dissenting:
I respectfully disagree with the majority’s treatment of the appellant’s first assignment of error, concerning the trial court’s denial of his request for a change of venue. Appellant was tried and convicted of First Degree Murder and Kidnapping for Extortion and sentenced respectively to death and life imprisonment, in connection with the abduction of William Jeffry Perry, a Tecumseh bank official. Appellant’s arrest, subsequent F.B.I. and police investigation, and court proceedings, garnered extensive press coverage in the Oklahoma County-Pottawatomie County area, in part because Perry was a member of a prominent banking family in Tecumseh.
The record reflects that a petition for a change of venue was filed on February 22, 1984, and met the requirements of 22 O.S. 1981, § 561. The original record contains a petition and two affidavits, and a third affidavit was presented at the hearing on the petition. Neither the prosecutor at tri*144al, nor the Attorney General on appeal, claim that the procedural requirements of Section 561 were not fulfilled. At the hearing on February 24, 1984, two of the affi-ants were called to testify. Don Ferrell testified that he had been a resident of Shawnee, in Pottawatomie County for ten (10) years, and that “just about” everyone he knew felt appellant was guilty because “that many other people couldn’t be wrong.” Mr. Ferrell was related to, or an acquaintance of, the appellant. Appellant’s uncle, Clarence Hale, testified many persons had told him they believed his nephew was guilty. Defense counsel submitted twenty-six (26) newspaper articles concerning the case, which were taken from the “Daily Oklahoman” in Oklahoma City, and the “News-Star” in Shawnee. The State offered no counter-affidavits or testimony. The trial judge took the petition under advisement until after voir dire, at which time it was overruled. Testimony of those veniremen actually selected to serve on the jury revealed that all twelve had knowledge about the case, six had formed an opinion regarding appellant’s guilt, two either personally knew the appellant or a member of his family, and three either knew the victim or his family.
Appellant’s claim rests upon the Due Process Clause of the Fourteenth Amendment which requires, as a standard of fairness, that an accused have “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). This requirement of indifference does not mandate that jurors “be totally ignorant of the facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed. 2d 589 (1975). However, “the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an Opinion in the mind of the juror as will raise the presumption of partiality.’ ” Id. Moreover, in reviewing a due process claim of this nature, appellate courts “must make their own evaluations of the circumstances and not defer unduly to the discretion of the trial judge.” Scott v. State, 448 P.2d 272, 275 (Okla.Crim.App.1968).
An appellant may demonstrate a due process violation under one of two standards: First, prejudice is presumed if the facts reveal “the influence of the news media, either in the community at large or the courtroom itself, pervaded the proceedings” and that the “trial atmosphere [was] ... utterly corrupted by press coverage.” Murphy v. Florida, supra, at 798-99, 95 S.Ct. at 2035. The key to this standard appears to be the “solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.” Id. at 799, 95 S.Ct. at 2036. Second, if . the circumstances are not so egregious to raise this presumption, the so-called “totality of circumstances” will be examined by the reviewing court to discern whether the trial was “fundamentally fair.” Id. at 799, 95 S.Ct. at 2036. Appellate review of the circumstances surrounding the trial should focus on the voir dire statements of the individual jurors actually selected to serve, voir dire statistics, and the community atmosphere as reflected in the news media. Id. at 800-08, 95 S.Ct. at 2036-38. Accord Walker v. State, 723 P.2d 273, 278 (Okla.Crim.App.1986).
Appellant does not argue, and I do not find, that the proceedings were entirely devoid of the solemnity and sobriety to which a defendant is entitled under the first test of Murphy, supra. Therefore, I cannot “presume” that appellant was deprived of due process, as was found in the egregious media coverage situations which developed in 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.Ed.2d 543 (1965), and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). However, from my reading of the record, the appellant has sufficiently demonstrated a reasonable possibility of existing prejudice to establish that he was deprived of “a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The State claims that “[p]ersons with preconceived *145opinions for or against the defendant, or who had any question as to their ability to be impartial, were excused.” Brief of Ap-pellee, at 16. Unfortunately, the record does not support the State’s interpretation of the facts.
The voir dire testimony in this case reveals that each of the jurors eventually seated had knowledge of the case, either through news accounts or conversations with other community members. One of the jurors, a hairstylist, testified she overheard a conversation in her shop in which a State’s witness discussed the case. A second juror was a photojournalist with the Shawnee “News-Star” and had, by his own admission, “assisted in news coverage of the case.” In Scott v. State, 448 P.2d 272 (Okla.Crim.App.1968), this Court reversed a manslaughter conviction, based partly on the trial court’s failure to grant a change of venue. Judge Brett, writing for the Court, noted:
The record reflects that all members of the jury had read something about the case in the newspaper. Admittedly, each stated his opinion was not fixed, and that he could reach a decision based on the evidence. But where a reasonable possibility of prejudice is shown to exist, concerning wide-spread pre-trial publicity, and its possible effect on the jury panel is shown to exist, then discretion seems to dictate a change of venue.
Id. at 274.
Aside from mere knowledge, two of the jurors in this case were acquainted with the appellant or his family, and three knew either the victim or his relatives. One juror commented that he had played golf with the appellant; however, he also knew “all of the Perrys” and “did a significant amount of business with them. Another juror, the photojoumalist, knew several of the police officers and the District Attorney. Although not actually seated on the jury, one potential juror had dated the victim, and another testified to his “great sympathy” for the Perrys, with whom he was acquainted. Our statement, in Scott, that “[i]n this case personalities were of such nature which, coupled with possible preconceived opinions imposed by the press, prejudice could have been easily caused against this defendant”, id., seems applicable here.
Of greatest concern in my review of the voir dire testimony is that six of the twelve jurors admitted holding pretrial opinions regarding the issue of appellant’s guilt. Admittedly, as in Scott, supra, most with an opinion stated that it could be set aside and would not affect their deliberations; yet, one of these jurors candidly stated that he “didn’t know” if he could decide the case impartially, since he had “heard so much about the case_” (Tr. I, at 45-47) Another juror testified that she had an opinion about the guilt or innocence of the defendant from news media reports, but “[n]ot one that couldn’t be swayed.” (Tr. I, at 131) The situation herein is not entirely unlike that in Irvin v. Dowd, supra, in which the United States Supreme Court reversed a conviction due to possible juror prejudice engendered by pretrial publicity. In Irvin, eight of the twelve jurors had formed an opinion regarding the defendant’s guilt prior to trial, and some went “so far as to say that it would take evidence to overcome their belief.” Id. at 728, 81 S.Ct. at 1645.
The newspaper articles submitted to the trial court also reveal extensive pre-trial publicity in the Pottawatomie County area. The community atmosphere is reflected in the following statements taken from newspaper clippings: “Disbelief hung over [the] town Thursday as news spread about Perry’s abduction and shooting death.” “Merchants up and down Tecumseh’s main street shook their heads and grieved for the loss.” “Perry’s family is well known throughout the town. His father, William A. Perry, is president and board chairman of Farmers and Merchants Bank. Joan Perry, his mother, is the bank’s vice-president.” “News of the death of Jeff Perry spread from friend to friend. All the residents could do was pray, stay indoors and trade childhood stories [about Jeff].”
The articles also revealed details of the appellant’s background, including a reference to his three prior felony convictions, *146and twelve lawsuits which had been filed against him over the past twelve years. The articles noted that appellant did not testify on his own behalf in federal court where he was charged wtih extortion stemming from the incident. The articles further publicized the testimony of his cellmate, and revealed that appellant’s trial counsel attempted to withdraw from the State court case. Apparently, several of the stories were featured prominently on the front page of the Shawnee “News-Star,” the Pottawatomie County community newspaper. When the appellant was convicted in federal court, a large, full-page width headline proclaimed, “Hale found guilty of extortion.” The article also reported that Federal District Judge Lee West commented following the non-jury trial that it was with “little or no difficulty that this court finds the defendant guilty.”
Finally, the record reflects that thirty-seven potential jurors were examined in voir dire proceedings. Thirty-four admitted knowledge about the case, twelve stated they had formed an opinion about the appellant’s guilt, four knew either the appellant or his family, and eight were acquainted with Mr. Perry or his family. Three potential jurors were removed for cause by the trial court for bias.
Our system of justice rests firmly upon the maxim that an accused is presumed innocent until proven guilty. Justice Frankfurter summed it up best in his concurring opinion in Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751 (1961):
[N]ot the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a distinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated with press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.
Therefore, an “impartial jury” is one that can be reasonably expected to abide by the presumption of innocence and to base a verdict on the evidence presented in court, and not on private speculation or media coverage. For the foregoing reasons, under the circumstances surrounding this case, I find that appellant was deprived of his fundamental right to be tried by an “impartial jury” as mandated by the Due Process Clause of the Fourteenth Amendment and Article II, § 20 of the Oklahoma Constitution. I would reverse and remand this case for a new trial. Accordingly, I dissent.