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State v. House11/20/1997
. We find that line of reasoning troubling for several reasons.
{50} To begin with, there is no support in the record for the district court's Conclusion that a third jury from Taos County would simply reach a verdict regardless of their individual determinations of guilt or innocence. Such a Conclusion amounted to improper speculation on the part of the court. Indeed, one could just as easily speculate that the same pressure to reach a verdict referred to by the district court could impact any potential jury from any county, not just Taos county. In addition, there is case law from other jurisdictions suggesting that the mere fact of prior mistrials is insufficient to support a change of venue unless it has become impossible to select more jurors for a new trial. See Mast v. Superior Court, 427 P.2d 917 (Ariz. 1967) (en banc) (the grant of a change of venue motion filed by the state was reversed where there were two mistrials, defendant objected to change of venue, there was no evidence of bias against state, and evidence of bias against defendant); see also Ashley v. State, 72 So. 647 (Fla. 1916) (per curiam) (where two prior mistrials declared and defendant objected to state's change of venue motion, district court erred in granting motion despite great difficulty in selecting another jury); Rhoden v. State, 179 So. 2d 606 (Fla. Dist. Ct. App. 1965) (mere fact that it would be difficult and time-consuming to select jury is insufficient reason to change venue over defendant's objection). But see People v. Peterson, 52 N.W. 1039 (Mich. 1892) (grant of state's change of venue motion upheld where jury was unable to agree on verdict in two previous trials).
{51} In fact, the existence of two hung juries demonstrates that juries in Taos County have resisted the temptation to simply reach a verdict to end the case. Indeed, a post-trial interview with one of the jurors from the first trial supports the notion that jurors from Taos county would not agree to a unanimous verdict simply to end the case. Following the first mistrial, one juror specifically recounted in the press how the jury put aside its desire to simply resolve the case when beginning to deliberate. Under the circumstances of this case, the simple fact of two hung juries cannot support the district court's decision to change venue from Taos County.
{52} To summarize, under the unusual procedural posture of this case, the State was faced with a very heavy burden to satisfy before it could secure a change of venue from Taos County. In light of that heavy burden, we believe the district court's premature decision to change venue was plagued by a lack of support in the record to justify removal of this case from Taos County without first attempting to select a new jury from Taos County. The district court having failed to make the attempt, we hold that the court abused its discretion in granting the State's motion for a change of venue. Consequently, Defendant must receive a new trial. See Rhoden, 179 So. 2d at 608 (defendant granted a new trial when trial court abused its discretion in granting state's motion for change of venue); see also State v. Nichols, 877 S.W.2d 722, 728 (Tenn. 1994) (reversible error results if trial court abuses its discretion, or if the administration of Justice is harmed, by using an unorthodox procedure to combat the prejudicial effects of pretrial publicity).
{53} Because we have determined that this case must be remanded for a new trial, we do not address Defendant's constitutional challenges to the district court's decision to change venue to Doa Ana County. However, we recognize that even though the district court must attempt to seat a jury in Taos County the district court may still
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