No. 83-10 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

STATE OF MONTANA, Plaintiff and Appellant,

-vsJa'4ES E. PAISLEY, Defendant and Respondent.

Appeal from: DistrictCourt of theEleventh JudicialDistrict, Inand for the County of Flathead, The Honorable James B. Wheelis, Judge presiding.

Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Ted 0. Lynpus, County Attorney, Kalispell, >lontana

For Respondent: Keller & Gilmer, Kalispell, Montana

Submitted!on Briefs: !;larch 25, 1983 Decided: May 19, 1983

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.-pp - -- ----- ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Defendantwas arrested on January 17, 1982,and charged by information with one count of sexual intercourse without consent. An amended informationwas filed March 19, 1982, charging defendant with one count of sexual intercourse without consent, a felony, one count of sexual assault, a felony and one count of sexual assault, a misdemeanor. All of the charges stem from defendant's actions toward three female patients in his Flathead County, Montana, dental office. After his arrest and the filing of the additional charges,defendant's dentalbusiness decreased substantially. On April 6, 1982, defense counsel mailed letters to over seven hundred of defendant'spatients clarifying defendant's position regarding the charges. Defendant's dental business once again increased. Defendant's trial on the misdemeanor charge began in justice court in Flathead County, Montana on September 27, 1982, and lasted for three days. A verdict of guilty was returned on September 30, 1982. Ralispell's Daily Inter Lake newspaper gave the trial and its result front page coverage on all four days. The Missoulian also extensively covered the trial. The felony charges against defendant were scheduled to be tried in the Eleventh Judicial District Court, Flathead County. On October 15, 1982, defendant made a motion for change of place of trial. A hearing on the motion was held November 15, 1982. The motion was granted at the close of the hearing. Pursuant to section 46-20-103,MCA, the State

now appeals the order granting the change of venue. We affirm.Defendant's motion was supported by his defense counsel's affidavit stating facts in supportof the prejudice alleged;by copies of the newspaper accounts of the September trial in justice court; and by a written report of criminologist Dr. Richard Vandiver's survey of the opinions of Flathead County's registeredvoters regarding the guilt of thisdefendant. The State filed a motion in opposition on November 5, 1982,containing four responsesto defendant'smotion: 1. Defense counselacted inappropriately in sending the letters to defendant's clients. The letters attracted the attention of the news media. Defendant should not now be able tobenefit fromhis ownwrong. 2. The news media covered defendant's trial in a fair and objective manner. The publicity did not affect defendant's chances of receiving a fair trial in Flathead County. 3. The criminologist's survey indicated that a majority of the respondentsbelieved they could decide the case solely

on thebasis of the evidencepresented at trial. 4. The District Court should reserve ruling on defendant's motion until voir dire of a Flathead County jury panel. At the November 15, 1982 hearing on the motion for change of venue, defendant testified regarding the impact of his reported conviction upon his dentalpractice. The State called no witnesses, offered no evidence and conducted no cross-examination. Absent abuse of discretion, the District Court's ruling

on a motion for change of venue will be affirmed. State ex rel. Coburn v. Bennett (1982)

## , Mont. 

## , I 655, P.2d 502, 506, 39 St.Rep. 2300, 2306. To grant such amotion, theremust be "reasonable grounds tobelieve that the prejudice alleged actually exists and that by reason of the prejudice there isa reasonable apprehension that the accused cannot receive a fair and impartial trial." State v. Link

(1981), Mont

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## , 640P.2d 366, 368, 38 St.Rep. 982, 985,quoting Peoplev. Berry (1967)

## , 37 Ill.2d 329, 226 N.E.2d 591, 593. When prejudicial pretrial publicity is alleged, the publicity must be inflammatory and create a reasonable apprehension that a fair trial is not possible before themotionwillbe granted. Statev. Ritchson (1982)

## , Mont

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## , 647 P.2d 830, 832, 39 St.Rep. 1201, 1203-04. the written report his survey

## , Dr. Vandiver concluded: "The results of this survey do not overwhelmingly indicate either the liklihood or improbability of Mr. Paisley receiving a fair jury trial inFlathead County. It is obvious that thepublicity given the case by the local media has been widespread and effective

# .. . "It was not clear that people's opinions are set regarding guilt or innocence nor does there appear to be a strong perception of agreement in the community about the case. Thus while it might be possible for Mr. Paisley to receive a fair jury trial inFlathead County the liklihood of that will undoubtedlybe affectedby the extent and natureof furtherpublicity in this case." The survey was conducted prior to defendant's trial in justice court. The trialwasgiven extensive coverageby the media. Regarding the guilty verdict, The Daily Inter Lake reported that the justice court judge told the defendant: "The evidence presents you as being guilty of more than the particular offense charged.

### " The paper also stated: 

### "[The judge] said he was amending the formal charge to include misdemeanor charges against Paisley that could have resulted from the incidents detailed in the testimony of thewitnesses." Those witnesses are the alleged victims of the pending felony charges. The extent of the further publicity was great. It's nature was inflammatory. Clearly, the District Court judge did not abuse his discretion in granting defendant's motion for changeof venue. Finally, in State ex rel. Coburnv. Bennett, Mont

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stated: "Not every venue case requires that voir dire be employed to determine whether prejudice still

'existsand that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.' While the determination of whether widespread prejudice prohibits selection of an impartial jury is usually made during voir dire, each case must turn on its special facts. United States v. Engleman (E.D. Mo. 1980), 489 F.Supp. 48." The District Court's ruling on defendant's motion was within the bounds ofproperly exercised discretion. Affirmed.

We concur:

1 respectfullydissent on thebasis th/the change of

venue order is premature. 

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