State v. Devlin

January 27 2009

DA 07-0761

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 18

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CHARLES JAY DEVLIN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-2006-116
Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Tammy Hinderman, Legal Intern,
Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

Mitch Young, Lake County Attorney, Mark A. Russell, Deputy County
Attorney, Polson, Montana

Submitted on Briefs: October 22, 2008

Decided: January 27, 2009

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 The State charged Charles Devlin in the Twentieth Judicial District Court, Lake

County, with bail-jumping. Devlin filed a motion for change of venue, which the District

Court denied. Thereafter, he entered into a plea agreement with the State and pleaded

guilty to the charge. Devlin now appeals the denial of his motion for change of venue.

We affirm the District Court’s decision.

BACKGROUND

¶2 Prior to the bail-jumping charge, the State charged Devlin in June 2006 with

kidnapping, driving under the influence of alcohol or drugs, failure to provide proof of

liability insurance, and obstructing a peace officer. These charges and the underlying

facts are the subject of a separate appeal presently before this Court. See State v. Devlin

(DA 07-0760).

¶3 On June 15, Devlin entered a plea of not guilty to all four charges, and the District

Court scheduled an omnibus hearing for July 6. Devlin posted bond and was released

from custody on the condition that he attend all scheduled court dates in person. Devlin

failed, however, to appear at the omnibus hearing on July 6. As a result, the District

Court issued a warrant for his arrest. In addition, the State commenced the instant action

on July 25 by filing an information charging Devlin with bail-jumping, a felony, in

violation of § 45-7-308(1), MCA. Devlin pleaded not guilty to this charge.

¶4 Devlin’s trial on the kidnapping, DUI, no proof of insurance, and obstruction

charges began on March 26, 2007; however, the District Court declared a mistrial based

on improper testimony by the State’s first witness. Devlin was again brought to trial in

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April 2007, after which the jury found him guilty on the charges of kidnapping and

obstructing a peace officer and not guilty on the charges of driving under the influence of

alcohol or drugs and failure to provide proof of liability insurance.

¶5 On May 24, 2007, Devlin filed a motion in the present matter to change venue due

to what he characterized as “inaccurate,” “inflammatory,” and “prejudicial” pretrial

publicity. Devlin argued that the type and amount of reporting about him, combined with

his and his family’s notoriety in the community, made it impossible for him to receive a

fair trial by an impartial jury in Lake County. In support of his motion, Devlin attached

three newspaper articles from the Lake County Leader & Advertiser.

¶6 The first article, published August 31, 2006, reported that while being held in the

Lake County Jail, Devlin had “run up a $17,816 medical bill which comes at taxpayer

expense.” The article contained assertions that Devlin had made repeated “false” medical

complaints, and the article quoted Dr. Stephen Irwin, the Lake County Jail physician, as

labeling Devlin “a manipulator supreme” and “a sociopath working the system every way

possible.” Dr. Irwin related that he had visited Devlin in the Missoula County Jail

20 years earlier and that Devlin’s “pattern” over the years had not changed. Irwin also

stated that one of the primary purposes of his job is to “make sure [Devlin] doesn’t rake

taxpayers over the coals.” In short, the first half of the article suggested that Devlin had

cost the taxpayers “more than $17,000 in less than three months” in largely unnecessary

medical expenses.

¶7 On the other hand, the latter portion of the article reported Devlin’s side of the

story, including the fact that Devlin “maintains his innocence in any alleged faking of

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heart attacks” and Devlin’s assertion that the prosecution was trying to “discredit” him.

It also related Devlin’s explanation of the events underlying the pending charges against

him. The article referred to Devlin’s “extensive criminal background,” including a

“history of bail jumping,” but also reported Devlin’s explanation that his past crimes

were attributable to post-traumatic stress disorder and his assertion that the pending

charges against him were “trumped up” and “inflated.”

¶8 The second Leader article was published March 29, 2007. This article reported on

the mistrial and recited details from the prosecutor’s and defense counsel’s respective

opening statements. In addition, the article highlighted the particular testimony by the

State’s first witness which had caused the mistrial—specifically, testimony that Devlin

was on probation at the time of the alleged kidnapping.

¶9 The third Leader article, published April 19, 2007, reported that Devlin had been

found guilty of the kidnapping and obstruction charges. Devlin asserts in the present

appeal that this article inaccurately summarized the trial testimony and the attorneys’

respective arguments. Furthermore, Devlin points out that the article incorrectly reported

that he faced 2 to 10 years imprisonment. (The State was seeking to treat Devlin as a

persistent felony offender under § 46-18-502, MCA, which carries a sentence of up to

100 years.) According to Devlin, the Bigfork Eagle carried this same story.

¶10 Aside from these articles, Devlin contended in his motion that a local radio station

and local television stations had reported similar details concerning the mistrial, the

retrial, and the verdicts in the kidnapping case. Moreover, in response to the State’s

acknowledgement that “the press coverage may contain some factual errors,” Devlin

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argued in his reply brief that the reporting “went far beyond that.” He pointed out that

the articles contained references to his prior criminal record, and he contended that the

problems he had experienced arising out of his service in Vietnam had been reported in a

“sensational manner.”

¶11 The District Court summarily denied Devlin’s motion, and the matter proceeded to

trial on July 23, 2007. At the outset, the court granted Devlin’s request to conduct

individual voir dire. The first juror, Susan, stated that she did not know Devlin or his

family personally or professionally and that she was not aware of the mistrial in the

kidnapping case. She did indicate, however, that she had read about the kidnapping case

in the newspaper and had seen news reports on television about this matter. Moreover,

she stated that her son was the news director for the local radio station and that she had

heard things from him related to the case. Although she could not remember any

particular details about the charges against Devlin, Susan acknowledged that she

probably would remember more as the trial progressed.

¶12 Defense counsel moved the court to excuse Susan. He argued that because Susan

had stated she watches the television news “nightly” and reads each edition of the

newspaper “cover to cover,” she necessarily had read and heard reports related to Devlin

and the kidnapping case. Counsel contended that this information was “somewhere in

her mind” and that it constituted “a potential bias and prejudice” against Devlin. The

District Court, however, responded that it would not “assume, on the basis of the fact that

someone represents that they see the news, that they then, by virtue of that, are

prejudiced.” Moreover, the court reasoned that under defense counsel’s argument, “no

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juror could ever sit on any case because there is always the possibility that they might

have heard something somewhere.” The court stated that it would not allow a challenge

for cause based on the responses elicited from Susan thus far.

¶13 Figuring that other members of the venire had heard or read about Devlin’s case,

and in light of the court’s ruling with respect to Susan, defense counsel requested time to

consult with Devlin. Shortly thereafter, counsel informed the court that Devlin would be

changing his plea to guilty pursuant to a plea agreement reached with the prosecution.

The District Court accepted Devlin’s plea and, on October 4, 2007, sentenced him as a

persistent felony offender to the Montana State Prison for a term of 20 years with

15 years suspended, said sentence to run concurrently with the sentences imposed for the

kidnapping and obstruction charges. Devlin now appeals.

ISSUE

¶14 Devlin raises the following issue on appeal: Did the District Court abuse its

discretion when it denied Devlin’s motion for change of venue?

STANDARD OF REVIEW

¶15 We review for abuse of discretion a trial court’s ruling on a motion for change of

venue. See State v. Link, 194 Mont. 556, 558, 640 P.2d 366, 367 (1981); State v. Moore,

268 Mont. 20, 51, 885 P.2d 457, 477 (1994), overruled in part on other grounds, State v.

Gollehon, 274 Mont. 116, 121-22, 906 P.2d 697, 700-01 (1995). A court abuses its

discretion if it acts arbitrarily without the employment of conscientious judgment or

exceeds the bounds of reason, resulting in substantial injustice. State v. Mackrill, 2008

MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451. Moreover, in exercising its discretion, the

6
court is bound to uphold the defendant’s constitutional right to a trial by an impartial jury.

See Moore, 268 Mont. at 51, 885 P.2d at 477 (“Criminal defendants have a constitutional

right to a trial by an impartial jury, and failure to provide an impartial tribunal is a

violation of due process.”); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642

(1961) (“In essence, the right to jury trial guarantees to the criminally accused a fair trial

by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair

hearing violates even the minimal standards of due process.”). The burden to

demonstrate an abuse of discretion is on the party seeking reversal of an unfavorable

ruling. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45.

DISCUSSION

¶16 Section 46-13-203(1), MCA, states that the defendant or the prosecution may

move for a change of place of trial on the ground that “there exists in the county in which

the charge is pending such prejudice that a fair trial cannot be had in the county.” In

Link, this Court addressed the showing that must be made before a change of venue is

proper. We rejected as “unworkable” the proposition that a defendant must show it is

“impossible” to obtain a jury free from prejudice, concluding instead that the defendant is

entitled to a change of venue “ ‘when it appears there are 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.’ ” See

Link, 194 Mont. at 558-60, 640 P.2d at 367-68 (quoting People v. Berry, 226 N.E.2d 591,

593 (Ill. 1967)); accord Vernon Kills On Top v. State, 2000 MT 340, ¶ 55, 303 Mont.

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164, 15 P.3d 422. This standard requires a fact-specific inquiry by the court and,

necessarily, fact-specific proof by the moving party.

¶17 We have tailored the standard to situations in which a change of venue is sought

on the ground of prejudicial pretrial publicity. The movant must show that the publicity

complained of was inflammatory and that the publicity actually inflamed the prejudice of

the community to such an extent that a reasonable possibility exists the accused may not

receive a fair and impartial trial. State v. Ritchson, 199 Mont. 51, 54, 647 P.2d 830, 832

(1982); accord Moore, 268 Mont. at 52, 885 P.2d at 477; State v. Abe, 1998 MT 206,

¶ 35, 290 Mont. 393, 965 P.2d 882. The first element of this test focuses on the nature of

the publicity itself, while the second focuses on its effect. Ritchson, 199 Mont. at 54, 647

P.2d at 832.

¶18 In the present case, Devlin and the State dispute whether the news reports were

inflammatory. In Devlin’s view, the three Leader articles and the similar reports in the

Bigfork Eagle and on television and radio “went far beyond the objective dissemination

of background facts about the case” and served no purpose other than to “incense the

local community” and “prejudice the jury pool against Devlin.” Devlin contends that Dr.

Irwin’s statements—e.g., that Devlin is “a manipulator supreme” and “a sociopath

working the system every way possible” (see ¶ 6, supra)—were inflammatory and

improper under State ex rel. Coburn v. Bennett, 202 Mont. 20, 655 P.2d 502 (1982)

(discussed below). According to Devlin,

the Leader’s coverage in this case left its readers believing that Devlin, a
career criminal and sociopath who kidnapped a young girl and stripped her
naked for his sexual gratification and who had been “rak[ing] the local

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 taxpayers over the coals” for twenty years by faking medical conditions and
manipulating the system, might “get off” with a sentence of only two-and-
one-half years.

¶19 The State responds that the press coverage was “balanced.” The State contends

that the Leader articles “did not editorialize regarding [Devlin’s] guilt or innocence” or

“serve to inflame ‘an already angry populace’ ” (quoting Coburn, 202 Mont. at 31, 655

P.2d at 507). The State acknowledges Irwin’s statements in the August 31, 2006 article

but argues that “the article was balanced by accounts from a deputy sheriff that Devlin

‘does have some problems,’ as well as by Devlin’s own statements regarding his health

and his criticisms of Dr. Irwin.” As for the March 29, 2007 article, the State points out

that it “was based primarily upon court records and public documents”; that it referred to

Devlin as a “suspect” and the victim as an “alleged victim” who had been “allegedly

kidnapped”; and that it contained defense counsel’s explanation that Devlin was “trying

to do a good turn” in picking up the girl and giving her a ride. Finally, as for the

April 19, 2007 article, the State asserts that the reporting regarding Devlin’s kidnapping

conviction was based on trial testimony and “was not designed to inflame the community

in connection with Devlin’s bail jumping trial.”

¶20 We have not heretofore explained what constitutes “inflammatory” publicity for

purposes of the pretrial-publicity test. We have, however, indicated the types of publicity

which fall on either side of the line. In State v. Armstrong, 189 Mont. 407, 616 P.2d 341

(1980), for example, we observed that the news articles under consideration were not “so

passionate as to excite undue prejudice against the defendant.” Armstrong, 189 Mont. at

423, 616 P.2d at 350. We further observed that the articles did not show “editorializing

9
on the part of the media or any calculated attempt to prejudice public opinion against [the

defendant] or to destroy the fairness of the pool from which [the defendant’s] prospective

jurors would be drawn.” Armstrong, 189 Mont. at 423, 616 P.2d at 350. Notably, this

latter observation has since evolved into a “definition.” See e.g. State v. Pittman, 2005

MT 70, ¶ 19, 326 Mont. 324, 109 P.3d 237 (“[W]e have defined inflammatory publicity

as editorializing on the part of the media or a calculated attempt to prejudice public

opinion against the defendant or to destroy the fairness of the pool from which the

defendant’s prospective jurors would be drawn.”); see also State v. Nichols, 225 Mont.

438, 444, 734 P.2d 170, 173-74 (1987); State v. Fuhrmann, 278 Mont. 396, 409, 925 P.2d

1162, 1170 (1996), overruled in part on other grounds, State v. Van Kirk, 2001 MT 184,

¶ 43, 306 Mont. 215, 32 P.3d 735; Abe, ¶ 35. Of course, the presence or absence of

editorializing is merely one factor bearing on the question of whether publicity is

“inflammatory.” Moreover, what the author or speaker may have intended or

“calculated” when publishing the report is not necessarily what a reasonable reader or

listener would have understood the report to convey. Thus, the observations in

Armstrong do not fully encapsulate the meaning of “inflammatory.”

¶21 We have also indicated that news reports which contain “factual accounts of the

background of the case as well as the trial proceedings” are not inflammatory.

Fuhrmann, 278 Mont. at 409, 925 P.2d at 1170. Similarly, in State v. Miller, 231 Mont.

497, 757 P.2d 1275 (1988), we concluded that the articles, which contained “factual

reports of information gathered from law enforcement officials, that was limited and

accurate, or from court records that were public knowledge,” did not serve to inflame the

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prejudice of the community. Miller, 231 Mont. at 505-06, 757 P.2d at 1280; see also e.g.

Ritchson, 199 Mont. at 55, 647 P.2d at 832 (“The reports were factual, contained no

editorializing and could not serve to inflame the prejudice of the community.”). Even

references to the defendant’s criminal history are not inflammatory under some

circumstances. See e.g. Fuhrmann, 278 Mont. at 409-10, 925 P.2d at 1170-71.

¶22 On the other hand, “factual” information may be reported in an inflammatory

manner. If the defendant is charged with sexual intercourse without consent and has a

prior conviction for this offense, characterizing him in the media as a “serial rapist” may

be inflammatory. Moreover, the reporting of “factual” information may be inflammatory

in light of the particular circumstances. For instance, we have said that “[e]xtrajudicial

statements by prosecutors and law enforcement personnel prejudicial to defendant and

which are disseminated in the news media prior to trial may under some circumstances

destroy the impartiality of prospective jurors.” State v. Williams, 185 Mont. 140, 146,

604 P.2d 1224, 1227 (1979). In State v. Paisley, 204 Mont. 191, 663 P.2d 322 (1983),

after the defendant’s trial on a misdemeanor charge in justice court, but prior to his trial

on felony charges in district court, the newspaper quoted the justice court judge as stating

to the defendant: “The evidence presents you as being guilty of more than the particular

offense charged.” Paisley, 204 Mont. at 194-95, 663 P.2d at 324. The newspaper also

reported that 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,” who were the alleged victims of the pending felony charges.

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Paisley, 204 Mont. at 195, 663 P.2d at 324. We concluded that this and the other

publicity were inflammatory. See Paisley, 204 Mont. at 195, 663 P.2d at 324.

¶23 In Coburn, the defendant was charged with aggravated kidnapping and sexual

intercourse without consent. Bail was first set at $100,000, but the district court reduced

it to $15,000, which the defendant posted, after which he was released. See Coburn, 202

Mont. at 22, 655 P.2d at 503. This prompted outrage in the community. Angry citizens

marched on the courthouse; public meetings were held; organizations were established

devoted to removing the district court judge and to dealing with persons who commit sex

crimes; vandalism occurred; and threats were made against the defendant. See Coburn,

202 Mont. at 30, 655 P.2d at 507. The local newspaper reported on all of these events,

detailing much of the evidence gathered by investigators and tying that evidence to the

defendant. In addition, some articles gave quoted statements by the Sheriff, the County

Attorney, and a Deputy County Attorney that were prejudicial to the defendant—e.g., the

County Attorney’s remark that “The bail in serious crimes must be set sufficiently high to

insure that the defendant is not going to commit any more crimes against our citizens

while awaiting trial on the former charge.” See Coburn, 202 Mont. at 22-29, 655 P.2d at

503-06. After reciting the contents of the newspaper articles, we concluded that the

newspaper had gone “beyond an objective dissemination of information. Instead of

calming an enraged community and providing an atmosphere in which the processes of

justice could go forward without bias, the [newspaper] inflamed an already angry

populace.” Coburn, 202 Mont. at 30-31, 655 P.2d at 507.

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¶24 The point to be taken from these cases is that the pertinent question in determining

whether publicity is “inflammatory” is not simply whether the media reports contain

“editorializing,” whether they were “calculated” to achieve a sinister purpose, or whether

they report “factual” information. Although these are relevant factors, the focus must be

on the publicity’s likely effect on the jury pool. Thus, we take this opportunity to clarify

the meaning of “inflammatory” publicity for purposes of the pretrial-publicity test.

“Inflammatory” publicity is publicity which, by its nature, has the tendency to stir up in

the community pervasive and strong passions of anger, hatred, indignation, revulsion, and

upset such that there are reasonable grounds to believe that jurors chosen from this

community could not determine the defendant’s guilt or innocence in a fair and unbiased

manner and based solely upon the evidence admitted at trial. Clearly, this determination

must be made based on extant circumstances including, but not limited to, the size of the

jury pool, the nature of the offense charged, the type and content of the media reports, the

readership of the publication, the relative size of the radio or television audience, the time

lapse between the publicity and the trial, whether the reports appear to take a position on

the defendant’s guilt, whether the reports contain extrajudicial statements by prosecutors

or law enforcement personnel that are prejudicial to the defendant, and whether there is

any ostensible adverse community reaction to the publicity.

¶25 In the present case, we conclude that Devlin failed to meet this standard. For one

thing, he presented no evidence concerning the size of the jury pool, the readership of the

Leader and Eagle within that community, and the size of the radio and television

audiences. Cf. Abe, ¶¶ 36-39. There also is no evidence that the community was already

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incensed over the events surrounding the bail-jumping charge when the news reports

were published. Along these same lines, there is no evidence that the community was

particularly reactive or sensitive to reports concerning Devlin and the charged offense. In

short, there is no evidence by which to gauge the content and saturation of the news

reports in the relevant jury pool. Yet, in evaluating whether publicity is inflammatory, it

is critical to know whether the news reports are being heard or read by prospective jurors

and whether that audience is predisposed to be enraged or incensed by the reports.

¶26 Turning to the content of the news reports at issue here, we first note that some of

the arguably inflammatory information was provided by Devlin himself, such as his

claim (reported in the August 31, 2006 article) that while serving in Vietnam, he had

“more than 50 confirmed kills -- and about half of them were children.” Cf. Nichols, 225

Mont. at 444, 734 P.2d at 174 (“Since much of the negative publicity was actually factual

and originated from defendant himself, he cannot now successfully contend that the

charges against him should be dropped because of the publicity surrounding his trial.”).

In any event, we agree with the State that even if the Leader articles could be

characterized as “slanted” against Devlin, they were not as one-sided as Devlin suggests,

given that they included Devlin’s side of the story (as related through Devlin or defense

counsel).

¶27 Devlin points out that the articles contained references to his prior criminal record

and the fact that he was on probation. We agree that a jury is not to consider evidence of

other crimes, wrongs, or acts unless certain prerequisites are met. See State v. Matt, 249

Mont. 136, 142-43, 814 P.2d 52, 56 (1991); M. R. Evid. 404(b). However, while the

14
references to Devlin’s criminal record are troubling, such references are not inflammatory

per se. See Fuhrmann, 278 Mont. at 409-10, 925 P.2d at 1170-71. Rather, as noted, the

focus is on the publicity’s likely effect on the jury pool, and Devlin has not persuaded us

that the references to his criminal record had the tendency to inflame prospective jurors to

such an extent that they could not determine his guilt or innocence impartially and based

solely on the evidence admitted at trial.

¶28 Devlin also points out that the remarks made by Dr. Irwin and quoted in the

August 31, 2006 article (to the effect that Devlin is a “manipulator” and a “sociopath”

who is costing Lake County taxpayers thousands of dollars to pay for his frivolous

medical claims) “were not conducive to the creation of an atmosphere in which the

process of justice could proceed without bias and in which the presumption of innocence

was sacred.” We agree that the remarks were not “conducive” to such an atmosphere.

Yet, while we do not condone the sort of character attack Dr. Irwin provided to the

Leader, the media’s regurgitation of such pontification from willing and opinionated

talking heads—a price we pay for a free press—is not inflammatory per se.

¶29 Again, the focus is on the publicity’s likely effect on the jury pool. Here, we

conclude that Dr. Irwin’s remarks and the insinuations that Devlin had faked his medical

complaints, as well as the references to his criminal record and the errors in recounting

the trial testimony and the potential sentence Devlin faced—when considered at face

value and in conjunction with the remainder of the articles—simply do not rise to the

level of “inflammatory” publicity. In other words, we cannot say that the publicity of

which Devlin complains had the tendency to stir up in the community pervasive and

15
strong passions of anger, hatred, indignation, revulsion, and upset such that jurors chosen

from this community could not determine Devlin’s guilt or innocence in a fair and

unbiased manner and based solely upon the evidence admitted at trial.

¶30 Finally, it bears repeating that a motion for change of venue requires a fact-

specific inquiry by the court and, necessarily, fact-specific proof by the moving party. In

concluding that the pretrial publicity at issue here was not inflammatory, we consider the

entire record before us. Accordingly, our conclusion is informed by Devlin’s utter failure

to demonstrate that the publicity actually inflamed the prejudice of the community to

such an extent that a reasonable possibility existed he would not receive a fair and

impartial trial. “[S]omething beyond bare allegation is required to prove that the

community is actually infected with prejudice.” Link, 194 Mont. at 560, 640 P.2d at 368.

We have approved the use of an affidavit stating facts in support of the prejudice alleged,

or a survey of the opinions of prospective jurors regarding the defendant’s guilt. See e.g.

Paisley, 204 Mont. at 193-94, 663 P.2d at 323-24; Coburn, 202 Mont. at 30, 655 P.2d at

507; see also Fuhrmann, 278 Mont. at 410, 925 P.2d at 1171. We have also considered

newspaper articles, see e.g. Coburn, 202 Mont. at 22-29, 30-31, 655 P.2d at 503-06, 507,

as well as demographic information and circulation figures, see e.g. Abe, ¶¶ 36-41. In

addition, voir dire is a primary method of demonstrating that potential jurors have been

so affected by pretrial publicity that they would be unable to render a fair and impartial

verdict. See e.g. Nichols, 225 Mont. at 444, 734 P.2d at 173; Miller, 231 Mont. at

506-07, 757 P.2d at 1281; see also Coburn, 202 Mont. at 32-33, 655 P.2d at 508.

16
¶31 Here, Devlin provided no surveys or affidavits. He provided newspaper articles

but no demographic information or circulation figures. He points out that 21 of 39

potential jurors in his kidnapping trial were “exposed” to the pretrial press coverage, and

he reiterates his belief that the coverage was “inflammatory and prejudicial.” Yet, he

made no such showing with respect to the bail-jumping trial. (As noted, only one

member of the venire participated in individual voir dire before Devlin decided to change

his plea.) More importantly, even if roughly half the venire in the bail-jumping case was

likewise “exposed” to pretrial press coverage, exposure to pretrial press coverage—even

coverage that is slanted or inflammatory—does not in itself establish that the jury pool is

so inflamed and prejudiced that any juror drawn from the pool would be unable to render

a fair and impartial verdict based on the evidence presented in court. See Link, 194 Mont.

at 559, 640 P.2d at 367 (stating that prejudice does not arise from publication alone and

that an attempt must be made to assess the effect of the publicity on the prospective

jurors).

¶32 In this regard, Devlin emphasizes that he is required to show only a “reasonable

possibility” that he may not receive a fair trial due to prejudicial pretrial publicity. See

Abe, ¶ 35; Pittman, ¶ 17. Yet, such a showing requires evidence indicating that the

prospective jurors could not set aside what they have heard or read in the media and

decide the defendant’s guilt impartially and based solely on the evidence admitted at trial.

This Court has stated that “jurors’ knowledge of the case and publicity, without more, is

insufficient to warrant a change of venue since it cannot be equated with prejudice.”

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Fuhrmann, 278 Mont. at 409, 925 P.2d at 1170. Moreover, the Supreme Court has said

that

[i]t is not required . . . that the jurors be totally ignorant of the facts and
issues involved. In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the interest of
the public in the vicinity, and scarcely any of those best qualified to serve
as jurors will not have formed some impression or opinion as to the merits
of the case. This is particularly true in criminal cases. To hold that the
mere existence of any preconceived notion as to the guilt or innocence of an
accused, without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in court.

Irvin, 366 U.S. at 722-23, 81 S. Ct. at 1642-43 (emphasis added); but see Patton v. Yount,

467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889 (1984) (“[A]dverse pretrial publicity can

create such a presumption of prejudice in a community that the jurors’ claims that they

can be impartial should not be believed.”).

¶33 These principles are reflected in some of our prior decisions. See e.g. Moore, 268

Mont. at 54, 885 P.2d at 478-79 (“The jurors were questioned about their exposure to

pretrial publicity. While most indicated they had read or heard something about the case,

they all stated they would base their decisions only upon the evidence they received from

the witnesses and exhibits presented at trial.”); Ritchson, 199 Mont. at 55, 647 P.2d at

832 (“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

unalterably prejudiced by the conditions at the prison.”); Armstrong, 189 Mont. at 422,

616 P.2d at 350 (“Armstrong has not indicated that the voir dire examination of

prospective jurors disclosed any prevalent opinion against him in the community or

18
among the panel members, nor any overriding prejudice which the prospective jurors

could not put aside.”).

¶34 The same evidentiary shortcomings exist in the case at hand. Devlin had the

opportunity through individual voir dire to ferret out any bias or prejudice caused by the

allegedly inflammatory pretrial publicity. He failed to do so and, thus, failed to establish

that the publicity actually inflamed the prejudice of the community to such an extent that

a reasonable possibility existed he would not receive a fair trial by an impartial jury.

CONCLUSION

¶35 In closing, we reiterate the point made in Moore:

Living, as we do, in a society which is continuously inundated with
news coverage by the print and broadcast media, it is doubtful that most
members of the community will not share some knowledge of, or about, a
locally high-profile crime, and the various persons allegedly involved in its
commission or in its investigation. Given the inevitable conflict with the
media’s constitutional right of free speech, the public’s constitutional right
to know, and the accused’s constitutional right to a fair trial, it remains the
task of the district court, in such cases, to scrupulously examine the
evidence supporting a motion for change of venue to insure that the jurors
who will ultimately decide the guilt or innocence of the accused are fair
minded and uninfluenced by what they may have seen, heard or read. That
conclusion must necessarily be based upon not only the jurors’ responses in
voir dire, but also on a careful analysis of the quantity and content of the
pretrial publicity. Each case is unique and must be decided on its own
merits.

Moore, 268 Mont. at 54-55, 885 P.2d at 479.

¶36 Here, we are satisfied that the trial judge, in considering the issue, did not act

arbitrarily without the employment of conscientious judgment or exceed the bounds of

reason. Accordingly, we hold that the District Court did not abuse its discretion when it

denied Devlin’s motion for change of venue.

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¶37 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER

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