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State v. House2/24/1999
99-100 (discussing prejudicial effect of radio coverage).
3. Size and nature of the community
{65} The size and nature of a community are factors that can promote or dissipate the probability of prejudice resulting from pretrial publicity. See Mu'Min, 500 U.S. at 429 (suggesting that a much publicized murder trial would not stand out in "the metropolitan Washington statistical area, which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year"). Taos County, according to the 1990 census, had little more than 23,000 residents. Judge Blackmer stated that the residents of this small community were very aware of the two trials in this case: "[The first] trial and the presence of television cameras inside and outside the courtroom, and the presence of news persons from radio and televison and print media were widely known in this small town and in this small- population county . . . ." Venue Order, slip op. at 2 (Finding of Fact 3). Implicit is the court's reasonable assumption that a large community would be less likely to be corrupted by sensational publicity about a trial.
{66} The trial court observed that after the first trial, comments by the attorneys, parties, and family members appeared in the news "adding to the public excitement and opinions and knowledge and information about this case in that small-population city and County." Id. at 3 (Finding of Fact 5). This potential for bias could only have been exacerbated by the public controversy after the second hung jury. Judge Armijo, in her Dissent in the Court of Appeals opinion below, outlined the evidence mentioned by the trial court relating to the impact of the trial on the small population of Taos. House Dissent, 1998-NMCA-018, 104-07. We will not reiterate the evidence she has summarized, but we agree with her Conclusion that " here was sufficient evidence in the record to support the trial court's findings regarding the nature and size of the Taos community." Id. 107.
{67} House claims that the State, with its prejudicial statements to the press, deliberately attempted to spoil the forum. He argues that because "the State brought about the conditions which made necessary the change of venue," its motion for a venue change should have been denied. See Martin v. Beto, 397 F.2d 741, 747-48 (5th Cir. 1968) (evaluating whether state action spoiled venue and denied defendant a fair trial). However, as the publicity cited in the facts of this case demonstrates, the State was no more skillful than the defense in airing its opinions in the media, and if prejudice resulted from such publicity, no evidence exists that one party was more culpable than the other.
{68} We are concerned that, in discussing this issue, the trial Judge inserted his own impressions of the citizens of Taos:
"This Judge has presided over trials and hearing in Taos County and selected Juries there. . . . From this Judge's FINE experiences with Taos county jury selections and juries, the Court notes that Taos area citizens/jurors are close-knit, know and socialize with each other well, exchange news and information and points of view openly and freely, and have a great deal of personal respect and consideration for each other and their opinions and points of view. Thus, they are more likely to share and learn of and know about this case and its facts, and the opinions and points of views of those who served in the two juries in this case."
Venue Order, slip op. at 5 (Finding of Fact 9). In the past, we have expressed disapproval of trial Judges who base a venue decision on their own opinions and impressions. In Alaniz we reversed a
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