State v. House2/24/1999
ty of unfairness." Murchison, 349 U.S. at 136. The very possibility of undisclosed actual juror prejudice during the second trial is one of the strongest arguments supporting a change of venue away from Taos County for the third trial. Cf. State v. Shawan, 77 N.M. 354, 358, 423 P.2d 39, 43 (1967) ("To expect a juror to confess prejudice is not always a reliable practice.").
5. Statements by politicians
{71} As analyzed by the Court of Appeals opinion below, the trial court based its determination in part upon the inflammatory comments about the trial made by local Taos politicians. A letter, purportedly by a former State Senator from Taos, was published in the Taos News, about two weeks after the first hung jury, harshly criticizing the prosecution and the media as racist in their treatment of House. Venue Order, slip op. at 3-4 (Finding of Fact 7) (discussing Letter from Francisco El Comanche Gonzales, Racist remarks, in Favor y Contra, Taos News, July 7, 1994, at A4 ("Since the Christmas of 1992, the media, [prosecutor] Robert Schwartz and other bigots seem to have enjoyed what I contend to be a field day with the Gordon House DWI case.")). After the second trial, the incumbent State Senator from Taos was quoted in the Albuquerque Journal accusing the prosecutor of seeking to "`try the case 10, 15 times until he gets what he wants.'" Id. at 4-5 (Finding of Fact 8) (quoting Colleen Heild, Senators Grill DA on Gordon House Case, Albuquerque J., Feb. 25, 1995, at A10.). Judge Blackmer concluded that " uch public comments by well-known Taos area citizens ([who were] presumptively aware of-or speaking on behalf of-the Taos county constituency and their attitudes and feelings) are further circumstantial indication that at least one party probably would not receive a fair trial if a third trial were to occur in Taos County." Id. at 4-5 (Finding of Fact 8).
{72} The first of these newspaper articles was published approximately seven months prior to the second trial and likely was not widely remembered in Taos by the time of the third trial. See Murphy, 421 U.S. at 802 (last significant publicity was seven months before jury selection). Moreover, it is impossible that the second of these newspaper articles affected Taos residents on February 7, 1995, when Judge Blackmer granted the motion to change venue, because the article was published eighteen days later on February 25. We agree with the majority below that any prejudicial effect from these articles was negligible. See House Majority, 1998-NMCA-018, 38. ("To the extent that both local leaders were critical of the prosecution, there was no showing in the record that their beliefs were widespread within the Taos community.").
6. Fixed opinions
{73} In addressing the prejudicial effect of pretrial publicity, this Court, in the past, has adopted the pronouncement in Patton v. Yount, 467 U.S. at 1035, that " he relevant question is not whether the community remembered the case, but whether the jurors . . . had such fixed opinions that they could not Judge impartially the guilt of the defendant." See, e.g., Chamberlain, 112 N.M. at 726, 819 P.2d at 676; State v. McGuire, 110 N.M. 304, 311, 795 P.2d 996, 1003 (1990). House insists that it is impossible for a court, without questioning prospective jurors in voir dire, to obtain direct evidence that any members of a community have formed inflexible opinions about a particular case. He argues that the question of fixed opinions has been limited exclusively to determinations of actual prejudice. See, e.g., Chamberlain, 112 N.M. at 726, 819 P.2d at 676 (concluding that no more than voir dire was required to determine whether jurors had fixed opinions
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