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State v. Kelsey6/8/1998
that it precluded any possibility of him obtaining a fair trial by an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution. Kelsey further argues that this prejudice is demonstrated by the fact that such a high number of prospective jurors indicated, during voir dire, that they had heard something about the case. Kelsey suggests that all of the prospective jurors not excused during voir dire were in some way subconsciously affected by the high volume of media coverage surrounding the case.
A motion for a change of venue is addressed to the sound discretion of the trial Judge and will not be disturbed absent an abuse of discretion. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). When the trial Judge bases his ruling upon an adequate voir dire examination of the jurors, his conclusion that the objectivity of the jury panel has not been polluted by outside influence will not be disturbed absent extraordinary circumstances. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816; State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Mere exposure to pretrial publicity does not automatically disqualify a prospective juror. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816. When jurors have been exposed to such publicity, a denial of a change of venue is not error where jurors are found to have the ability to lay aside any impressions or opinions and render a verdict based on the evidence presented at trial. Id. Moreover, it is the defendant's burden to demonstrate actual juror prejudice as a result of news accounts of the defendant's case. State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987).
Kelsey cites Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) and Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), for the proposition that pretrial publicity may be so severe as to create a presumption of prejudice in the community, and therefore, make it impossible for the defendant to receive a fair trial. However, in Dowd, the Court stated there was no requirement that jurors -be totally ignorant of the facts and issues involved in the case. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Dowd, 366 U.S. at 723, 81 S. Ct. at 1643, 6 L. Ed. 2d at 756. The Court in Dowd ultimately concluded that the pretrial publicity was unduly prejudicial to the defendant because eight of the twelve jurors finally placed in the jury box expressed, during voir dire, their belief that the defendant was in fact guilty.
In the instant case, there was no indication that any of the jurors finally seated had formed a pretrial opinion that Kelsey was guilty. Nine of the twelve jurors admitted they had been exposed to some pretrial media coverage, but they told the trial Judge they could put aside what they had heard and render a verdict based on the evidence presented at trial.
"[A defendant's] mere assertion that the jurors could have been subconsciously affected by. . .media exposure is insufficient to show prejudice." State v. Owens, 293 S.C. at 167, 359 S.E.2d at 278. Kelsey has not gone beyond this mere assertion to show actual prejudice in his case. Although media coverage was widespread and intense before Kelsey's trial, there was no indication that the trial court's voir dire failed to produce an impartial jury.
IV. PITTING OF WITNESS
Kelsey argues that the trial court erred in failing to declare a mistrial when Payne's attorney attempted to pit Kelsey's testimony against a po
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