No. 83-10
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1983
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
Ja'4ES E . PAISLEY,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f F l a t h e a d ,
The H o n o r a b l e James B. W h e e l i s , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
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 0. Lynpus, County A t t o r n e y , K a l i s p e l l , > l o n t a n a
For Respondent:
Keller & Gilmer, K a l i s p e l l , Montana
Submitted! on B r i e f s : !;larch 2 5 , 1983
Decided: May 1 9 , 1 9 8 3
File": MAY 19 1983
p
p
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant was arrested on January 17, 1982, and charged
by information with one count of sexual intercourse without
consent. An amended information was filed March 19, 1982,
charging defendant with one count of sexual intercourse
without consent, a felony, one count of sexual assault, a
felony and one count of sexual assault, a misdemeanor. All
of the charges stem from defendant's actions toward three
female patients in his Flathead County, Montana, dental
office.
After his arrest and the filing of the additional
charges, defendant's dental business decreased substantially.
On April 6, 1982, defense counsel mailed letters to over
seven hundred of defendant's patients clarifying defendant's
position regarding the charges. Defendant's dental business
once again increased.
Defendant's trial on the misdemeanor charge began in
justice court in Flathead County, Montana on September 27,
1982, and lasted for three days. A verdict of guilty was
returned on September 30, 1982. Ralispell's Daily Inter
Lake newspaper gave the trial and its result front page
coverage on all four days. The Missoulian also extensively
covered the trial.
The felony charges against defendant were scheduled to
be tried in the Eleventh Judicial District Court, Flathead
County. On October 15, 1982, defendant made a motion for
change of place of trial. A hearing on the motion was held
November 15, 1982. The motion was granted at the close of
the hearing. Pursuant to section 46-20-103, MCA, the State
now appeals the order granting the change of venue. We
affirm.
Defendant's motion was supported by his defense
counsel's affidavit stating facts in support of the prejudice
alleged; by copies of the newspaper accounts of the September
trial in justice court; and by a written report of
criminologist Dr. Richard Vandiver's survey of the opinions
of Flathead County's registered voters regarding the guilt of
this defendant.
The State filed a motion in opposition on November 5,
1982, containing four responses to defendant's motion:
1. Defense counsel acted inappropriately in sending the
letters to defendant's clients. The letters attracted the
attention of the news media. Defendant should not now be
able to benefit from his own wrong.
2. The news media covered defendant's trial in a fair
and objective manner. The publicity did not affect
defendant's chances of receiving a fair trial in Flathead
County.
3. The criminologist's survey indicated that a majority
of the respondents believed they could decide the case solely
on the basis of the evidence presented at trial.
4. The District Court should reserve ruling on
defendant's motion until voir dire of a Flathead County jury
panel.
At the November 15, 1982 hearing on the motion for
change of venue, defendant testified regarding the impact of
his reported conviction upon his dental practice. The State
called no witnesses, offered no evidence and conducted no
cross-examination.
Absent abuse of discretion, the District Court's ruling
on a motion for change of venue will be affirmed. State ex
rel. Coburn v. Bennett (1982), Mont. , I 655,
P.2d 502, 506, 39 St.Rep. 2300, 2306. To grant such a
motion, there must be "reasonable grounds to believe that the
prejudice alleged actually exists and that by reason of the
prejudice there is a reasonable apprehension that the accused
cannot receive a fair and impartial trial." State v. Link
(1981), Mont . -
1 ,
- 640 P.2d 366, 368, 38 St.Rep.
982, 985, quoting People v. Berry (1967), 37 Ill. 2d 329, 226
N.E.2d 591, 593. When prejudicial pretrial publicity is
alleged, the publicity must be inflammatory and create a
reasonable apprehension that a fair trial is not possible
before the motion will be granted. State v. Ritchson (1982),
Mont . f ,
- 647 P.2d 830, 832, 39 St.Rep. 1201,
1203-04.
the written report his survey , Dr. Vandiver
concluded:
"The results of this survey do not overwhelmingly
indicate either the liklihood or improbability of
Mr. Paisley receiving a fair jury trial in Flathead
County. It is obvious that the publicity given the
case by the local media has been widespread and
effective ...
"It was not clear that people's opinions are set
regarding guilt or innocence nor does there appear
to be a strong perception of agreement in the
community about the case. Thus while it might be
possible for Mr. Paisley to receive a fair jury
trial in Flathead County the liklihood of that will
undoubtedly be affected by the extent and nature of
further publicity in this case."
The survey was conducted prior to defendant's trial in
justice court. The trial was given extensive coverage by the
media. Regarding the guilty verdict, The Daily Inter Lake
reported that the justice court judge told the defendant:
"The evidence presents you as being guilty of more than the
particular offense charged. " The paper also stated: " [The
judge] said he was amending the formal charge to include
misdemeanor charges against Paisley that could have resulted
from the incidents detailed in the testimony of the
witnesses." Those witnesses are the alleged victims of the
pending felony charges.
The extent of the further publicity was great. It's
nature was inflammatory. Clearly, the District Court judge
did not abuse his discretion in granting defendant's motion
for change of venue.
Finally, in State ex rel. Coburn v. Bennett, Mont .
stated :
"Not every venue case requires that voir dire be
employed to determine whether prejudice still
'exists and that by reason of the prejudice there
is a reasonable apprehension that the accused
cannot receive a fair and impartial trial. ' While
the determination of whether widespread prejudice
prohibits selection of an impartial jury is usually
made during voir dire, each case must turn on its
special facts. United States v. Engleman (E.D.
Mo. 1980), 489 F.Supp. 48."
The District Court's ruling on defendant's motion was
within the bounds of properly exercised discretion.
Affirmed.
We concur:
1 respectfully dissent on the basis th
he
/
t change of
venue order is premature.
-& I (