State v. Smith ( 1991 )

SABERS, Justice

(dissenting).

The trial court abused its discretion in denying defendant’s motion for change of venue under SDCL 23A-17-5.¹

I would reverse and remand for a new trial in another community in another county. It could be Yankton, Minnehaha, Brookings or Brown. Obviously, Rapid City, Pennington County would do.

I find no fault with the community members of Fairview, Hudson, Canton or Lincoln County. For obvious reasons, those communities were righteously incensed by this senseless, violent crime. In fact, the stupidity and waste of killing Mrs. Stens-land, a kind, friendly woman on a whim for no reason violates not only the peace and well being of these communities, but the communities themselves. In that setting, would any of us be fair and impartial jurors? I submit not.

I realize that a fair and impartial trial is expensive and time consuming, and will probably produce the same result, but fair and impartial trials are required under the law. U.S. Const, amend. VI, amend. XIV; S.D. Const, art. VI, § 7; SDCL 23A-17-5.

The majority cites Bennis, Younger and McDowell for the proposition that “[T]he law does not require a perfect trial,” but overlooks the fact that the law does require a fair trial by impartial, indifferent jurors.

[T]he 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. In re Oliver, 333 U.S. 257 [68 S.Ct. 499, 92 L.Ed. 682]; Turney v. Ohio, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749]. ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U.S. 133, 136 [75 S.Ct. 623, 625, 99 L.Ed. 942]. ... ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U.S. [8 Otto] 145, 155 [25 L.Ed. 244].

Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961) (emphasis added).

Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.

In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955) (emphasis added).

No matter how hard people try to be fair and impartial, sometimes it is impossible. One of the jurors, who had previously written that he could be fair, was asked his whereabouts by a neighbor. When he answered that he had gone to be a potential juror for the man that killed the woman at the Fairview Bank, he suddenly realized he had already formed an opinion. As stated in counsel’s brief, “Sometimes the honesty of one juror explains the problem better than any words a lawyer can write.”

The record abounds with statements and examples of prejudice, though probably justifiable, in the hearts and minds of Lincoln County residents sufficient to raise a reasonable apprehension that defendant could not receive a fair and impartial trial. Prejudice was established in pre-trial publicity, media accounts, affidavits of defense counsel and his investigator, the jury questionnaires and in testimony during jury selection and trial. It far exceeds that shown in State v. Luna, 378 N.W.2d 229 (S.D.1985) and State v. Weatherford, 416 N.W.2d 47 (S.D.1987). This prejudice could not be overcome in the short time between the crime and the trial, nor during jury selection because additional peremptory challenges were denied. As the United States Supreme Court stated, “Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, ‘You can’t forget what you hear and see.’ ” Irvin, 366 U.S. at 728, 81 S.Ct. at 1645. To which I would add: “You can’t overcome what you feel.”

These facts required a change of venue more so than any case I have reviewed. If change of venue is not required here, the statute becomes meaningless. If not here! Where? If not now! When?

1 . SDCL 23A-17-5. (Rule 21(a)) Change of county when fair trial impossible in original county. A court upon motion of a defendant shall transfer his proceedings to another county if the court is satisfied that there exists, in the county where the prosecution is pending, so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that county.