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State v. House11/20/1997
ourt to disregard contrary evidence elicited during voir dire and relied upon by the trial court. The Court is not asked to resort to such extreme measures in the present case.
{80} Moreover, I find nothing in the record to suggest that the trial court employed a presumption of prejudice here, nor do I find any New Mexico authorities adopting the two-step test which the majority applies. On the contrary, our case law appears to reject both the proposition that exposure to pretrial publicity can be presumptively prejudicial in and of itself, see , and the proposition that a change of venue cannot be granted without a conclusive showing of actual prejudice. See (quoting ); cf. II ABA Standards on Criminal Justice 8-3.3 (2d ed. 1980) [hereinafter 1980 ABA Standards] (probability of prejudice is the issue; no showing of actual prejudice is required); (recognizing that ABA Standards may provide useful guidelines for New Mexico courts). For these reasons, I would reject the standard of proof employed by the majority.
{81} The majority suggests that the State must carry a particularly heavy burden of proof in this case because the State is the movant. I respectfully disagree. Our Supreme Court has repeatedly recognized that the State may move for a change of venue without violating a defendant's rights under Article II, Section 14 of the New Mexico Constitution or Section 38-3-3. See ; State v. Archer, 32 N.M. 319, 323, 255 P. 396, 398 (1927); State v. Holloway, 19 N.M. 528, 535, 146 P. 1066, 1067 (1914). New Mexico is not unique in allowing for a change of venue at the State's request. At common law, both the prosecution and the defense were permitted to obtain a change of venue. See 1 Joel Prentiss Bishop, Bishop's New Criminal Procedure 69, 75a (2d ed. 1913). Several of our sister states continue to recognize that the prosecution has an interest in the fair administration of Justice which may outweigh a defendant's right to be tried in a particular location. See 1991 ABA Standards, (supra) 8-3.3 (prosecution may move for change of venue because it has independent interest in obtaining a fair trial); 2 LaFave & Israel, (supra) 22.2(a), at 765 (same).
{82} Even in the states which recognize a defendant's absolute right to be tried in a particular venue, a defendant may waive that right by moving for, or consenting to, a change of venue, see State v. Nichols, 877 S.W.2d 722, 728 (Tenn. 1994), or by objecting to a motion to return venue back to the county where the crime is alleged to have been committed after venue has been changed to another county. See 1 Bishop, (supra) 73, at 55. New Mexico courts also recognize that a defendant may waive his right to be tried in the county where the crime is alleged to have been committed. See
{83} In the present case, the alleged crimes were committed in Bernalillo County; hence Bernalillo County is the only venue in which Defendant has a right to be tried under Article II, Section 14 of the New Mexico Constitution. However, Defendant waived this right by successfully moving for a change of venue to Taos County and then objecting to the State's effort to move the third trial back to Bernalillo County. Once this right has been waived, it no longer provides any basis for imposing heightened scrutiny or a heavier burden of proof upon the State's motion for a change of venue. Cf. Nichols, 877 S.W.2d at 728 (where the defendant waived his right to a particular venue by moving for a change of venue, appellate court would find no reversible error in trial court's venue decision absent showing that the defendant was prejudiced, the administration of Justice harmed, or the trial court abused its discretion).
{84} The majority f
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