No. 80-374 

IN THE SUPREJE COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Appellant, 

LONNIE LINK, 

Defendant and Respondent. 

Appeal from: District Court 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 : 3UN 2 3 1981 

Filed: JJFI 2 3 1981 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The State appeals from an order entered in District Court, 

Cascade County, granting defendant's motion for a change of 

venue. We reverse. 

Defendant was arrested February 25, 1980, in Great Falls, 

Montana, and was charged with felony theft. He pleaded not 

guilty and was released on his own recognizance. Trial was set 

for June 30, but was vacated and reset for August 25, 1980. On 

August 11, 1980, defendant was arrested for robbery. Both crimes 

were reported in the Great Falls Tribune. One article, published 

12 days before trial, pictured defendant in handcuffs, and in an 

article appearing a week before trial , several community bus inessmen were reported as being critical of the presiding district 

judge for having released defendant on hismn recognizance. The 

remaining articles were routine news releases concerning the 

crimes allegedly committed 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 district judge 

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 his discretion 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 there was not 

a showing of existing prejudice in the community. A mere showing 

of publication does not prove that prejudice results, which will 

bias the trial. Defendant argues that the State has a heavy bur- 
"The cases in Montana have established that 

before a district judge can exercise his discretion in granting a change of venue there must be 

more than (1) af f iantws 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 

- the extent of rendering it impossible -- for theaccused --- to have a jury -- free from prejudice." 

State ex rel. Hanrahan v. District Court, 

(1965), 145 Mont. 501, 508, 401 P.2d 770, 774. 

See also State v. Corliss (1967), 150 Mont. 40, 430 P.2d 632; 

State v. 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 that the 

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 their knowledge of the case, whether they had seen the 

publicity, or as to the 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 his discretion in ordering the change. Therefore we 

reverse the order and remand the cause for trial in Cascade 

County. 

The defendant in this case admitted that there was no 

showing of existing prejudice. He acknowledged that no one 

article was passionate enough to arouse the prejudice of the 

community, but he urged the court to view the cumulative effect 

of all of the articles published. He argued that the standard 

used in Montana for granting a change of venue is too rigid to be 

workable, and urges this Court to adopt the ABA standard on 

change of venue or continuance. Montana law now requires a 
den 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 allow him to make a determination 

that defendant 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 may move for a change of place 

of trial on the ground that there exists -- in the 

county in which the charge is pending -- such preiudice that a fair trial cannot be had in such a --- -- 

county. The motion must be made at least 15 

days prior to trial except that, if good cause 

is shown, it may be made thereafter. 

" (2) The motion must be in writing and supported by an affidavit which must state facts 

showing the nature of the prejudice alleged. 

The defendant or the state may file counteraffidavits. The court shall conduct a hearing 

and determine the merits of the motion. 

"(3) If the court determines that there exists 

-- in the county in which 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 district judge do not indicate that he 

found existing prejudice. Rather, he found that "the publicity 

incident to these particular cases, without more, is sufficient 

to warrant a change of venue." Noting that two charges were 

pending aginst the defendant in Cascade County at this time, the 

district judge determined that judicial time and economy would be 

best served by ordering a change of venue. 

This Court has indicated that where the evidence is 

inconclusive on the issue of prejudice, the district judge's 

discretion should be relied on. His ruling should not be 

disturbed unless an abuse of discretion is shown. State v. 

Bashor (1980), Mont. , 614 P.2d 470, 476, 37 St.Rep. 1098, 

1100. Under the facts of this case we find an abuse of 

discretion. 

This Court has discussed the showing that must 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, as we are urged to do by 

defendant, we will hereafter apply the rule as set out by the 

Illinois Supreme Court, in interpreting the Illinois venue 

statute, on which our statute is patterned: 

'I [TI he rule is that an accused is entitled to a 

change of venue when it appears there are reasonable grounds to believe that the prejudice 

alleged actually exists and that by 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 Illinois standard, we are not 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 actually exists", 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 his discretion in determining that the actual 

prejudice is sufficiently pervasive to warrant a change of venue. 

Although we are adopting this rule prospectively, it is 

unlikely that defendant would have prevailed under the new 

standard. As we noted above, no actual existing prejudice was 

alleged or proved which is fatal under either standard. 

The order of the district judge is reversed, and we remand 
the cause to Cascade County for trial on the merits. 

Chief Justice 

We con : 

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