Is a Change of Venue Required Because of Prejudice In the Proper County ?
In McCaskill v. State, 344 So. 2d 1276 (Fla. 1977), the Court set out the test for determining whether a change of venue is required because of prejudice in the proper county:
The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinion that jurors could not possibly put these matter out of their minds and try the case solely on the evidence presented in the courtroom. Id. at 1278 (citing Kelley v. State, 212 So. 2d 27, 28 (Fla. 2d DCA 1968).
The trial court in its discretion must determine whether a defendant has raised such a presumption of prejudice under this standard. Manning, 378 So. 2d at 276.
On appeal, however, the appellate court has "the duty to make an independent evaluation of the circumstances." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600 (1966). In exercising its discretion, a trial court must make a two pronged analysis, evaluating:
(1) the extent and nature of any pretrial publicity;
(2) the difficulty encountered in actually selecting a jury. Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975).
Of course, as the trial court properly noted in its order here, pretrial publicity is normal and expected in certain kinds of cases, like this one, and that fact standing alone will not require a change of venue. Provenzano, 497 So. 2d at 1182.
Rather, in evaluating the nature and effect of any pretrial publicity on the knowledge and impartiality of prospective jurors the trial court must consider numerous factors, such as:
(1) the length of time that has passed from the crime to the trial and when, within this time, the publicity occurred, Oats v. State, 446 So. 2d 90, 93 (Fla. 1984);
(2) whether the publicity consisted of straight, factual news stories or inflammatory stories, Provenzano, 497 So. 2d at 1182;
(3) whether the news stories consisted of the police of prosecutor's version of the offense to the exclusion of the defendant's version, Manning, 378 So. 2d at 275;
(4) the size of the community in question, Copeland v. State, 457 So. 2d 1012, 1017 (Fla. 1984); and
(5) whether the defendant exhausted all of this peremptory challenges. Hoy v. State, 353 So. 2d 826 (Fla. 1977), cert. denied, 439 U.S. 920, 99 S. Ct. 293, 58 L. Ed. 2d 265 (1978).
The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire.
If voir dire shows that it is impossible to select jurors who will decide the case on the basis of the evidence, rather that the jurors' extrinsic knowledge, then a change of venue is required. Copeland, 457 So. 2d at 1017.
The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire, or assuming such knowledge, a lack of partiality. Oats, 446 So.2d at 93.
To be qualified, jurors need not be totally ignorant of the facts of the case nor do they need to be free from any preconceived notion at all:
To hold that the mere existence of any preconceived notion as to the guilt of the accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard.
It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961).
Thus, if prosecutive jurors can assure the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified so serve on the jury, and a change of venue is not necessary. Davis, 461 So. 2d at 69.
Although such assurances are not dispositive, they support the presumption of a jury's impartiality. Copeland, 457 So. 2d at 1017.
In some instances, the percentage of prospective jurors professing an extrinsic knowledge of the case or a fixed opinion has been used to determine whether pervasive community prejudice exists.
However, even where a substantial number of prospective jurors admit a fixed opinion, community prejudice need not be presumed.
For instance, in Murphy the United States Supreme Court evaluated these percentages as follows:
In the present case, by contrast, 20 to 78 persons questioned were excused because they indicated an opinion as to petitioner's guilt.
This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own. 421 U.S. at 803, 95 S. Ct. at 2037-38.
Consistent with the Murphy rationale, court of this state have found in other cases, where similar percentages of prospective jurors voiced a bias during voir dire, that a change of venue was not required because the partiality of certain individual venire members did not reflect a pervasive prejudice infecting the entire community. See Provenzano; Copeland; see also Pitts v. State, 307 So. 2d 473 (Fla. 1st DCA 1975). Rolling, 695 So. 2d at 285-286.