Cheely v. State

Cheely v. State, 861 P.2d 1168, 1175 (Alaska App. 1993) involved one of two co-defendants, Cheely and Gustafson, who were accused of murder arising from a highway shooting. (Cheely and Gustafson believed that another car had cut them off; in response, Cheely maneuvered their vehicle so that Gustafson could fire a rifle bullet into the other car.) The case received widespread media attention in Anchorage, and most of the media coverage was distinctly unfavorable to Cheely and Gustafson. Moreover, the media attention was renewed just before Cheely went to trial -- because Gustafson's case went to trial first, and Gustafson was convicted just two weeks before Cheely's trial began. At the conclusion of the jury selection process, Cheely asked the superior court for a change of venue, but that request was denied. On appeal, Cheely renewed his argument that the extensive pre-trial publicity made it impossible for him to get a fair trial in Anchorage, but this Court upheld the superior court's ruling. The Court agreed with Cheely that, because of the intense pre-trial publicity, his motion for change of venue was governed by the Mallott v. State standard. However, after reviewing the record, we concluded that Cheely's trial judge had not abused his discretion when he denied the request for a change of venue: Under Mallott v. State, when prospective jurors have been exposed to intensive, prejudicial pre-trial publicity, judges need not take those jurors' protestations of impartiality at face value. However, as the facts of Mallott illustrate, no change of venue is required when, despite the dissemination of pre-trial publicity, a substantial portion of the prospective jurors have not been exposed to the publicity or, at least, not exposed to its prejudicial aspects. In Mallott itself, the supreme court upheld the trial court's refusal to change venue because it appeared, from individual voir dire, that, despite potentially prejudicial pre-trial publicity, more than half of the prospective jurors -- and all but two of the jurors ultimately selected to try the case -- had not been exposed to the worst aspects of that publicity and had heard only a basic description of the alleged crime. [Mallott,] 608 P.2d at 748. (Cheely, 861 P.2d at 1175.)