State v. Cunningham , 27 Wash. App. 834 ( 1980 )

Munson, J.

This case is on remand from the Supreme Court with specific instructions "to determine whether, in light of the news media coverage, the trial court committed error by refusing to sequester the jury and whether, in light of its determination, a new trial should be granted." State v. Cunningham, 93 Wn.2d 823, 838, 613 P.2d 1139 (1980). This court had reversed the conviction finding prejudicial error. State v. Cunningham, 23 Wn. App. 826, 598 P.2d 756 (1979). The Supreme Court agreed there was error, but found the error harmless. Because we had not disposed of the sequestering question, the case is once again before us.

We previously held:

When, as occurred in this case, publicity intensifies after trial begins, the effect of pretrial publicity on prospective jurors ... is not the major factor to be considered. Rather, the court should concentrate on the nature of the publicity, its scope in both quantity and geographical dissemination, and the sensational aspects of the case.

State v. Cunningham, 23 Wn. App. at 838.

CrR 6.7 provides:

The jury may be allowed to separate if the court finds that good reason exists to believe that such would not jeopardize a fair trial. Any motions or proceedings concerning the separation of the jury shall be made out of the presence of the jury.

While recognizing the discretion placed upon trial courts to grant changes of venue or sequester the jury, the Supreme Court has emphasized:

[T]rial courts must recognize this court's commitment to the principle that the right to a trial by jury includes the right to an unbiased and unprejudiced jury, and that a trial by jury, one or more of whose members is biased or prejudiced, is not a constitutional trial. . . .

We have had occasion to predicate error upon the refusal of a trial court to grant a motion for change of venue where we could not escape the conclusion that such was necessary to effectuate the defendant's guarantee of a fair and impartial trial.

(Citations omitted.) State v. Stiltner, 80 Wn.2d 47, 53, 491 P.2d 1043 (1971). This we understand still to be the guiding principle in this state. In State v. Crudup, 11 Wn. App. 583, 587, 524 P.2d 479 (1974), this court set forth criteria to be considered by trial courts when deciding a motion based on pretrial publicity:

Common criteria or factors generally utilized by courts in determining the propriety of an order granting or denying a motion for change of venue [or for sequestration of a jury] based on alleged prejudicial pretrial publicity are: (1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn. Annot., 33 A.L.R.3d 17, 33 (1970). See also Pretrial Publicity-Fair Trial, Annot., 10 L. Ed. 2d 1243 (1964).

The unique facts of this case were succinctly stated by the Supreme Court as follows:

Leon Cunningham, his wife Velma and daughter Carolyn shared their home with Lorraine Edwards, Debbie Weilbacher and her 3-year-old son David. In April of 1976, Leon, a self-ordained minister and head of the communal household, began to suspect David was possessed by the devil. Accordingly, from April until late July 1976 the entire household engaged in an almost daily exorcism ritual of spanking David to rid him of his evil spirit. Wooden boards were sanded and used to spank David as he was passed from person to person during the service. On occasion, Leon and Debbie would "humble" David by repeatedly pushing him to the floor. There is evidence that during the "humbling" ritual on July 22, 1976, David was thrown to the floor and thereafter collapsed and ceased breathing. Since defendants believed that, in the course of time, God would resurrect David's body, it was placed in a back bedroom which was then sealed.

Approximately 2 months later, Velma Cunningham reported the series of incidents to the authorities. A warrant was issued and, on September 19, 1976, a search of the Cunningham residence revealed David's body.

(Footnote omitted.) State v. Cunningham, 93 Wn.2d at 825-26. For biblical justification for this conduct, citations are in the prior opinions of this court and of the Supreme Court.

Given this unusual set of facts, the pretrial publicity generated by this case, and the knowledge that in-court television and still-camera coverage was to be allowed during trial, "good reason exists to believe" the jury separation might jeopardize a fair trial. As we said in our previous opinion:

Adopting the standard applied in cases concerning a motion for change of venue [an alternative to jury sequestration], we hold that when the circumstances involve a probability of prejudice to the defendant, the trial court should order sequestration. State v. Stiltner, 80 Wn.2d 47, 491 P.2d 1043 (1971); State v. Bonner, 21 Wn. App. 783, 587 P.2d 580 (1978).

State v. Cunningham, 23 Wn. App. at 839; see also State v. Trickel, 16 Wn. App. 18, 27-30, 553 P.2d 139 (1976).

However, the trial court's decision to gamble that nothing would arise during the trial which would jeopardize the defendants' rights to a fair trial was proven correct. A review of the entire record reveals that this decision amounted to harmless error. While, in the language of Stiltner, there existed a high probability of prejudice, and while actual prejudice need not be shown, we can find no incident which would require a new trial. As noted in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, 828, 24 A.L.R.3d 1065 (1967): "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."¹ The court publicity actually intensified after the trial began, and there was no showing of any effect of pretrial publicity on the prospective jurors.

The defendants have not mounted a successful challenge to any error other than the one currently before the court on remand. The Supreme Court found harmless error in the introduction of tape recordings and transcripts. The facts are uncontested. The defendants believed, pursuant to their religion, they had done no wrong. This position is summarized in Carolyn's final argument to the jury and noted by the Supreme Court:

I realize that this has been based mainly on a religious basis and religious belief, but each individual in this country is entitled to his or her faith and belief, and each according to their own convictions. We in our household, believes [sic] that one lives as one believes.

State v. Cunningham, 93 Wn.2d at 833.

Fortunately, nothing occurred during the trial because of any outside influence that affected the jury or its verdict. We further conclude that if this case were retried, the positions of the parties would be the same and the jury would return a similar verdict. We can say with honest conviction, beyond a reasonable doubt, that the error of failing to sequester the jury was harmless.

The convictions are affirmed.

McInturff, A.C.J., concurs.

1 The Supreme Court said in State v. Cunningham, 93 Wn.2d at 831, in a slightly different exercise of semantics: "We apply instead the rule that error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." (Citations omitted.)