State v. Henry

446 So. 2d 1308
CourtLouisiana Court of Appeal
DecidedFebruary 21, 1984
Docket15888-KA
StatusPublished
Cited by9 cases

This text of 446 So. 2d 1308 (State v. Henry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Henry, 446 So. 2d 1308 (La. Ct. App. 1984).

Opinion

446 So.2d 1308 (1984)

STATE of Louisiana, Plaintiff-Appellant,
v.
Donald HENRY, Defendant-Appellee.

No. 15888-KA.

Court of Appeal of Louisiana, Second Circuit.

February 21, 1984.

*1309 John S. Stephens, Coushatta, for appellee.

William R. Jones, Dist. Atty., Coushatta, for appellant.

Before HALL, MARVIN and NORRIS, JJ.

NORRIS, Judge.

The State of Louisiana appeals a ruling which granted defendant's motion for a change of venue.[1] For the reasons hereinafter stated, we vacate the ruling and remand with instructions for further proceedings consistent with this opinion.

CONTEXT FACTS

Donald Henry was initially arrested on February 9, 1983 in Red River Parish, Louisiana, and charged with possession of marijuana with intent to distribute in violation of La.R.S. 40:966(A). Thereafter, a preliminary examination was heard on May 12, 1983. On or about that same date, the defendant was arrested on two other drug related charges by the Louisiana State Police. After hearing the preliminary examination, the trial court found probable cause to hold the defendant over for trial. During the preliminary examination, without objection from either the state or the defense, a reporter and cameraman from Channel 3, a television station located in Shreveport, Louisiana, were allowed to film portions of the preliminary examination. Portions of the tapes obtained during the filming were shown on the 6:00 and 10:00 p.m. news programs on that date. It was stipulated at the hearing on the motion for the change of venue that the coverage of Channel 3 includes all of Red River Parish. The only other instances of media publicity concerning the defendant were two articles which appeared in the "Coushatta Citizen", the local weekly paper, on February 17, 1983, and May 19, 1983, respectively, and reported the arrests of the defendant.

At the hearing on the motion, the defendant called eleven witnesses. Each of these witnesses testified that there had been widespread discussion of the defendant and his charges within the area and that a large proportion of those persons with whom the subject of the defendant had been discussed had fixed opinions as to the guilt of the defendant. It was the opinion of these witnesses that the defendant could not obtain a fair trial in Red River Parish. Of these witnesses, nine knew the defendant, some of whom were or had been his friends and two did not know the defendant but had heard of him. Three of these witnesses had a fixed opinion that the defendant was guilty; three believed him to be innocent; and five, while having an opinion, believed that they could be fair and impartial jurors.

The state called eight witnesses, seven of whom did not know the defendant and one of whom knew the defendant from a business transaction which occurred some eight or ten years previously. Each of these witnesses testified that he or she could be fair and impartial jurors, even though some had limited knowledge about the defendant's case.

TRIAL COURT'S RULING

After hearing all of the evidence, the trial court viewed the videotapes and in written reasons stated:

*1310 * * * The Court has closely viewed the testimony of the various witnesses and has viewed the television broadcasts and newspaper articles introduced herein. There was testimony on behalf of many witnesses that there exists certain prejudice towards the defendant, such that the witnesses had already formed an opinion towards the guilt of the defendant. Others testified that they knew nothing about the case. With regard to those who had formed an opinion, it appears some were hard and fast with their opinion and some more flexible.
In viewing the television broadcast, it appeared that some individual or individuals were concerned that the prosecution of the case was somewhat unusual and implied that the defendant was being given special consideration.
Before this Court ever had an opportunity to review the evidence adduced, a phone call was received by a relative of this judge from a person who identified herself as one of the witnesses at the hearing of this motion and urged that the motion to change venue be denied. The next morning, and even before this judge could review the jurisprudence and render a ruling, and before consulting any other judge of any other district, it was revealed that at least one individual believed a decision had already been made to transfer this matter, and that all arrangements had already been made, in favor of the defendant. This type of frivolous, untrue pronouncements only jeopardize the criminal justice system and retard the progress of a criminal prosecution, further increase the costs, and do not serve the ends of justice.
It is with this background that the Court finds itself. This Court must take into consideration the interests of the state in the prosecution of this case, along with the view that the people of the parish are entitled to be free from false rumors and misguided accusations surrounding such a case of this magnitude. This Court will not allow the frivolous and unfounded statements of a few [to] cost (sic) an undue reflection on the integrity of our criminal justice system. It is this consideration that the Court can not disregard, even though not technically a part of the evidence, that tips the scales in favor of a transfer of the case to another jurisdiction. It is the desire of this Court that every prosecution be viewed as an unbiased, fair and impartial quest for the truth. Transfer of this case can only serve the intesest (sic) of justice. [Bracketed material added.]

ASSIGNMENTS OF ERROR

The state contends that the trial court erred:

(1) by not dismissing the motion for a change of venue since the motion was not filed in accordance with Code of Criminal Procedure Article 521;
(2) in granting the motion for change of venue and moving the prosecution to the 8th Judicial District Court, Winn Parish, Louisiana; and
(3) in concluding that there was such prejudice in the public mind that the defendant could not receive a fair and impartial trial in Red River Parish.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment of error, the state argues that the motion for change of venue should have been dismissed because it was not timely filed.

La.C.Cr.P. Art. 521 which deals with pretrial motions in general provides:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

The specific article which pertains to motions for change of venue is La.C.Cr.P. Art. 621 which provides:

A motion for a change of venue may be filed by either the state or the defendant. *1311 It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.

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Bluebook (online)
446 So. 2d 1308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henry-lactapp-1984.