Attorneys for Appellant Attorneys for Appellee
Steven E. Ripstra Steve Carter
Ripstra Law Office Attorney General of
Indiana
Jasper, Indiana
James B. Martin
Lorinda Meier Youngcourt Deputy Attorney General
Huron, Indiana Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 74S00-0108-DP-361
Roy Lee Ward,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Spencer Circuit Court, No. 74C01-0107-CF-158
The Honorable Wayne A. Roell, Judge
_________________________________
On Direct Appeal
_________________________________
June 30, 2004
Rucker, Justice.
Case Summary
As the result of a brutal slaying Roy Lee Ward was convicted of murder
and sentenced to death. He was also convicted and sentenced to a term of
years for rape and criminal deviate conduct. In this direct appeal Ward
raises several issues for our review, one of which is that this case should
not have been tried in the county where the crimes were committed because
of community bias and pervasive pretrial publicity. The record supports
this contention. We are therefore constrained to reverse and remand this
cause for a new trial.
Facts and Procedural History
On the morning of July 11, 2001, fifteen-year-old Stacy Payne was
present in her Dale, Indiana home. Also present was her younger sister
Melissa who was asleep in her bedroom. Stacy was waiting to leave for
work. Other members of the family had already left for their jobs.
Pretending that he was searching for a lost dog, Ward approached the Payne
residence and convinced Stacy to allow him to enter the house. Thereafter
Melissa awoke to the sound of Stacy screaming. Going to the top of the
stairs Melissa saw a man lying on top of Stacy holding her down. Melissa
then ran to her parents’ room and dialed 911. As she was talking on the
telephone Melissa could hear her sister saying “please stop.”
Shortly thereafter the Dale Town Marshall arrived and saw Ward
standing in the doorway, covered with perspiration, and holding a knife.
Drawing his service revolver, the Marshall ordered Ward to the ground.
Ward complied saying, “I didn’t do anything.” The Marshall then went to
the kitchen and found Stacy lying on the floor, nude from the waist down,
covered with blood, and her intestines exposed. Although conscious, Stacy
could not speak. She was taken immediately to the emergency room of the
Deaconess-St. Joseph Hospital where doctors noted a laceration to Stacy’s
abdomen, a laceration to her back that severed her spine, and a laceration
across Stacy’s neck cutting her trachea. Efforts to save Stacy’s life were
unsuccessful. A subsequent forensic examination revealed that Stacy
suffered eighteen blunt force injuries, including injuries found within the
vaginal vault.
On July 16, 2001, the State charged Ward with murder, and subsequently
filed a notice of intent to seek the death penalty. Thereafter, the State
filed an amended information to include one count of rape as a Class A
felony and one count of criminal deviate conduct as a Class A felony.
The Town of Dale, located in southwestern Spencer County, is a small
close-knit community. As of the 2000 census, Spencer County had a total
population of 20,400. As one local newspaper recounted, “The brutal
stabbing of a 15-year-old girl last week in her own home has left this
community, as well as surrounding communities, in shock and law enforcement
officials in search of answers.” Appellant’s App. at 6281. Another
newspaper reported, “Community reaction is one of stunned disbelief after
the news of 15-year-old Stacy Payne’s murder Wednesday afternoon in her own
home outside of Dale. ‘Things like this just don’t happen in small towns
like Dale, Indiana’ is a common reaction to the news that has parents
hugging their children, locking their doors and grieving with the Payne
family.” Id. at 6295.
On February 8, 2002, Ward filed a motion for change of venue from the
county, or in the alternative a motion to draw the jury from another county
pursuant to section 35-36-6-11 of the Indiana Code.[1] Although Ward later
withdrew the motion when the trial court denied his request for a
continuance for the purpose of having a survey conducted, Ward refiled the
motion on April 11, 2002. As grounds for the motion Ward alleged public
outrage, hostility, and prejudicial pretrial publicity. A hearing on the
motion was conducted May 20, 2002. The parties stipulated into evidence
several exhibits, including twenty-five articles from four local and
regional newspapers, and either the videotape or transcript from three
local and regional television stations representing fifteen news stories.
Although the news accounts were graphic and detailed, they were generally
accurate. Many of the accounts however also included details of Ward’s
past criminal history that would not have been admissible at trial.[2] The
evidence at the hearing, including testimony of witnesses, also revealed
that a vigil was held for Stacy at which nearly twelve hundred people
attended. Over five hundred mourners attended her funeral. At the close of
the hearing, the trial court took Ward’s motion for change of venue under
advisement. About a month before trial, at a hearing in which Ward
appeared, an angry audience yelled at Ward as he was being escorted through
the courthouse rotunda; the trial court admonished the crowd for its
behavior.
On October 7, 2002, the jury selection process began. The trial court
had summoned one hundred twenty-eight prospective jurors. Outside of their
presence Ward renewed a number of previous motions and also requested the
court to “grant our Motion for Change of Venue . . . .” Tr. at 4. The
trial court responded, “All motions denied.” Id. In groups of
approximately thirty to forty, the prospective jurors were then brought
into the courtroom where the trial court gave them a few brief
instructions. The trial court also gave the prospective jurors a lengthy
twenty-eight-page questionnaire that had been previously tendered by the
defense and agreed to by the State. The prospective jurors were directed
to complete the questionnaire, give it to the bailiff, and return to court
the following day.
The parties began a two-day voir dire on October 8, 2002. The
responses given on the questionnaires revealed the pervasive nature of the
pretrial publicity, the extent of the community’s knowledge about this
case, and its understandable outrage. Of the one hundred twenty-eight
prospective jurors summoned, one hundred twenty-two actually completed the
questionnaire. Over eighty percent—101—reported that he or she had
knowledge about the case. For example, one prospective juror wrote,
“unless you live under a rock you have heard a lot” about this case.
Appellant’s App. at 3673. In response to the question, “what did you
discuss and with whom?” another prospective juror said, “‘with whom?’
[E]veryone was talking about it – you couldn’t go anywhere!” Id. at 5192.
In response to the question: “Based on what you have read, seen, or
heard about this case, have you formed any beliefs as to the guilt or
innocence of Roy Ward?” over sixty-five percent—84 prospective
jurors—checked “yes.” When asked to “please describe your beliefs” the
responses of the 84 prospective jurors ranged from “I think that he
probably did it,” id. at 2891, to “hang him instantly, and he should have
been shot on the spot at the scene of the crime.” Id. at 4456.[3]
During the course of voir dire a total of forty-eight prospective
jurors were removed for cause either on challenge by the defense, the
State, or sua sponte by the trial court. The State used sixteen peremptory
challenges and Ward exhausted all of his.[4] Ultimately twelve jurors and
two alternate jurors were selected and sworn. On the morning of the first
day of trial, Ward renewed his motion for change of venue, which the trial
court denied.
The record shows that of the jurors selected, all but one had heard,
seen, or read about this case. And six of the seated jurors were among the
over sixty-five percent who checked “yes” to the question of whether they
had formed a belief concerning Ward’s guilt or innocence. Juror #14
explained on his questionnaire “He was arrested at the home just a few
minutes after the 911 call.” Id. at 2914. Juror #84 wrote, “since he was
at the scene he might be the person who done [sic] it.” Id. at 3611. When
asked to describe her beliefs, Juror #121 replied, “It would be very
difficult to form an unbiased opinion. He was caught at the site with a
knief [sic] and the sister saw him. If it were my own daughters I would
have probably come after him myself.” Id. at 4019. When asked later in
her questionnaire whether there was anything that might get in the way of
her being an impartial juror, she checked “Yes” and wrote, “[H]e was caught
at the site—I feel he’s guilty.” Id. at 4024.
Explaining the reasons for her beliefs, Juror #122 responded, “If
everything that I have heard is true, it will be hard but not impossible to
believe that he did not do it.” Id. at 4042. The daughter of juror #122
attended the same school as the victim. Id. at 4025. She also commented
on her questionnaire about the “devastation of [the] family” and the
“horror of it all” and how the crime was “such a tragedy.” Id. at 4042.
When asked on the questionnaire whether she had formed any beliefs
about Ward’s guilt or innocence, Juror #148 checked “Yes” and wrote, “This
man was inside their house. Her sister saw him and called 911. I would
listen with an opened [sic] mind, but I feel the evidence will be there and
he will be convicted.” Id. at 4433. She mentioned twice in her
questionnaire the “pools of blood” that had surrounded the victim. Id. at
4432, 4433. When asked to describe what she had read, seen, or heard about
this incident this juror responded, “He had entered the house, stabbed and
raped her while her sister was upstairs making the 911 call. That he had
been stalking her. The child was taken to Huntingburg Hospital and the
Dr.’s faces were so grim and the workers had to keep wiping up the pools of
blood from the injuries to this child.” Id. at 4432.
Explaining her beliefs as to why she had reached an opinion in this
case, Juror #152 wrote, “When the police enter[ed] the Payne home the man
(Roy Ward) still had the knife in his hand.” Id. at 4502.
Other than perfunctory questioning of whether they could be fair and
impartial, to which each generally responded “yes”, there was no voir dire
examination conducted of these jurors to explore their previously expressed
belief that Ward was guilty. There was more extensive questioning of Juror
#121. But in the end she was not sure whether she could return a verdict
based solely on the evidence presented at trial. The following exchange is
instructive:
[Prosecuting Attorney]: [Juror #121], do you believe that you
can set aside what you’ve heard outside the courtroom or read
outside the courtroom and any kind of preconceived ideas or
notions that you may have and base your decision on the law and
evidence that you hear in this courtroom?
[Juror #121]: I could follow the Judge’s direction on what to do
and abide by the law, but I also have an opinion.
[Prosecuting Attorney]: Okay. And I think that’s – I would be
surprised if people didn’t have opinions. That’s what we – as a
society, we bring our opinions with us in everything we do. We
all are creatures of habit, creatures of what we hear, and we
have also our own set of individual personal beliefs that we
bring to every issue. Do you believe that you could – let me
ask it this way. Do you believe that your opinion would keep
you from being fair to the Defendant or the State?
[Juror #121]: It makes it very difficult, and I’m putting myself
in that place.
[Prosecuting Attorney]: Okay. I understand.
Tr. at 531-32
[Trial Court]: Are you willing to lay aside anything you may
have seen or heard about this case and hold the State of Indiana
to a burden of proof to [prove] beyond a reasonable doubt of
each and every element of each and every crime charged and base
a decision solely on what you hear and see in this courtroom[?]
. . .
[Juror #121]: It’s – I don’t know; it’s just hearsay from maybe
what’s in the paper, but I know that, other than just knowing
what was on the paper – in the paper and on TV and having two
daughters of my own and he was at the scene with the weapon I
feel like would [sic] be very difficult for me to change my
mind.
Id. at 585-86.
With the twelve jurors and two alternates thus selected, the guilt
phase of trial was held over four days from October 14 through October 18,
2002. Ward did not take the stand in his defense. However during opening
statements and closing arguments, counsel conceded that Ward “is
responsible for Stacy Payne’s death . . . .” Id. at 1103, 2627. The
contested issues were whether he knowingly or intentionally killed her,
raped her, and engaged in criminal deviate conduct. The jury convicted
Ward as charged. The penalty phase of trial began October 21, 2002, and
the jury returned a recommendation of death. Following a sentencing
hearing, the trial court followed the jury’s recommendation. The trial
court also sentenced Ward to two consecutive fifty-year terms of
imprisonment for the rape and criminal deviate conduct convictions. This
direct appeal followed in due course.
Discussion
“At the heart of the decision on a motion for change of venue is the
right to an impartial jury.” Lindsey v. State, 485 N.E.2d 102, 106 (Ind.
1985). This right derives from the Sixth Amendment to the United States
Constitution, as applied to the States by the Fourteenth Amendment, as well
as Article One, Section Thirteen of the Indiana Constitution. “A fair
trial in a fair tribunal is a basic requirement of due process.” In re
Murchison, 349 U.S. 133, 136 (1955). A juror’s verdict must be impartial
“regardless of the heinousness of the crime charged, the apparent guilt of
the offender or the station in life which he occupies.” Morgan v.
Illinois, 504 U.S. 719, 727 (1992). In essence “the right to jury trial
guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations
omitted).
Ward contends “Because of the Horrible Nature of the Crime, Pretrial
Publicity, Prospective Jurors’ Knowledge of the Crime and Victim and the
Venire’s Expressed, Overwhelming Predisposition to Convict, the Court
Should Have Moved the Trial from Spencer County, Indiana.” Br. of
Appellant at 25.
We review a trial court’s denial of a motion for change of venue for
an abuse of discretion. Specht v. State, 734 N.E.2d 239, 241 (Ind. 2000).
An abuse of discretion does not occur where voir dire reveals that the
seated panel was able to set aside preconceived notions of guilt and render
a verdict based solely on the evidence. Elsten v. State, 698 N.E.2d 292,
294 (Ind. 1998). The defendant must demonstrate the existence of two
distinct elements: (1) prejudicial pretrial publicity and (2) the inability
of jurors to render an impartial verdict. Specht, 734 N.E.2d at 241; White
v. State, 687 N.E.2d 178, 179 (Ind. 1997). “Prejudicial pretrial publicity
is that which contains inflammatory material which would not be admissible
at the defendant’s trial or contains misstatements or distortions of the
evidence given at trial.” Burdine v. State, 515 N.E.2d 1085, 1092 (Ind.
1987).
In this case the news reports were extensive, detailed and graphic.
However they were largely accurate accounts of a horrific and brutal
killing. On the other hand several of the news articles recounted Ward’s
criminal history. See supra n.2. In that regard the articles contained
inflammatory, inadmissible information. Thus, Ward has established the
existence of prejudicial pretrial publicity. We acknowledge however that
the prejudicial nature of the pretrial publicity is only marginally at
issue here. Without regard to press accounts of Ward’s criminal past, the
critical inquiry is whether overall community bias and prejudice exist such
that Ward was denied a fair trial. See Lindsey, 485 N.E.2d at 106. In
other words even if Ward had no criminal history or if that history had not
been reported, we nonetheless would be confronted with the question of
whether jurors were able to render an impartial verdict. White, 687 N.E.2d
at 179.
It is not a prerequisite to a fair trial that the jurors be totally
ignorant of the facts involved. Smith v. State, 465 N.E.2d 1105, 1116
(Ind. 1984). Thus, a juror’s mere exposure to press coverage is not enough
to support a claim that local prejudice entitles a defendant to a change of
venue. Even if potential jurors have been exposed to pretrial publicity
concerning the defendant’s case that alone is insufficient to establish
prejudice unless the defendant can also demonstrate that the jurors were
unable to set aside any preconceived notions of guilt and render a verdict
based on the evidence. Johnson v. State, 472 N.E.2d 892, 906 (Ind. 1985);
see also Ind. Code § 35-37-1-5(b) (providing that prospective juror may be
allowed to serve despite existence of preconceived notions of guilt
stemming from pretrial publicity, so long as the juror states and the court
concludes that the juror can render a verdict based upon the law and the
evidence presented). Essentially, in order to obtain a change of venue the
defendant bears the burden of showing that community prejudice exists which
would prevent the defendant from obtaining a fair trial in that community.
Clemens v State, 610 N.E.2d 236, 240 (Ind. 1993).
In this case the pattern of deep and bitter hostility shown to be
present throughout the community was clearly reflected in the juror
questionnaires. In addition, six of the twelve jurors finally seated
expressed the belief that Ward was guilty. We do not doubt the sincerity
of the jurors who said they could set aside their preconceived beliefs and
render a verdict based on the evidence. Indeed there is a presumption that
the juror’s voir dire is truthful. Brown v. State, 563 N.E.2d 103, 105
(Ind. 1990). However, this presumption can be overcome by a showing of a
general atmosphere of prejudice throughout the community. Id. As
expressed by the United States Supreme Court:
In a community where most veniremen will admit to a
disqualifying prejudice, the reliability of the others’
protestations may be drawn into question; for it is then more
probable that they are part of a community deeply hostile to the
accused, and more likely that they may unwittingly have been
influenced by it.
Murphy v. Florida, 421 U.S. 794, 803 (1975). The record establishes that
the presumption has been overcome in this case. Even more disturbing,
however, one juror candidly and honestly admitted “I don’t know” when asked
by the trial court whether she was willing to base a decision solely on the
evidence presented at trial. Tr. at 584. Having previously expressed the
belief that Ward was guilty this juror said she felt that “it would be very
difficult for me to change my mind.” Id. This juror’s view alone requires
that we grant Ward a new trial. “If even one [partial] juror is empaneled
and the death sentence is imposed, the State is disentitled to execute the
sentence.” State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (quoting Morgan,
504 U.S. at 729). With his life at stake, we think the Constitution
requires that the defendant “be tried in an atmosphere undisturbed by so
huge a wave of public passion and by a jury other than one in which [one
half] of the members admit, before hearing any testimony, to possessing a
belief in his guilt.” Irvin, 366 U.S. at 728. We conclude therefore that
the trial court abused its discretion in failing to grant Ward’s motion for
change of venue from the county, or in the alternative to draw the jury
from another county. Accordingly, we reverse the trial court on this issue
and remand this cause for a new trial.
Judgment reversed and cause remanded.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] The statute provides,
(a) In any criminal proceeding wherein the defendant is charged with
murder or a Class A felony to be tried before a jury in which a motion
for a change of venue from the county is filed, the court may
recognize but decline to grant the motion, and order that the jury be
drawn from the residents of a county other than the county in which
the court is located.
(b) Pursuant to an order under this section, the court may convene in
any county in the state for purposes of jury selection. The venire
may be drawn by the jury commissioners of a court in the jurors’ home
county, or may be drawn by the court itself by random selection.
(c) After a jury is selected, the trial shall be held in the county of
the court’s location. The verdict of the jury and the judgment based
upon it have the same validity and effect as if the jury had been
drawn from the county of the court’s location.
[2] See David Kunz, “Motive missing in teen slaying,” The Herald, July 13,
2001; Appellant’s App. at 6269 (“Ward had recently been sentenced to jail
in Harrison County Superior Court after pleading guilty to harassment and
public indecency, both misdemeanors.”); David Kunz, “Death penalty being
sought for Ward,” The Herald, Aug. 3, 2001; Appellant’s App. at 6272 (“Ward
was on probation until April 2004 in connection with a burglary conviction
from Cooper County, Mo., records said.”); W. Curt Vincent, “Teen stabbed to
death,” The Spencer County Journal-Democrat, July 19, 2001; Appellant’s
App. at 6282 (noting Ward’s “long criminal record” which included at least
eight prior convictions extending back to 1993); Bryan Walters, “Death
penalty sought,” The Journal-Democrat, Aug. 9, 2001; Appellant’s App. at
6284 (“Ward was already on probation in Perry County for another crime.”);
Cheryl Hurst, “Investigation into murder of Dale girl continues,” The
Spencer County Leader, July 19, 2001; Appellant’s App. at 6297 (noting
Ward’s convictions for burglary, harassment, public indecency, forgery, and
theft); Bonnie Hackman, “Death penalty sought for murder of Stacy Payne,”
The Leader, Aug. 9, 2001; Appellant’s App. at 6299 (noting the outstanding
warrant for Ward for check deception and his status on probation for
indecent exposure); Cheryl Hurst, “Trial date set for murder of Dale teen,”
The Leader, Nov. 15, 2001; Appellant’s App. at 6301 (“Ward, a repeat
offender, had been released from the judicial system time and again for
charges relating to burglary, check deception, harassment, public
indecency, forgery, theft and stalking.”); Cheryl Hurst, “Investigation
into murder of Dale girl continues,” Ferdinand News, July 18, 2001;
Appellant’s App. at 6308 (noting Ward’s convictions for burglary,
harassment, public indecency, forgery, and theft); Bonnie Hackmann, “Death
penalty sought for murder of Stacy Payne,” Ferdinand News, Aug. 8, 2001;
Appellant’s App. at 6310 (noting the outstanding warrant for Ward for check
deception and his status on probation for indecent exposure).
[3] Other representative responses included, “Tie him up with rawhide in
the desert and let him die slow and painful.” Appellant’s App. at 5169;
“[T]hey should hang him up and start pulling off body parts.” Id. at 3213;
“[T]hey need to cut off his **** and stick it up his *** and gut him like
he did her.” Id. at 4709; “[T]he cop should have shot the S.O.B.” Id. at
3005; “[S]hould be stoned to death. [J]ail would be to [sic] easy for
him.” Id. at 3904; “Death penalty for sure.” Id. at 3006; “He is guilty.
. . . He should not even deserve a trial.” Id. at 3490; “[H]e should be
given the same punishment that he gave to the victim.” Id. at 3513;
“[S]hould do to him what he done to her.” Id. at 3535; “[Y]ou would have
to prove to me Ward did not do the murder.” Id. at 3863; “[S]hould be made
to suffer, hang him, shoot him, electric chair, gas chamber.” Id. at 4594;
“How can he not be guilty[?]” Id. at 5123.
[4] One of Ward’s claims on appeal is that the trial court abused its
discretion by refusing to dismiss twelve prospective jurors for cause
thereby forcing him to exhaust twelve of his twenty peremptory challenges.
Because we resolve this case on other grounds, we decline to address this
issue.