CARLEY, Presiding Justice.
Appellant Madonna Whitus was charged with the malice murder of Kathie Durant and other offenses. Based upon an initial psychiatric assessment, the trial court ordered that Appellant "be subjected to a full psychiatric assessment and evaluation at the public expense addressing" her competence to stand trial and the degree of her mental competence at the time of the crimes. After further psychiatric evaluation pursuant to that order, Dr. Matthew W Norman reported that, in his opinion with a reasonable degree of medical certainty, Appellant was competent to stand trial and, at the time of the alleged offenses, she had the mental capacity to distinguish right from wrong and was not laboring under a delusional compulsion, although she was suffering from borderline personality disorder and possibly bipolar disorder. After a jury trial, Appellant was found guilty of all offenses with which she was charged. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for murder and to various terms of years for exploitation of a disabled adult, concealing the death of another, and two counts of identity fraud. Appellant appeals after the denial of a motion for new trial.
The crimes occurred from December 1, 2007 to December 8, 2007, and the grand jury returned an indictment on May 23, 2008. The jury found Appellant guilty on September 11, 2008, and the trial court entered the judgments of conviction and sentences on September 19, 2008. The motion for new trial was filed on September 19, 2008, amended on February 20, 2009, and denied on April 22, 2009. Appellant filed the notice of appeal on May 21, 2009. The case was docketed in this Court for the April 2010 term and submitted for decision on the briefs.
1. Construed most strongly in support of the verdicts, the evidence shows that, at the request of Father Eugene Barrette, the victim permitted Appellant to come live with her in her townhouse because Appellant was homeless. After the victim told Appellant that her cats would have to stay outside, the victim's dog disappeared. The victim required Appellant to move out, but soon allowed her to move back in, although the victim would complain about Appellant's bad temper. Appellant would yell and curse at the victim, and threw away pictures which the victim had displayed in her home. In online communications found on a computer in Appellant's bedroom, she threatened to kill the victim and later asked what medications would make her "chill out."
Appellant began to use the victim's debit and credit cards and, on November 15, 2007, a police officer found that Appellant was in possession of the victim's social security card, driver's license, and three checks made out to the victim, including a forged signature and misspelling of her name. During the week prior to the victim's death, Appellant extensively used the victim's debit and credit cards for Appellant's own personal purchases. Appellant obtained a prescription for doxepin, ordered that drug online, and possessed bottles thereof. Doxepin was not prescribed for the victim, as it would have been too dangerous due to her heart condition.
On the morning of December 8, 2007, Appellant called Father Barrette pastor and a friend, told them that the victim was dead, and refused to call 911 because she would be in trouble. Appellant then left the townhouse, withdrew $700 from the victim's account, attempted to deposit a $55,000 forged check drawn on that account into Appellant's own account, and used the victim's credit and debit cards numerous times. Either that day or the week before, Appellant also tried to pawn the victim's jewelry. Handwriting analysis showed that Appellant had signed the victim's name on many checks and on a note giving Appellant permission to use the victim's credit cards.
Appellant eventually returned to the townhouse, and police officers arrived, finding the victim in an upstairs bedroom lying on a shower curtain, wearing diapers, with bruises and scrapes, a bone protruding from her arm, and bedsores on her back. Appellant told police that the victim had fallen out of bed, had been on the floor for about a week, and had asked Appellant not to call a doctor. Appellant had given the victim drinks and medication the night before. The victim's death was caused by a lethal level of doxepin which was eight times the highest recommended therapeutic level and would have required 40 capsules. The injuries on the victim's body had occurred some days prior to death.
Appellant contends that the circumstantial evidence did not exclude the reasonable hypothesis that the victim, who had been treated for depression, took the doxepin without Appellant's knowledge. Appellant relies on evidence that an article on doxepin was accessed in the victim's name from a computer in the townhouse at the same time that her debit card was being used at a retail store. However, assuming that the time is accurate, those incidents occurred five days before the victim's death. Other evidence showed that the victim was on the floor for days, unable to obtain food or drink or to take a 40-capsule drug overdose herself.
"`[Q]uestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.' (Cit.)" [Cit.] It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. [Cit.]
Brooks v. State, 281 Ga. 514, 515-516 (1) ( 640 SE2d 280) (2007). The jury "was authorized to reject as unreasonable possibilities which were only theoretical, as [that] now offered by [Appellant]. [Cit.]"
Treadwell v. State, 285 Ga. 736, 743 (4) ( 684 SE2d 244) (2009).
Reviewing the evidence in the light most favorable to the verdicts, we conclude that it was sufficient to exclude every reasonable hypothesis save that of Appellant's guilt and to enable a rational trier of fact to find her guilty beyond a reasonable doubt of the crimes for which she was convicted. Jackson v. Virginia, 443 U. S. 307 ( 99 SC 2781, 61 LE2d 560) (1979); Treadwell v. State, supra; Marks v. State, 280 Ga. 70, 72-73 (1) (a) ( 623 SE2d 504) (2005).
2. Appellant further contends that trial counsel was ineffective in failing to obtain a full forensic evaluation of Appellant after viewing Dr. Norman's reports, as they show that he only conducted one three-hour interview with her while she was on several medications and that she had a significant family and individual history of mental illness, as well as difficulty with issues of right and wrong.
To prevail on this claim under
Strickland u. Washington, 466 U. S. 668 ( 104 SC 2052, 80 LE2d 674) (1984), [Appellant] "`must show both deficient performance by trial counsel and actual prejudice. (Cits.)' (Cit.)" [Cit.] "`On appeal, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. (Cits.)" (Cit.)' (Cit.)" [Cit.]
Jennings v. State, 282 Ga. 679, 680 (2) ( 653 SE2d 17) (2007).
In a non-capital case, a decision to forego or curtail the investigation of the accused's mental health is not as likely
to be unreasonable [as in a death penalty case]. [Cit.] Ordinarily, the lack of [such] investigation [even when there has been] a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial or that he was sane at the time of the offense. [Cits.]
Martin v. Barrett, 279 Ga. 593, 594 ( 619 SE2d 656) (2005). Trial counsel requested and obtained a full psychiatric evaluation of Appellant. He testified that he believed that the evaluation was fair and balanced and that he had no reason to disagree and request additional testing.
Albert v. State, 283 Ga. App. 79, 80 ( 640 SE2d 670) (2006). Appellant "has not shown that counsel unreasonably relied on [Dr. Norman's] evaluation. . . ."
Shabazz v. State, 293 Ga. App. 560, 563 (3) (a) ( 667 SE2d 414) (2008). "Counsel was not ineffective, then, when he failed to make a meritless motion for an additional examination. [Cit.]"
Albert v. State, supra at 81.
Furthermore, trial counsel also testified that, in consultation with Appellant, he made the strategic decision of presenting the defense that she had no malice or motive and did not kill the victim, rather than presenting the conflicting defense of insanity and having to confront Dr. Norman's rebuttal testimony Appellant has failed to show that this decision resulted from inattention or was otherwise an unreasonable strategy. See Martinez v. State, 284 Ga. 138, 142 (4) ( 663 SE2d 675) (2008); Starks v. State, 283 Ga. 164, 168 (6) (d) ( 656 SE2d 518) (2008). Compare Martin v. Barrett, supra at 595. Thus, Appellant did not "carry [her] threshold burden of showing deficient performance by trial counsel. [Cit.]" Martinez v. State, supra.
"Although other attorneys might have explored the mental issue further, we cannot conclude that the investigation by and tactical judgment of ([Appellant's] attorney) was out-side the wide range of reasonably effective assistance." [Cit.]
Hammond v. State, 264 Ga. 879, 883 (4) (b) ( 452 SE2d 745) (1995).
Moreover, even assuming that trial counsel's performance was deficient, Appellant has failed to meet the second prong of Strickland by showing "`"that there is a reasonable probability that the trial result would have been different if not for the deficient performance. (Cit.)" (Cit.)' [Cit.]" Devega v. State, 286 Ga. 448, 450 (4) ( 689 SE2d 293) (2010). At the hearing on the motion for new trial, a psychologist testified that there has still not been a full forensic evaluation, as Dr. Norman failed to perform any type of psychological testing. However, the psychologist did not evaluate Appellant either and was unable to offer any opinion contrary to Dr. Norman's or to determine that different testing would lead to such a contrary opinion. Appellant "has not shown what the result of any [additional] examination would be, and thus fails to establish prejudice by showing that the result of her trial would have been different if [such] a psychological examination was pursued. [Cit.]" Taylor v. State, 282 Ga. 693, 696 (2) (b) ( 653 SE2d 477) (2007). See also Hinely v. State, 275 Ga. 777, 781 (2) (b) ( 573 SE2d 66) (2002); Shabazz v. State, supra. "`Speculation is insufficient to satisfy the prejudice prong of Strickland, supra. (Cits.)' [Cits.]" Devega v. State, supra at 450 (4) (a).
3. Citing Ake v. Oklahoma, 470 U. S. 68 ( 105 SC 1087, 84 LE2d 53) (1985), Appellant asserts that the trial court erroneously denied appellate counsel's request, on motion for new trial, for an order requiring a full forensic evaluation and providing funds to hire an expert to conduct the evaluation. However, trial counsel's failure to obtain such an order is the basis of Appellant's ineffectiveness claim. By failing to request an additional evaluation and funds therefor, trial counsel failed to preserve this issue for appeal. See Mobley v. State, 269 Ga. 738, 741 (2) ( 505 SE2d 722) (1998); May v. State, 146 Ga. App. 416 (1) ( 246 SE2d 432) (1978). Moreover, as already discussed, Appellant "did receive the assistance of a psychiatrist at the [S]tate's expense. Ake rejected the notion that an `indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.' [Cit.]" Callaway v. State, 208 Ga. App. 508, 510-511 (1) ( 431 SE2d 143) (1993) (also recognizing that "`"[w]hether to grant the motion (for a second psychiatric examination) was in the discretion of the trial court"`").
Judgments affirmed. All the Justices concur.
CARLEY, Presiding Justice.
DECIDED SEPTEMBER 20, 2010.
her current charges by Rothstein. It attributes to her a statement that she remains committed to clearing her name at trial. While the story notes that the government has cited some of her statements to law enforcement as evidence against her, the story also reports the Defendant's counterargument that she never admitted to being part of the plot and only spoke to investigators in order to help them solve the Wells murder.
See United States v. Bakker, 925 F.2d 728, 732 (4
th Cir. 1991) ("In deciding whether to presume prejudice
One telephone conversation in particular, recorded on January 15, 2009, indicates the Defendant's belief that the Erie Times News articles are being read by members of her prospective jury pool, suggesting it may be part of her agenda to influence the jury pool by repeatedly asserting her innocence to the newspaper. ( See Govt.'s Exhibit 3, previously admitted as Govt.'s Exhibit 5 to the 4/27/09 competency proceedings.)
See ETN article entitled "Diehl-Armstrong: `I have cancer'" (published 4/11/10).
based on pre-trial publicity, a court can consider the source of the publicity."); U.S. v. Maldonado-Rivera, 922 F.2d 934, 967 (2d Cir. 1990) (in assessing a defendant's Rule 21(a) motion for change of venue, the district court may take into account the extent to which the government is responsible for generating the publicity, as well as other factors; upholding district court's denial of Rule 21(a) motion where court found, among other things, that government's press release had contained authorized factual material and were not prejudicial and some of the pretrial publicity had been generated by the defendants themselves); United States v. Burge, No. 08 CR 846, 2009 WL 2386147 at *5 (N.D. Ill. July 29, 2009) (in considering whether prejudice among the jury pool should be presumed, court can consider, among other things, "whether the government was responsible for the publication of objectionable material, or if it emanated from independent sources"); United States v. Jamieson, 264 F. Supp. 2d 603, 605 (N.D. Ohio 2003) (factors to be considered in determining whether pre-trial publicity has been so "inherently prejudicial" as to presume a tainted trial proceeding may include, among other things, the source of the publicity).
Sixth, it is relevant to consider the reach of the ETN coverage as it pertains to the prospective jury pool. The Erie Division of the Western District of Pennsylvania is comprised of seven Pennsylvania Counties: Erie, Crawford, Warren, McKean, Venango, Forest, and Elk. The Government's Exhibit 1 shows that there is a considerable disparity between Erie County and the remaining six counties of the Erie Division insofar as circulation of the Erie Times News is concerned. For example, while the Sunday edition of the Erie Times News reaches 58.8% of the occupied households in Erie County, it reaches only 14.2% of the occupied households in Crawford County and less than 10% of the occupied households in the remaining counties. The newspaper's weekday circulation is more limited still, reaching some 47.8% of occupied households in Erie, but only 7.9% of the occupied households in Crawford County and only about 2% of the occupied households in Venango and Warren Counties. The weekday newspaper has no circulation at all in Elk, Forest, and McKean Counties. Moreover, there is no evidence of record to suggest that the local newspapers serving the other six counties have widely covered this case. Thus, it may well be, as the Government suggests, that a significant percentage of the jury pool will have heard little about this case.
The Government's evidence shows that the percentage of occupied households which receive the Sunday edition of the Erie Times News is only 9.7% in Forest County, 8.7% in Venango County, 8.5% in Warren County, 3.1% in McKean County, and 2.8% in Elk County.
Defendant counters, however, with evidence showing that about half of the jurors on the current "qualified wheel" for the Erie Division are being drawn from Erie County. To be specific, as of August 16, 2010, there were 6,626 jurors in the qualified juror wheel for the Erie Division and some 3,397 of those jurors, or approximately fifty-one percent (51%), are being drawn from Erie County. ( See Affidavit of Terri Morder, Jury Supervisor for the Western District of Pennsylvania, attached as Ex. A to Def.'s reply to Govt.'s Response to Def.'s Pretrial Motions [183-1], at p. 2.) Approximately 3,229, or forty-nine (49%) are being drawn from counties other than Erie. Assuming that the qualified jurors from Erie County are more likely to have been exposed to pretrial publicity concerning this case, the numbers still leave ample room for the possibility that a fair and impartial jury can be picked in this Division of the District Court. As the Supreme Court recognized in Murphy v. Florida, "jurors need not . . . be totally ignorant of the facts and issues involved." 421 U.S. at 799-800.
Pursuant to the Plan of the United States District Court for the Western District of Pennsylvania for the Random Selection of Grand and Petit Jurors, jurors for the Erie Division are randomly selected based on a percentage of registered voters in each of the seven counties comprising the Erie Division. ( See Affidavit of Terri Morder, Jury Supervisor for the Western District of Pennsylvania, attached as Ex. A to Def.'s reply to Govt.'s Response to Def.'s Pretrial Motions [183-1], at p. 1.) For the current Master Wheel, the total number of potential jurors was approximately 20,000. ( Id.) From this total, a list of qualified jurors (or "qualified wheel") is developed following the receipt of responses to the Court's questionnaire. ( Id.)
(b)
Another major source of local news coverage has been the website "www.goerie.com," which is considered the on-line presence of the Erie Times News. ( See Affidavit of Laurel Lane, Def.'s Ex. J, at p. 1.) This website basically carries the same news content as the Erie Times News newspaper ( id.) and, in fact, most of the ETN articles submitted by the defense as exhibits are publications obtained from the goerie.com website. Since the content of the print newspaper and the online news publications is generally identical, I need not repeat here my discussion on the content of the news articles themselves. More relevant for present purposes is the reach of the publications, the viewer commentary which often accompanies them, and the potential influence of all this on the prospective jury pool within the Erie Division.
Unlike the ETN print newspaper, www.goerie.com provides news articles via the internet and requires no subscription fee relative to articles published within the most recent 30-day period. In addition, visitors to the website are able to access any article ever posted on the site; however, to access postings that are more than thirty days old, a subscription fee must be paid. ( Id.)
According to the website's advertisements, "[t]he GoErie.com's archive contains staff-written and other selected articles from 1996 to the present." See www.goerie.com/archives.html. Articles may be obtained at the following prices: * Single Article: $2.95 * Week Pass 3 articles: $6.95 * Month Pass 10 articles: $21.95 25 articles: $49.95 40 articles: $79.95 * One-Year Passes 500 articles: $995 1,000 articles: $1995 See www.goerie.com/archivesfees.html.
According to Laurel Lane, Vice-President of Interactive Media for the Times Publishing Company, www.goerie.com has at least 670 articles concerning the Wells case and/or the Defendant since 2005 as "reflected in [the company's] analytics." (Affidavit of Laurel Lane, Ex. J to Motion Hrg. [193-3] at p. 1.) Those articles have received approximately 135,000 page views and 104,000 "unique visits." ( Id. at pp. 1-2.) Ms. Lane further states that, during the month of July, 2010, www.goerie.com posted twenty-one (21) articles concerning the Wells case and/or the Defendant, and those articles received 3,216 page views during that month. ( Id. at p. 2.)
Notwithstanding the number of articles referenced in Ms. Lane's affidavit, no information has been provided by which the stories can be individually identified. We note that, despite the representation that www.goerie.com is the on-line presence of the Erie Times News and has most of the same news content as the newspaper, the website purports to have more than three times the number of articles published by ENT since 2005 concerning this case. In addition, while goerie.com has reportedly published twenty-one (21) articles about this case in July of 2010 alone, Defendant's Exhibit C — which purports to contain every ETN article published in this case up to the time of the court's hearing on this pending motion — contains only three articles published in the month of July. No explanation is provided as to these apparent discrepancies.
What is equally significant, however, is what this information does not reveal about the extent to which the prospective jury pool in this case has been irreparably tainted by pretrial publicity. First, because www.goerie.com is accessible to any person in the world with internet access, we have no way of knowing (and Ms. Lane's affidavit make no mention of) the number of viewers who reside within the Erie Division. Given Ms. Lane's representation that, as of July 2010, goerie.com and its affiliated websites had approximately 525,000 unique visitors and 4,800,000 page views ( see Ex. J at p. 1), one might infer that a considerable portion of the viewing audience actually resides outside of this Division.
The evidence gathered anecdotally from a review of certain goerie.com comment pages supports this inference, as we discuss further, infra.
Second, the evidence is somewhat ambiguous insofar as it relates to the number of individuals who actually view the website's content. Although Ms. Lane does not explain the meaning of the term "unique visitors" in her affidavit, she does acknowledge that the term "does not necessarily reflect an accurate number of people/individuals that came/come to the site." (Ex. J at p. 1.) Because it is highly possible that a person interested in this case may have viewed a particular page more than once, there is seemingly no way to account for multiple viewings by the same individual, at least based on the evidence presently before us. In the same vein, the term "page view" indicates that a particular page was accessed by a computer, but it does not necessarily indicate that the page or article was read. (Ex. J at p. 1.) In sum, then, though we might generally surmise from the foregoing data that goerie.com has a sizeable viewing audience and that the website would hold particular interest for individuals residing in or around the Erie area, there is no way to accurately discern from the present record the number of individuals who actually sat down and read the articles in question, much less is it clear that they are residents of the seven counties comprising the Erie Division of the Western District of Pennsylvania.
Also of some relevance are the various goerie.com comment pages that have been included as part of the Defendant's Exhibit C. Having reviewed the folder designated "Erie Times News Articles," the Court has located eleven (11) documents that consist of comment pages dating from January 22, 2008 through March 10, 2009. Presumably, this evidence is meant to demonstrate that news stories concerning this case continue to generate public interest and/or that the public has fixed opinions about the Defendant's guilt or innocence. However, a review of the comments quickly dispels any notion that the Erie community as a whole remains fixated on this case or that public opinion on the matter is settled.
These pages are as follows: (i) Legal moves in Wells case (7 comments) (#005033-5034) (dated 1/22/08); (ii) Diehl-Armstrong believes she's unfit for trial (18 comments) (#005071-5074) (dated 4/2/08); (iii) Diehl-Armstrong's mental state: Experts disagree (1 comment) (#005111) (dated 5/23/08); (iv) Witnesses seal fate (video) (4 comments) (#005805-5806) (dated 9/5/08); (v) Special Report:: Brian Wells (14 comments) (005807-5810) (dated 9/8/08); (vi) Death of Wells' friend was "complicating factor" in probe (showing 20 of 24 comments) (#005817-5823) (dated 9/8/08); (vii) Diehl-Armstrong ready for showdown (1 comment) (#005829) (dated 9/23/08); (viii) Is she fit to stand trial? (3 comments) (#005844-5863) (dated 1/6/09); (ix) Diehl-Armstrong found competent, will return soon (4 comments) (#005862-5863) (dated 2/2/09); (x) Diehl-Armstrong: `I am competent' (3 comments) (#005866-5867) (dated 2/4/09); (xi) Hearing likely to be postponed (2 comments) (#005876-5877) (dated 3/10/09).
For one, the number of comments being made relative to the given ETN articles is, anecdotally speaking, not particularly impressive. Many of the articles in question yielded only one or a few comments. The most widely commented-upon articles in the batch yielded, respectively, fourteen (14), eighteen (18) and twenty-four (24) comments. ( See n. 11 below.) Moreover, even those numbers are not particularly impressive when compared to the number of comments posted at or around the same time on unrelated articles. With regard to the article "Diehl-Armstrong believes she's unfit for trial," which generated 18 comments posted on April 2, 2008, it appears that 149 comments were posted relative to a story covering the local Catholic Bishop's decision not to attend the graduation ceremony to be held at a local area college. (See Ex. C at Bates # 005073.) With regard to the article "Special Report:: Brian Wells," which generated 14 comments on September 8, 2008, it appears that another forum under the topic "State clears air on smoking ban" generated 82 comments, while another designated "AFC Rankings" generated 383 comments. ( See id. at # 005807.) With respect to the article "Death of Wells' friend was `complicating factor' in probe," which generated 24 comments on September 8, 2008, it appears that a topic designated "Call of duty" generated 76 comments, while another designated "Conservative Break Room Part II" generated 330 comments. With respect to a January 22, 2008 article entitled "Legal moves in Wells case," seven comments were posted; however, 278 comments were posted relative to the topic "Cheney targeted for impeachment." ( Id. at #005034.)
Though the foregoing evidence is somewhat anecdotal, it arguably suggests that public interest in this case may have waned over time, particularly in the last two years. It is perhaps also worth noting that the time period covered by these comment pages (January 2008 — March 2009) coincided with an historical presidential election year, a major crisis within the country's financial industry, and the on-set of a severe recession — matters which we may reasonably assume were of greater interest and concern to most residents within the Erie Division than were the criminal proceedings in this case.
For what it is worth, however, the Court also notes that many, if not most, of the entries set forth in the eleven (11) comment pages were made by individuals who appear to reside outside of the Erie Division. By way of example, I note that the April 2, 2008 article "Diehl-Armstrong believes she's unfit for trial" generated 18 comments, but only three of those were made by individuals ostensibly residing within the Erie Division. A May 23, 2008 article, "Diehl-Armstrong's mental state: Experts disagree," generated only one comment (i.e., "She's crazy like a fox.") from a resident of Mogadore, Ohio, outside of this Division. ( See Ex. J at # 005111). The article "Witnesses seal fate (VIDEO)" generated four comments, only one of which was made by a resident of this Division. ( See id. at # 005805.) The September 8, 2008 article "Death of Wells' friend was `complicating factor' in probe" generated 24 comments, 20 of which are shown in the pages submitted by the Defendant. These 20 comments were, in turn, generated by nine different individuals, many of whom commented more than once, and only two of whom appear to reside within the Erie Division. In fact, a review of these comment pages shows that entries are being posted by individuals as far away as North Carolina, South Carolina, Virginia, Florida, Georgia, New Jersey, Maryland, and California. Whether or not these individuals have ties to the Erie area is unclear; what is clear, however, is that they do not form a part of the prospective jury pool.
It should also be noted that many of the entries posted on these pages come from individuals who have posted more than one comment. This duplicity must be accounted for in assessing the degree to which the public remains engaged with these proceedings. It may suggest that certain individuals have taken a particular interest in the case that is not necessarily shared by the average resident within this judicial district.
Many of the comments, it must be acknowledged, are unkind toward the Defendant. Some of them, in fact, appear not only to prejudge her guilt, but also opine on what her punishment should be. However, it is also important to note, for what it is worth, that the comments are not uniform in the sense of expressing a community-wide fixed opinion. Some of the comments are random content having nothing particular to do with the Defendant's guilt or innocence. Other comments express skepticism toward the Government's theory and even some outright support for the Defendant.
In sum, then, I acknowledge the considerable publicity which has been generated via www.goerie.com relative to this criminal matter. However, I do not view this evidence as a persuasive indicator that the jury pool in this Division has been irreparably tainted by the local news coverage.
(c)
To a lesser extent, media attention has come from the local television news sources. Defendant's Exhibit C in support of her change-of-venue motion includes a folder denominated "Media attention to case," which includes eleven (11) stories run by local television news sources on their internet sites between July of 2007 and September of 2009.
These include the following: (1) "Harold Diehl Speaks About Daughters [sic] Plot to Kill Him" (WSEE, with video link) (dated 7/13/07); (2) "Marjorie Diehl-Armstrong Breaks her Silence — Exclusive Report" (WSEE, with video link) (dated 10/26/07); (3) "Barnes Plea Scheduled" (WICU) (dated 8/29/08); (4) "Barnes enters plea" (WJET) (dated 9/3/08); (5) "What Barnes' Plea Means for Marjorie" (WSEE) (dated 9/3/08); (6) "Breaking News — Barnes Pleads Guilty" (WSEE) (dated 9/3/08); (7) "Ken Barnes Pleads Guilty" (WICU) (dated 9/3/08); (8) "Collar Bomb Sentencing" (WICU-TV) (dated 12/3/08); (9) "Wells' Family Reaction" (WJET-TV) (dated 12/3/08); (10) "Diehl Armstrong Competency Hearing") (WICU) (dated 4/27/09); (11) "Diehl-Armstrong: Mentally Competent" (WICU) (dated 9/8/09).
Perhaps the most potentially prejudicial article is the one entitled "Harold Diehl Speaks About Daughters [sic] Plot to Kill Him," in which the Defendant's father expresses a lack of surprise over the Government's allegation that this served as a motive for the collar-bomb robbery. Mr. Diehl also is quoted commenting on her mental state and indicating that he desires no contact with his daughter. However, this story was published over three years ago on July 13, 2007 and has not been a prominent feature in the local news coverage.
Another story, run in October of 2007, purports to be an exclusive interview with the Defendant. In that publication, the Defendant professes her innocence, claims that she has been framed, and accuses Barnes of being "the scum of the earth," a "crack head pimp" and a liar. ( See "Marjorie Diehl Armstrong Breaks Her Silence — Exclusive Report" (published 10/26/07).)
Most of the remaining publications occurred in the latter part of 2008 and concern Barnes' plea and sentence, the possibility that he could earn a sentence reduction if he testifies against the Defendant, and the reaction of the Wells family to Barnes' conviction and sentence. Once again, to the extent this information is prejudicial to the Defendant, it is nearly two years old. The two most recent articles, published in April and September of 2009, are basically factual accounts of the most recent aspects of the competency proceedings.
In general, the content of these news accounts mirrors the type of information reported in the Erie Times News andwww.goerie.com. On balance, the information is factual, objective, and not unduly hostile or slanted toward the Government. The fact that the more potentially prejudicial stories ran approximately two years or more prior to the date on which jury selection is scheduled to commence is important because this significant lapse in time may well diminish or eliminate altogether any prejudicial effects that might have otherwise existed.
2. Regional and National News Sources
In this same folder denominated "Media attention to case" ( see Def.'s Ex. C), Defendant has provided a non-exhaustive sampling of news accounts of this case that have run in the Pittsburgh Region and nationally. Included within this sampling are approximately thirty-one (31) stories apparently obtained from the websites of CNN, ABC, FOX News, MSNBC, the New York Times, the Pittsburgh Post Gazette and the Pittsburgh Tribune Review, among others. Some of these appear to have aired on national television.
This folder also contains numerous ETN articles which are duplicative of those contained in the folder "Erie Times News Articles."
By the Court's calculation, the break down of these news stories is as follows: CNN = 3, CNN-KDKA (Pittsburgh) = 1, New York Times = 2, Fox News = 4, MSNBC = 2, ABC = 2, Associated Press (Pittsburgh) = 1, Las Vegas Sun = 1, The Daily Item (Sundbury, PA) = 1, Pittsburgh Tribune Review = 5, Pittsburgh Post Gazette = 9.
For the most part, the information discussed in these stories mirrors the same type of content contained in the ETN articles, i.e., the details of the underlying crime, aspects of the unfolding investigation, the nature of the criminal charges, the identities of the accused, the alleged link between Roden's murder and the bank robbery scheme, and the Defendant's alleged motive relative to the killing of her father. Though not favorable to the Defendant, this information, as we have noted, is factual and intrinsically related to the underlying case. To the extent the coverage includes information which is arguably gratuitous and/or inadmissible, this type of material is generally limited to news accounts appearing in and around July of 2007, more than three years ago. Moreover, there are numerous references throughout these stories to the Defendant's protestations of innocence made either directly by her or through her counsel.
It should also be noted that, although these regional and national stories span a time frame covering September of 2003 to September of 2009, the vast majority of the stories submitted by the Defendant were published in and around July 11, 2007, when the indictment was returned in this case, or prior to that date. This may be because of the fact that one of the most newsworthy revelations in the case, perhaps even more so than the identity of the Defendants and the nature of the crimes being charged, was the Government's theory concerning Wells' alleged involvement in the underlying conspiracy. Many of these news accounts therefore focus on the Government's theory that Wells was, to a limited degree, involved in the plotting of the scheme as well as the Wells family's vociferous denial of that claim.
To the extent this sampling of news coverage is a valid representation of the entirety of regional and national coverage pertaining to this case, it shows a marked waning of interest over time. The most recent samples submitted by the Defendant are factual accounts focusing primarily on the Defendant's mental competency proceedings. The accounts are, for the most part, fairly brief and are neither sensationalized nor slanted toward the Government. They consist of approximately a half-dozen articles published by various sources between January of 2008 and September 2009. On the whole, the evidence as to regional and/or national news coverage suggests that this case originally generated wide-spread interest, but that interest seems to have peaked in mid-2007 and diminished substantially over time.
3. YouTube Postings and Links/Wikipedia Entry
Finally, the Defendant has submitted evidence showing that several videos depicting actual footage of Wells' death have been posted on YouTube. Perhaps not surprisingly, these unfortunate postings have generated commentary of their own. ( See Def.'s D-1, D-2, E-1, E-2, F, G, and H.) One video posting in particular, entitled "Brian Douglas Wells" (Ex. D1, D2), has generated enough commentary to fill 53 pages. (Ex. D2.) The evidence shows that this latter posting has received 339,671 "views." Another posting, entitled "Brian Douglas Wells (R.I.P.) (Ex. G1, G2), is accompanied by several pages of commentary and has received 20,746 views. The others have respectively received anywhere from 1,647 views to 5,254 views.
Here again, the Defendant posits that the evidence shows the amount of interest this case has generated and the degree to which the public has formed fixed opinions about the case. Perhaps more to the point, the Defendant posits that these comments contain theories and statements about the case that are purely conjectural, based on hearsay, or otherwise inadmissible in a court of law, yet this information is readily available to anyone with internet access. As such, she argues, it serves as a potentially corrupting source of information to the prospective jury pool.
Having reviewed and considered the foregoing evidence, the Court makes the following observations. First, much of this content concerns the underlying event or Brian Wells rather than the Defendant.
Second, it is hard to tell from the evidence what audience this type of web information is reaching. Unlike the goerie.com comment pages, the YouTube pages do not indicate the general location of the persons posting comments. To a very limited extent, the individual's general location can be inferred from his or her commentary, but that is by far the exception. Defense counsel at oral argument pointed to an example in Ex. D2 where an individual ostensibly from Erie comments that he knew Brian Wells. However, many other comments are written in a foreign language, suggesting the possibility that they may be coming from viewers overseas. In fact, the individual who posted the video describes the content as "some American sick [f___ers]" having "attacked this dude," suggesting that the video itself was posted by a non-American. In any event, given the fact that this information is accessible to anyone in the world who has access to the internet — and considering that the population of the United States alone is over 300 million and the world population figures in the billions, the number of "views" and comments which each of these postings have generated are not necessarily impressive.
Third, it should also be noted that a relatively small number of these comments appear to have been recent posts that were added within several days or weeks prior to August 24, 2010, when they were apparently obtained. Notably, the overwhelming majority of the comments (particularly with respect to Ex. D2) were made 2 to 3 years prior to that time. To the extent these posting continue to generate interest in the viewing public, the evidence suggests that the public interest has waned significantly.
Fourth, it seems reasonable to infer that postings like the ones shown in Ex. D-H appeal to a certain select audience. In reviewing the comments, one can find frequent examples of certain individuals who have posted multiple entries and who may well be repeat "viewers." It is also noteworthy that on the first page of each Wells posting are links to other videos advertising similarly macabre or sensational content, which suggests that this type of web content may appeal to a particular viewing audience. The Court is reluctant to assume that information such as this, notwithstanding its accessibility, is being voraciously sought out and consumed by the general population of the Erie Division.
Defendant has also supplied a Wikipedia entry for "Brian Douglas Wells," which discusses details about the collar-bomb robbery, the ensuing criminal charges and court proceedings, and the media attention which this case has generated. (Ex. I.) This webpage provides links to numerous news sources concerning the case which can be found elsewhere on the web. Again, Defendant expresses concern as to the accessibility of this information and the corrupting effect it could have on the jury pool.
It is hard to tell from this exhibit how widely the Wells Wikipedia page has been viewed. Regardless, however, the same considerations that I have discussed relative to the YouTube evidence apply here. Like the YouTube information, this Wikipedia web page is literally available to anyone in the world who has internet access and a particular interest in the story. While it is certainly possible that potential jurors might avail themselves of this information, the Court declines to draw any conclusions about that likelihood in a vacuum. To the extent such a danger exists, I believe it can be adequately ferreted out through a careful voir dire and cautionary instructions.
(iv) Media Interference With Courtroom Proceedings
As we noted earlier, one factor for consideration in determining the extent to which a venire panel is prejudiced is the extent to which there is media interference with actual courtroom proceedings. In the Estes and Sheppard cases, the media actually interfered with courtroom proceedings during trial to the extent that the proceedings "entirely lack[ed] . . . the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob." Murphy, 421 U.S., at 799. Here, of course, trial has not yet occurred, so this factor cannot be definitively assessed. To the extent past proceedings are any indication, however, this Court anticipates no problems in maintaining the dignity, decorum, and solemnity that is befitting a criminal trial.
III. CONCLUSION
As our discussion of the foregoing evidence shows, media coverage in this case has been extensive and has taken various forms. But "pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial." Skilling, 130 S.ct. at 2916 ( quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976)). See also Murphy v. Florida, 421 U.S. 794, 798-99 (1975) (the rulings in Rideau, Estes, and Sheppard "cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.")
In assessing the likely affect of the pretrial publicity on the prospective venire panel, I have considered the volume as well as the overall content, tenor and timing of the coverage. Having done so, I conclude that the media stories generally have tended to be factual accounts of the underlying crime, the allegations being made by the Government, issues being litigated in these criminal proceedings, or positions taken by the respective parties as stated in open court or in official court papers. The more temporally proximate news coverage has focused largely on issues such as the Defendant's mental competence, her recent cancer diagnosis, her requests for new counsel, and issues raised by her pretrial motion — all of which relate directly to these proceedings. While much of the factual information portrays the Defendant in an unflattering light, the coverage as a whole has not been overtly hostile or slanted in favor of the Government, and it has frequently served as a means for the Defendant to voice her own position. Moreover, while the news coverage of this case has been sustained over the years, it is has become considerably less intense and probing over time.
As the Supreme Court long ago recognized, "every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits." Reynolds v. United States, 98 U.S. 145, 155-156 (1879). That may be particularly true in today's "information age," where the internet and other technologies make information more widely available and easily accessible than ever before. Yet, an event's "[p]rominence does not necessarily produce prejudice, and juror impartiality . . . does not require ignorance." Skilling, 130 S.ct. at 2914-15 (emphasis in the original) (citation omitted). See also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (Jurors are not required to be "totally ignorant of the facts and issues involved"; "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.").
Based on the foregoing, I conclude that the published reports and news accounts concerning this case do not warrant a presumption of prejudice relative to the prospective jury pool of this District Court's Erie Division. Nonetheless, I will revisit this issue if it becomes evident during jury voir dire that the pretrial publicity has compromised the Court's ability to empanel a fair and impartial jury. Accordingly, the following order is entered:
AND NOW, to wit, this 20th day of September, 2010, for the foregoing reasons, IT IS ORDERED that the Defendant's motion for change of venire be, and hereby is, DENIED without prejudice to be reasserted, if appropriate, at the time of voir dire.
The Court finds that it is premature at this time to address the issue of sequestration of jurors.