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State v. House2/24/1999
al jury, in the county where the claimed crime occurred. We do not understand the statute to mean that it must be conclusively shown that it is impossible to have a fair trial in the county where the venue is laid, but it is sufficient to show a reasonable apprehension that the defendant will not secure a fair and impartial trial or that the jury are under an influence inimical to the accused."
Alaniz, 55 N.M. at 318-19, 232 P.2d at 986 (citation omitted). Moreover, as the trial court was at pains to note, most of these indicia were not, by themselves, sufficient to warrant a presumption of prejudice. See, e.g., Venue Order, slip op. at 3 (Finding of Fact 6) (An admission, by defense counsel, that publicity had permeated Taos "is only one minor factor this Court should consider along with all other facts and circumstances on the Motion for Change of Venue."). We need not determine whether any of the individual factors considered by the trial court would justify a change of venue under Section 38-3-6. We conclude that these factors in aggregate constitute substantial evidence to support a reasonable probability that public excitement and local prejudice would prevent a fair and impartial third trial in Taos County.
E. Taos Is Not The Constitutional Vicinage
{78} In addition to disputing the presumption of prejudice in Taos, House intimates that, because the State raised no objection to the move to Taos, that county is the constitutional vicinage in this case. He suggests that he had an actual right to keep the third trial in Taos. In a similar vein-though it mischaracterizes the posture of the move as a mutual stipulation rather than an unopposed motion-the majority below states that, " ince both Defendant and the State stipulated to the first change of venue to Taos County, we believe both sides committed themselves to resolving this matter in Taos County unless a fair and impartial jury could not be impaneled from Taos County." House Majority, 1998-NMCA-018, 24. Neither of these perspectives comports with our constitution nor statutes.
{79} As we noted above, under our constitution, the first choice of venue-the constitutional vicinage-must include "an impartial jury" that is from "the county or district in which the offense is alleged to have been committed." N.M. Const. art. II, § 14. In this case the vicinage was Bernalillo County where the accident took place. The defendant has a right to be tried in the vicinage, and convictions can be reversed when defendants have been denied this right. See, e.g., State v. Ramirez, 92 N.M. 206, 209, 585 P.2d 651, 654 (Ct. App. 1978) (reversing convictions in which defendant was denied "right to be tried in the county where the crime was committed"). If an impartial jury cannot be obtained, the venue will be changed as required by Section 38-3-3(A). The new venue cannot be considered the constitutional vicinage, even if it is the first and only place in which the defendant is tried. This is because the new venue lacks one of the essential qualities of the vicinage: it is not the locale in which the crime was allegedly committed. In other words, upon moving for a venue change, a defendant waives his or her constitutional right to be tried in the county in which the crime was committed. See, e.g., Alexander v. Gladden, 288 P.2d 219, 226 (Or. 1955). Should a motion for yet another venue change be filed, neither party has a right to remain in the second venue. Under Section 38-3-6, the decision to move to a third venue is exclusively "within the discretion of the court." Thus, House had no right to a third trial in Taos.
V. PROBABILITY OF A FAIR TRIAL IN DOA ANA COUNTY
A. House's Claims of Pr
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