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State v. House2/24/1999
ine that, because of pretrial publicity, a fair trial is improbable in a particular venue. Cf. State v. Montano, 93 N.M. 436, 437, 601 P.2d 69, 70 (Ct. App. 1979) ("The answers of prospective jurors to questions on voir dire was evidence to be considered in deciding the venue motions."). We therefore disagree with the majority below that the record does not support "the district court's decision to take the drastic step of changing venue without first attempting to select a new jury from Taos County." House Majority, 1998-NMCA-018, 25. We agree with the Dissent's Conclusion that
"the presence or absence of voir dire of a third venire [is not] the only determinative factor in deciding whether there were adequate grounds for a venue change, especially where the trial court had the benefit of a record replete with expert analysis of public opinion surveys, published statements of community sentiment, and voir dire conducted in prior mistrials."
House Dissent, 1998-NMCA-018, 87. When other types of evidence, like those discussed below, support a presumption that pretrial publicity has rendered a fair trial improbable, then the court, in its discretion, can change venue without conducting voir dire. Cf. Rideau v. Louisiana, 373 U.S. 723, 727 (1963) (concluding on appeal "without pausing to examine a particularized transcript of the voir dire examination of the members of the jury" due process required a trial before a jury drawn from an unbiased community).
{55} In New Mexico there is no requirement in our constitution, statutes, or case law that a venue change should be supported by proof of actual prejudice through voir dire, even when the change is opposed by the defendant. As with all aspects of a venue change, the choice of waiting until after voir dire before granting a motion to change venue rests with the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. See State v. Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980) (finding no abuse of discretion in the court's decision to wait until after voir dire before determining if impartial jury could be selected but in no way intimating that such a process would be required).
{56} To summarize, courts will change a venue based upon actual prejudice if they find that the opinions of the community, as reflected by the opinions of prospective jurors in voir dire, are so fixed that, were the trial to be held in that community, the jurors would be unlikely to lay aside their preconceived notions and base their judgment exclusively on the evidence presented at trial. See Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).
C. Presumption of Prejudice in Taos County
{57} The concept that a venue may be changed because of presumed prejudice is based upon the strong due-process principle that our system of law must endeavor "to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136 (1955). As the United States Supreme Court has noted, "Justice must satisfy the appearance of Justice." Offutt v. United States, 348 U.S. 11, 14 (1954). Federal courts have reserved presumed prejudice only for the most extreme situations in which a change of venue is required in order to protect a criminal defendant's constitutional right to a fair trial. See, e.g., Snell, 14 F.3d at 1293. In extreme cases, media coverage can so sensationalize a crime that legal proceedings will be transformed and the objective of a fair trial will be compromised. Cf. Sheppard, 384 U.S. at 356-57. Our own venue statutes do not require so high a standard. As set forth above, under Section 38-3-6, the movant must demonstrate a reasonable probability that a f
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