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State v. House2/24/1999
unty or district in which the offense is alleged to have been committed." N.M. Const. art. II, § 14. Many years ago, we concluded that this entitlement "has a double aspect. The trial must not only be in the county, but it must also be an impartial jury. If the latter element is not present, the constitutional guaranty no longer controls." State v. Archer, 32 N.M. 319, 323, 255 P. 396, 398 (1927).
{27} The first aspect-the right to be tried where the crime occurred-serves to prevent "the unfairness and hardship involved when an accused is prosecuted in a remote place." United States v. Cores, 356 U.S. 405, 407 (1958). It is presumed the defendant would desire to be tried where witnesses and evidence are likely to be accessible, "and where he might have the benefit of his good character if he had established one there." State v. Holloway, 19 N.M. 528, 537, 146 P. 1066, 1068 (1914); see also NMSA 1978, § 30-1-14 (1963) ("All trials of crime shall be had in the county in which they were committed."). We adopt the terms "vicinage" and "constitutional vicinage" when referring to the constitutionally presumptive venue. The word "vicinage" traditionally designates a neighborhood or local community and does not necessarily connote an entire county or judicial district that delineates a typical venue. See Black's Law Dictionary 1567 (6th ed. 1990); see also State v. Johnson, 104 N.M. 430, 432, 722 P.2d 681, 683 (Ct. App. 1986) (" he Court held that a juror sitting in obscenity cases may draw on his knowledge of the community or vicinage from which he comes to determine what `the average person, applying contemporary community standards' would conclude." (quoting Hamling v. United States, 418 U.S. 87, 105 (1974)). However, this word has been used by many courts as a term of art signifying the venue in which the offense occurred and to which the defendant is constitutionally entitled. See, e.g., People v. Gbadebo-Soda, 45 Cal. Rptr. 2d 40, 45 (Ct. App. 1995) ("Venue and vicinage are logically distinct concepts; venue refers to the location where the trial is held, while vicinage refers to the right of a criminal defendant to be tried by a jury drawn from the area in which the crime occurred."); Woosley v. Commonwealth, 293 S.W.2d 625, 626 (Ky. 1956) ("Vicinage . . . means that the original venue is in the county in which the offense charged, or part of it, was committed.").
{28} In those circumstances when the second aspect-the right to an impartial jury-cannot be guaranteed, the site of the trial "shall be changed, upon motion," from this constitutional vicinage
to some county free from exception:
(2) when the party moving for a change files in the case an affidavit of himself, his agent or attorney, that he believes he cannot obtain a fair trial in the county in which the case is pending because:
(a) the adverse party has undue influence over the minds of the inhabitants of the county; or
(b) the inhabitants of the county are prejudiced against the party; or
(c) because of public excitement or local prejudice in the county in regard to the case or the questions involved therein, an impartial jury cannot be obtained in the county to try the case; or
(d) any other cause stated in the affidavit.
NMSA 1978, § 38-3-3(A) (1965). By referring to the movant as an unspecified "party," this statute grants to both the defendant and the State the right to seek a change of venue. See Holloway, 19 N.M. at 541, 146 P. at 1069 (" ommencing with 1851, down to the present, there had prevailed a consistent legislative policy favoring changes of venue to both sides in criminal cases."); Archer, 32 N.M. at 323-24, 255 P. at
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