State of Connecticut v. Lisa Whitnum–Baker (2013)

MEMORANDUM OF DECISION RE MOTION FOR CHANGE OF VENUE

The self-represented defendant has filed an “emergency” motion for a change of venue in the above-listed matter.   This matter is presently pending at the Superior Court, Geographical Area 2 in Bridgeport, having been transferred from Geographical Area 23 in New Haven.   The defendant is charged with the crimes of Stalking in the Second Degree, General Statutes § 53a–181d;  Harassment in the Second degree, General Statutes § 53a–183;  and Disorderly Conduct, General Statutes § 53a–182.   The complaining witness/victim is a superior court judge and her family members.   During the pendency of the case in Geographical Area 23, New Haven, a protective order was issued on July 9, 2013 (Holden, J.) pursuant to General Statutes § 54–1k.¹  The effective date of that protective order was July 10, 2013.   Thereafter, the protective order was modified by the court (Arnold, J.) on October 25, 2013, at the request of the defendant.   See. State of Connecticut v. Whitnum–Baker, Superior Court, Geographical Area 2, Judicial District of Fairfield at Bridgeport, Docket No. F02B–CR13–0139857 (Oct. 25, 2013, Arnold, J.).

The defendant requests a change of venue from the Superior Court, Geographical Area 2 at Bridgeport to the Judicial District of Danbury, Geographical Area 3 at Danbury, for the following summarized reasons:

1.  Widespread publicity that is so derogatory and prejudicial to the defendant's interests that a fair trial by an impartial and unprejudiced judge and/or jury cannot be had in Geographical Area 2;

2.  Several staff members of the State Attorney's Office in Geographical Area 2 intentionally misled her by withholding information on September 10, 2013, evidencing prejudice against her and which caused her to miss a final court hearing for her dissolution of marriage action in the Stamford Judicial District on September 10, 2013;

3.  The employees referenced above “formerly” worked with the judge who is the complaining witness/victim in the defendant's matter and, therefore, are loyal to that judge and prejudiced against the defendant.

The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury.   By statute, persons charged with criminal offenses in Connecticut are to be “tried in the judicial district in which the offense was committed.”   State v. Komisarjevsky, Superior Court, judicial district of New Haven at New Haven, No. CR07–241860 (Feb. 28, 2011, Blue, J.) 51 Conn. L. Rptr. 485;  General Statutes § 51–352(a).   This statutory requirement may be overcome in appropriate cases.  “Any judge holding a criminal session of the Superior Court may, upon motion, order any criminal case pending in the court to be transferred to the superior court for any other judicial district.”   Conn. Gen.Stat. § 51–353.   A defendant's request for change of venue must be granted “if extraordinary local prejudice will prevent a fair trial.”   Skilling v. United States, 130 S.Ct. 2896, 2913 (2010);  State v. Komisarjevsky, supra.

I

Extensive News Coverage

The defendant claims that there has been widespread publicity that is so derogatory and prejudicial to the defendant's interests that a fair trial by an impartial and unprejudiced judge and/or jury cannot be had in Geographical Area 2. In support of her argument the defendant has attached a copy of one newspaper article which was published simultaneously in the Greenwich Time, Greenwich Citizen and Connecticut Post newspapers on or about September 12, 2013.

“In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial.   The trial court exercises its discretion in deciding whether to grant such a change of venue.   The trial court's discretion is governed by Practice Book [§ 41–23], which provides:  ‘Upon motion of the prosecuting authority or the defendant, or upon his own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location:  (1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending ․’ “ (Citations omitted.)  State v. Reynolds, 264 Conn. 1, 222, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908 (2004).

“A defendant need not ․ show actual prejudice in extreme circumstances whe [n] there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”  Id. “The defendant cannot rely, however, on the mere fact of pretrial news coverage to establish the existence of inherently prejudicial publicity.   Prominence does not, itself, prove prejudice ․ Rather, the defendant must demonstrate that the publicity was so inflammatory or inaccurate that it created a trial atmosphere utterly corrupted by press coverage.”  Id., 222–23.

This defendant has not demonstrated that any publicity generated by the same newspaper article which was published in three newspapers has created an atmosphere utterly corrupted by press coverage.   The article, which the court has reviewed appeared straightforward, factual, and, was neither inflammatory nor sensationalized.   Additionally, this case has not been assigned for any trial as it is at its early stages of proceedings.   Should the defendant elect to be tried by a jury, the proper use of individual voir dire should be sufficient to assure the defendant of a fair and impartial jury.   See id., 219.  “[T]here is no reason to believe that any influence of the pretrial publicity could not have been overcome by the voir dire process.”  (Citations omitted.)  Id., 224.

II

Staff Conflicts at Geographical Area 2

The defendant claims that several staff members of the State Attorney's Office in Geographical Area 2 intentionally misled her by withholding information on September 10, 2013, evidencing prejudice against her and which caused her to miss a final court hearing for her dissolution of marriage action in the Stamford Judicial District on September 10, 2013.²  She also claims the employees referenced above “formerly” worked with the judge who is the complaining witness/victim in the defendant's matter, and therefore, are loyal to that judge and prejudiced against the defendant.³

The court need not inquire further regarding the allegations made by the defendant regarding the staff of the State Attorney's Office at Geographical Area 2. The interests of the State of Connecticut are represented by an Assistant State's Attorney assigned to the Chief State Attorney's Office located in Rocky Hill, Connecticut.   The state's copy of the defendant's file is maintained at that office.   A transcript of court proceedings held on October 2, 2013, at Geographical Area 2, in Bridgeport, Connecticut has also been obtained by the court.   On that date, the Chief State Attorney's Office delivered to the self-represented defendant copies of the original arrest warrant application, sworn affidavit in support of the application, information and substituted information sheets and the five-page police report compiled by the Connecticut State Police.   The defendant may also file any appropriate procedural or substantive motions in her defense that are set forth in the provisions of the Connecticut Practice Book or corresponding sections of the Connecticut General Statutes.

The defendant has not set forth any compelling reasons evidencing that the Chief State Attorney's Office has shown prejudice towards her in its handling of the defendant's case, to date or that a change of venue from Geographical Area 2 is warranted.   There are no allegations or evidence presented by the defendant in her motion for a change of venue regarding prejudice by the Chief State Attorney's Office in the handling of her matter.

Order

For the reasons set forth herein, the defendant's motion for a change of venue is hereby denied.

THE COURT

Arnold, J.

FOOTNOTES

FN1. General Statutes § 54–1k provides as follows:(a) Upon the arrest of a person for a violation of subdivision (1) or (2) of subsection (a) of section 53–21, section 53a–70, 53a–70a, 53a–70c, 53a–71, 53a–72a, 53a–72b or 53a–73a, or any attempt thereof, or section 53a–181c, 53a–181d or 53a–181e, the court may issue a protective order pursuant to this section.   Upon the arrest of a person for a violation of section 53a–182b or 53a–183, the court may issue a protective order pursuant to this section if it finds that such violation caused the victim to reasonably fear for his or her physical safety.   Such order shall be an order of the court, and the clerk of the court shall cause (1) a copy of such order or the information contained in such order to be sent to the victim, and (2) a copy of such order, or the information contained in such order, to be sent by facsimile or other means not later than forty-eight hours after its issuance to the law enforcement agency or agencies for the town in which the victim resides, the town in which the victim is employed and the town in which the defendant resides.   If the victim is enrolled in a public or private elementary or secondary school, including a technical high school, or an institution of higher education, as defined in section 10a–55, the clerk of the court shall, upon the request of the victim, send, by facsimile or other means, a copy of such order, or the information contained in such order, to such school or institution of higher education, the president of any institution of higher education at which the victim is enrolled and the special police force established pursuant to section 10a–142, if any, at the institution of higher education at which the victim is enrolled.(b) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the dwelling of the victim.   A protective order issued under this section may include provisions necessary to protect any animal owned or kept by the victim including, but not limited to, an order enjoining the defendant from injuring or threatening to injure such animal.   Such order shall be made a condition of the bail or release of the defendant and shall contain the following language:  “In accordance with section 53a–223 of the Connecticut general statutes, any violation of this order constitutes criminal violation of a protective order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars, or both.   Additionally, in accordance with section 53a–107 of the Connecticut general statutes, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree which is punishable by a term of imprisonment of not more than one year, a fine of not more than two thousand dollars, or both.   Violation of this order also violates a condition of your bail or release and may result in raising the amount of bail or revoking release.”(c)The information contained in and concerning the issuance of any protective order issued under this section shall be entered in the registry of protective orders pursuant to section 51–5c..  FN1. General Statutes § 54–1k provides as follows:(a) Upon the arrest of a person for a violation of subdivision (1) or (2) of subsection (a) of section 53–21, section 53a–70, 53a–70a, 53a–70c, 53a–71, 53a–72a, 53a–72b or 53a–73a, or any attempt thereof, or section 53a–181c, 53a–181d or 53a–181e, the court may issue a protective order pursuant to this section.   Upon the arrest of a person for a violation of section 53a–182b or 53a–183, the court may issue a protective order pursuant to this section if it finds that such violation caused the victim to reasonably fear for his or her physical safety.   Such order shall be an order of the court, and the clerk of the court shall cause (1) a copy of such order or the information contained in such order to be sent to the victim, and (2) a copy of such order, or the information contained in such order, to be sent by facsimile or other means not later than forty-eight hours after its issuance to the law enforcement agency or agencies for the town in which the victim resides, the town in which the victim is employed and the town in which the defendant resides.   If the victim is enrolled in a public or private elementary or secondary school, including a technical high school, or an institution of higher education, as defined in section 10a–55, the clerk of the court shall, upon the request of the victim, send, by facsimile or other means, a copy of such order, or the information contained in such order, to such school or institution of higher education, the president of any institution of higher education at which the victim is enrolled and the special police force established pursuant to section 10a–142, if any, at the institution of higher education at which the victim is enrolled.(b) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the dwelling of the victim.   A protective order issued under this section may include provisions necessary to protect any animal owned or kept by the victim including, but not limited to, an order enjoining the defendant from injuring or threatening to injure such animal.   Such order shall be made a condition of the bail or release of the defendant and shall contain the following language:  “In accordance with section 53a–223 of the Connecticut general statutes, any violation of this order constitutes criminal violation of a protective order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars, or both.   Additionally, in accordance with section 53a–107 of the Connecticut general statutes, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree which is punishable by a term of imprisonment of not more than one year, a fine of not more than two thousand dollars, or both.   Violation of this order also violates a condition of your bail or release and may result in raising the amount of bail or revoking release.”(c)The information contained in and concerning the issuance of any protective order issued under this section shall be entered in the registry of protective orders pursuant to section 51–5c.

FN2. There is no claim that any alleged misinformation concerns the present pending case at G.A. 2..  FN2. There is no claim that any alleged misinformation concerns the present pending case at G.A. 2.

FN3. The judge had previously been assigned to G.A. 2 several years ago..  FN3. The judge had previously been assigned to G.A. 2 several years ago.

Arnold, Richard E., J.