State v. Stubbs

2005 UT 65
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20040108
Plaintiff and Petitioner,
v.
F I L E D
Parley Parker Pratt Stubbs,
Defendant and Respondent. September 30, 2005
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Fifth District, Beaver
The Honorable Philip J. Eves
No. 001500094
Attorneys: Mark L. Shurtleff, Att’y Gen., Kenneth A. Bronston,
Asst. Att’y Gen., Salt Lake City, Leo G. Kanell,
Beaver, for plaintiff
Edward K. Brass, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 Parley Parker Pratt Stubbs was accused of rape in the
small town of Beaver, Utah. Before the jury was seated for his
trial, Mr. Stubbs moved for but was denied a change of venue. He
was convicted, and then he appealed. The court of appeals
reversed Mr. Stubbs’s conviction and remanded for a new trial,
directing the trial court to grant Mr. Stubbs’s motion for a
change of venue.
¶2 We are asked to decide which of two tests should be
used to evaluate the merits of a motion to change venue made
before the jury is seated, but brought to us to review after the
defendant’s conviction: the James test, applicable to pretrial
motions brought to us for interlocutory review, State v. James,

1 The final jurors were Thompson, McMullin, Burnette,
Barton, Campbell, Dalton, Anderson, and Sherwood. Juror McMullin
worked with the victim’s grandmother and was a “good friend” of
Officer Chambers (a witness for the prosecution). Also, the
(continued...)
No. 20040108 2
767 P.2d 549, 551-54 (Utah 1989), or the Widdison test,
applicable to post-conviction venue appeals, State v. Widdison,
2001 UT 60, ¶ 38, 28 P.3d 1278.
¶3 We granted certiorari to review the court of appeals’s
ruling that the trial court abused its discretion by failing to
properly apply the evaluative model we set forth in James. We
affirm, although on alternate grounds. We hold that based on the
procedural facts of this case, both tests provide relevant
evaluative guidance and may properly be used to assess venue.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Mr. Stubbs was charged with one count of rape and one
count of forcible sexual abuse in Beaver, Utah. The alleged
victim was a seventeen-year-old woman. Her family members were
well-known and well-regarded members of the community: her
mother was the Beaver County treasurer, her grandmother had been
a schoolteacher and president of the Beaver Education
Association, and her grandfather had also been a schoolteacher
and coach of the local high school football team. Mr. Stubbs, on
the other hand, was not a resident of Beaver. At the time of the
alleged rape, he was staying at a local motel while he worked a
temporary job pouring concrete.
¶5 The other important facts in this case are procedural.
Six days before trial, Mr. Stubbs filed a change of venue motion
suggesting that because of the young woman’s standing in the
community, the court would not be able to seat an unbiased jury.
The trial court conducted a status conference concerning the
motion the day before trial, but with the agreement of counsel,
deferred its decision until jury selection began the next day.
¶6 During jury selection, Mr. Stubbs renewed his motion
and argued that application of the pretrial test for change of
venue required by State v. James, 767 P.2d 549 (Utah 1989), would
mandate a change in venue. The questions and answers exchanged
during voir dire indicated that a large number of the potential
jurors knew members of the victim’s family or had relationships
with the prosecution’s witnesses. Four of the eight chosen
jurors stated that they knew either the victim or the prosecution
witnesses.1 Nevertheless, the trial court denied Mr. Stubbs’s

1 (...continued)
victim’s grandfather coached her son. Juror Dalton worked as a
nurse for Dr. Melling, the physician who examined the victim and
testified for the prosecution. Juror Sherwood knew the victim’s
grandfather and had done business with her mother. Juror
Burnette was friends with Officer Chambers and had been hired by
the prosecutor but did not end up working for him.
2 Rule 29(d) provides:
(continued...)
3 No. 20040108
motion. The trial court did not reference the venue
considerations we set out in James, discussed infra, but said it
would be unreasonable to change venue every time the victim was a
prominent member of the community. The trial court reinforced
this practical rationale with the opinion that Beaver County
juries would not favor locals over outsiders. Mr. Stubbs was
convicted of rape, acquitted of forcible sexual abuse, and
sentenced to five years to life in prison.
¶7 Mr. Stubbs appealed the trial court’s denial of his
motion to the court of appeals. State v. Stubbs, 2004 UT App 3,
¶ 11, 84 P.3d 837. The court of appeals concluded that the trial
court erred when it failed to apply the James venue test. It
reversed Mr. Stubbs’s conviction and remanded for a new trial,
directing the trial court to grant Mr. Stubbs’s change of venue
motion. Id. at ¶ 23. We granted certiorari to review the
decision of the court of appeals.
STANDARD OF REVIEW
¶8 A decision to grant or deny a motion to change venue is
within the trial court’s sound discretion and will not be
disturbed absent a finding that the court exceeded its
discretion. State v. Widdison, 2001 UT 60, ¶ 38, 28 P.3d 1278.
However, on certiorari, we review the court of appeals’s
conclusions of law for correctness. State v. Geukgeuzian, 2004
UT 16, ¶ 7, 86 P.3d 742.
ANALYSIS
¶9 The right to trial by an impartial jury is guaranteed
by both the United States Constitution and the Utah Constitution.
See U.S. Const. amend. VI; Utah Const. art. I, § 12. To protect
that right, rule 29(d) of the Utah Rules of Criminal Procedure
permits a trial court to change venue if the court believes a
fair and impartial trial cannot be had in the jurisdiction where
the action is pending.2 Utah R. Crim. P. 29(d); State v.

2 (...continued)
(i) If the prosecution or a defendant in
a criminal action believes that a fair and
impartial trial cannot be had in the
jurisdiction where the action is pending,
either may, by motion, supported by an
affidavit setting forth facts, ask to have
the trial of the case transferred to another
jurisdiction.
(ii) If the court is satisfied that the
representations made in the affidavit are
true and justify transfer of the case, the
court shall enter an order for the removal of
the case to the court of another jurisdiction
free from the objection and all records
pertaining to the case shall be transferred
forthwith to the court in the other county.
If the court is not satisfied that the
representations so made justify transfer of
the case, the court shall either enter an
order denying the transfer or order a formal
hearing in court to resolve the matter and
receive further evidence with respect to the
alleged prejudice.
Utah R. Crim. P. 29(d).
No. 20040108 4
Widdison, 2001 UT 60, ¶ 33, 28 P.3d 1278. The phrase “fair and
impartial” has been part of our change of venue rules since at
least 1888. See 2 Comp. Laws of Utah § 4992 (1888); State v.
James, 767 P.2d 549, 551 (Utah 1989).
¶10 Almost without exception, challenges to denial of venue
motions have come to us after a jury has convicted the defendant.
In this setting, our analysis has been guided by the
straightforward retrospective test of “whether [the] defendant
was ultimately tried by a fair and impartial jury.” Widdison,
2001 UT 60 at ¶ 38; State v. Lafferty, 749 P.2d 1239, 1250 (Utah
1988) (“The ultimate test of whether a failure to change venue
constitutes an abuse of discretion is whether the defendant was
tried by a fair and impartial jury.”). However, James presented
us with a unique circumstance: the motion for change of venue
was brought to us as an interlocutory appeal, before the trial
took place. 767 P.2d at 550. Because the trial had not yet
commenced, and the jury had not been impaneled, we could not
apply the Widdison retrospective assessment of fairness and
impartiality. Although it rendered our traditional test
unworkable, we welcomed the interlocutory review of a venue
challenge because it presented us with “the opportunity to review

3 Such a posture is beneficial to the defendant because it
enables us to address venue disputes before error is committed.
Although most cases have been presented to us following a
conviction, we encourage the defendants to raise venue questions
on interlocutory appeal. This both ensures fairness at trial and
discourages the defendants from abusing the appeals process by
waiting until the trial is over to resolve this issue.
5 No. 20040108
the denial before any error committed would be prejudicial to
[the] defendant.”3 Id. at 555.
¶11 Due to its unique procedural posture, James required
that we articulate the considerations that a trial court ought to
take into account when assessing the merits of a motion for a
change of venue. We isolated four considerations for trial
courts to apply in the context of the totality of the
circumstances: “(1) the standing of the victim and the accused
in the community; (2) the size of the community; (3) the nature
and gravity of the offense; and (4) the nature and extent of
publicity.” Id. at 552. We “conclude[d] that the judge should
grant the motion whenever he or she finds a reasonable likelihood
that a fair trial cannot be had unless the motion is granted.”
Id.
¶12 The implementation of the James venue test shifted the
focus of appellate review. Rather than evaluating whether the
trial court exceeded its discretion using the retrospective
“ultimately tried by a fair and impartial jury” test given in
Widdison, we turned our attention to the trial court’s exercise
of discretion in applying certain pre-impanelment guidelines. We
assessed the facts in James using these guidelines and determined
that there was a reasonable likelihood that the defendant could
not receive a fair and impartial trial. Id. at 554. We reversed
the trial court’s denial of the defendant’s motion and returned
the case to the trial court for the purpose of changing venue.
Id. at 557.
¶13 We have expressly limited our review under the James
test to interlocutory appeals, stating that “[o]n appeal from a
jury verdict, we do not look to the James factors to determine
whether the trial court abused its discretion in denying a change
of venue.” Widdison, 2001 UT 60 at ¶ 38. Instead, on direct
appeal from a conviction, we implement the traditional test of
“whether [the] defendant was ultimately tried by a fair and
impartial jury.” Id.
¶14 This distinction has a practical explanation. A trial
court must evaluate a pretrial motion for change of venue based

No. 20040108 6
on demographic, geographic, and cultural evidence unrelated to
the identity and potential for bias of an actual jury venire. In
a pretrial setting, the trial court should consider the James
guidelines to assess whether a jury selected from the prospective
juror population would be reasonably likely to fall short of the
standards for fairness and impartiality to which a defendant is
entitled. Such a pretrial venire evaluation contrasts markedly
from the Widdison circumstance where appellate review occurred
after the jury was selected, the trial was completed, and the
defendant was convicted. In a post-conviction challenge to
venue, the appellate record is not limited to descriptive data
about the characteristics of the community in which the trial is
to take place and from whose citizens the jury will be culled.
Rather, the appellate court is able to review whether the jurors
who were ultimately selected were fair and impartial.
¶15 The parties here dispute whether the denial of
Mr. Stubbs’s venue motion should be reviewed under James or
Widdison. The court of appeals concluded that the complex
procedural circumstances of Mr. Stubbs’s case warranted the
application of the James factors, distinguishing it from the
post-trial appeal presented in Widdison:
Even though Stubbs takes his appeal from a
jury verdict, we apply the James factors
because they were never appropriately
considered by the trial court. Further, the
court began jury voir dire before even ruling
on Stubbs’s motion for a change of venue.
This is important because, in Widdison, the
supreme court recognized that “the unique
circumstance of the interlocutory appeal [in
James] ‘afforded us the opportunity to review
the denial [of the change of venue motion]
before any error committed would be
prejudicial to the defendant.’ We reversed
the order denying the motion to change venue
in order to serve judicial economy.”
In Widdison, the defendant filed a
motion to change venue in November 1996. The
trial court denied the motion, but allowed
Widdison to raise the issue again at trial.
Widdison’s trial did not begin until
April 30, 1998. During the nearly eighteen
months that elapsed between the time the
court denied Widdison’s motion for a change
of venue and trial, no interlocutory appeal

7 No. 20040108
was taken. By contrast, in this instance,
because the trial court did not rule on
Stubbs’s motion for a change of venue before
trial, Stubbs did not have any opportunity to
take an interlocutory appeal and thereby
“serve judicial economy.”
Stubbs, 2004 UT App 3 at ¶¶ 20-21 (citations omitted)
(alterations in original). Accordingly, the court of appeals
evaluated Mr. Stubbs’s case in light of the four James
guidelines, giving a detailed and well-reasoned analysis of each,
and concluded that the trial court exceeded its discretion by not
ruling on Mr. Stubbs’s motion for a change of venue before trial
and by failing to properly apply the James test.
¶16 The State insists that the court of appeals made the
wrong choice when it applied James and not Widdison. In the
State’s view, a James analysis was improper because the trial was
over. We agree with the State that the court of appeals should
have considered Widdison. Widdison is the controlling law in
this case because, like Widdison, Stubbs presents a
post-conviction appeal. It is thus possible for us to assess the
composition of the jury as it was actually impaneled to determine
whether Mr. Stubbs was ultimately tried by a fair and impartial
jury. This was not possible in James, but was possible in
Widdison, and was likewise possible here.
¶17 However, the State’s position assumes that the tests
presented in James and Widdison are exclusive. They are not. A
court need not choose one or the other when assessing the
defendant’s motion for change of venue. On the contrary, the
evaluative criteria established in James can, and often should,
play a role in assessing the ultimate question asked by Widdison:
whether the defendant in fact was tried by a fair and impartial
jury. The James model can be helpful to a trial court assessing
overall fairness of the jury pool because a jury may not show any
signs of overt bias but might still be tainted by the types of
prejudice James aims to prevent. On the other hand, if voir dire
yields no evidence of the prejudices targeted by James, a James
inquiry could still be useful to show that, despite the
defendant’s initial concerns, the jury pool was able to yield a
fair and impartial panel. Therefore, we hold that both at trial
and on appeal from a jury verdict, courts may use James as part
of their Widdison analysis when determining whether a defendant
received a fair and impartial trial.
¶18 The court of appeals’s opinion in Stubbs aptly shows
why, even using the more general Widdison analysis, a fair and

No. 20040108 8
impartial jury was not found, and probably could not have been
found, in Beaver County in this case. Questions and answers
exchanged during voir dire reinforced Mr. Stubbs’s pretrial
suspicions that a fair and impartial jury could not be found
because the victim had so many contacts within the community.
Indeed, as it was eventually composed, the jury was still
populated with jurors who personally knew the victim’s family or
prosecution witnesses, supra n.1. The court of appeals used the
criteria set forth in James to show that, under the facts of this
case, the entire jury pool was so tainted that a fair and
impartial jury could not be assembled. Stubbs, 2004 UT App 3 at
¶¶ 15-19. Thus, we conclude that although the court of appeals
erred in disregarding Widdison, it reached the correct conclusion
that Mr. Stubbs did not receive a fair and impartial jury.
¶19 Finally, we note that by affirming the court of
appeals’s decision in this case, we are not commenting on the
impartiality of juries generally in small towns across Utah. We
have full confidence that juries in small towns are capable of
being impartial. Our decision in this case merely reflects our
belief that we should err on the side of fairness, and that where
there were so many connections between the chosen jurors and the
victim’s family, fairness can better be ensured in a different
venue.
CONCLUSION
¶20 We affirm the court of appeals’s decision in this case,
but on different grounds than set forth in its opinion. We hold
that where a jury has been impaneled, the proper framework for an
analysis of impartiality is the question of whether the jury was
in fact fair and impartial, as stated in State v. Widdison, 2001
UT 60, ¶ 38, 28 P.3d 1278. We also recognize, however, that the
model set forth in State v. James, 767 P.2d 549 (Utah 1989), may
be helpful, and thus may be used in assessing the ultimate
impartiality of the jury. We direct the trial court to grant
Mr. Stubbs’s motion for a change of venue and remand for a new
trial.
---
¶21 Chief Justice Durham and Justice Parrish concur in
Justice Nehring’s opinion.
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DURRANT, Justice, dissenting:

9 No. 20040108
¶22 I respectfully dissent. I agree with the majority’s
conclusion that State v. Widdison, 2001 UT 60, 28 P.3d 1278,
controls this case because, like Widdison, this case is presented
to us as a post-conviction appeal, which enables us to “assess
the composition of the jury as it was actually impaneled to
determine whether [Parley Parker Pratt] Stubbs was ultimately
tried by a fair and impartial jury.” Supra ¶ 16.
¶23 I disagree, however, with the majority’s conclusion
that State v. James, 767 P.2d 549 (Utah 1989), also applies to
this case. The James and Widdison tests are distinct in that
James is predictive. It poses the question of whether a
defendant is likely to obtain a fair and impartial jury.
Widdison, on the other hand, poses the question of whether a
defendant was, in fact, tried by a fair and impartial jury.
¶24 In James, we delineated four factors that an appellate
court should examine to determine whether a trial court has
abused its discretion in denying a motion for a change of venue:
“(1) the standing of the victim and the accused in the community;
(2) the size of the community; (3) the nature and gravity of the
offense; and (4) the nature and extent of publicity.” 767 P.2d
at 552. After setting forth those factors, we expressly
recognized that James was “[u]nlike any of the other cases coming
before this Court where the trial court has denied a motion for a
change of venue,” because it came to us as an interlocutory
appeal, before the case had been tried. Id. at 555. We noted
that this unique procedural posture provided us with the
“opportunity to review the denial before any error committed
would be prejudicial.” Id.
¶25 Unlike James, in Widdison, the question of whether the
district court had abused its discretion in denying a motion for
a change of venue came to us after the case had “already been
tried and decided by a jury.” Widdison, 2001 UT 60 at ¶ 38.
Because the “unique circumstance of the interlocutory appeal,”
id., that existed in James did not exist in Widdison, we
specifically declined to apply the James analysis to post-
conviction appeals. See id. (“On appeal from a jury verdict, we
do not look to the James factors to determine whether the trial
court abused its discretion in denying a change of venue.”).
Instead, we determined that the proper post-conviction test was
“whether [the] defendant was ultimately tried by a fair and
impartial jury.” Id. Applying that test to the facts, we held
that, because the defendant had passed the jury for cause,
thereby acknowledging its impartiality, and because the defendant
was “unable to point to any specific evidence of impartiality or

No. 20040108 10
bias,” the trial court properly exercised its discretion in
denying the change of venue. Id. at ¶ 39.
¶26 I can see no principled basis for departing from our
conclusion in Widdison that the James analysis should be applied
only when a jury decision has not yet been rendered. If the jury
ultimately selected did in fact prove to be fair and impartial,
in my view, the James factors--the standing of the victim and
accused in the community, the size of the community, the nature
and gravity of the offense, and nature and extent of the
publicity--are irrelevant. In other words, regardless of the
nature of the community and the scope of the publicity, if a
particular juror was unaware of that publicity or had no
connection to the defendant or the prosecutorial witnesses or
other connections to the case, those factors would be of no
consequence.
¶27 The majority suggests, however, that those factors may
nevertheless be relevant in assessing the jury that was actually
seated. In my view, the Widdison test is fully up to the task of
determining whether that jury was impartial. It addresses those
situations in which a juror was actually affected or may have
been influenced by some relationship to a trial participant. It
addresses any influence that publicity may have had on a
particular juror. It allows a factual inquiry into any factor
that could have affected fairness or impartiality.
¶28 Moreover, the Widdison test may be applied to assess
the cumulative effect of contacts involving individual jurors
that, standing alone, may not have been problematic. In my
opinion, once a jury has been empaneled, a trial has been held,
and a verdict has been returned, a court need only inquire as to
the influence of publicity or the nature of the community on the
jurors actually seated as opposed to making a broader examination
of the demographics of the community or the extent of the
publicity associated with the case.
¶29 In this case, there were multiple jurors with contacts
to participants in or relatives of participants in the trial
process. These contacts may well have been sufficient to call
into question the jury’s fairness and impartiality. My review of
the record suggests, however, that defense counsel failed to
properly object to these jurors. State v. Johnson, 774 P.2d
1141, 1144-45 (Utah 1989) (requiring timely and specific
objection to properly preserve issue for appellate review); see
State v. Gray, 851 P.2d 1217, 1223 (Utah Ct. App. 1993)
(requiring an objection to be stated “in distinct and specific
terms” to properly preserve for appellate review a “for cause”

1 The only other mention of a biased jury occurred after
jury selection was complete, after the court had admonished the
jury, and after the court had allowed the jury to recess for
lunch. In that instance, defense counsel asked the court to
clarify whether in denying his motion for a change of venue the
court also denied his objection to the panel as a whole on the
basis of implied bias. When the court replied that it had
intended to deny both the motion and the objection, the defense
counsel did not renew his objection.
2 In fact, the district court removed eleven jurors for
cause. During the initial voir dire the trial court, sua sponte,
removed four prospective jurors for cause. In chambers, the
defense counsel made “for cause” challenges to three jurors, whom
the court subsequently dismissed. Then, after the court denied
the motion for a change of venue, during additional voir dire,
the district court removed, sua sponte, four prospective jurors.
11 No. 20040108
challenge to a prospective juror), cert. denied, 860 P.2d 943
(Utah 1993).
¶30 During the course of voir dire, defense counsel made a
“general objection” to the panel before moving for a change of
venue. After the district court denied that motion, defense
counsel raised no additional objections to the jury in the
remainder of the voir dire.1 I find no suggestion in the record
that the judge was unwilling to consider a request to excuse
jurors for cause.2 In each instance where defense counsel
registered an objection as to a specific juror, the juror was
excused for cause. At the conclusion of voir dire, both counsel
passed the jury for cause.
¶31 Defendant has pressed no plain error argument on
appeal. Both because the James test is inapplicable to this case
and because Stubbs has failed to properly preserve the issue of
jury impartiality for appellate review, I would reverse the court
of appeals.
---
¶32 Associate Chief Justice Wilkins concurs in Justice
Durrant’s dissenting opinion.