State v. Bell

On January 10, 1972, North Boulevard, a thoroughfare in downtown Baton Rouge, was blocked by cars parked across the street. When the police attempted to remove the cars and disperse “muslim” demonstrators blocking the street, violence ensued. Five men were killed — two deputy sheriffs and three of the defendants’ alleged co-conspirators; one reporter for a local television station was severely beaten some time before the “riot” and remains unconscious to this date. This outbreak of violence had significant effects upon the community which were the subject of extensive national and local publicity.

Defendants were indicted for having violated Acts 1969, No. 176 (R.S. 14:329.-1-329.8) by having incited and participated in a riot in which the death of a person occurred. A motion for change of venue was timely filed. After a hearing, this motion was denied and defendants applied to this court for the issuance of supervisory writs reversing the trial court’s decision. This application was denied. Immediately prior .to trial a supplemental motion for a change of venue was filed, heard and denied. After an extensive voir dire selection process, defendants were tried April 24 — 30, 1973, fifteen months after the incident. All the defendants were found guilty and sentenced under the penalty provisions of R.S. 14:329.7 to serve twenty-one years at hard labor.

On appeal defendants urge ninety-nine of the one hundred eight bills of exceptions reserved at trial; these bills have been organized on appeal into sixteen arguments. We confine our discussion to the first argument dealing with the denial of defendants’ first application for change of venue (Bills of Exceptions Nos. 1-10), finding reversible error.

A defendant is guaranteed an impartial jury and a fair trial. To accomplish this end the law provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of original venue. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1966); 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); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

The specific provision of Louisiana law providing for a change of venue is found in C.Cr.P. 622: .

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

This article was adopted as part of the Code of Criminal Procedure in 1966. It changed the test used previously in this State to determine whether a change of venue was necessary. The former rules had been concisely stated in State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959):

“The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him. The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any reasonable doubt arising either from the evidence or the lack of it. . . . The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.”

Because of the deficiencies in this judicial interpretation of the change of venue provisions (see Rideau v. Louisiana, supra), the legislature, in the 1966 article (C.Cr.P. 622), clearly intended that grounds for challenge for cause of jurors and grounds for a change of venue be separate and different concepts. The burden of proof and discretion accorded the trial court was not changed. The expression of the legislative intent is contained in the Official Revision Comment to article 622:

“(a) Although all American jurisdictions contain change of venue statutes, the tests provided are in most cases not as strongly worded as in this article, which is taken in part from Art. 292 of the 1928 Louisiana Code of Criminal Procedure.

“(b) A careful search of all cases reported on the appellate level on the subject of change of venue in Louisiana did not reveal a single instance in which a new trial was granted on the ground that the lower court had improperly refused an application for a change of venue. This is not unique to Louisiana. See Bailey and Golding, Remedies for Prejudicial Publicity — Change of Venue and Continuation in Federal Criminal Procedure, 18 Fed.B.J. 56 (1958). This results from the fact, no doubt, that the test for a change of venue, as interpreted by the jurisprudence, is much weaker than was intended by the express language used in former R.S. 15:292. In State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959), the court stated the test to be as follows :

‘The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and the evidence, uninfluenced by what they may have heard of the matter and who will give the accused the full benefit of any reasonable doubt arising either from the evidence or the lack of it.’

“See also State v. Faciane, 233 La. 1028, 99 So.2d 333 (1958), and cases cited therein.

“The difficulty with the test in the Scott case is that it confuses the grounds for challenges for cause with grounds for change of venue. In effect the test is nothing more than valid grounds for challenges for cause. These leads to the conclusion that if the defendant cannot successfully challenge for cause he has no grounds for a change of venue; and furthermore, that if he does challenge for cause and the objectionable jurors are thus removed he has no grounds for change of venue. Logically, therefore, change of venue did not exist as £ concept separate from challenge for cause. It may be noted, however, that other states having statutory language similar to that of Louisiana have also refused changes of venue, reasoning that it was possible ultimately to empanel a jury, each member of which was not subject individually to the charge of unfairness or partiality so as to subject them to a challenge for cause. See People v. Mendes, 35 Cal.2d 537, 219 P.2d 1 (1950); Powell v. State, 131 Fla. 254, 175 So. 213 (1937); People v. Sleezer, 9 Ill.2d 57, 136 N.E.2d 808 (1956).

“The foregoing suggests that the emasculated change of venue test as announced by the supreme court has no value. It is thus clear that the change of venue concept must be one which overrides the challenge for cause concept and is to be superimposed upon the entire proceeding. A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed 'upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses' will be so affected by the public atmosphere that they will not testify freely and frankly.

“It is the purpose of the second paragraph of this article to effect such a policy and to overcome the jurisprudence in the cases cited above.”

Some relevant factors in determining whether to change venue are (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (S) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire. See, generally, Annotation, 33 A.L.R.3d 17 (1970).

Defendants filed applications for a change of venue on February 20, 1973 and supplemental applications on March 9 and March 26, 1973. On February 26, 1973 a hearing was held on the defendants’ first petition (February 20, 1973) in which they contended that the publicity surrounding defendants’ alleged activities had so inflamed and prejudiced the citizens of East Baton Rouge Parish that it was impossible for them to secure an unbiased jury or a fair and impartial trial. They further alleged that government officials had commented publicly at the time of the riot that they were satisfied the defendants were guilty of the crime charged, should be severely punished and that the citizenry was ready and waiting should other black mus-lims come to Baton Rouge. Finally, they alleged that the district attorney had prepared a bill of information charging the defendants with the attempted murder of Bob Johnson, the television newsman who remained comatose, which he would file shortly prior to the selection of the jury to further gain publicity and prejudice the public mind.

After the motion for a change of venue was filed, the trial judge, in a conference in chambers, decided to summons three hundred prospective jurors drawn from the jury wheel to determine the attitudes of a cross section of the community. Defense counsel did not object, but informed the judge of his intention to produce additional evidence, such as pretrial publicity and other witnesses to show bias in the community. Defense counsel complied with the judge’s request not to issue his subpoenas for the additional evidence until after the “dry run voir dire,” which might, itself, result in an order for a change of venue.

At the hearing held on the change of venue motion, sixty of the three hundred prospective jurors subpoenaed were called in panels of twenty each; three were not questioned, as they were excused for extraneous reasons. All those questioned had heard or read the publicity surrounding the riot and the subsequent events. Of the fifty-seven interviewed seventeen had formed an opinion which would prevent them from impartially judging the evidence. Twenty-one persons testified that they had formed an opinion but could set it aside and reach a verdict based solely on the evidence presented at trial. An equal number testified that they had not formed an opinion regarding the defendants’ innocence or guilt. There was no testimony concerning the extent and nature of publicity nor the community’s attitude toward the defendants. The questioning was directed solely at the issue of whether the person could serve as an impartial juror or would be subject to challenge for cause at the defendants’ trial. After the potential jurors had been questioned, the trial judge denied the application for a change of venue. He refused to issue defendants’ requested subpoenas of news media representatives or permit the introduction of evidence of the extensive publicity, including film of interviews with public officials.

The record indicates that the trial court was concerned only with whether it was possible to draw veniremen who would testify on voir dire that they would give the defendants a fair trial, uninfluenced by what they had heard or had seen outside the court, giving the accused the full benefit of any reasonable doubt. The focus of the examination upon the individual veniremen, and upon their prejudices and attitudes, arose from the failure of the court and prosecutor to appreciate the concept of change of venue as provided for in article 622. The defendants were entitled to a change of venue if they could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which would affect the answers of jurors on the voir dire, or the testimony of witnesses at the trial, or that, for any other reason, a fair and impartial trial could not be obtained in the parish. Defendants had a right to the opportunity to adduce evidence to show that racial and religious passions in the community (demonstrated in the “dry run” voir dire before us) would prevent a fair and impartial trial.

By its ruling the trial court prevented the introduction of evidence supporting this proposition and precluded a determination, as contemplated by our law, of the community’s attitude toward the defendants. Defendants were prevented from attempting to satisfy their burden of proof. This incorrect application of the law is reversible error since it deprived defendants of their opportunity to show that they could not obtain an impartial jury or fair trial in East Baton Rouge Párish.

For' these reasons, the convictions and sentences are reversed, and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

SANDERS, C. J., dissents and will assign written reasons..

SUMMER, J., dissents and will assign reasons.

MARCUS, J., dissents.

. R.S. 14:329.1~3, 329.7 provide:

“A. A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert ■which by tumultuous and violent conduct, or the imminent threat of tumultuous and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.”

“Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.”

“Any law enforcement or peace officer or public official responsible for keeping the peace may issue a commmand to disperse under the authority of R.S. 14:329.1-14:329.8 if he reasonably believes that riot is occurring or about to occur. The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage. “Whoever willfully fails to comply with a lawful command to disperse shall be punished in accordance with the provisions of R.S. 14:329.7.”

“A. Whoever willfully is the offender or participates in a riot, or is guilty of inciting a riot, or who fails to comply with a lawful command to disperse, or who is guilty of wrongful use of public property, or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both. “B. Where as a result of any willful violation of the provisions of R.S. 14:329.1-14:-329.8 there is any serious bodily injury or any property damage in excess of .five thousand dollars, such offender shall be imprisoned at hard labor for not more than five years.

“0. Where, as a result of any willful violation of the provisions of R.S. 14:329.1-14 :- 329.8, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

. In Groppi, a Wisconsin statute was construed by the Wisconsin Supreme Court as prohibiting a change of venue in misdemeanor trials. In holding that the statute as construed and applied was unconstitutional, Justice Stewart, speaking for the court, stated: “It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in Ms case. The Wisconsin statute wholly denied that opportunity to. the appellant.” 400 U.S. at 511, 91 S.Ct. at 494.

. In a concurring opinion in Chapman, Justice Stewart states:

“ . . .To try a defendant in a community that has been exposed to publicity highly adverse to the defendant is per se ground for reversal of his conviction; no showing need be made that the jurors were in fact prejudiced against him.” 386 U.S. at 43-44, 87 S.Ct. at 837.

. The following cases applying article 622 demonstrate the variety of factors considered by trial judges and this court in taking evidence on motions to change venue: State v. LaGarde, 308 So.2d 748, La.1975; State v. Flood, 301 So.2d 637 (La.1974) ; State v. Leichman, 286 So.2d 649 (La.1973) ; State v. Richmond, 284 So.2d 317 (La.1973) ; State v. Richmond, 278 So.2d 17 (La.1973) ; State v. Foy, 278 So.2d 38 (La.1973) ; State v. Green, 275 So.2d 184 (La.1973) ; State v. Didier, 273 So.2d 277 (La.1973) ; State v. Square, 257 La. 743, 244 So.2d 200 (1971), vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760, conformed to, 263 La. 291, 268 So.2d 229; State v. Washington, 256 La. 233, 236 So.2d 23 (1970) ; State v. Poland, 255 La. 746, 232 So.2d 499 (1970), vacated in part, 408 U.S. 936, 92 S.Ct. 2862, 33 L.Ed. 2d 754, conformed to, 263 La. 269, 268 So.2d 221.

After the review of the evidence presented by the defendant in each of the above cited cases, it was found that the defendant failed to prove that he could not obtain a fair trial or impartial jury in the parish where the trial was pending. In addition to considering the answers of prospective jurors on voir dire, the trial judges in the above cases considered other factors which would affect the answers of the jurors or the testimony of witnesses at trial. For example, in State v. Leichman, supra, the fact that a crowd of fifty to one hundred gathered the night of the murders at the courthouse forcing the movement of defendant to an adjoining parish’s jail was a relevant factor.

. The application filed on March 9, 1973 contained substantially the same allegations as the petition filed on February 20, 1973 and was passed without date on March 16, 1973. The supplemental application was heard on March 26, 1973 and concerned allegations concerning the effect of security measures and the “Bob Johnson Rodeo,” and it is not at issue.

. Throughout the questioning of the potential jurors, both the district attorney and trial court asked whether the formed opinon of the person would “yield to the evidence.” This provision of former R.S. 15:351(1) was specifically rejected by the legislature when it adopted article 797 in 1966. The present provision requires that the court be satisfied that despite his opinion or impression, the juror can render an impartial verdict according to the law and the^evidence which includes the presumption of innocence. The “yield to the evidence” test was rejected, as it required the defendant to present evidence to rebut possible opinions of guilt thus negating his right to be presumed innocent.

. The colloquy during which defense counsel was denied the right to adduce evidence in support of his motion follows:

“THE COURT: All right, gentlemen, the Court wants to thank you for coming and I want to congratulate Hr. Aiello for getting so many of you here today. You may go by the Clerk’s office and you will be paid for coming up here today, and you are now finally discharged, and we may see most of you back here in March.

“MR. HEBERT: I have some subpoenas to introduce into evidence, some evidence as to the amount of publicity which this case received .

“THE COURT: I think you probably could stipulate .

“MR. HEBERT: I’m not going to stipulate .

“MR. ROY: I think all of the jurors — all of the witnesses said so, that they had all heard about it and seen it. I think the record will support that, Judge.

“MR. HEBERT: I’m not willing to stipulate.

“MR. ROY: Well, okay, we are just trying to be .

“THE COURT: Well, I am going to, at this time, overrule the motion for change of venue. “MR. HEBERT: Without issuing these subpoenas, after you told me, in your office

“THE COURT: Well, if we had run into any difficulty, that this publicity was causing bias or prejudice, I would have let you put it in for the purpose of showing to the Supreme Court on the bill that you will likely take on the motion for change of venue, the actual publicity it received, but based on the fact that these jurors who have testified here this morning — I think almost all of them saw it— and most of them did not feel that this would render them so opiniontated or prejudiced that they could not serve as a juror, and I feel that it would add nothing to the record to put it in.

“MR. HEBERT: Your Honor, I would like to put a statement in the record. I’ll take the oath, if you want me to, but when I filed this motion and it was set down for hearing, I told you I was going to issue sub-poneas .

“THE COURT: You can issue your subpoenas. If you want to go ahead and issue your subpoenas, issue them. The question is whether or not I’m going to change my mind on the question of change of venue, and I have already ruled.

“MR. HEBERT: Well, the purpose of issuing these subpoenas — I know that you know, you were here and you saw it — but the higher Courts didn’t, and I would like this in evidence, so .

“THE COURT: You can object to my ruling and offer them and attach it to your bill of exception.

“MR. HEBERT: Well, I want to either make a statement or take the witness stand, in connection with .

“THE COURT: I will agree that you and I talked about it, about issuing the subpoenas, and in my opinion, we do not need it, but if you want to make that a bill of exception to my ruling, you may ,put in the record the subpoenas and ask that they be attached to your bill of exception.

“MR. HEBERT: And they will be so attached?

“THE COURT: If you ask for them to he attached, and you can get them, I have no objection to your going to the Supreme Court. “MR. HEBERT: All right, I want to— first of all, I want to make an argument. “THE COURT: I don’t need any argument. You can put that in your brief.

“MR. HEBERT: Well, the Supreme Court requires that we make it to the Court . .

“THE COURT: Make it very brief.

“MR. HEBERT: Yes, sir, Article 622, Second Paragraph, Code of Civil Procedure, says, ‘In deciding whether to grant a change of venue, the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire’ — ‘affect the answers of the jurors.’ I think that if I am allowed to subpoena the various persons in the news media to show what publicity went on, that I could establish that there has been so much publicity and prejudice that it would have affected the answers of these jurors on voir dire, and some of the people who said they had an opinion, but could set it aside, were not, in fact, telling the truth, and I think that I am entitled to put into the record, and the Court should view this before reaching a decision, but since the Court has overruled my objection, I would like to reserve a bill of exception. I want to ask the Court

“THE COURT: I have denied the change of venue. What you should do is take your bill to the denial of the change of venue and ask that the record be attached.

“MR. HEBERT: Well, Your Honor, I would like to make two objections, if you please. First of all, I am objecting to the Court’s ruling without considering all of the evidence, and to that I am reserving a bill of exception and I would like to attach thereto the Court’s statement that you had agreed that if you were disinclined to grant the change of venue, that you would allow me to issue these subpoenas and produce this evidence, and on denying the motion for change of venue, I want to object and reserve a bill of exception and I would like to attach thereto the entire transcript of these proceedings had here today, the application for change of venue, the evidence which will be adduced on this — from these subpoenas which I presume the Court will sign — the objections of counsel, the argument of counsel, and the ruling of the Court.

“THE COURT: All right.

“MR. HEBERT: At this time, the defendants would like to give notice of intent to apply for supervisory writs and ask that the Court fix a time for the signing of the bills and the filing of — the lodging of the record in the Supreme Court.”