In the supreme court of california

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3. Rebuttal

Dr. Park Dietz, a psychiatrist, testified in response to a hypothetical question that a person who did what the evidence showed defendant did is a pedophile. Pedophiles have free will and can choose whether to act on their desires by committing crimes.

II. Discussion

A. Denial of Change of Venue

Defendant contends the court erred prejudicially, and violated various of his constitutional rights, in refusing to change venue from Orange County.

1. Procedural Background

Defendant moved to change venue out of Orange County, citing extensive publicity about the case, including that the sheriff had been widely quoted as saying he was “100%” sure of defendant’s guilt; even then-President George Bush had commented on the case.

At a lengthy evidentiary hearing, both defendant and the prosecution presented testimony by their respective pollsters, who agreed that a high percentage of the residents of Orange County had heard of the case, but disagreed as to the significance of this circumstance. Defendant also presented testimony of an expert who opined that a change of venue was necessary.

After the hearing, the court denied the motion. It recognized the case had received substantial publicity, and that selecting a fair jury would be “time-consuming and difficult.” But, referring to two other highly publicized criminal cases, it added that “fortunately, this case has taken a back seat to the Scott Peterson trial, which was recently completed, and the Michael Jackson case, which has taken center stage.” It noted that Orange County “has over three million people,” that defendant “is not a resident of this county,” that “he has no ties to it in the sense that he was not known before this case,” and that “Samantha Runnion was just another young lady in this county until she was abducted.” It found that these factors weigh against changing venue.

The court stated that “the obvious factor weighing in favor of change of venue is the extensive publicity that this case has generated. National television networks picked up the story and gave it significant air time. President Bush commented on the arrest of the man who killed Samantha Runnion. As demonstrated by the exhibits attached to the defense motion, the vast majority of the publicity was generated two-and-a-half years ago. The media coverage in the past year has been consistent with most death penalty cases and certainly less than other cases currently pending in this county . . . . The passage of time is another consideration. . . . This case we’re on a two-and-a-half-year track. And it appears to me that the passage of time has had a significant impact on the nature and amount of publicity.”

The court “accepted” the results of the defense expert’s poll but not the conclusions the defense would draw from it. It found that “[a]s both sides have demonstrated, there are flaws in the surveys. Questions can be tailored to obtain the desired answers. However, the biases of these expert witnesses cannot be ignored in evaluating their testimony. The conclusions they have drawn are consistent with those biases.” The court “reject[ed] the opinion that a cold calling survey is superior to voir dire in determining a person’s depth of knowledge, prejudices, and common sense.” For these reasons, and based on the court’s experience after having conducted some 225 felony trials in the county, it believed it likely a fair jury could be selected. But the court stated the denial was “without prejudice to renewing the motion during jury selection should defense concerns that an impartial jury cannot be obtained be confirmed.”

Jury selection took place in March 1995. During this process, many jurors were excused for various reasons, including exposure to publicity. Defendant renewed the motion to change venue a number of times. Twice defense counsel expressed concerns about inflammatory radio coverage on station KFI during the John and Ken Show. The court denied each renewed motion, expressing confidence that, based on what had occurred so far in jury selection, a fair jury could be selected.

Defendant exhausted his peremptory challenges and expressed dissatisfaction with the jury that had been selected. Defense counsel said, “We are still left with a jury with only three people who haven’t read or heard something about this case.” She requested the court grant defendant additional peremptory challenges because she wanted to challenge six more jurors, specifically, Juror Nos. 151, 194, 201, 210, 211, and 225. The reason counsel gave for wishing to challenge them was that “all have varying degrees of exposure to publicity. Some of them had more information in the questionnaires than the court gave them.” The court asked, “That’s the only reason?” Counsel responded, “Right.” The court then denied the motion for additional challenges.

After the alternate jurors had been selected, defendant again renewed the motion to change venue. The court again denied the motion. It explained that “what I observed in voir dire was entirely consistent with what I anticipated it would be. With one small exception, more people had name recognition of the case than I had anticipated. I think I guessed about 50 percent would not. It turns out that — I don’t know if you kept percentages, but I think it was probably closer to 20 or 25 percent did not. In any case, I am satisfied that there were sufficient numbers of jurors who had not been adversely influenced by pretrial publicity to constitute a sufficient venire. We went through 150 prospective jurors. My recollection is that the ones who had the most recall of the events were excused for various and sundry reasons. The ones who were challenged for cause that were not granted had limited knowledge of the facts of the case. And it is my feeling that there is a fair and impartial jury that has been impaneled. So I would deny the motion on change of venue.”

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