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State v. House11/20/1997
g a Defendant's Right to an Impartial Jury, 42 Notre Dame Law. 925, 942 (1966-67) (A change of venue "amounts to an admission that Justice cannot be done in the forum in which the motion is made, which is a severe blow to people who pride themselves in their ability to be fair to their fellows.").
{42} Although we believe it is vitally important that the district court make an attempt to select a new jury from Taos County before ordering a change of venue, we realize that voir dire can prove to be an ineffective means of exposing bias and prejudice within a jury venire. See LaFave & Israel, supra, 22.2(d), at 766 ("there is reason to question" whether voir dire will be an effective remedy to expose all instances of bias caused by pretrial publicity); see also Alfred Friendly & Ronald L. Goldfarb, Crime and Publicity 103-04 (1967). In fact, there is authority in New Mexico demonstrating that voir dire may not always succeed in eliminating bias from a jury. See (trial court's denial of defendant's change of venue motion reversed despite fact that seated juror stated during voir dire that she thought she could be fair because to expect jurors to confess bias is not always a reliable practice); State v. Ball, 34 N.M. 254, 280 P. 256 (1929) (change of venue following mistrial upheld where juror failed to disclose bias in favor of defendant).
{43} The district court's belief that there was undisclosed bias in the prior juries in this case certainly suggests that the court was concerned that voir dire would be an ineffective barrier to bias and sympathy in a third Taos County jury. One of the primary factors influencing the district court's decision in this regard apparently came from comments Judge Blackhurst made following the second mistrial. Judge Blackhurst's comments were first alluded to by the State during the hearing on the State's second change of venue motion. The State indicated that Judge Blackhurst made comments to counsel for both sides after leaving the jury room indicating that the second jury did not want to talk to anyone but the Judge, that the Judge did talk with the second jury privately, and that afterward Judge Blackhurst commented to the attorneys that there were some jurors who did not disclose their biases. The State further indicated that Judge Blackhurst did not state whether the biases were against Defendant or the State, but that there was a clear indication that there was not a fair jury by the time they reached the end of their deliberations.
{44} Our review of the transcript has not revealed any recorded statement by Judge Blackhurst on this subject, only a notation in the transcript that Judge Blackhurst went to speak to the jury. Because the foregoing comments attributed to Judge Blackhurst are not of record, we do not believe they could form a proper basis for the district court's decision nor should they be considered now on appeal. See (matters not of record cannot be reviewed on appeal).
{45} Moreover, statements by Judge Blackhurst that are a part of the record on appeal do not reveal undisclosed bias within the second jury. In particular, Judge Blackhurst was quoted in the press as saying that the jury was "a very polarized group," that if he "had a good knife, could have cut the air in" the jury room, that the jury could not even agree on how to conduct deliberations, and that "`at the minimum' the problem could be described as personality clashes." Without engaging in improper speculation, Judge Blackhurst's comments can only be used to show that there was high tension and personality conflicts among the jurors in the second trial. Other post-trial interviews appearing in the press corroborate that emotions ran high; however,
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