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Commonwealth v. Sicari, Nos. 97-2318 (1998)

Superior Court of Massachusetts.

No. 972318.

Aug. 24, 1998.

 

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR

CHANGE OF VENUE

COWIN.

 

       The defendants Salvatore Sicari and Charles Jaynes have each been charged with murder (G.L. c. 265, s. 1) and kidnapping (G.L. c. 265, s. 26).  Each has moved for a change of venue based upon extensive pretrial publicity in this case.  Argument on the motions was heard on August 19, 1998.  For the following reasons, the motions are denied.

 

       "A trial judge has substantial discretion in deciding whether to grant a motion for change of venue based on pretrial publicity.  See Commonwealth v. Bianco, 388 Mass. 358, 367, 446 N.E.2d 1041 (1983); Commonwealth v. Blackburn, 354 Mass. 200, 205, 237 N.E.2d 35 (1968).  A trial judge should exercise his power to change the venue of a jury trial 'with great caution and only after a solid foundation of fact has been first established.'  Commonwealth v. Smith, 357 Mass. 168, 173, 258 N.E.2d 13 (1970), quoting Crocker v. Superior Court, 208 Mass. 162, 180, 94 N.E. 369 (1911).  The mere existence of pretrial publicity, even if it is extensive, does not constitute a foundation of fact sufficient to require a change of venue.  See Commonwealth v. Jackson, 388 Mass. 98, 108, 445 N.E.2d 1033 (1983); Smith, supra; Blackburn, supra.  A defendant's right to a fair and impartial jury does not require that jury members have no prior knowledge of the crime.  Jackson, supra at 108, 445 N.E.2d 1033, citing Dobbert v. Florida, 432 U.S. 282, 302‑03, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).  Blackburn, supra at 204, 237 N.E.2d 35."

 

       This Court is aware that there has been extensive pretrial publicity in this case.  So, too, there has been extensive pretrial publicity in many recent cases in which a trial judge's decision to deny a motion for change of venue has been upheld.  See, for example, Commonwealth v. James, 424 Mass. 770, 775‑77, 678 N.E.2d 1170 (1997); Commonwealth v. Maimoni, 41 Mass.App.Ct. 321, 331‑32, 670 N.E.2d 189 (1996); Commonwealth v. Colon‑Cruz, 408 Mass. 533, 551‑52, 562 N.E.2d 797 (1990); Commonwealth v. Angiulo, 415 Mass. 502, 514‑16, 615 N.E.2d 155 (1993); and Commonwealth v. Burden, 15 Mass.App.Ct. 666, 673, 448 N.E.2d 387 (1983).

 

       A number of other very recent cases have also been tried without a change of venue despite extraordinary pretrial media coverage.  See, for example, Commonwealth v. Woodward, 427 Mass. 659, 694 N.E.2d 1277 (1998);Commonwealth v. Salvi, (Norfolk Superior Court, Crim. No. 99518‑99524).  It is noted that the former case involved the death of an infant (the present one involves the death of a young child) and the latter case concerned abortion issues that received intense national media focus.

 

       "A defendant's right to a fair and impartial jury does not require that jury members have no prior knowledge of the crime."  James, supra at 777, 678 N.E.2d 1170.  The issue, rather, is whether despite such publicity the defendant may have a fair trial.  It is not the number of newspaper articles or the extent of television coverage, but whether the jurors selected can put aside any media coverage to which they have been exposed and decide the case based upon the evidence presented in court.

 

       Nothing has been presented to this Court at this stage to indicate that a panel of fair and impartial jurors cannot be selected through appropriate questioning by individual voir dire.  There is nothing unique to this case that requires a change of venue.  Accordingly, the defendants' motions will be denied.  This denial is subject to reconsideration of the issue by the Court on its own motion or on request of counsel, should the circumstances warrant, during the voir dire process.

 

ORDER

 

       For all the above reasons, the defendants' motions for change of venue are DENIED.