Opinion
No. 5-875 / 05-0573
Filed December 7, 2005
Appeal from the Iowa District Court for Linn County, L. Vern Robinson, Judge.
David L. Taft appeals the district court's decision denying his motion for a change of venue. AFFIRMED.
Mark Smith, First Assistant State Public Defender, and Jennifer Larson, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Andrew Prosser, and Robert Glaser, Assistant Attorneys General, and Harold Denton, Linn County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
David L. Taft appeals the district court's decision denying his motion for a change of venue. He argues publicity was so pervasive and inflammatory that jury prejudice must be presumed. We affirm.
I. Background Facts and Proceedings
Taft's trial for adjudication as a sex offender began on Monday, March 28, 2005. Prior to jury voir dire, he moved for a change of venue. His motion was based on the storm of news coverage surrounding the now infamous kidnapping, molestation, and murder of Jetsetta Gage. That coverage began when Gage went missing on Thursday, March 24, and continued throughout the weekend before Taft's trial. In his oral motion, Taft's counsel noted the similarities between Taft and Roger Bentley, the man accused of Gage's murder: (1) both had prior sex offenses of lascivious acts with a child; (2) both lived in Linn County; and (3) both targeted ten-year-old girls. The trial court denied Taft's motion, pointing out the coverage did not concern Taft.
Taft's counsel again moved for a change of venue on Tuesday, March 29. The court asked jurors if they had read the Cedar Rapids Gazette that morning. One juror admitted he read the paper's headlines. He remembered seeing the transcript of a 911 call in the Gage case, but claimed he did not read any of the articles. He also claimed he would remain impartial. Taft's counsel argued the juror must have read more of the paper in order to see the transcript of the 911 call on page seven. Counsel urged the court to both dismiss the juror and question the rest of the jury further. He pointed to another similarity between Taft and Bentley: a newspaper headline revealed that Bentley refused to attend treatment while in prison for his previous sex offense at Mt. Pleasant. Counsel argued that because the jury heard Taft was also incarcerated at Mt. Pleasant and also refused treatment, the article was prejudicial to Taft. He argued further that the Gazette articles relating to the Gage case were highly inflammatory and highly prejudicial to Taft because they concerned a ten-year-old girl from Cedar Rapids who was sexually abused.
The front page of the March 29, 2005, Cedar Rapids Gazette was concerned primarily with the Jetsetta Gage case. The lead headline read "Bentley Charged with Murder." Underneath that headline was a picture of stuffed animals around Gage's casket. Other front page headlines included "The Victim: `A Void in Our Hearts,' Girl's Friends, Family Deal with Their Grief;" "The Case: Acquaintance Saw Suspect and Called 911;" "Sex Offender Program: Bentley Refused Treatment in Prison." Other items included a photograph of Gage and a photograph of Roger Bentley listening to his charges being read. The headlines on page 6A included: "Changes to System Sought After Death;" "Expert: Not Fair to Blame Family of Abuse Victims;" and "Schools Help Students, Staff Cope with Death." That page also continued the article about the sex offender treatment program from the front page. Page 7A of the paper continued with articles about the case. Headlines included: "Fate of Brother's Case Weighed: James Bentley is Accused of Abusing the C.R. Girl His Brother is Accused of Killing" and "Murder/Johnson County Attorney will Prosecute." Other items on page 7A included the transcript of the 911 call, pictures of Roger Bentley, an aerial photograph of the trailer in which Gage's body was found, and maps of the area where Gage was abducted and found. None of the articles mentioned Taft.
The court determined that the jurors would be able to decide Taft's case on its facts. It also found the juror who had seen the Gazette credible in his testimony about what he read and whether he was prejudiced. It denied Taft's motion for a change of venue. Taft appeals.
II. Standard of Review
Commitment proceedings under chapter 229A are civil in nature. In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000). We therefore review the district court's denial of a motion for change of venue for an abuse of discretion. Richards v. Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005). In addition, district court rulings on a motion to change venue are reviewed "based on the record made by the moving party." Peters by Peters v. Vander Kooi, 494 N.W.2d 708, 711 (Iowa 1993).
III. Merits
Taft argues he should have received a change of venue pursuant to Iowa Rule of Civil Procedure 1.801(3). He argues that, as the result of the Gage news coverage, the potential jurors in Linn County were so prejudiced against him he could not receive a fair trial. Taft specifically argues he was prejudiced by the news coverage of the Gage case because (1) there are factual similarities between Taft and Bentley; (2) there was not enough time between the coverage and his trial; and (3) the juror who admitted reading the Gazette's headlines likely read more of the article.
In determining whether publicity warrants presumed prejudice in a civil trial, we may employ the same type of analysis we would to determine whether publicity warrants presumed prejudice in a criminal trial. See Locksley v. Anesthesiologists of Cedar Rapids, P.C., 333 N.W.2d 451, 454 (Iowa 1983). In order to rely on presumed prejudice as grounds for a change of venue, Taft must show "publicity attending the trial [was] so pervasive and inflammatory that prejudice must be presumed." State v. Siemer, 454 N.W.2d 857, 860 (Iowa 1990). To determine whether the publicity is presumptively prejudicial, we evaluate (1) the nature, tone, and accuracy of the articles; (2) the timing of the articles in relation to the trial; and (3) the impact of the publicity on the jurors as it is revealed through voir dire. State v. Evans, 671 N.W.2d 720, 726 (Iowa 2003); State v. Wedebrand, 602 N.W.2d 186, 188-89 (Iowa 1999); see also State v. Walters, 426 N.W.2d 136, 139 (Iowa 1988) (listing several specific factors by which to gauge possible community prejudice). Sheer volume of coverage is not enough to mandate a change of venue. State v. Morgan, 559 N.W.2d 603, 611 (Iowa 1997).
We conclude the district court did not abuse its discretion in denying Taft a change of venue. First, Taft puts forth no media coverage concerning his own case. Second, while there are some factual similarities between Taft and Bentley, none of the articles in the Gazette mentioned Taft in any manner. See State v. Simmons, 454 N.W.2d 866, 867 (Iowa 1990) (upholding a denial of a change of venue in part because the "vast majority of the reporting did not even focus directly on [the defendant]"). Taft puts forth no media coverage of the Gage case that even mentions him. Instead, the articles in the Gazette focus specifically on the Gage case. Third, the one article that might concern Taft, the article about the sex offender program that begins at the bottom of the front page and continues to page 6A, concerns him as it would any other person being adjudicated or already adjudicated a sex offender. It neither mentions Taft nor his case. Instead, it relates only very general, factual information about the sex offender program itself. "Exposure to news accounts does not establish ipso facto a substantial likelihood of prejudice in the minds of prospective jurors." State v. Johnson, 318 N.W.2d 417, 422 (Iowa 1982).
Finally, only one of the jurors claimed to have read the Gazette the second morning of trial. That juror said he did not read the articles, but only read the headlines. We are to trust that voir dire exposes any prejudice among jurors. Walters, 426 N.W.2d at 138. We give deference to the trial court's determination of a juror's credibility. Siemer, 454 N.W.2d at 861.
We therefore uphold the district court's decision to deny Taft's motion for a change of venue.