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State v. House2/24/1999
); McGuire, 110 N.M. at 311, 795 P.2d at 1003 (relying upon voir dire in concluding that jurors did not have fixed opinions); Patton, 467 U.S. at 1034-35 (determining whether voir dire revealed "fixed opinions"); Harris v. Pulley, 885 F.2d 1354, 1363-64 (9th Cir. 1988) (indicating that actual prejudice is established by the presence of fixed opinions). We do not believe the inquiry into fixed opinions is necessarily so limited.
{74} In this case, the trial court in its Order did not expressly conclude that "fixed opinions" predominate in Taos County. It did, however, discuss a number of events and factors that tended to "reinforce and solidify" the sentiments of the local populace. See Venue Order, slip op. at 4 (Finding of Fact 7). Similarly, the court also surmised that television publicity "likely would cause viewers to form opinions and make decisions about the case before trial-and thus more likely to be biased and prejudiced against one Party or the other." Id. at 10-11 (Finding of Fact 17(A)). The Dissent below outlines a number of factors, including opinion polls, published statements by members of the community, and evidence from the jury selection during the first two trials, that tend to show a significant number of people in Taos had formed opinions about the case. See House Dissent, 1998- NMCA-018, 112-17. But see House Majority, 1998-NMCA-018, 30-31 (disputing value of opinion polls). These types of evidence circumstantially establish the presence of fixed opinions in Taos. {75} A venue change based upon a presumption of prejudice does not require empirical proof of the presence of fixed opinions when, as in this case, there is relentless inflammatory publicity that brings a case to the attention of a substantial percentage of a comparatively small community. If anything, it is unreasonable in this particular case to assume that a great many citizens did not follow the news about the case, discuss it with their neighbors, and form their own opinions. If, as Patton says, the "relevant question" is whether or not there are "fixed opinions," the essential objective of this entire inquiry is to guard against even the probability of an unfair trial. Murchison, 349 U.S. at 136. It is reasonably probable that the frenzied publicity in this case tended to solidify the opinions of so many Taos residents that the fairness of a third trial in that community would be questionable.
D. The Presumption of Prejudice in Taos Is Supported by Substantial Evidence
{76} As the preceding evidence demonstrates, Judge Blackmer found many indicia of prejudice in Taos County. We hold that the trial court did not abuse its discretion in ordering a change of venue from Taos County. There is substantial evidence in the record to support the court's Conclusions: Widespread inflammatory publicity saturated Taos County close to the time of the trials; the television, newspaper, and radio publicity was highly emotional; the comments by the parties, relatives, and the attorneys in this case further affected public sentiment; the risk of prejudice was increased by the comparatively small population of Taos; jurors in the second trial did not disclose bias during voir dire; and there was a strong likelihood that many potential jurors would enter the third trial with strong predilections toward one party or the other.
{77} We emphasize that these factors establish a strong presumption of prejudice and that there is no requirement that the venue change be based upon empirical proof of actual prejudice.
"Applications for change of venue under our law are predicated on a well-grounded "fear" that [the defendant] is unlikely to obtain a fair trial and an imparti
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