People v. Beames
Filed 3/22/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
) Tulare County
John Michael Beames, ) Super. Ct. No. 35201
__________________________________ )
Defendant John Michael Beames was charged with one count of first degree murder (Pen. Code, 187, subd. (a)),[1]one count of torture ( 206), and one count of possession of a firearm by a felon ( 12021, subd. (a)). He entered a plea of guilty on the firearm possession count. He also admitted allegations in the murder and the torture counts that he had been previously convicted of at least two felonies in California ( 1203, subd. (e)(4)) and previously convicted of a serious felony offense ( 667, subd. (a)). Thereafter, a jury found defendant guilty on the first degree murder count, and found true the special circumstance allegation that the murder was intentional and involved the infliction of torture ( 190.2, subd. (a)(18)). The jury also found defendant guilty on the torture count, and found true the allegation in this count that he personally inflicted great bodily injury. ( 12022.7.) At the penalty phase of trial, the jury returned a verdict of death. Appeal to this court is automatic. ( 1239, subd. (b).)
We find no prejudicial error at the guilt or penalty phase of defendants trial. Accordingly, we affirm the judgment in its entirety.
I. Facts
A. The Guilt Phase
Defendant lived with Angelita McMains and McMainss 15-month-old daughter, Cassie, and her infant son, Darrian. On January 19, 1994, Cassie bled to death due to a transection of her liver; that is, her liver had been hit so hard it was split nearly in two. The evidence at trial included medical testimony concerning the numerous physical injuries Cassie suffered in the weeks, days, hours, and minutes leading up to her death, and testimony from Cassies natural father, defendants siblings, McMainss father, and defendant himself.
1. The Prosecution Case
Cassie was born on October 3, 1992 to McMains and Ricky Hager. Hager and McMains broke up a few months after Cassies birth, and Hager did not live with them. In April 1993, defendant moved into McMainss rented home.
On or about June 14, 1993, Cassie suffered a broken leg. The location of the break and the degree of separation of the bones were unusual, indicating that a great deal of force created the fracture. When Dr. Joseph Gerardi examined Cassie on June 15, he noticed bruising around her injured leg bone, a large bruise under her chin, and multiple bruises on her upper arms. McMains asked a friend, Cindy Clem, to say that Cassie had been injured at Clems house. McMains said she did not want defendant implicated in Cassies injury, because he had taken the blame for a prior incident in which a child had been injured.
When interviewed about Cassies leg injury by an emergency response investigator from child protective services, defendant claimed he had been out of the vicinity when the injury occurred and had returned on June 15, 1993. Based on the suspicious nature of the injury, the sheriffs office removed Cassie from McMainss home on August 2, 1993. For the next four months, Cassie lived with McMainss parents and suffered no injuries.
On December 7, 1993, Cassie was released back to the home where McMains and defendant lived. Sometime after December 25, 1993, Hagers niece, Crystal Williams, noticed Cassie had a burn on her finger. In early January 1994, Hager saw Cassie with two real bad black eyes. In explaining the black eyes, defendant told Hager that Cassie had fallen into a coffee table, but separately told Williams that Cassie had fallen from her crib or something. Also in January 1994, defendants brother, John Phillip Beames, saw defendant squirt Cassie with liquid from a baby bottle and shake her roughly when she cried. Additionally, defendants sister, Tammy Beames (Tammy),[2]observed over a period of a few days that Cassie appeared to be afraid of defendant.
From January 10 to January 14, 1994, McMainss infant son, Darrian, was hospitalized for a cough, difficulty in breathing, and a lack of weight gain. During this time, McMains stayed 24 hours a day with Darrian at the hospital.
On January 19, 1994, at about 9 or 10 a.m., Hager and Williams went to visit McMains and defendant at their house. Hager gave McMains some methamphetamine to take to defendant, who was in a back room of the house. Defendant stayed in the back room, and he yelled at McMains to get Hager and Williams out of the house. Hager asked where Cassie was, and McMains replied she was with defendant. Hager left the house without seeing Cassie.
Sometime before 1 p.m. on January 19, 1994, Royce Hunneman, a neighbor, heard McMains and defendant arguing.
At around 1 or 1:30 p.m. that same day, McMains called defendants sister, Tammy, and told her something was wrong. The two met on the road in their cars, and Tammy followed McMains back to McMainss home. When they got there, a county car was parked in front. McMains did not stop her car, and Tammy followed McMains past the home.
When McMains and Tammy returned to the house a little while later, defendant told Tammy that Cassie was dead. Defendant explained Cassie had gotten sick in her bed at around 4:00 oclock that morning. He sat Cassie down on the floor while he went to the bathroom to get clean sheets. When he came back, Cassie had fallen over and was lying in a pool of blood. Defendant said he had performed CPR on Cassie for five hours, but she was dead. When Tammy asked about taking Cassie to the hospital, defendant said to give him a little bit of time. Similarly, when Tammy asked about contacting law enforcement, both defendant and McMains said, No, give us a little bit of time.
Defendant told Tammy to take McMains and Darrian away and to go some place where he could call them later. He said he would describe everything that had happened on a tape recording, which Tammy and McMains could later give to the police. Defendant refused to give Tammy a gun he had, saying he wasnt going to go alive.
Tammy and McMains went back to the house later that night, at a time when defendant was gone. McMains retrieved a tape recorder from the house, and she and Tammy listened to the recording. After McMains tried to erase a portion of the tape that involved a drug deal, they took the tape recorder to the hospital. There they gave the recorder to Deputy Sheriff Michael Strawser.
The tape recording included the following statements by defendant: Angel, I love you very much. Please just try to believe me it was the truth, it was an accident. . . . I know this is going to kill you, baby. You know I love this little baby better than anything in the world.[3] Deputy Sheriff Strawser listened to the tape, then went with McMains to her house. Once inside, Strawser saw what appeared to be blood in the bathroom and in the babys crib.
Early the next morning, on January 20, 1994, Sergeant John Zapalac of the Tulare County Sheriffs Office went to look for defendant at the residence of David Joiner. When Zapalac arrived at the Joiner residence, defendant said he knew Zapalac needed to speak with him because of Cassie. When Zapalac asked where Cassie was, defendant said she was inside the car and handed Zapalac the car keys. Zapalac found Cassies body inside of a jacket in the back of the car. Later, at the Sheriffs Department, defendant spontaneously stated, I was the only one with her. Im responsible. Put me in jail. Put a .45 to my head.
Dr. Armond Dollinger performed an autopsy on Cassies body. He found nothing in Cassies stomach, indicating she had not been fed for 24 hours before her death. Dr. Dollinger determined the cause of death was massive hemorrhaging due to a transected liver, and opined that Cassies back was against a hard surface when she sustained that injury. Other physical injuries Cassie sustained within minutes or at most 24 hours of death included multiple bruises on the face and abrasions on the back, fractures of the ribs, abrasions to the neck and shoulder on the left side, and a bruise and abrasion on the right side of the neck. It was Dr. Thomas Bennetts opinion, based on the character of the neck abrasions, that Cassie had been hung by the neck with a soft ligature for a period of time.
Dr. Dollinger observed numerous other physical injuries, some of which were days or weeks old, including dilation of the anal canal and scarring of the surrounding muscle, five broken ribs on the front right side, four broken ribs on the back left side, a bruise on the right front of the scalp, a large laceration of the top left side of the head, lacerations on the inside lower lip, contusions and abrasions around the nose and mouth, contusions, abrasions, and scratches on the back of the head, contusions, bruises, and abrasions on the back, and bruising on the tip of the tongue, the right thumb, and on the back of the knee.
Dr. Dollinger also saw various sets of burns to Cassies body. There were burns to the buttocks in a crosshatched linear grid pattern, apparently caused by a floor furnace and occurring when Cassie wore no clothing and her legs were forced wide apart. There also were burns in a grid-like pattern on the back of the right hand, third degree burns on the index and ring finger of the right hand, and burns on the back and ring finger of the left hand. Finally, burns were on the feet and third degree burns were on two of the toes.
2. The Defense Case
The defense contended Cassie suffered from osteogenesis imperfecta, a brittle bone disease that caused her to fracture with less trauma than an individual with normal bones. According to the defense, although abuse had occurred in the home, all of Cassies burns and her fatal liver injury were accidental. The defense also showed that McMains hated and neglected Cassie, while defendant took care of Cassie and fed, changed, and clothed her.
Defendant testified in his own defense. He acknowledged convictions for armed robbery in 1973, receiving stolen property in 1975, and commercial burglary in 1983. He also admitted he used and sold methamphetamine while he was living with McMains, and claimed his and McMainss use of the substance affected their ability to be patient with others.
Defendant testified he was present in the home when Cassie sustained burns from the heating grate on the floor. McMains was not at home, and defendant was in bed when he heard Cassie screaming. She apparently had fallen on the hot grate and was flopping around. Defendant grabbed Cassie by the shirt and pulled her off the grate as fast as he could. By then, McMains had returned home, and defendant expressed his upset at her for leaving the baby like that. He placed Cassie in some cool water in the bathtub, and told McMains to go buy some cream and salve for the burns. Defendant claimed this was the only time Cassie got burned by the grate.
Defendant also was present when Cassie died on January 19, 2004. At approximately 4:00 oclock that morning, defendant heard Cassie crying. She had vomited in her crib, and defendant needed to remove the soiled sheets. He placed Cassie on the floor next to a little cart, so she could hold onto the cart while he changed the sheets. Defendant then went to get a wash rag and some clean sheets and clothes for her. While in the bathroom, he heard the words, Oh, fuck. Oh, fuck, and some clanging noise. Defendant rushed back to Cassies room, where he saw McMains and a pool of blood all around Cassie. The cart, which had been laden with tools and propped up with a little pressure washer to keep it upright, had fallen on top of Cassie. Defendant started administering CPR, and McMains went to get a stethoscope. He listened for a heartbeat, but did not hear one.
During the days leading up to Cassies death, defendant had been using drugs and staying up. He had been up for several days and was not thinking rationally after Cassie died. Although he knew somebody would be in trouble for the death, he did not call the police or an ambulance because there was no telephone in the residence. Defendant left a tape recording because he felt responsible for Cassies death, having initially sat Cassie on the floor. He also did not want McMains, who he thought was pregnant again, or Darrian, to get into trouble. Defendant claimed he told his sister, Tammy, on the day Cassie died, that a cart of tools had fallen on Cassie. After the incident, defendant told David Joiner he was going to hell for what had happened.
Defendant denied torturing Cassie or breaking her leg. He claimed she fell on the heating grate only once, and he did not recall her having two black eyes prior to her death.
In 1983, defendant pled no contest to a charge of breaking Ricardo McVeys leg, even though he was not absolutely sure he broke it. He admitted, however, that he slapped McVey up against a garage door.
B. The Penalty Phase
1. The Prosecution Case
The prosecution relied on the circumstances of the instant crime and evidence of defendants prior felony convictions. The prosecution also introduced the following evidence of prior violent criminal activity.
On March 25, 1973, defendant robbed the clerk of a Sacramento convenience store at gunpoint.
In 1974, defendant was married to Catherine Scrima. They were married for approximately three years and had a daughter. Defendant was verbally and physically abusive to Scrima. On their wedding anniversary, he had a fit about going to Scrimas company party and placed his hands on Scrimas throat and choked her. On a separate occasion, on Christmas day, Scrima was wearing defendants boots and refused defendants command to take them off. He hit her in the face twice, causing a fat lip and a black eye. Although defendant threatened he could have Scrima eliminated for $10 if she ever left him and Scrima took this threat seriously, she left defendant after the Christmas incident. Scrima remains afraid of defendant.
Ronald Gadberry was defendants best friend. Gadberrys parents last saw him alive on October 30, 1984. At that time, Gadberry said he was going to defendants place of business to collect some money that defendant owed him. Defendant owed Gadberry $1,000. In early December 1984, Gadberrys father went looking for Gadberry at defendants shop. There he saw Gadberrys car parked in front, but defendant claimed he had not seen Gadberry in months. In January 1985, law enforcement officers found Gadberrys body inside the trunk of his car, which was parked in Rodeo, California. He had been shot in the back of the head, and the bullet had lodged in his brain. Defendant told an investigator during a January 1985 interview that he hadnt seen Gadberry for approximately five or six months. Two witnesses, however, testified that defendant implicated himself in the killing, and two others testified that defendant claimed he used a firearm to shoot a person in self-defense. One latent print lifted from the inside passenger window of Gadberrys car was identified as having been made by defendants left middle finger, but the age of the print could not be determined.
On one occasion, defendant appeared uninvited at the home of Kristi McVey, the mother of his son. Although McVey and Cheryll Cuslidge pushed a couch up against the front door to block defendants entrance, he got into the residence through a window. Once inside, he held a knife and pointed it at McVey. Cuslidge did not see the knife, but she did see defendant grab McVey around the neck. The telephone lines had been cut, so Cuslidge had to leave the house to call the police. Defendant had been using methamphetamine around this time period.
During 1982 or 1983, Douglas Shupe stored his paving equipment in defendants yard, and in exchange paid part of the yard costs. Shupe became concerned that defendant took in a lot of vehicles containing large quantities of methamphetamine, and Shupe attempted to terminate their relationship when defendant told him he was doing it for the Hells Angels. When Shupe later tried to get his paving equipment back, defendant held a loaded gun to Shupes forehead and told him, You arent taking anything out of here, youre going to leave it here, youre going to go and I dont want to see you no more. Shupe left and called the sheriffs department. Shupe subsequently recovered his property from defendant when the police were at the yard.
Cassies grandfather (McMainss father) testified that Cassies death tore their family apart, and that his wife took the death very hard. Cassies half brother and half sister felt bad because they never took the opportunity to see Cassie while she was alive.
2. The Defense Case
The defense called a number of witnesses, including defendants friends, siblings and other relatives, and one former spouse (Connie Bergstrom), who testified that defendant was very kind and playful toward children, that he was protective of children and interacted well with them, and that he was very generous toward others. These witnesses claimed that they never saw defendant abuse or hurt his two older daughters or any other any child, and that they did not believe defendant could have murdered Cassie. They also testified that if defendant were to be executed, it would affect the families of his siblings immensely and devastate them.
II. Discussion
A. Pretrial and Juror Selection Issues
1. Denial of Continuance
Defendant and McMains were initially charged as codefendants. In December 1994, the matter was set for a jury trial to begin on April 3, 1995. Thereafter, the trial court granted severance of defendants trial, and subsequently continued his trial to July 24, 1995. McMainss trial proceeded first, but did not conclude by July 24. Consequently, defendants trial was put over one week until July 31. The jury rendered a guilty verdict in McMainss trial on July 28, 1995, three days before defendants trial was scheduled to commence.
Meanwhile, on July 27, 1995, defendant filed a motion to continue his trial for seven weeks to September 18, 1995. Defendant sought the continuance so he could conduct a public opinion survey to assess the impact of the medias recent coverage of McMainss trial. In support of the motion, defense counsel filed a declaration stating that he had contacted an expert to conduct and complete a survey by September 5, that he expected the survey to show defendant could not receive a fair trial in Tulare County given the recent publicity, and that he would file a motion to change venue to be heard by the September 5 date.[4] The prosecution filed opposition on the grounds that nine previous continuances in the case had already caused undue delay, that defendant failed to demonstrate good cause for another continuance, and that a continuance would work a hardship to the People with regard to forty potential witnesses subpoenaed for the trial, some of whom were out of state. On July 31, 1995, the date set for trial, the trial court held a hearing on the motion to continue, at which time defendant challenged the prosecutions contentions regarding undue delay and lack of good cause. Defendant, however, made no reference to the Peoples claimed hardship regarding subpoenaed witnesses. After hearing arguments from both sides, the trial court denied defendants motion, explaining it could best evaluate defendants ability to get a fair trial in the county through the juror voir dire process. The court, however, expressed an open mind on the matter, stating it certainly would agree that if we cannot find twelve jurors to sit here neutrally and listen to the case, then counsels motion may be well taken. The court reiterated this point in making its ruling: If we begin picking a jury [and] it turns out we cannot get twelve people that can be fair in this case, then, obviously, well have to back up and reconsider whats going on. Short of that, Im going to deny the motion at this time . . . . Later that same day, defendants trial commenced.
On appeal, defendant contends the trial court abused its discretion in refusing to grant a 35-day (five-week) continuance.[5] Although a survey is not required in order to make or support a motion to change venue (see ante, fn. 4), defendant claims he needed a survey to demonstrate that the media coverage of the pretrial proceedings and McMainss just-concluded separate trial had tainted the jury pool. He asserts his continuance motion was diligently made, supported by good cause, and necessary to establish grounds for a venue change, but the trial court denied the motion based solely on its desire to try defendant immediately after McMains. That ruling, he argues, deprived him of his federal constitutional rights to present witnesses, a fair trial, due process of law, an impartial jury, effective assistance of counsel, and a reliable penalty determination.
As defendant acknowledges, the decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. (People v. Beeler (1995) 9 Cal.4th 953, 1003; People v. Howard (1992) 1 Cal.4th 1132, 1171.) The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. (People v. Beeler, supra, 9 Cal.4th at p. 1003.)
Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. (See People v. Jones (1998) 17 Cal.4th 279, 318; People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) Moreover, the denial of a continuance may be so arbitrary as to deny due process. (See People v. Frye (1998) 18 Cal.4th 894, 1013.) However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) Although a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. (Id. at pp. 589-590.) Instead, [t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Id. at p. 590; People v. Howard, supra, 1 Cal.4th at p. 1172 [quoting same].)
Even assuming, for purposes of argument, that defendant was diligent in bringing his motion given the recent publicity in McMainss case,[6]we find ample support in the record for the trial courts decision to deny the requested continuance and to proceed with voir dire as a means for evaluating whether defendant could obtain a fair trial in Tulare County. Defendants trial had been scheduled to begin that very day, and the prosecution had already issued subpoenas to its 40 potential witnesses. At the hearing, defendant did not refute the prosecutors claim that the requested delay would cause hardship with regard to these witnesses, some of whom were out of state.[7]
By that time, moreover, the trial court and the parties had already developed a juror questionnaire that took into account the recent completion of McMainss trial and posed questions relating to the pretrial publicity of the case. As the court pointed out, the questionnaire would ask potential jurors whether they had heard of and/or formed any opinions about the case, and then they could be questioned regarding their responses. The court essentially reasoned that, once it engaged in or completed the voir dire process, it would be in a better position to determine whether defendant could receive a fair trial because it would know the extent to which the selected jury had actually heard of defendants case and the prejudicial impact of the pretrial publicity regarding defendant and his alleged crimes. (Accord, Odle v. Superior Court (1982) 32 Cal.3d 932, 943-944.) Under the circumstances presented, we cannot say the trial courts refusal to continue the trial for seven (or five) weeks constituted a judicial abuse of discretion or denied defendant due process.[8]
In reaching this conclusion, we do not suggest that trial courts may deny motions to change venue solely on the theory that jury voir dire is a better method of assessing the need to change venue. As defendant points out, all defendants have the right to seek a change of venue under section 1033, and we do not hold the mere availability of jury voir dire is sufficient to deprive a defendant of that right. (Cf. Groppi v. Wisconsin (1971) 400 U.S. 505, 511 [finding unconstitutional a state law that categorically prevented a change of venue for misdemeanor jury trials, regardless of the extent of local prejudice against the defendant charged].) Here, however, defendant did not actually move for a change of venue; rather, he moved for a seven-week continuance on the eve of trial in order to explore the need for a venue change. The record does not establish a violation of defendants rights under section 1033.
In any event, we observe defendant did not exhaust his peremptory challenges and did not object to the jurys final composition. Under settled case law, such omissions are deemed to signify a recognition that the jury as selected was fair and impartial, and are decisive in rejecting claims alleging improper denial of a motion to change venue. (People v. Daniels (1991) 52 Cal.3d 815, 854.) It therefore follows that when a defendant unsuccessfully moves for a continuance in order to investigate and prepare for a motion to change venue, his subsequent failure to exhaust peremptory challenges and failure to object to the jurys final composition signify a similar recognition regarding the jury as impaneled and likewise support rejection of the claims alleging wrongful denial of the continuance and related constitutional violations. (Cf. People v. Parker (1965) 235 Cal.App.2d 100, 106 (Parker).)
The facts before us are substantially similar to those in Parker, supra, 235 Cal.App.2d 100, in which the defendant, at the opening of his trial for embezzlement, requested a continuance of the trial on the ground that adverse publicity appeared prominently in the newspapers, television, and radio regarding the fact of his conviction of theft by false pretenses in a separate trial that concluded just the day before. (Id. at pp. 102-103.) In Parker, the trial court noted that both sides were ready to proceed on the trial date originally set, that the defendant had received newspaper publicity preceding and throughout the first trial, that the publicitys effect upon the forthcoming trial could be investigated by means of the voir dire examination of prospective jurors, and that the motion for a continuance would be denied at this time. (Id. at p. 103.) After the voir dire examination had concluded, defense counsel left half of his peremptory challenges unexercised, and notwithstanding the trial courts denial of the continuation request at this time, counsel did not renew his motion or object to continuing with the trial. (Id. at pp. 105-106.) In light of these circumstances, the appellate court found there was no abuse of discretion in the rejection of the continuance request and no denial of a fair trial. (Id. at p. 106.)
We note Parker contrasted the offenses charged there, which were economic in nature and not particularly juicy, with other types of offenses that, for example, involve lurid violence or rampant sexuality and thereby attract vastly more attention and tend to excite more public hostility. (Parker, supra, 235 Cal.App.2d at p. 105.) Here, however, even assuming the first degree murder and torture charges against defendant fall within this latter category of offenses, we find Parkers reasoningwhich upheld the denial of the continuance request after taking into account the timing of the two trials, the trial courts willingness to explore the matter of pretrial publicity during the voir dire process and to leave the door open for a renewed motion, and the defendants failure to exhaust his peremptory challenges or to voice objection to continuing with the trial after the voir direfully supports our conclusion that a similar result is warranted here.
Relying principally on Sheppard v. Maxwell (1966) 384 U.S. 333 (Sheppard), and Williams v. Superior Court (1983) 34 Cal.3d 584 (Williams), defendant makes the related contention that the trial court violated its duty to take all reasonable measures to ensure a fair and impartial jury when it initially scheduled his trial to immediately follow McMainss trial and then failed to continue the trial on its own motion. The violation of this duty, he claims, impaired his federal constitutional rights to a fair trial, an impartial jury, and a reliable penalty determination.
TO BE CONTINUED AS PART II..
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Because a number of the witnesses share the Beames surname, we refer to defendants sister as Tammy.
[3] Defendant sometimes referred to Angelita McMains as Angel.
[4] Pursuant to section 1033, a defendants motion to change venue shall be granted when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county. ( 1033, subd. (a).) The factors relevant to making this determination are: (1) the nature and gravity of the offense; (2) the nature and extent of the media coverage; (3) the size of the community; (4) the community status of the defendant; and (5) the prominence of the victim. (People v. Ramirez (2006) 39 Cal.4th 398, 434.)
[5] Defendant apparently calculates this time period as beginning on July 31 (the scheduled trial date) and ending on September 5 (the date when he asserted his survey would be complete and his motion to continue could be heard). As indicated, however, defendants written motion specifically sought to have the trial continued to September 18.
[6] Defendant argued in the proceedings below that it would not have been possible to file his motion sooner than July 27, 1995 because the publicity complained of did not occur until the few days preceding that date. Conversely, the People point out that all parties were aware in March 1995 that defendants trial would immediately follow McMainss trial; indeed, defendant acknowledges in his opening brief that it was readily predictable at the time appellants trial was set that the McMains trial would generate publicity that was specifically and pervasively prejudicial to appellant. Again, we observe a public opinion survey was not required to establish the factors supporting a change of venue. (See ante, fn. 4.)
[7] Defendant asserts the trial court did not refuse the requested continuance because of the potential prejudice to the prosecution. The record does not establish this; it merely reflects the court did not specifically refer to the prosecutions claim of hardship in denying the motion.
[8] Nor can we conclude the trial court improperly refused to allow the defense to obtain and present expert witness testimony relating to pretrial publicity, as defendant contends. The trial court stated that, in light of the anticipated jury voir dire, it did not think it need[ed] a survey conducted by some non-lawyers who are conducting a telephone book type of survey to people at large. As the record discloses, however, the court did not purport to foreclose the defense from having an expert conduct a survey in tandem with the voir dire process or from later offering expert testimony on the topic.
