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State v. House11/20/1997
the standard of review to be applied in this case. I view the majority opinion as departing from the application of this standard and, instead, applying a higher level of scrutiny in which it independently weighs the evidence and substitutes its own judgment for that of the trial court. The application of such heightened scrutiny is inconsistent with an appellate court's limited role of determining whether the trial court abused its discretion.
{76} One reason that appellate courts apply this deferential standard of review to change-of-venue issues is that "the question is largely one of fact and therefore one peculiarly within the province of the trial Judge . . . ." 21 Am. Jur. 2d 391, at 659; see also ) (matters are committed to trial court's discretion because trial court is thought to be in better position than appellate Judges to decide them). "he process of determining whether or not the facts necessary for a change of venue exist is the same as that followed in determining any other fact in a case." (citing State v. Nabors, 32 N.M. 453, 259 P. 616 (1927)). Thus, when the trial court's factual findings regarding the grounds for a change of venue are reviewed on appeal, the question is whether there was substantial evidence to support those findings. Id. An appellate court does not reweigh the evidence.
B. Necessity of Voir Dire
{77} The majority faults the trial court for granting a change of venue without first conducting voir dire of prospective jurors during jury selection for a third trial in Taos County. I do not agree that voir dire is the only reliable evidence of "public excitement or local prejudice" under NMSA 1978, 38-3-3(A)(2)(c) (1965). Moreover, I do not believe that a test which employs a rigid distinction between "actual" and "presumptive" prejudice provides the correct legal standard for evaluating such evidence in this case.
{78} The majority derives its analysis of the standard of proof from Rideau v. Louisiana, 373 U.S. 723, 727 (1963), a case in which the United States Supreme Court disregarded a trial court's factual findings in ruling that the denial of the defendant's motion to change venue violated the Due Process Clause. Rideau has been interpreted by some courts as establishing a two-step test for determining whether grounds for a change of venue based on pretrial publicity are present. See, e.g., . Under this interpretation of Rideau, the question is whether the pretrial publicity, standing alone, is so prejudicial as to raise a presumption that prospective jurors have been affected by it, and if not, whether voir dire of prospective jurors reveals an actual prejudice among the jury pool that makes it impossible to empanel an impartial jury. See id.
{79} The meaning and effect of Rideau are unclear and do not inexorably lead to this two-step test. See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 22.2(a), at 763-64 (1984); ABA Standards for Criminal Justice: Fair Trial and Free Press 8-3.3 (3d ed. 1991) [hereinafter 1991 ABA Standards] (explicitly rejecting requirement of "actual prejudice" and requiring only "substantial likelihood of prejudice"); People v. Williams, 774 P.2d 146, 153 (Cal. 1989) (en banc) (requiring only "reasonable likelihood" of prejudice, which denotes lesser standard of proof than "more probable than not"). Since the trial court in Rideau did conduct voir dire in which the jurors who had been exposed to the pretrial publicity indicated that they had not formed fixed opinions about the defendant's guilt, see Rideau, 373 U.S. at 732 (Clark, J., Dissenting), the holding in that case may be limited to instances of pretrial publicity that are so prejudicial that they entitle an appellate c
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