Particular factual circumstances, however, can create a rebuttable presumption of prejudice. People v. Boulies, 690 P.2d 1253, 1256 (Colo. 1984) (presumption of prejudice arises if alternate juror was present during jury deliberations). Cf. Walker v. People, 169 Colo. 467, 471, 458 P.2d 238, 240 (1969) (pre-trial publicity so pervasive that actual prejudicial effect need not be shown). The principle to be derived from these cases is that an evidentiary hearing would generally be appropriate to determine the actual effect of the potentially prejudicial material on the jury's deliberations.
The pretrial publicity consisted of approximately four newspaper articles and several radio broadcasts, spanning the sixteen months between the time of the homicide and the defendant's trial. Such limited publicity is distinguishable from the volume and intensity of pretrial publicity present in People v. Botham, supra, and Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). Additionally, there was a significant time lag between the bulk of the publicity and the trial date.
Under the facts of this case, we conclude that the means adopted by the court were insufficient to protect the defendant's right to a fair trial. Where a defendant has not demonstrated the existence of massive, pervasive, and prejudicial publicity, which would create a presumption that he was denied a fair trial, see, e.g., Sheppard v. Maxwell, supra; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), he must establish the denial of a fair trial based upon a nexus between extensive pretrial publicity and the jury panel. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Doud, supra; People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970).
Many newspaper clippings and broadcast transcripts were presented. A few of the stories mentioned the itinerant life-style of the McCrary family, their possible connection with crimes in other states, and the possible rape of Miss Looney. Defense counsel specially drew attention to a story which indicated that the McCrarys may have been connected with as many as 22 murders across the country, and to a story which reprinted a California probation report which gave unfavorable personality profiles of the McCrary family. The trial court denied the motion for change of venue after making extensive findings of fact upon which it based its conclusions that there was not the massive, pervasive and prejudicial publicity as was evidenced in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) and Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969), so "as to create a contamination of the residents of Jefferson County such as to render it impossible for the defendant to obtain a fair and impartial trial." Defendant argues that the trial court applied an overly stringent standard for determining whether a change of venue should be granted, and also misconceived the extent and prejudicial quality of the pre-trial publicity.
In several cases, this court has examined convictions when substantial periods of time have elapsed since conviction. Sherbondy v. District Court, 170 Colo. 114, 459 P.2d 133 (1969); Walker v. People, 160 Colo. 286, 417 P.2d 14, (1966); Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). II.
He points to newspaper articles, which if heard and believed by a juror might have been grounds for a challenge for cause, and if read widely by the jury panel could have presented an issue of prejudice. Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). On the other hand, appellant has not cited one instance in the record where it is shown any juror had read the articles.
Whether discretion was abused in this case must be tested by the principle that the denial of a fair trial may be presumed when the publicity is so "massive, pervasive and prejudicial." Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1964); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1962). Aside from the failure of the defendant to demonstrate how the jury was so tainted, we cannot entertain such a presumption on the basis of this record.
The nature of the offense caused the news media to publish a few news releases and to make reports in news broadcasts at the time the crime occurred. However, the publicity was not of the type which was condemned in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and in Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). It was not pervasive, and the voir dire examination reflects that the jury which tried the defendants was not contaminated or prejudiced by the articles or reports which preceded the trial of this case.
See also 6 T. Borrillo, Colorado Practice, Criminal Practice and Procedure ยง 811 (1971). The publicity was not so extensive, pervasive, and prejudicial, however, that the denial of a fair trial may be presumed, as in Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). In the absence of massive publicity that could be said to have contaminated the community, the defendant must establish a nexus between the publicity and the alleged denial of a fair trial.
We have studied the voir dire examination of the jury and affidavits submitted to the court. Just as was the case in Small v. People, 173 Colo. 304, 479 P.2d 386, there was not present here the extensive and pervasive publicity as found in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 600; and Walker v. People, 169 Colo. 467, 458 P.2d 238. The voir dire examination disclosed that the members of the jury did not have impressions or opinions which would be fatally prejudicial to the defendants or either of them.