In order to make a careful and detailed review of all relevant portions of the trial court record necessary to make an independent judgment of possible prejudice to the petitioner resulting from pretrial publicity, this court requested that the Office of the Attorney General, in answer to petitioner's § 2254 petition, furnish: 1) the entire transcript of voir dire testimony, 2) exhibits introduced at the state court hearing on the motion for change of venue, 3) copies of newspaper articles, and 4) transcripts of television and radio broadcasts reporting petitioner's trial, insofar as they were available. This court reviewed numerous volumes of the trial court record to determine whether the state court's factual findings surrounding the denial of petitioner's motion for change of venue were fairly supported by the record, and thereby must be presumed correct.
Based on a complete and de novo review of petitioner's lengthy trial court transcript, motions and documentation filed in support of petitioner's pretrial proceedings, this court finds that the state court's factual findings relating to petitioner's motion for change of venue are adequately supported by the record, and therefore, must be presumed correct. 28 U.S.C. § 2254(d) (1988). This court further finds that the trial judge's denial of petitioner's motion for change of venue did not result in prejudice so great as to deny her due process right to a fair trial.
B. Application of the Standard
Defendants enjoy the right to due process to be tried by "a panel of impartial, 'indifferent' jurors." Irvin, 366 U.S. at 723. If prejudicial pretrial publicity makes it impossible to seat an impartial jury, then the trial judge must grant the defendant's motion for change of venue. Harris, 885 F.2d at 1361. The prejudice requirement can be satisfied by a finding of: 1) presumed prejudice; or 2) actual prejudice.
1. Presumed Prejudice
"Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Id. Courts rarely find presumed prejudice because "saturation" defines conditions found only in extreme situations. Id.
In Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963), the Supreme Court found that the denial of a motion for change of venue violated due process when a confession made by the defendant was videotaped and broadcast three times by a local television station. Because three members of the jury who ultimately convicted the defendant had viewed the tape, the Court found the media publicity to be sufficiently extreme to invoke the presumed prejudice rule. Unless the publicity renders the trial a "hollow formality," Id. at 726, however, the presumed prejudice rule is rarely applicable. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). It is the opinion of this court that petitioner's pretrial publicity did not render her trial a "hollow formality" and therefore, prejudice cannot be presumed.
2. Actual Prejudice
Actual prejudice exists if the jurors demonstrated actual partiality or hostility that cannot be laid aside. Harris, 885 F.2d at 1363. "Jurors need not, however, be totally ignorant of the facts and issues involved." Murphy v. Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975).
Actual prejudice is not demonstrated by merely showing juror exposure to pretrial publicity. "The relevant question is not whether the community remembered the case, but whether the jurors . . . had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984). The Supreme Court has held that a key factor in gauging the reliability of juror assurances of impartiality is the percentage of veniremen who "will admit to disqualifying prejudice." Murphy, 421 U.S. at 803. The higher percentage of veniremen admitting to a previously formed opinion on the case, the greater the concern over the reliability of the voir dire responses from the remaining potential jurors. Id.
Petitioner claims that only one of the twelve jurors who sat on the case had not heard or read about her case. [Points & Authorities in Support of Habeas Petition, at 14]. It is immaterial, however, that almost all of the jurors had heard or read about the case prior to trial, since all jurors swore under oath that they could impartially judge petitioner's guilt or innocence. Jeffries, 988 F.2d at 932. Therefore, this court finds that petitioner cannot show actual prejudice, caused by extensive pretrial publicity, which resulted in violating her due process right to a fair trial.
6) Involuntariness of Confession
A. Standard of Review
Petitioner claims her confession was coerced by the police and should have been excluded from the trial. This court must review de novo whether the confession was voluntary by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) . While the court does review the voluntariness of petitioner's confession de novo, the factual findings made by the state court in determining the voluntariness of the confession are presumed correct under 28 U.S.C. § 2254(d). Miller v. Fenton, 474 U.S. 104, 112, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); Knaubert v. Goldsmith, 791 F.2d 722, 726-27 (9th Cir. 1986). For example, underlying factual questions, such as "whether in fact the police engaged in the intimidation tactics alleged by the defendant . . . are entitled to the § 2254(d) presumption." Miller, 474 U.S. at 112; Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991) (en banc). Factual findings may sometimes be implied from the state trial court's ruling:
when a state trial court holds a hearing on a motion to suppress evidence and rules on the motion, a federal district court may assume that the state court found the facts necessary to support the state court's decision, unless there is some indication that the state court applied an incorrect legal standard.
Knaubert v. Goldsmith, 791 F.2d at 727, citing Townsend v. Sain, 372 U.S. 293, 313-14, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). Additionally, while voluntariness is reviewed de novo, this court must still give weight to the conclusions of its coequal branch in the state judiciary. Miller, 474 U.S. at 112.
B. Application of Standard
A confession obtained by police is involuntary, and therefore, a violation of due process, if the defendant's free will was overborne at the time she confessed. Haynes v. Washington, 373 U.S. 503, 513-14, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963); Tingle, 658 F.2d at 1335. It must appear that under the totality of the circumstances the confession was not obtained by coercion or improper inducement. Haynes, 373 U.S. at 514.
This court finds that petitioner's confession was voluntarily obtained. The "threats" made by police concerning the possibility of the death penalty and the chance that petitioner might have to "kiss her children goodbye" were probably improper; however, they do not rise to the level of psychological coercion necessary to render her confession involuntary under Tingle. The police officers did not "deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation.'" Tingle, 658 F.2d at 1336. The Court of Appeal found that the petitioner first raised the issue of her children during interrogation herself, and petitioner again brought them up later when she explained inconsistencies in her story by her desire to protect her children. [Cal. Ct. App. Op. at 55]. At that point, officers explained that petitioner was being charged with murder and that the children were being placed in protective custody. Id. Based on these underlying facts, this court finds that petitioner's will was not overborne and that the officers merely stated facts. They did not threaten petitioner, exploit her children; nor did they promise her confession of guilt would change anything. Therefore, this court finds that petitioner's due process rights were not violated when the trial court admitted her confession into evidence during trial.
For the foregoing reasons, Laura Ann Troiani's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS SO ORDERED.
IRMA E. GONZALEZ
United States District Judge