A defendant seeking a change of venue must show that
there is reasonable grounds to believe that a prejudicial at-
mosphere exists within the present venue which creates a
reasonable apprehension that he cannot receive a fair trial.
State v. Link (1981), Mont . , 640 P.2d 366, 38 St.Rep.
982. The appellant alleges that during the past two years
there has been an unusual number of escapes from the state
prison and because of the anxiety which has been created from
this situation a citizens protective association was reorgan-
ized to do something about the increasing escapes. The local
media have publicized the activities of this group and, ac-
cording to appellant, the result is a poison atmosphere in
the community which prevents him from receiving a fair trial.
This Court has held in numerous cases that a defen-
dant seeking a change of venue on the grounds of prejudicial
pretrial publicity must prove two elements: (1) he must show
that the news reports complained of were inflammatory; and
(2) he must show that the publication or articles actually in-
flamed the prejudice of the community to an extent that a rea-
sonable possibility exists that he may not receive a fair
trial. State v. Bashor (1980), - Mont . , 614 P.2d 470,
474, 37 St.Rep. 1099, 1100; State v. Armstrong (1980),
Mont ., 616 P.2d 341, 37 St.Rep. 1563, 1572; and State v.
Link, supra. The first test focuses on the nature of the pub-
licity itself while the second focuses on its effect. Neither
of these tests were met by appellant here.
The news reports attached to appellant's request for
a change of venue referred only to security problems at the
prison, not to the offense of the appellant. They were fac-
tual reports of escapes and concerned the formation of a citi-
zens protective association, a group which, according to one
article, was "designed to focus attention on security problems
at the prison and to safeguard residents during escapes." The
reports were factual, contained no editorializing and could
not serve to inflame the prejudice of the community. Cf.,
State v. Dryman (1954), 127 Mont. 579, 581-583, 269 P.2d 796,
797-798.
The appellant failed to show that the publicabion of
the articles actually inflamed the prejudice of the community.
He did not inquire at voir dire to find out if any of them had
read the particular news articles in question, nor did he
present any other evidence or affidavits to support the claim.
The voir dire failed to establish the existence of any "indicia
of undue prejudice" which this Court has required in support
of a motion for a change of venue. See, State v. Armstrong,
616 P.2d at 350; and State v. Board (1959), 135 Mont. 139,
143, 337 P.2d 924, 927.
The appellant also makes the broad assertion that the
fact that four jurors out of the total of twenty-eight called
were challenged for cause in this case establishes the exis-
tence of community-wide prejudice. Our decisions are to the
contrary. See, Bashor, supra; State v. Hoffman (1933), 94
Mont. 573, 580, 23 P.2d 972, 974, where this Court noted that
the excusal of four jurors for cause went "a long way in over-
coming the charge that the court abused its discretion in re-
fusing to change the place of trial." We held in Bashor that
the real question is whether the twelve jurors empaneled were
sufficiently impartial to allow them to fairly reach a ver-
dict. Here, all the jurors empaneled stated under oath they
could return a verdict based solely on the evidence which
belies the statement that all Powell County juries are unal-
terably prejudiced by the conditions at the prison. Here,
none of the jurors were prejudiced.
We find that the jury that tried the defendant was
fully qualified to render a fair verdict, and the denial of
change of venue was not an abuse of discretion. The judgment
of the District Court is affirmed.