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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE v. PRYCE

Cite as 25 Neb. App. 792

State of Nebraska, appellee, v.

Brittney Pryce, appel

___ N.W.2d ___

Filed April 17, 2018. No. A-17-310.

1. Venue: Appeal and Error. A motion for change of venue is addressed 

to the discretion of the trial judge, whose ruling will not be disturbed 

absent an abuse of discretion.

2. ____: ____. A trial court abuses its discretion in denying a motion to 

change venue when a defendant establishes that local conditions and 

pretrial publicity make it impossible to secure a fair and impartial jury.

3. Presumptions: Jurors: Due Process. Adverse pretrial publicity can 

create a presumption of prejudice in a community such that the jurors’ 

claims that they can be impartial should not be believed. But juror exposure to information about a defendant’s prior convictions or to news 

accounts of the crime with which he is charged does not alone presumptively deprive the defendant of due process.

4. Presumptions: Jurors. Juror partiality may be presumed only in situations where the general atmosphere in the community or courtroom is 

sufficiently inflammatory.

5. Venue: Juror Qualifications: Presumptions. A court will normally 

not presume unconstitutional juror partiality because of media coverage 

unless the record shows a barrage of inflammatory publicity immediately prior to trial, amounting to a huge wave of public passion or resulting in a trial atmosphere utterly corrupted by press coverage.

6. Venue: Due Process. Even the community’s extensive knowledge about 

a crime or a defendant through pretrial publicity is insufficient in itself 

to render a trial constitutionally unfair when the media coverage consists 

of merely factual accounts that do not reflect animus or hostility toward 

the defendant.

7. Venue. Press coverage which is factual in nature cannot serve as the 

basis for a change of venue.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/01/2018 01:08 AM CDT
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8. Venue: Juror Qualifications. Under most circumstances, voir dire 

examination provides the best opportunity to determine whether a court 

should change venue.

9. Juror Qualifications. The law does not require that a juror be totally 

ignorant of the facts and issues involved; it is sufficient if a juror can 

lay aside his or her impression or opinion and render a verdict based on 

the evidence presented in court.

10. Venue: Juries: Proof. A court must evaluate several factors in determining whether the defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial 

jury. These factors include (1) the nature of the publicity, (2) the degree 

to which the publicity has circulated throughout the community, (3) 

the degree to which venue could be changed, (4) the length of time 

between the dissemination of the publicity complained of and the date 

of the trial, (5) the care exercised and ease encountered in the selection 

of the jury, (6) the number of challenges exercised during voir dire, (7) 

the severity of the offenses charged, and (8) the size of the area from 

which the venire was drawn.

Appeal from the District Court for Custer County: Karin 

Noakes, Judge. Affirmed.

P. Stephen Potter for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Moore, Chief Judge, and Riedmann, Judge, and In

Judge, Retired.

Riedmann, Ju

INTRODUCTION

Brittney Pryce was convicted in the Custer County District 

Court of intentional child abuse resulting in death and sentenced to 30 to 40 years’ imprisonment. She appeals, arguing 

that the court erred in denying her motion to change venue. 

We find no abuse of discretion in the denial of the motion and 

therefore affirm.
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STATE v. PRYCE

Cite as 25 Neb. App. 792

BACKGROUND

In July 2014, Pryce was charged by information with intentional child abuse resulting in the death of a 21-month-old 

child. On August 9, 2016, Pryce filed a motion to change 

venue, alleging that due to extensive pretrial publicity, she 

would be unable to get a fair trial in Custer County. At the 

hearing on her motion, Pryce offered into evidence five articles 

in support of her motion. The first article was published on 

“SandhillsExpress.com” on August 4 and reported that Pryce 

had appeared in court that morning and rejected a plea offer 

from the State. The article noted that a jury trial was scheduled 

to begin on August 22. The second article was also from the 

same website and published on June 23. It explained that a 

group advocating for child abuse victims appeared at a hearing 

in Pryce’s case and that at the hearing, the court heard numerous pretrial motions. The article also noted that Pryce was 

accused of causing the death of a 21-month-old child who had 

been in her care and listed the dates for a final pretrial hearing 

and trial.

The third article Pryce offered into evidence was published 

on August 8, 2016, on the website of the Custer County Chief 

newspaper. This article stated that after the State and Pryce had 

offered and rejected plea agreements, the case would proceed 

to jury trial starting August 22. The article also reported that 

Pryce had been charged with second degree murder and child 

abuse leading to death of a child. However, although Pryce 

originally faced both charges, she had been bound over to district court on the child abuse charge only. Thus, at the time the 

article was published, only that charge remained.

The final two articles were published in the Custer County 

Chief but are not dated. It is clear from the contents of the 

articles, however, that they were published sometime in early 

2014. They report details surrounding the child’s death and the 

fact that Pryce and her mother had been arrested.

After the hearing, the district court entered an order denying the motion to change venue at that time. The court noted 
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that although Pryce had offered into evidence a sample of the 

nature of the pretrial publicity, there was no evidence regarding the degree to which the publicity had circulated through 

the community or in areas to which venue could be changed, 

though the court acknowledged that that type of evidence 

was difficult to obtain prior to jury selection. Thus, the court 

found that Pryce failed to meet her burden that a venue change 

was warranted.

Jury selection began in this case on August 22, 2016, and 

lasted for 2 days. After the process was complete, Pryce 

renewed her motion to change venue. The district court 

opined that an impartial jury had been selected and denied 

the motion.

At the conclusion of trial, the jury found Pryce guilty. She 

was sentenced to 30 to 40 years’ imprisonment. This timely 

appeal follows.

ASSIGNMENT OF ERROR

Pryce assigns that the district court erred in denying her 

motion to change venue.

STANDARD OF REVIEW

[1] A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed 

absent an abuse of discretion. State v. Erickson, 281 Neb. 31, 

793 N.W.2d 155 (2011).

ANALYSIS

Pryce argues that the denial of her motion to change venue 

was erroneous for two reasons. First, she claims that under 

Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 

(1961), we should presume prejudice in the community due 

to pretrial publicity. In the alternative, she asserts that even if 

juror bias is not presumed, her motion to change venue should 

have been granted when considering the applicable factors.

[2] Generally, all criminal cases shall be tried in the county 

where the offense was committed unless it shall appear to the 
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Cite as 25 Neb. App. 792

court by affidavits that a fair and impartial trial cannot be had 

there. See Neb. Rev. Stat. § 29-1301 (Reissue 2016). A motion 

for change of venue is addressed to the discretion of the trial 

judge, whose ruling will not be disturbed absent an abuse of 

discretion. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 

(2007). A trial court abuses its discretion in denying a motion 

to change venue when a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair 

and impartial jury. Id.

[3,4] In Irvin v. Dowd, supra, the U.S. Supreme Court held 

that the overwhelming negative publicity against the defendant 

should have mandated a change of venue not just to a county 

adjoining the county in which the murders had occurred, but 

to a county geographically far enough removed to be untainted 

by the publicity. The Nebraska Supreme Court has stated that 

under Irvin v. Dowd, supra, adverse pretrial publicity can 

create a presumption of prejudice in a community such that 

the jurors’ claims that they can be impartial should not be 

believed. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 

(2009). But juror exposure to information about a defendant’s prior convictions or to news accounts of the crime with 

which he is charged does not alone presumptively deprive the 

defendant of due process. Id. Juror partiality may be presumed 

only in situations where the general atmosphere in the community or courtroom is sufficiently inflammatory. Id.

[5] A court will normally not presume unconstitutional juror 

partiality because of media coverage unless the record shows 

a barrage of inflammatory publicity immediately prior to trial, 

amounting to a huge wave of public passion or resulting in a 

trial atmosphere utterly corrupted by press coverage. Id. The 

Nebraska Supreme Court has held that five newspaper articles 

containing information regarding the case failed to demonstrate that the publicity was so widespread to have corrupted 

the mind of all potential jurors—particularly when there was 

no evidence of the extent to which that publicity reached the 

community in question. See State v. Schroeder, 279 Neb. 
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Cite as 25 Neb. App. 792

199, 777 N.W.2d 793 (2010). See, also, State v. Bradley, 236 

Neb. 371, 461 N.W.2d 524 (1990) (no abuse of discretion in 

denying motion to change venue for pretrial publicity where 

only five newspaper articles appeared within 4 months of 

jury selection).

[6,7] But the quantum of news coverage is not dispositive. State v. Galindo, supra. Even the community’s extensive 

knowledge about a crime or a defendant through pretrial publicity is insufficient in itself to render a trial constitutionally 

unfair when the media coverage consists of merely factual 

accounts that do not reflect animus or hostility toward the 

defendant. Id. Although the Supreme Court has frequently 

stated that the defendant must show pervasive, misleading pretrial publicity, the more important consideration is whether the 

media coverage was factual, as distinguished from invidious 

or inflammatory. Id. Press coverage which is factual in nature 

cannot serve as the basis for a change of venue. Id.

In the present case, at the hearing on Pryce’s initial motion 

to change venue, she offered into evidence five news articles 

containing information about the case. It is clear that three of 

the five articles were published shortly before trial began in 

August 2016. The other two articles appear to have been published around the time Pryce was arrested in 2014. But each 

article contains only factual information, which is insufficient 

to support a finding that the general atmosphere in the community or courtroom is sufficiently inflammatory. We note that 

one article published on August 8, 2016, erroneously stated 

that Pryce was still facing charges of second degree murder 

and child abuse resulting in death, when in fact, only the child 

abuse charge remained pending. However, this error alone 

is not enough to establish that the entire jury pool would be 

biased against Pryce.

We conclude that the five news articles containing factual, 

as opposed to inflammatory, information regarding the case 

were insufficient to support a finding that the publicity was so 

widespread to have tainted the entire pool of potential jurors. 
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STATE v. PRYCE

Cite as 25 Neb. App. 792

Thus, the district court did not err in denying the motion to 

change venue at that time.

[8] Under most circumstances, voir dire examination provides the best opportunity to determine whether a court should 

change venue. State v. Schroeder, supra. Indeed, the U.S. 

Supreme Court based its decision in Irvin v. Dowd, 366 U.S. 

717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), partially on the 

information gleaned during voir dire. There, six murders were 

committed in Indiana. There was extensive news coverage 

in the county where the crimes occurred and in an adjoining 

county during the 6 or 7 months preceding trial. The stories 

described the defendant’s criminal history, his confession to 

the murders and other crimes, his police lineup identification, 

the fact that he had taken a lie detector test, and his plea offer, 

as well as references to him as the “‘confessed slayer of six,’ 

a parole violator and a fraudulent-check artist,” and characterizing him as remorseless and without conscience. Id., 366 U.S. 

at 726. One newspaper account referred to “‘a pattern of deep 

and bitter prejudice against [him]’” among the members of the 

community. Id., 366 U.S. at 727.

During voir dire examination, which lasted 4 weeks, news 

articles reported that “‘impartial jurors are hard to find.’” Id. 

Of the 430-person panel, almost 90 percent entertained some 

opinion as to guilt—ranging in intensity from mere suspicion 

to absolute certainty—and a number admitted that if they 

were in the accused’s place and he in theirs on the jury with 

their opinions, they would not want him on a jury. Of the 12 

jurors who were selected, 8 thought he was guilty. Thus, the 

U.S. Supreme Court ultimately determined that based on the 

barrage of pretrial publicity and the pattern of deep and bitter prejudice shown to be present throughout the community, 

jury prejudice should be presumed and a change in venue 

was warranted.

In the present case, there was no evidence that the pretrial publicity surrounding Pryce and this case was nearly as 

inflammatory or pervasive as that in Irvin v. Dowd, supra. The 
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Cite as 25 Neb. App. 792

articles received into evidence here refer to Pryce by name and 

explain the circumstances surrounding the charges she faced, 

but none of the articles contain additional information about 

Pryce personally, express opinions as to her guilt or innocence, 

or speak derogatorily of her.

[9] The fact that a number of potential jurors indicated having heard of the case prior to trial is not sufficient to support 

a change of venue. It is not required that the jurors be totally 

ignorant of the facts and issues involved. Irvin v. Dowd, supra. 

In these days of swift, widespread, and diverse methods of 

communication, an important case can be expected to arouse 

the interest of the public in the vicinity, and scarcely any of 

those best qualified to serve as jurors will not have formed 

some impression or opinion as to the merits of the case. Id. 

This is particularly true in criminal cases. Id. To hold that the 

mere existence of any preconceived notion as to the guilt or 

innocence of an accused, without more, is sufficient to rebut 

the presumption of a prospective juror’s impartiality would be 

to establish an impossible standard. Id. It is sufficient if the 

juror can lay aside his or her impression or opinion and render 

a verdict based on the evidence presented in court. Id.

Thus, in the instant case, although potential jurors may 

have heard factual information about the case prior to trial, 

the majority of them indicated that they could remain impartial, decide Pryce’s guilt based solely on the evidence presented at trial, and understood that Pryce was presumed innocent until proven guilty. Of the jurors who were ultimately 

selected for the jury, only four indicated having generally 

seen media reports of the case, but they all stated that they 

had not formed an opinion as to Pryce’s guilt and could 

remain impartial. Thus, there is no evidence of the pattern of 

deep and bitter prejudice shown to be present throughout the 

community as in Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 

6 L. Ed. 2d 751 (1961). We therefore conclude that the district court did not abuse its discretion in denying the motion 

to change venue.
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STATE v. PRYCE

Cite as 25 Neb. App. 792

Pryce also argues that a change of venue was warranted 

when considering the factors to be weighed in determining 

whether publicity has made it impossible to secure a fair and 

impartial jury. We disagree.

[10] Even if the evidence is insufficient to support a presumption of partiality under Irvin v. Dowd, supra, a change 

of venue may still be warranted where the defendant shows 

the existence of pervasive misleading pretrial publicity. See 

State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). A 

court must evaluate several factors in determining whether the 

defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial 

jury. These factors include (1) the nature of the publicity, (2) 

the degree to which the publicity has circulated throughout the 

community, (3) the degree to which venue could be changed, 

(4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care 

exercised and ease encountered in the selection of the jury, (6) 

the number of challenges exercised during voir dire, (7) the 

severity of the offenses charged, and (8) the size of the area 

from which the venire was drawn. Id.

We have already addressed the first four factors. The pretrial 

publicity consisted of five articles—only three of which were 

published shortly before trial commenced—which contained 

only factual information about the case, and the publicity was 

not inflammatory or pervasive. And there was no evidence 

establishing the degree to which the articles circulated throughout Custer County. These factors do not support a change 

in venue.

Of the remaining four factors, a review of the jury selection process shows that there was no difficulty in selecting a 

jury. Great care was taken during the process. At the outset, 

we note that the sheer time which voir dire took to complete, 

approximately 2 days, does not in and of itself warrant a 

change of venue. See State v. Ell, 196 Neb. 800, 246 N.W.2d 

594 (1976). At least 80 potential jurors were summoned, 42 
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were initially called, and as a panel, they were questioned 

about their exposure to pretrial publicity. The parties agreed 

that any potential juror who indicated having heard or read 

media reports of the case would be questioned separately. 

Ultimately, 25 potential jurors were personally interviewed. 

The parties also challenged a number of jurors during voir 

dire and 16 were stricken for cause. However, of the potential jurors who were challenged and excused, not all of them 

were dismissed due to exposure to pretrial publicity. Rather, 

they were excused for reasons such as health issues; financial 

hardship; or knowing or being related to Pryce, her husband, 

or a witness.

Four of the jurors ultimately selected for the jury indicated 

that despite having heard of the case via the media, they had 

not formed an opinion as to Pryce’s guilt and could be fair 

and impartial. We reiterate that the law does not require that 

a juror be totally ignorant of the facts and issues involved; it 

is sufficient if the juror can lay aside his or her impression or 

opinions and render a verdict based upon the evidence. See 

State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011). For the 

sake of completeness with respect to the final two factors, we 

note that intentional child abuse resulting in death is a Class IB 

felony and agree with the parties that it is a significant charge. 

See Neb. Rev. Stat. § 28-707 (Reissue 2016). In addition, we 

observe that there is no evidence in the record establishing the 

size of Custer County—the area from which the venire was 

drawn. When considering the foregoing factors, we cannot 

conclude that the district court abused its discretion in denying 

Pryce’s motion to change venue.

CONCLUSION

Finding no abuse of discretion in the denial of Pryce’s 

motion to change venue, we affirm.

Affirme