 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. House2/24/1999
nder this inquiry, a change of venue should be granted if evidence shows that the community is so saturated with inflammatory publicity about the crime that it must be presumed that the trial proceedings are tainted. United States v. Dischner, 974 F.2d 1502, 1523 (9th Cir. 1992), overruled implicitly on other grounds by United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.1997). However, the same standard of review applies to the trial court's decision-a determination based upon substantial evidence in the record-whether a venue change is based upon presumed or actual prejudice. But see Snell v. Lockhart, 14 F.3d 1289, 1294 (8th Cir. 1994) ("A higher standard must be met when a petitioner seeks habeas relief on the basis of presumed prejudice."). Thus, actual prejudice is based upon direct evidence of bias in the minds of individual prospective jurors, while presumed prejudice makes inferences about the effect of publicity on the community as a whole.
{47} There was some skepticism in the Court of Appeals opinion below as to the applicability of the distinction between actual and presumed prejudice. House Majority, 1998-NMCA-018, 17; House Dissent, 1998- NMCA-018, 78-80. Nevertheless, though it depreciated this distinction, the majority below implicitly invoked an actual-prejudice standard by stating that there should have been an attempt to seat a jury in Taos before granting a venue change. House Majority, 1998-NMCA- 018, 42 (stating "we believe it is vitally important that the district court make an attempt to select a new jury from Taos County before ordering a change of venue"). But see id. 18 (stating "this Court must determine whether the pretrial publicity in this case raised a presumption of prejudice" (emphasis added)). Conversely, the trial court concluded that the likelihood of prejudice in Taos County was so overwhelming that the probability of unfairness could be established without voir dire. As Judge Blackmer stated, the findings showed "a strong probability that if a THIRD trial of this case were to be held in Taos County, a fair trial (and a fair and impartial jury) cannot be obtained." Venue Order, slip op. at 6-7 (Finding of Fact 11) (emphasis added). House claims that the trial court abused its discretion by applying a presumed-prejudice standard when it should have, as indicated by the majority below, applied an actual-prejudice standard and held voir dire in Taos.
{48} Regarding the nature of the trial court's discretion under Section 38-3-6, we conclude that the parameters that apply to a first change of venue should also apply to a second. Thus the trial court, in following Section 38-3-6, should rely upon the indicia found in Section 38-3- 3(A)(2): "undue influence" by the adverse party "over the minds of the inhabitants of the county," "public excitement," "local prejudice," and "any other cause" showing that a fair trial cannot be obtained "in the county in which the case is pending." As indicated above, the trial court should apply a reasonable-probability standard of proof when balancing conflicting claims regarding the likelihood of a fair trial in a particular venue.
{49} We emphasize that our holding in this case is founded on the requirement set forth in Section 38-3-6. In other words, the venue issue before us turns on whether the trial court abused its discretion in ordering a second venue change to Doña Ana County. However, we do not believe that, by itself, a finding of a reasonable probability of unfairness in Taos brings us any closer to a resolution of the claims of the parties, the rationale of the trial court's Order Changing Venue For Trial, and the conflicting arguments of the majority and Dissent in the opi
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|