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State v. House2/24/1999
true."
In re Sedillo, 84 N.M. 10, 12, 498 P.2d 1353, 1355 (1972) (citation omitted, quoting In re Palmer, 72 N.M. 305, 308, 383 P.2d 264, 267 (1963)).
{44} Though House argues otherwise, these principles do not apply to this case. As we discuss in detail below, Bernalillo County is the constitutional vicinage in this case. With his motion to change venue before the first trial, House waived his constitutional right to be tried in that venue. See State v. Nichols, 877 S.W.2d 722, 728 (Tenn. 1994) (We conclude that the change of venue motion constitutes a waiver of [the defendant's constitutional vicinage] rights."). There is no constitutional basis for House to demand a trial in Taos County. See State v. Bangert, 389 N.W.2d 12, 35 (Wis. 1986) (stating that "the defendant waived [his constitutional vicinage] right when he requested a change of venue"). Section 38-3-6 provides that a second change of venue, whether requested by the defendant or the State, shall be in the trial court's discretion. This statute makes no requirement that the State meet a heavier burden of proof than a criminal defendant. Thus, before the third trial, the State needed to provide evidence demonstrating a reasonable probability that it could not obtain a fair and impartial trial in Taos County.
IV. PROBABILITY OF FAIR TRIAL IN TAOS COUNTY
A. Presumed Prejudice, Actual Prejudice, and the Reasonable Probability of Prejudice
{45} House argues that the trial court abused its discretion because it did not have sufficient evidence to support its decision to move the trial from Taos County. The applicable statute, Section 38-3-6, states that " second change of venue shall not be allowed in any civil or criminal case, as a matter of right, but shall be within the discretion of the court." This statute controls our evaluation of the move to Doña Ana County. However, the exact nature of the trial court's discretion has not, with the exception of the Court of Appeals majority opinion below, been construed by our appellate courts. The majority below, in discussing this statute, noted that "the court's discretion should be guided by its obligation to ensure that the parties receive a fair trial from an unbiased, impartial jury" and, more dubiously, posited "that the fact that venue has already been changed once can weigh against a second change of venue." House Majority, 1998-NMCA-018, 7. It is true that in State v. Alaniz, we stated that the trial court need only determine whether there is "a reasonable apprehension" that the party seeking a new venue "will not secure a fair and impartial trial." Alaniz, 55 N.M. at 318-19, 232 P.2d at 986. However, these words were not directed at the statute at issue in this case. They refer to Section 38-3-3, which deals only with a first-and not a second-change of venue. As the assessment of Section 38-3-6 in the majority opinion below indicates, there is some dispute as to whether the standards that apply to a first change of venue should also apply to a second.
{46} House seizes upon this ambiguity by raising the distinction between actual prejudice and presumed prejudice. These are concepts applied by federal courts. Actual prejudice requires a direct investigation into the attitudes of potential jurors. Under this inquiry, the court will conduct a voir dire of prospective jurors to establish whether there is such widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible. United States v. Bakker, 925 F.2d 728, 732 (4th Cir. 1991). Presumed prejudice, on the other hand, addresses the effect of publicity about a crime upon the entire community where the trial takes place. U
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