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State v. House2/24/1999
utional Right of Free Speech and Press, 38 L. Ed. 2d 835 (1974).
{38} House further confounds the standards of proof for restraints of speech with those for venue changes when he emphasizes that in Twohig we concluded that the gag order placed upon the parties in this case was an unconstitutional prior restraint because there was "a complete lack of factual findings to support the Conclusion that such an order was necessary to preserve the parties' right to a fair trial." Twohig, 1996-NMSC-023, 28. In contrast, the exact same evidence of pretrial publicity that was found non-prejudicial in a free-speech analysis was found by the trial court to be prejudicial in a venue analysis. House calls this conflicting use of identical evidence astonishing. The majority below noted this seeming anomaly. See House Majority, 1998- NMCA-018, 35-36. This is not anomalous. Unlike the rigorous constitutional test that must be satisfied in order to impose a prior restraint of speech, we do not-except, as discussed below, in one circumstance immaterial to this Discussion-require more than a reasonable probability that a fair trial cannot be obtained in a particular venue. See Deats v. State, 80 N.M. 77, 79, 451 P.2d 981, 984 (1969); Alaniz, 55 N.M. at 318-19, 232 P.2d at 986. The standard of proof in Twohig has no application to this case. Evidence that does not justify prior restraint of speech can, without contradiction, support a change of venue.
3. Heavier burden for the State
{39} The majority in the case below caused some controversy with its statement that "when the state does elect to move for a change of venue it carries a heavy burden to show that public sentiment is such that a fair and impartial trial is improbable." House Majority, 1998-NMCA-018, 21. The majority explained that this "heavy burden" is a product of the State's unique position as an opposing party that must nevertheless "insure that the defendant receives a fair trial." Id. 21. Citing our early venue cases State v. Archer, 32 N.M. at 323, 255 P. at 398, and State v. Holloway, 19 N.M. at 546-47, 146 P. at 1071-72, the majority noted that "the State must demonstrate . . . a high degree of prejudice against Defendant before it can successfully move to change venue for Defendant's benefit and against his wishes." House Majority 1998-NMCA-018, 30. House has introduced similar arguments.
{40} In this context, the majority was concerned by the State's arguments that it could not receive a fair trial in Taos while House claimed he suffered no prejudice in that venue. The majority emphasized that because the State sought a venue change over the adamant objections of the defendant, it must show strong proof to support its claim that Taos was not an impartial venue. Id. 22-23. The majority warned that the courts "should guard against an abuse of the state's power when the state moves for a change of venue," implicitly evoking the almost limitless resources and power of the State to pursue prosecution that, if abused, few defendants could hope to combat. Id. 21.
{41} The majority has not precisely characterized the State's burden. In most circumstances, the movant must demonstrate a reasonable probability that a fair and impartial trial is unlikely in a particular venue. See Deats, 80 N.M. at 79, 451 P.2d at 984 (stating that evidence supporting a venue-change motion "must be persuasive of the probability that a fair trial cannot be obtained in the county where the cause is pending" (emphasis added)); Alaniz, 55 N.M. at 318-19, 232 P.2d at 986 (" t is sufficient to show a reasonable apprehension that the defendant will not secure a fair and impartial trial or that
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