Attorneys for Appellant Attorneys for Appellee
Steven E. Ripstra Steve Carter
Ripstra Law Office Attorney General of Indiana
James B. Martin
Lorinda Meier Youngcourt Deputy Attorney General
Huron, Indiana Indianapolis, Indiana
Appeal from the Spencer Circuit Court, No. 74C01-0107-CF-158
The Honorable Wayne A. Roell, Judge
On Direct Appeal
June 30, 2004
Shortly thereafter the Dale Town Marshall arrived and saw Ward standing in the
doorway, covered with perspiration, and holding a knife. Drawing his service revolver,
the Marshall ordered Ward to the ground. Ward complied saying, I didnt
do anything. The Marshall then went to the kitchen and found Stacy
lying on the floor, nude from the waist down, covered with blood, and
her intestines exposed. Although conscious, Stacy could not speak. She was
taken immediately to the emergency room of the Deaconess-St. Joseph Hospital where doctors
noted a laceration to Stacys abdomen, a laceration to her back that severed
her spine, and a laceration across Stacys neck cutting her trachea. Efforts
to save Stacys life were unsuccessful. A subsequent forensic examination revealed that
Stacy suffered eighteen blunt force injuries, including injuries found within the vaginal vault.
On July 16, 2001, the State charged Ward with murder, and subsequently filed
a notice of intent to seek the death penalty. Thereafter, the State
filed an amended information to include one count of rape as a Class
A felony and one count of criminal deviate conduct as a Class A
The Town of Dale, located in southwestern Spencer County, is a small close-knit community. As of the 2000 census, Spencer County had a total population of 20,400. As one local newspaper recounted, The brutal stabbing of a 15-year-old girl last week in her own home has left this community, as well as surrounding communities, in shock and law enforcement officials in search of answers. Appellants App. at 6281. Another newspaper reported, Community reaction is one of stunned disbelief after the news of 15-year-old Stacy Paynes murder Wednesday afternoon in her own home outside of Dale. Things like this just dont happen in small towns like Dale, Indiana is a common reaction to the news that has parents hugging their children, locking their doors and grieving with the Payne family. Id. at 6295.
On February 8, 2002, Ward filed a motion for change of venue from
the county, or in the alternative a motion to draw the jury from
another county pursuant to section 35-36-6-11 of the Indiana Code.
later withdrew the motion when the trial court denied his request for a
continuance for the purpose of having a survey conducted, Ward refiled the motion
on April 11, 2002. As grounds for the motion Ward alleged public
outrage, hostility, and prejudicial pretrial publicity. A hearing on the motion was
conducted May 20, 2002. The parties stipulated into evidence several exhibits, including
twenty-five articles from four local and regional newspapers, and either the videotape or
transcript from three local and regional television stations representing fifteen news stories.
Although the news accounts were graphic and detailed, they were generally accurate.
Many of the accounts however also included details of Wards past criminal history
that would not have been admissible at trial.
The evidence at the
hearing, including testimony of witnesses, also revealed that a vigil was held for
Stacy at which nearly twelve hundred people attended. Over five hundred mourners
attended her funeral. At the close of the hearing, the trial court took
Wards motion for change of venue under advisement. About a month before
trial, at a hearing in which Ward appeared, an angry audience yelled at
Ward as he was being escorted through the courthouse rotunda; the trial court
admonished the crowd for its behavior.
On October 7, 2002, the jury selection process began. The trial court
had summoned one hundred twenty-eight prospective jurors. Outside of their presence Ward
renewed a number of previous motions and also requested the court to grant
our Motion for Change of Venue . . . . Tr. at
4. The trial court responded, All motions denied.
groups of approximately thirty to forty, the prospective jurors were then brought into
the courtroom where the trial court gave them a few brief instructions. The
trial court also gave the prospective jurors a lengthy twenty-eight-page questionnaire that had
been previously tendered by the defense and agreed to by the State.
The prospective jurors were directed to complete the questionnaire, give it to the
bailiff, and return to court the following day.
The parties began a two-day voir dire on October 8, 2002. The
responses given on the questionnaires revealed the pervasive nature of the pretrial publicity,
the extent of the communitys knowledge about this case, and its understandable outrage.
Of the one hundred twenty-eight prospective jurors summoned, one hundred twenty-two actually
completed the questionnaire. Over eighty percent101reported that he or she had knowledge
about the case. For example, one prospective juror wrote, unless you live
under a rock you have heard a lot about this case. Appellants
App. at 3673. In response to the question, what did you discuss
and with whom? another prospective juror said, with whom? [E]veryone was talking
about it you couldnt go anywhere!
Id. at 5192.
In response to the question: Based on what you have read, seen, or
heard about this case, have you formed any beliefs as to the guilt
or innocence of Roy Ward? over sixty-five percent84 prospective jurorschecked yes. When
asked to please describe your beliefs the responses of the 84 prospective jurors
ranged from I think that he probably did it,
at 2891, to
hang him instantly, and he should have been shot on the spot at
the scene of the crime. Id. at 4456.
During the course of voir dire a total of forty-eight prospective jurors were
removed for cause either on challenge by the defense, the State, or
sponte by the trial court. The State used sixteen peremptory challenges and
Ward exhausted all of his.
Ultimately twelve jurors and two alternate jurors
were selected and sworn. On the morning of the first day of
trial, Ward renewed his motion for change of venue, which the trial court
The record shows that of the jurors selected, all but one had heard,
seen, or read about this case. And six of the seated jurors
were among the over sixty-five percent who checked yes to the question of
whether they had formed a belief concerning Wards guilt or innocence. Juror
#14 explained on his questionnaire He was arrested at the home just a
few minutes after the 911 call.
Id. at 2914. Juror #84
wrote, since he was at the scene he might be the person who
done [sic] it. Id. at 3611. When asked to describe her
beliefs, Juror #121 replied,
It would be very difficult to form an unbiased
opinion. He was caught at the site with a knief [sic] and
the sister saw him. If it were my own daughters I would
have probably come after him myself.
Id. at 4019. When asked
later in her questionnaire whether there was anything that might get in the
way of her being an impartial juror, she checked Yes and wrote, [H]e
was caught at the siteI feel hes guilty. Id. at 4024.
Explaining the reasons for her beliefs, Juror #122 responded, If everything that I
have heard is true, it will be hard but not impossible to believe
that he did not do it. Id. at 4042. The daughter
of juror #122 attended the same school as the victim. Id. at
4025. She also commented on her questionnaire about the devastation of [the]
family and the horror of it all and how the crime was such
a tragedy. Id. at 4042.
When asked on the questionnaire whether she had formed any beliefs about Wards
guilt or innocence, Juror #148 checked Yes and wrote, This man was inside
their house. Her sister saw him and called 911. I would
listen with an opened [sic] mind, but I feel the evidence will be
there and he will be convicted. Id. at 4433. She mentioned
twice in her questionnaire the pools of blood that had surrounded the victim.
Id. at 4432, 4433. When asked to describe what she had
read, seen, or heard about this incident this juror responded, He had entered
the house, stabbed and raped her while her sister was upstairs making the
911 call. That he had been stalking her. The child was
taken to Huntingburg Hospital and the Dr.s faces were so grim and the
workers had to keep wiping up the pools of blood from the injuries
to this child. Id. at 4432.
Explaining her beliefs as to why she had reached an opinion in this
case, Juror #152 wrote, When the police enter[ed] the Payne home the man
(Roy Ward) still had the knife in his hand. Id. at 4502.
Other than perfunctory questioning of whether they could be fair and impartial, to which each generally responded yes, there was no voir dire examination conducted of these jurors to explore their previously expressed belief that Ward was guilty. There was more extensive questioning of Juror #121. But in the end she was not sure whether she could return a verdict based solely on the evidence presented at trial. The following exchange is instructive:
[Prosecuting Attorney]: [Juror #121], do you believe that you can set aside what youve heard outside the courtroom or read outside the courtroom and any kind of preconceived ideas or notions that you may have and base your decision on the law and evidence that you hear in this courtroom?
[Juror #121]: I could follow the Judges direction on what to do and abide by the law, but I also have an opinion.
[Prosecuting Attorney]: Okay. And I think thats I would be surprised if people didnt have opinions. Thats what we as a society, we bring our opinions with us in everything we do. We all are creatures of habit, creatures of what we hear, and we have also our own set of individual personal beliefs that we bring to every issue. Do you believe that you could let me ask it this way. Do you believe that your opinion would keep you from being fair to the Defendant or the State?
[Juror #121]: It makes it very difficult, and Im putting myself in that place.
[Prosecuting Attorney]: Okay. I understand.
Tr. at 531-32
[Trial Court]: Are you willing to lay aside anything you may have seen or heard about this case and hold the State of Indiana to a burden of proof to [prove] beyond a reasonable doubt of each and every element of each and every crime charged and base a decision solely on what you hear and see in this courtroom[?]
. . .
[Juror #121]: Its I dont know; its just hearsay from maybe whats in the paper, but I know that, other than just knowing what was on the paper in the paper and on TV and having two daughters of my own and he was at the scene with the weapon I feel like would [sic] be very difficult for me to change my mind.
Id. at 585-86.
With the twelve jurors and two alternates thus selected, the guilt phase of
trial was held over four days from October 14 through October 18, 2002.
Ward did not take the stand in his defense. However during
opening statements and closing arguments, counsel conceded that Ward is responsible for Stacy
Paynes death . . . . Id. at 1103, 2627. The
contested issues were whether he knowingly or intentionally killed her, raped her, and
engaged in criminal deviate conduct. The jury convicted Ward as charged.
The penalty phase of trial began October 21, 2002, and the jury returned
a recommendation of death. Following a sentencing hearing, the trial court followed
the jurys recommendation. The trial court also sentenced Ward to two consecutive
fifty-year terms of imprisonment for the rape and criminal deviate conduct convictions.
This direct appeal followed in due course.
Ward contends Because of the Horrible Nature of the Crime, Pretrial Publicity, Prospective
Jurors Knowledge of the Crime and Victim and the Venires Expressed, Overwhelming Predisposition
to Convict, the Court Should Have Moved the Trial from Spencer County, Indiana.
Br. of Appellant at 25.
We review a trial courts denial of a motion for change of venue
for an abuse of discretion.
Specht v. State, 734 N.E.2d 239, 241
(Ind. 2000). An abuse of discretion does not occur where voir dire
reveals that the seated panel was able to set aside preconceived notions of
guilt and render a verdict based solely on the evidence. Elsten v.
State, 698 N.E.2d 292, 294 (Ind. 1998). The defendant must demonstrate the
existence of two distinct elements: (1) prejudicial pretrial publicity and (2) the inability
of jurors to render an impartial verdict. Specht, 734 N.E.2d at 241;
White v. State, 687 N.E.2d 178, 179 (Ind. 1997).
Prejudicial pretrial publicity
is that which contains inflammatory material which would not be admissible at the
defendants trial or contains misstatements or distortions of the evidence given at trial.
Burdine v. State, 515 N.E.2d 1085, 1092 (Ind. 1987).
In this case the news reports were extensive, detailed and graphic. However
they were largely accurate accounts of a horrific and brutal killing. On
the other hand several of the news articles recounted Wards criminal history.
See supra n.2. In that regard the articles contained inflammatory, inadmissible information.
Thus, Ward has established the existence of prejudicial pretrial publicity. We
acknowledge however that the prejudicial nature of the pretrial publicity is only marginally
at issue here. Without regard to press accounts of Wards criminal past,
the critical inquiry is whether overall community bias and prejudice exist such that
Ward was denied a fair trial. See Lindsey, 485 N.E.2d at 106.
In other words even if Ward had no criminal history or if
that history had not been reported, we nonetheless would be confronted with the
question of whether jurors were able to render an impartial verdict. White,
687 N.E.2d at 179.
It is not a prerequisite to a fair trial that the jurors be
totally ignorant of the facts involved.
Smith v. State, 465 N.E.2d 1105,
1116 (Ind. 1984). Thus, a jurors mere exposure to press coverage is
not enough to support a claim that local prejudice entitles a defendant to
a change of venue. Even if potential jurors have been exposed to
pretrial publicity concerning the defendants case that alone is insufficient to establish prejudice
unless the defendant can also demonstrate that the jurors were unable to set
aside any preconceived notions of guilt and render a verdict based on the
evidence. Johnson v. State, 472 N.E.2d 892, 906 (Ind. 1985); see also
Ind. Code § 35-37-1-5(b) (providing that prospective juror may be allowed to serve
despite existence of preconceived notions of guilt stemming from pretrial publicity, so long
as the juror states and the court concludes that the juror can render
a verdict based upon the law and the evidence presented). Essentially, in
order to obtain a change of venue the defendant bears the burden of
showing that community prejudice exists which would prevent the defendant from obtaining a
fair trial in that community. Clemens v State, 610 N.E.2d 236, 240
In this case the pattern of deep and bitter hostility shown to be
present throughout the community was clearly reflected in the juror questionnaires. In
addition, six of the twelve jurors finally seated expressed the belief that Ward
was guilty. We do not doubt the sincerity of the jurors who
said they could set aside their preconceived b
eliefs and render a verdict based
on the evidence. Indeed there is a presumption that the jurors voir
dire is truthful. Brown v. State, 563 N.E.2d 103, 105 (Ind. 1990).
However, this presumption can be overcome by a showing of a general
atmosphere of prejudice throughout the community. Id. As expressed by the
United States Supreme Court:
In a community where most veniremen will admit to a disqualifying prejudice, the rel iability of the others protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it.
Murphy v. Florida, 421 U.S. 794, 803 (1975). The record establishes that the presumption has been overcome in this case. Even more disturbing, however, one juror candidly and honestly admitted I dont know when asked by the trial court whether she was willing to base a decision solely on the evidence presented at trial. Tr. at 584. Having previously expressed the belief that Ward was guilty this juror said she felt that it would be very difficult for me to change my mind. Id. This jurors view alone requires that we grant Ward a new trial. If even one [partial] juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence. State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (quoting Morgan, 504 U.S. at 729). With his life at stake, we think the Constitution requires that the defendant be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which [one half] of the members admit, before hearing any testimony, to possessing a belief in his guilt. Irvin, 366 U.S. at 728. We conclude therefore that the trial court abused its discretion in failing to grant Wards motion for change of venue from the county, or in the alternative to draw the jury from another county. Accordingly, we reverse the trial court on this issue and remand this cause for a new trial.
Judgment reversed and cause remanded.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.