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NE JILLIAN CUTSHALL: Missing from Norfolk, NE - 13 August 1987 - Age 9

Discussion in 'Missing 1980 to 1989' started by Akoya, Apr 3, 2018.

  1. Akoya

    Akoya Bronze Member

    Continued:


    3. REFUSAL OF VENUE CHANGE

    Phelps contends in the third summarized assignment of error that the district court incorrectly overruled his motion for a change of venue because, as a result of the publicity surrounding the matter, it was impossible for him to receive a fair trial in Madison County.

    There is no question that extensive local, state, and national publicity surrounded the child's disappearance and the trial to follow. The coverage included attention by local and state newspapers, local radio, and both regional and national television. In addition to establishing the foregoing, Phelps also produced 32 affidavits of Madison County citizens, each asserting that due to the media coverage the affiant could not serve as a fair, impartial juror in the case. In addition, Phelps produced the affidavits of Madison County trial lawyers expressing the opinion that a fair and impartial trial could not be held in Madison County.

    Section 29-1301 permits a change of venue when it appears that "a fair and impartial trial cannot be had" in the county where the offense was committed. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987); State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986); State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974).

    In arguing his position, Phelps places undue reliance on Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). Therein, the defendant was charged with robbery, kidnapping, and murder. He was filmed while being interrogated in jail by the sheriff, during the course of which, in response to leading questions, the defendant admitted the crimes in detail. The film was broadcast on television on three separate occasions, reaching at least one-third of the population in the parish in which he was tried and convicted. In holding that the denial of a change of venue amounted to a denial of due process, the U.S. Supreme Court noted that "[f]or anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau's trialat which he pleaded guilty to murder." (Emphasis in original.) 373 U.S. at 726, 83 S. Ct. at 1419.

    However, in Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 2036, 44 L. Ed. 2d 589 (1975), the U.S. Supreme Court wrote:

    The proceedings in [ Rideau ] were entirely lacking in 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. [Rideau ] 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.
    Thus, mere jury exposure to news accounts of a crime does not presumptively *691 deprive a criminal defendant of due process. Rather, to warrant a change of venue, a defendant must show the "existence of pervasive misleading pretrial publicity." State v. Bradley, 236 Neb. 371, 386, 461 N.W.2d 524, 536 (1990), cert. denied ___ U.S. ___, 112 S. Ct. 143, 116 L. Ed. 2d 109 (1991). Indeed, in order for a defendant to successfully move for a change of venue based on pretrial publicity, he or she must show that the "publicity has made it impossible to secure a fair and impartial jury." State v. Jacobs, 226 Neb. at 190, 410 N.W.2d at 473. Accord State v. Heathman, 224 Neb. 19, 395 N.W.2d 538 (1986). A number of factors must be evaluated in determining whether that burden has been met, including the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn. State v. Williams, supra; State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991); State v. Jacobs, supra; State v. Bird Head, supra; State v. Kern, supra; State v. Heathman, supra; State v. Fallis, 205 Neb. 465, 288 N.W.2d 281 (1980); State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976).

    As noted in State v. Bradley, supra, voir dire examination provides the best opportunity to determine whether venue should be changed. A jury was able to be selected in this case in approximately 4 hours. At the conclusion of that process, each of the venirepersons seated as a juror raised his or her hand in response to Phelps' inquiry as to whether each felt that he or she

    could serve on this jury and fairly try this case free of influence of anything you have heard before this day and based exclusively on what comes from this chair and the exhibits that are received, free of any sense at all of any expectation by the community or your family or neighbors or anything else[.]
    Under the circumstances, we cannot say the district court abused its discretion in denying Phelps' request for a change of venue. As we have noted in the past, 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 presented in court. State v. Bradley, supra.

    4. PRESERVATION OF THE ARRAY
    In a related move, Phelps, in the fourth summarized assignment of error, contends that the district court should have sustained his challenge to the array, as all the venirepersons had formed or expressed an opinion about the case.

    The principles considered in connection with the third summarized assignment of error in large measure resolve this issue as well. The fact that many, most, or even all the jurors knew something about the case in advance would not entitle Phelps to a change of venue, for a criminal defendant is not guaranteed a jury totally ignorant of the facts and circumstances of his or her case. See, State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992); Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). It is sufficient if the juror can lay aside his or her impressions or opinion and render a verdict based on the evidence presented at trial. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); State v. Williams, supra; State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987); State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309(1987); State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986); State v. Navarrete, 221 Neb. 171, 376 N.W.2d 8 (1985); State v. Torrence, 192 Neb. 213, 219 N.W.2d 772 (1974), cert. denied 420 U.S. 928, 95 S. Ct. 1127, 43 L. Ed. 2d 399 (1975). Moreover, Neb.Rev.Stat. § 25-1636 (Reissue 1989) provides that

    *692 t shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of a crime with which a prisoner is charged, if such juror shall state on oath that it is the belief of said person that he or she can render an impartial verdict according to the law and the evidence; and the court shall be satisfied as to the truth of such statement....

    See, also, Neb.Rev.Stat. § 29-2006 (Reissue 1989).

    A careful review of the voir dire in this case indicates no hostility toward Phelps by the jurors who served in his trial as to suggest a partiality that could not be set aside. Indeed, the district court scrupulously inquired as to the extent to which prospective jurors had expressed opinions regarding the crime, excusing those who indicated that they might not be able to set aside their knowledge or opinions of the crime and fairly and impartially judge Phelps on the evidence presented at trial.
     
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  2. Akoya

    Akoya Bronze Member

    Continued:


    5. NONDISCOVERY

    In the fifth and final summarized assignment of error, Phelps asserts the district court erred in overruling his motion to discover the materials accumulated by the Federal Bureau of Investigation.

    In May and June 1990, a bureau agent operated covertly at a Perry, Iowa, restaurant at which Phelps worked. During this time, over 18 hours of conversation between the agent and Phelps were recorded. The audiotapes were made available to Phelps. Upon Phelps' offer, the jury heard approximately 45 minutes of the more than 1,080 minutes of the covertly recorded conversations between the bureau's agent and Phelps. Our review of that 45 minutes establishes nothing of relevance to the issues presented.

    Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule. Thus, unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of the trial court, whose ruling will be upheld on appeal unless the trial court has abused its discretion in the discovery ruling. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991); State v. Meis, 217 Neb. 770, 351 N.W.2d 79 (1984); State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).

    The U.S. Constitution requires the State to disclose exculpatory material to an accused. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), recognized that the suppression by the State of evidence favorable to and requested by an accused violates due process where the evidence is material to the guilt of the defendant. State v. Meis, supra. In Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706 (1972), the U.S. Supreme Court explained that

    [t]he heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.
    However, the State is not under a constitutional duty to disclose all information that might affect the jury's verdict. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). Rather, a prosecutor has a duty to disclose all material exculpatory evidence. Brady v. Maryland, supra. As we said in State v. Tweedy, 224 Neb. 715, 718, 400 N.W.2d 865, 868 (1987), citing State v. Rice, 214 Neb. 518, 335 N.W.2d 269(1983): "In order to be a material omission, the omitted proposed evidence must create a reasonable doubt as to the defendant's guilt that did not otherwise exist. That the evidence `might' influence the outcome is insufficient."

    Neither has the U.S. Supreme Court found any constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, supra.

    *693 Since Phelps was provided the tapes of his own statements, as required by Neb.Rev.Stat. § 29-1912 (Reissue 1989), we cannot under the circumstances say the district court abused its discretion in refusing to require that the State obtain the remainder of the bureau's file and deliver it to Phelps.

    IV. JUDGMENT
    For the foregoing reasons, we, as first said in part I above, affirm the judgment of the district court.

    AFFIRMED.
     
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  3. Akoya

    Akoya Bronze Member

    Lincoln Journal Star
    Jill Cutshall: 29 years later, police still don't know what happened to 9-year-old | Crime and Courts | journalstar.com

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  4. Akoya

    Akoya Bronze Member

    http://www.411gina.org/cases/cutshalljilliandee.html

    Jillian Dee Cutshall

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    MISSING since August 14, 1987 from Norfolk, Nebraska

    Police Case #87-7766
    NCIC Case #M-260214807
    NCMEC Case #NCMC600904

    Identifying Characteristics:
    Jillian's teeth are crooked. She has a two-inch vertical scar on the crown of her head and a horizontal scar on her right upper lip.

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    Clothing/Jewelry:
    Blue jeans, a purple shirt, and white Nike tennis shoes.

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    Circumstances of Disappearance:
    Unknown. Her photos above right are shown age-progressed to 30 years and 34 years, respectively. She was last seen in Norfolk, Nebraska at approximately 6:30 a.m. on August 13, 1987. She was visiting her father and stepmother in the McNeely Apartments and left there to go to her babysitter's residence four blocks away. She has never been seen or heard from again. Three months after her disappearance, her clothes, shoes, and keys were found in the Wood Duck Wildlife Refuge in Stanton, ten miles from her father's home. David Phelps, a man who lived in the apartment complex, was charged with abduction with intent to commit sexual assault in Jillian's case and was convicted in the spring of 1991 to life in prison without parole. Jillian has never been located.

     
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  5. spike

    spike Bronze Member

    :(
     
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  6. Akoya

    Akoya Bronze Member

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  7. Akoya

    Akoya Bronze Member

  8. Akoya

    Akoya Bronze Member

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  9. Kimster

    Kimster Director Staff Member

    Two sets of remains have been found in this area. This part was interesting to me:

    The human remains found on Saturday will also be taken for analysis in hopes of identifying them. The Sheriff’s office currently has two open local missing person cases from many years past and has also been contacted by numerous law enforcement agencies with missing person cases regarding the discovery last month.

    https://www.1011now.com/content/new...emains-found-in-Stanton-County-509194471.html
     
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