Johnnie Dee Jones was convicted of murder in the stabbing of Randall Garvin Reeves. He was sentenced to death. 1
1. (a) Jones claims error in the trial court's failure to grant his motion for a change of venue on the ground of excessive pre-trial publicity. In Berryhill v. State, 249 Ga. 442 (291 SE2d 685) (1982)
, we affirmed the trial court's denial of the motion for the change of venue. We held:
Both this court and the Supreme Court of the United States have considered the "small-town syndrome" before. [Cit.] A serious case draws public attention, and hardly any prospective juror will not have formed some impression or opinion about the case. However, the proper test is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court." [Cits.] [Id. at 443.]
(b) Examining the record in this case, however, we conclude that, under Berryhill, the trial court should have granted the motion for a change of venue. 2
Hence, the conviction and sentence is set aside, and the case is remanded for a new trial.
2. (a) The approach followed in Berryhill and our earlier cases concerning change of venue in death penalty cases is, we believe, too restrictive. Our inquiries have been laborious, and often have yielded what might appear to be distinctions without differences. The history of the noted "Alday murders" 3
demonstrates the agonies of retrials. We need a better and a surer rule.
(b) Accordingly, we announce a new standard. 4
Trial courts will order a change of venue for death penalty trials in those cases in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity. 5
3. Other claims of error are without merit. 6
seven had formed an opinion as to punishment; and 26 had heard discussions within the community.
We acknowledge the existence of other variables that might argue for a differing comparison. However, crediting each prospective juror with the best of good intentions, we note that this case demonstrates substantially a higher and more pervasive prior knowledge on the part of the venire than was reflected in Berryhill.
HUNT, Justice, dissenting.
I dissent from Divisions 1 and 2 of the majority opinion and from the judgment of reversal.
1. At least since the United States Supreme Court issued its opinion in Patton v. Yount, 467 U. S. 1025 (104 SC 2885, 81 LE2d 847) (1984), we have consistently held that a trial court's determination concerning the necessity for a change of venue is presumptively correct and may be overturned only if manifestly erroneous. See, e.g., Devier v. State, 253 Ga. 604 (4) (323 SE2d 150) (1984)
; Isaacs v. State, 259 Ga. 717 (15) (386 SE2d 316) (1989)
In this case, the trial court found that a fair and impartial jury could be empaneled in Lincoln County. Without reference to the presumption of correctness, the majority cites only Berryhill v. State, 249 Ga. 442 (291 SE2d 685) (1982)
in support of its reversal. Its only analysis is contained in a footnote pointing out that in Berryhill approximately eight percent of the venire were excused for prejudice while in this case almost 22 percent were excused.
However, we have upheld the trial court's denial of a change of venue in many death-penalty cases since Berryhill in which the excusals for cause resulting from pretrial publicity equaled or exceeded the percentages here. See, e.g., Crawford v. State, 257 Ga. 681 (2) (362 SE2d 201) (1987)
(approximately 30 percent excused for prejudice); Childs v. State, 257 Ga. 243 (2) (357 SE2d 48) (1987)
(approximately 24 percent excused for prejudice); Curry v. State, 255 Ga. 215
(2g) (336 SE2d 762
) (1985) (22.1 percent excused); Blanks v. State, 254 Ga. 420 (1) (330 SE2d 575) (1985)
(27.4 percent excused); Devier v. State, supra, 253 Ga. 604 (4)
(21 percent excused); Castell v. State, 250 Ga. 776 (6) (301 SE2d 234) (1983)
(22 percent excused).
In Patton v. Yount, supra, the United States Supreme Court stated:
There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of . . . questions [of juror partiality]. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume
that the method we have relied on since the beginning, [cit.], usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor. . . . [T]he trial court's resolution of such questions is entitled to . . . "special deference." [Cit.] [Id. at 467 U. S. 1038 (footnotes omitted).]
The majority does not explain why the determination of the trial court in this case is not entitled to "special deference." I cannot agree that the voir dire examination demonstrates manifest error in the trial court's conclusion that Jones could obtain a fair trial in Lincoln County.
2. The "noted 'Alday murders' " and the "agonies of retrials" referred to by the majority do not justify its result. As noted in the federal opinions granting habeas relief to the Alday murder defendants, the authors applied a "presumed prejudice standard" because the record showed an inundation of inflammatory pretrial publicity so pervasive that it took the Eleventh Circuit Court of Appeals over 46 pages to summarize it. See Coleman v. Kemp, 778 F2d 1487, 1491-1537 (11th Cir. 1986). Nothing comparable occurred here. This simply is not one of those "rare" cases in which the presumed prejudice standard is applicable. See Isaacs v. State, supra, 259 Ga. 717
, 726 ("As is noted in Coleman, the 'presumed prejudice standard is "rarely" applicable.' ")
3. The foregoing is sufficient to demonstrate that reversal is not warranted by our cases or by any federal cases. Reversal, then, can result only from the application of a new standard for change of venue to this trial. Even if a new rule is necessary or desirable (and I am not persuaded that it is either), we should not ambush the unsuspecting trial court which correctly relied on considerable state and federal precedent. Instead, we could simply amend the Unified Appeal Procedure, to apply prospectively, as we are authorized by law to do.
4. Finally, I doubt the new standard adopted by the majority will save labor, and I question whether its application will be more susceptible of yielding distinctions with differences than our present rules. 7
The new standard requires changes of venue in those death penalty trials "in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity." How much of a showing is a "substantive" showing? What is a "likelihood" of prejudice? How much prejudice is enough? (For example, what if a defendant shows a strong likelihood of minimal prejudice? What if he shows a minimal possibility of strong prejudice?) How much publicity is "extensive?" None of this is explained in the majority opinion, and it seems obvious to me that no one will know what the majority's "standard" means until we apply it to cases. As the Attorney General argued:
If the court is attempting to avoid potential future reversals by creating a new standard, then this new, amorphous "rule" unwittingly invites more errors by its lack of definition and precision.
5. I do not agree that this case should be reversed under our present standards concerning changes of venue. I am not persuaded of the necessity of a new rule. I disagree with the new rule we adopt. I would affirm the denial of Jones' motion for change of venue.
I am authorized to state that Presiding Justice Smith and Justice Bell join in this dissent.
Dennis C. Sanders, District Attorney, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.