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04/17/2018 09:09 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                                   STATE v. PRYCE
                                               Cite as 25 Neb. App. 792




                                        State of Nebraska, appellee, v.
                                          Brittney Pryce, appellant.
                                                    ___ N.W.2d ___

                                         Filed April 17, 2018.    No. A-17-310.

                1.	 Venue: Appeal and Error. A motion for change of venue is addressed
                     to the discretion of the trial judge, whose ruling will not be disturbed
                     absent an abuse of discretion.
                 2.	 ____: ____. A trial court abuses its discretion in denying a motion to
                     change venue when a defendant establishes that local conditions and
                     pretrial publicity make it impossible to secure a fair and impartial jury.
                3.	 Presumptions: Jurors: Due Process. Adverse pretrial publicity can
                     create a presumption of prejudice in a community such that the jurors’
                     claims that they can be impartial should not be believed. But juror expo-
                     sure to information about a defendant’s prior convictions or to news
                     accounts of the crime with which he is charged does not alone presump-
                     tively deprive the defendant of due process.
                4.	 Presumptions: Jurors. Juror partiality may be presumed only in situa­
                     tions where the general atmosphere in the community or courtroom is
                     sufficiently inflammatory.
                5.	 Venue: Juror Qualifications: Presumptions. A court will normally
                     not presume unconstitutional juror partiality because of media coverage
                     unless the record shows a barrage of inflammatory publicity immedi-
                     ately prior to trial, amounting to a huge wave of public passion or result-
                     ing in a trial atmosphere utterly corrupted by press coverage.
                6.	 Venue: Due Process. Even the community’s extensive knowledge about
                     a crime or a defendant through pretrial publicity is insufficient in itself
                     to render a trial constitutionally unfair when the media coverage consists
                     of merely factual accounts that do not reflect animus or hostility toward
                     the defendant.
                7.	 Venue. Press coverage which is factual in nature cannot serve as the
                     basis for a change of venue.
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            Nebraska Court of A ppeals A dvance Sheets
                 25 Nebraska A ppellate R eports
                                STATE v. PRYCE
                            Cite as 25 Neb. App. 792

 8.	 Venue: Juror Qualifications. Under most circumstances, voir dire
     examination provides the best opportunity to determine whether a court
     should change venue.
 9.	 Juror Qualifications. The law does not require that a juror be totally
     ignorant of the facts and issues involved; it is sufficient if a juror can
     lay aside his or her impression or opinion and render a verdict based on
     the evidence presented in court.
10.	 Venue: Juries: Proof. A court must evaluate several factors in deter-
     mining whether the defendant has met the burden of showing that pre-
     trial publicity has made it impossible to secure a fair trial and impartial
     jury. These factors include (1) the nature of the publicity, (2) the degree
     to which the publicity has circulated throughout the community, (3)
     the degree to which venue could be changed, (4) the length of time
     between the dissemination of the publicity complained of and the date
     of the trial, (5) the care exercised and ease encountered in the selection
     of the jury, (6) the number of challenges exercised during voir dire, (7)
     the severity of the offenses charged, and (8) the size of the area from
     which the venire was drawn.

  Appeal from the District Court for Custer County: K arin L.
Noakes, Judge. Affirmed.

   P. Stephen Potter for appellant.

  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
  Moore, Chief Judge, and R iedmann, Judge, and Inbody,
Judge, Retired.

   R iedmann, Judge.
                      INTRODUCTION
   Brittney Pryce was convicted in the Custer County District
Court of intentional child abuse resulting in death and sen-
tenced to 30 to 40 years’ imprisonment. She appeals, arguing
that the court erred in denying her motion to change venue.
We find no abuse of discretion in the denial of the motion and
therefore affirm.
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                           STATE v. PRYCE
                       Cite as 25 Neb. App. 792

                         BACKGROUND
   In July 2014, Pryce was charged by information with inten-
tional child abuse resulting in the death of a 21-month-old
child. On August 9, 2016, Pryce filed a motion to change
venue, alleging that due to extensive pretrial publicity, she
would be unable to get a fair trial in Custer County. At the
hearing on her motion, Pryce offered into evidence five articles
in support of her motion. The first article was published on
“SandhillsExpress.com” on August 4 and reported that Pryce
had appeared in court that morning and rejected a plea offer
from the State. The article noted that a jury trial was scheduled
to begin on August 22. The second article was also from the
same website and published on June 23. It explained that a
group advocating for child abuse victims appeared at a hearing
in Pryce’s case and that at the hearing, the court heard numer-
ous pretrial motions. The article also noted that Pryce was
accused of causing the death of a 21-month-old child who had
been in her care and listed the dates for a final pretrial hearing
and trial.
   The third article Pryce offered into evidence was published
on August 8, 2016, on the website of the Custer County Chief
newspaper. This article stated that after the State and Pryce had
offered and rejected plea agreements, the case would proceed
to jury trial starting August 22. The article also reported that
Pryce had been charged with second degree murder and child
abuse leading to death of a child. However, although Pryce
originally faced both charges, she had been bound over to dis-
trict court on the child abuse charge only. Thus, at the time the
article was published, only that charge remained.
   The final two articles were published in the Custer County
Chief but are not dated. It is clear from the contents of the
articles, however, that they were published sometime in early
2014. They report details surrounding the child’s death and the
fact that Pryce and her mother had been arrested.
   After the hearing, the district court entered an order deny-
ing the motion to change venue at that time. The court noted
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                           STATE v. PRYCE
                       Cite as 25 Neb. App. 792

that although Pryce had offered into evidence a sample of the
nature of the pretrial publicity, there was no evidence regard-
ing the degree to which the publicity had circulated through
the community or in areas to which venue could be changed,
though the court acknowledged that that type of evidence
was difficult to obtain prior to jury selection. Thus, the court
found that Pryce failed to meet her burden that a venue change
was warranted.
   Jury selection began in this case on August 22, 2016, and
lasted for 2 days. After the process was complete, Pryce
renewed her motion to change venue. The district court
opined that an impartial jury had been selected and denied
the motion.
   At the conclusion of trial, the jury found Pryce guilty. She
was sentenced to 30 to 40 years’ imprisonment. This timely
appeal follows.
                ASSIGNMENT OF ERROR
  Pryce assigns that the district court erred in denying her
motion to change venue.
                   STANDARD OF REVIEW
   [1] A motion for change of venue is addressed to the dis-
cretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion. State v. Erickson, 281 Neb. 31,
793 N.W.2d 155 (2011).
                            ANALYSIS
   Pryce argues that the denial of her motion to change venue
was erroneous for two reasons. First, she claims that under
Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751
(1961), we should presume prejudice in the community due
to pretrial publicity. In the alternative, she asserts that even if
juror bias is not presumed, her motion to change venue should
have been granted when considering the applicable factors.
   [2] Generally, all criminal cases shall be tried in the county
where the offense was committed unless it shall appear to the
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         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                          STATE v. PRYCE
                      Cite as 25 Neb. App. 792

court by affidavits that a fair and impartial trial cannot be had
there. See Neb. Rev. Stat. § 29-1301 (Reissue 2016). A motion
for change of venue is addressed to the discretion of the trial
judge, whose ruling will not be disturbed absent an abuse of
discretion. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157
(2007). A trial court abuses its discretion in denying a motion
to change venue when a defendant establishes that local condi-
tions and pretrial publicity make it impossible to secure a fair
and impartial jury. Id.
   [3,4] In Irvin v. Dowd, supra, the U.S. Supreme Court held
that the overwhelming negative publicity against the defendant
should have mandated a change of venue not just to a county
adjoining the county in which the murders had occurred, but
to a county geographically far enough removed to be untainted
by the publicity. The Nebraska Supreme Court has stated that
under Irvin v. Dowd, supra, adverse pretrial publicity can
create a presumption of prejudice in a community such that
the jurors’ claims that they can be impartial should not be
believed. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190
(2009). But juror exposure to information about a defend­
ant’s prior convictions or to news accounts of the crime with
which he is charged does not alone presumptively deprive the
defend­ant of due process. Id. Juror partiality may be presumed
only in situations where the general atmosphere in the com-
munity or courtroom is sufficiently inflammatory. Id.
   [5] A court will normally not presume unconstitutional juror
partiality because of media coverage unless the record shows
a barrage of inflammatory publicity immediately prior to trial,
amounting to a huge wave of public passion or resulting in a
trial atmosphere utterly corrupted by press coverage. Id. The
Nebraska Supreme Court has held that five newspaper articles
containing information regarding the case failed to demon-
strate that the publicity was so widespread to have corrupted
the mind of all potential jurors—particularly when there was
no evidence of the extent to which that publicity reached the
community in question. See State v. Schroeder, 279 Neb.
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                           STATE v. PRYCE
                       Cite as 25 Neb. App. 792

199, 777 N.W.2d 793 (2010). See, also, State v. Bradley, 236
Neb. 371, 461 N.W.2d 524 (1990) (no abuse of discretion in
denying motion to change venue for pretrial publicity where
only five newspaper articles appeared within 4 months of
jury selection).
   [6,7] But the quantum of news coverage is not disposi-
tive. State v. Galindo, supra. Even the community’s extensive
knowledge about a crime or a defendant through pretrial pub-
licity is insufficient in itself to render a trial constitutionally
unfair when the media coverage consists of merely factual
accounts that do not reflect animus or hostility toward the
defendant. Id. Although the Supreme Court has frequently
stated that the defendant must show pervasive, misleading pre-
trial publicity, the more important consideration is whether the
media coverage was factual, as distinguished from invidious
or inflammatory. Id. Press coverage which is factual in nature
cannot serve as the basis for a change of venue. Id.
   In the present case, at the hearing on Pryce’s initial motion
to change venue, she offered into evidence five news articles
containing information about the case. It is clear that three of
the five articles were published shortly before trial began in
August 2016. The other two articles appear to have been pub-
lished around the time Pryce was arrested in 2014. But each
article contains only factual information, which is insufficient
to support a finding that the general atmosphere in the com-
munity or courtroom is sufficiently inflammatory. We note that
one article published on August 8, 2016, erroneously stated
that Pryce was still facing charges of second degree murder
and child abuse resulting in death, when in fact, only the child
abuse charge remained pending. However, this error alone
is not enough to establish that the entire jury pool would be
biased against Pryce.
   We conclude that the five news articles containing factual,
as opposed to inflammatory, information regarding the case
were insufficient to support a finding that the publicity was so
widespread to have tainted the entire pool of potential jurors.
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                           STATE v. PRYCE
                       Cite as 25 Neb. App. 792

Thus, the district court did not err in denying the motion to
change venue at that time.
   [8] Under most circumstances, voir dire examination pro-
vides the best opportunity to determine whether a court should
change venue. State v. Schroeder, supra. Indeed, the U.S.
Supreme Court based its decision in Irvin v. Dowd, 366 U.S.
717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), partially on the
information gleaned during voir dire. There, six murders were
committed in Indiana. There was extensive news coverage
in the county where the crimes occurred and in an adjoining
county during the 6 or 7 months preceding trial. The stories
described the defendant’s criminal history, his confession to
the murders and other crimes, his police lineup identification,
the fact that he had taken a lie detector test, and his plea offer,
as well as references to him as the “‘confessed slayer of six,’
a parole violator and a fraudulent-check artist,” and character-
izing him as remorseless and without conscience. Id., 366 U.S.
at 726. One newspaper account referred to “‘a pattern of deep
and bitter prejudice against [him]’” among the members of the
community. Id., 366 U.S. at 727.
   During voir dire examination, which lasted 4 weeks, news
articles reported that “‘impartial jurors are hard to find.’” Id.
Of the 430-person panel, almost 90 percent entertained some
opinion as to guilt—ranging in intensity from mere suspicion
to absolute certainty—and a number admitted that if they
were in the accused’s place and he in theirs on the jury with
their opinions, they would not want him on a jury. Of the 12
jurors who were selected, 8 thought he was guilty. Thus, the
U.S. Supreme Court ultimately determined that based on the
barrage of pretrial publicity and the pattern of deep and bit-
ter prejudice shown to be present throughout the community,
jury prejudice should be presumed and a change in venue
was warranted.
   In the present case, there was no evidence that the pre-
trial publicity surrounding Pryce and this case was nearly as
inflammatory or pervasive as that in Irvin v. Dowd, supra. The
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         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                          STATE v. PRYCE
                      Cite as 25 Neb. App. 792

articles received into evidence here refer to Pryce by name and
explain the circumstances surrounding the charges she faced,
but none of the articles contain additional information about
Pryce personally, express opinions as to her guilt or innocence,
or speak derogatorily of her.
   [9] The fact that a number of potential jurors indicated hav-
ing heard of the case prior to trial is not sufficient to support
a change of venue. It is not required that the jurors be totally
ignorant of the facts and issues involved. Irvin v. Dowd, supra.
In these days of swift, widespread, and diverse methods of
communication, an important case can be expected to arouse
the interest of the public in the vicinity, and scarcely any of
those best qualified to serve as jurors will not have formed
some impression or opinion as to the merits of the case. Id.
This is particularly true in criminal cases. Id. To hold that the
mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would be
to establish an impossible standard. Id. It is sufficient if the
juror can lay aside his or her impression or opinion and render
a verdict based on the evidence presented in court. Id.
   Thus, in the instant case, although potential jurors may
have heard factual information about the case prior to trial,
the majority of them indicated that they could remain impar-
tial, decide Pryce’s guilt based solely on the evidence pre-
sented at trial, and understood that Pryce was presumed inno-
cent until proven guilty. Of the jurors who were ultimately
selected for the jury, only four indicated having generally
seen media reports of the case, but they all stated that they
had not formed an opinion as to Pryce’s guilt and could
remain impartial. Thus, there is no evidence of the pattern of
deep and bitter prejudice shown to be present throughout the
community as in Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639,
6 L. Ed. 2d 751 (1961). We therefore conclude that the dis-
trict court did not abuse its discretion in denying the motion
to change venue.
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         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                          STATE v. PRYCE
                      Cite as 25 Neb. App. 792

   Pryce also argues that a change of venue was warranted
when considering the factors to be weighed in determining
whether publicity has made it impossible to secure a fair and
impartial jury. We disagree.
   [10] Even if the evidence is insufficient to support a pre-
sumption of partiality under Irvin v. Dowd, supra, a change
of venue may still be warranted where the defendant shows
the existence of pervasive misleading pretrial publicity. See
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). A
court must evaluate several factors in determining whether the
defendant has met the burden of showing that pretrial public-
ity has made it impossible to secure a fair trial and impartial
jury. These factors include (1) the nature of the publicity, (2)
the degree to which the publicity has circulated throughout the
community, (3) the degree to which venue could be changed,
(4) the length of time between the dissemination of the pub-
licity complained of and the date of the trial, (5) the care
exercised and ease encountered in the selection of the jury, (6)
the number of challenges exercised during voir dire, (7) the
severity of the offenses charged, and (8) the size of the area
from which the venire was drawn. Id.
   We have already addressed the first four factors. The pretrial
publicity consisted of five articles—only three of which were
published shortly before trial commenced—which contained
only factual information about the case, and the publicity was
not inflammatory or pervasive. And there was no evidence
establishing the degree to which the articles circulated through-
out Custer County. These factors do not support a change
in venue.
   Of the remaining four factors, a review of the jury selec-
tion process shows that there was no difficulty in selecting a
jury. Great care was taken during the process. At the outset,
we note that the sheer time which voir dire took to complete,
approximately 2 days, does not in and of itself warrant a
change of venue. See State v. Ell, 196 Neb. 800, 246 N.W.2d
594 (1976). At least 80 potential jurors were summoned, 42
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                           STATE v. PRYCE
                       Cite as 25 Neb. App. 792

were initially called, and as a panel, they were questioned
about their exposure to pretrial publicity. The parties agreed
that any potential juror who indicated having heard or read
media reports of the case would be questioned separately.
Ultimately, 25 potential jurors were personally interviewed.
The parties also challenged a number of jurors during voir
dire and 16 were stricken for cause. However, of the poten-
tial jurors who were challenged and excused, not all of them
were dismissed due to exposure to pretrial publicity. Rather,
they were excused for reasons such as health issues; financial
hardship; or knowing or being related to Pryce, her husband,
or a witness.
   Four of the jurors ultimately selected for the jury indicated
that despite having heard of the case via the media, they had
not formed an opinion as to Pryce’s guilt and could be fair
and impartial. We reiterate that the law does not require that
a juror be totally ignorant of the facts and issues involved; it
is sufficient if the juror can lay aside his or her impression or
opinions and render a verdict based upon the evidence. See
State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011). For the
sake of completeness with respect to the final two factors, we
note that intentional child abuse resulting in death is a Class IB
felony and agree with the parties that it is a significant charge.
See Neb. Rev. Stat. § 28-707 (Reissue 2016). In addition, we
observe that there is no evidence in the record establishing the
size of Custer County—the area from which the venire was
drawn. When considering the foregoing factors, we cannot
conclude that the district court abused its discretion in denying
Pryce’s motion to change venue.
                      CONCLUSION
  Finding no abuse of discretion in the denial of Pryce’s
motion to change venue, we affirm.
                                               A ffirmed.
