No. 80-374 INTHE SUPREJE COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Appellant,

LONNIE LINK, Defendant and Respondent.

Appeal from: DistrictCourt of the Eighth Judicial District, In and for the County of Cascade. Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Assistant Attorney General,

Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Carroll Blend argued, Deputy County Attorney, Great

Falls, Montana For Respondent: Michael Smartt argued, Public Defender, Great Falls,

Montana

Submitted: June 8, 1981 Decided:

## 3UN231981 Filed: 

# JJFI 23

## 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.
The State appeals from an order entered inDistrict Court, Cascade County, granting defendant's motion for a change of
venue. We reverse. Defendant was arrested February 25, 1980, inGreat Falls, Montana, and was charged with felony theft. He pleaded not guilty and was released on hisown recognizance. Trial was 

### set forJune 30, but was vacated and reset forAugust 25, 1980. On August 11, 1980, defendant was arrested for robbery. Both 

### crimes
were reported in the Great FallsTribune. One article, published 12days before trial, pictured defendant inhandcuffs, and in an articleappearing a week before trial

## , several community businessmen were reported asbeing critical of the presiding district judge for having released defendant on hismn recognizance. The remaining articles were routine news releases concerning the crimes allegedlycommitted by defendant. On August 25, the day of trial, defendant filed a motion and affidavit with the District Court requesting either a change of venue, or the postponement of the trial to allow 

### time for the publicity to die down. Following hearing, the districtjudge granted defendant's motion for a change of venue. The State appeals. The parties raised several issues which 

### we frame as follows: 1)Did the district judge abuse hisdiscretion in granting the change of venue? 2) Should this Court reconsider the standard used to determine whether a change of venue should be granted? The State contends that the district judge abused his discretion in granting the change of venue, because therewas not
a showing of existing prejudice in the community. A 

### mere showing of publication does not prove thatprejudice results, which will bias the trial. Defendant argues that the Statehas a heavy bur-"The cases inMontana have established that before 

### a districtjudge can exercise hisdiscretion ingranting 

### a change of venue theremust be 

### more than (1)affiantws unsupported opinion, (2) the fact that the account of a 

### crime has been published, that said published accounts of the 

### crime 

### are not prejudicial unless they 

### are passionate enough 

### to excite undue prejudice, 

### to theextent of rendering 

### it impossible forthe

## - -- accused 

### --- tohave 

### ajury freefromprejudice." 

### -- Stateex 

### rel. Hanrahan v. District Court, (1965), 145Mont. 501, 508, 401 P.2d 770, 774. See 

### also Statev. Corliss (1967), 150Mont. 40, 430 P.2d 632; Statev. Sandstrom (1978), Mont. 

## ,580 P.2d 106, 35 St.Rep. 744. What is required by Montana 

### case law, then, 

### is more than
an allegation of publicity; the court must determine thatthe publicity has so affected the community and has 

### so aroused prejudice in the community that a fair trial cannot be had. Here, there

### was no attempt 

### to assess the effect of the publicity. Although the jury was ready for trial, the change of
venue 

### was granted without questioning the prospective jurors 

### as 

### to theirknowledge of the case, whether they had seen the publicity, 

### or as tothe effect on them of the publicity. The decision to change venue resulted from a finding of prejudice per


### se arising only from publication. This is not the 

### law in Montana. With no finding of existing prejudice, the district judge abused hisdiscretion inordering the change. Therefore 

### we
reverse the order and remand the cause for

### trial inCascade County.The defendant in this

### case admitted that there

### was no showing of existing prejudice. He acknowledged thatno one article

### was passionate enough to arouse the prejudice of the community, but he urged the court 

### to view the cumulative effect of allof the 

### articlespublished. He argued thatthe standard used inMontana forgranting a change of venue is 

### too rigid 

### to be workable, and urges thisCourt to adopt the ABA standard on change of venue orcontinuance. Montana 

### lawnow requires aden to show abuse of discretion by the judge. He contends that the 

### articles published and the information which the. judge 

### was


### aware of 

### were sufficient

### to allowhim to make a determination thatdefendant could not get a fair trial. The statute authorizing 

### a change of venue requires 

### a showing of existing prejudice: "Change of place of 

### trial. (1)The defendant 

### or the prosecution

## maymove for a change of place 

### of trial on the ground that thereexists

### -- inthe county inwhich thecharge is pending 

### -- such preiudice

### that a fair

### trial

### cannot be had in such
a --- 

### -- county. The motion must be made at 

### least 15 daysprior to trial except that, if good cause is shown, it may be made thereafter. 

### "(2) The motion must be inwriting and supported by an affidavitwhich must state facts showing the nature of the prejudice alleged. The defendant 

### or the 

### state may filecounteraffidavits. The court shall conduct a hearing and determine the 

### merits of the motion. "(3) If the court determines thatthereexists inthe county inwhich the prosecution 

### is 

## -- pending such prejudice that a fair trial cannot be had, 

### it shall transfer the cause 

### to any other court of competent jurisdiction in any county in which a fair 

### trial may be had." (Emphasis added.) Section 46-13-203, MCA. The findings of the districtjudge do not indicate thathe found existing prejudice. Rather, he found that "the publicity incident 

### to these particular 

### cases, without 

### more, is sufficient 

### towarrant a change of venue." Noting that 

### two charges 

### were pending aginst the defendant inCascade County at this

### time, the districtjudge determined thatjudicial 

### timeand economy would be best served by ordering a change of venue. This Court has indicated thatwhere the evidence is inconclusive on the issue of prejudice, the districtjudge's discretion should be relied on. Hisruling should not be disturbed unless an abuse of discretion is shown. Statev. Bashor (1980), Mont. 

## ,614 P.2d 470, 476, 37 St.Rep. 1098, 1100. Under the factsof thiscase 

### we find an abuse of discretion. This Court has discussed the showing thatmust be made before a change of venue 

### is granted:showing of existing prejudice substantial enough to make a fair trial impossible, while the ABA standard requires only a showing of a "reasonable likelihood" that a fair trial cannot be had, and it does not require any showing of actual prejudice. 

### We agree that the "impossible to have a fair trial" standard 

### is an unworkable one. It 

### is unlikely that except in the most extreme circumstances that the defendant could show that it is impossible to obtain a jury free from prejudice. But, rather than adopting the ABA standard, aswe are urged to do by defendant, 

### we willhereafter apply the rule as setout by the Illinois Supreme Court, in interpreting the Illinoisvenue statute, on which our statute 

### ispatterned:

'I [TIhe rule is that an accused 

### is entitled to a change of venue when it appears there arereasonable grounds 

### to believe that the prejudice alleged actually existsand thatby reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial. People v. Berry (1967), 37 I11.2d 329, 226 N.E.2d 591, 592-593. See also, People v. Campbell (1975), 28 Ill.App.3d 480, 328
By adopting the Illinoisstandard, we arenot suggesting that a showing of existing prejudice need no longer be made. Before a district judge can find "reasonable grounds to believe that the prejudice alleged actuallyexists", something beyond bare allegation 

### is required to prove that the community 

### is actually infected with prejudice

# . However, by holding that the defendant no longer has to show that it 

### is "impossible" to find
an unprejudiced jury in the community, 

### we are allowing a district judge to exercise hisdiscretion in determining that the actual prejudice 

### is sufficientlypervasive 

### to warrant a change of venue. Although we are adopting thisrule prospectively, it is unlikely that defendant would have prevailed under the new standard. As

### we noted above, no actual existing prejudice was alleged orproved which is fatal under either standard. The order of the districtjudge 

### is reversed, and we remandthe cause to Cascade County for trial on the merits.

Chief Justice We con :



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