 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. House11/20/1997
urther suggests that the State must bear a heavier burden of proof in this case because the first change of venue from Bernalillo County is a factor that weighs against the second change of venue from Taos County. However, the authorities upon which the majority relies to support this proposition only state that a prior change of venue "affects the analysis" of the factors the court is to consider in making its decision about a second change of venue. See People v. Cooper, 809 P.2d 865, 882-83 (Cal. 1991) (en banc) (citing People v. Gallego, 802 P.2d 169, 193 (Cal. 1990) (en banc)). Hence, I read these authorities as allowing for circumstances in which a prior change of venue weighs in favor of a second change of venue, not against it. I also note that under the California law that these authorities apply, it is entirely permissible to grant pretrial appellate review of a trial court's venue decisions before any voir dire has been conducted. See Maine v. Superior Ct., 438 P.2d 372, 374-75 (Cal. 1968).
{85} In the present case, the first change of venue provided several factors that could weigh in favor of a second change of venue. First, since there was no evidentiary hearing on the first motion to change venue from Bernalillo County to Taos County, this prior change has no factual foundation upon which the trial court could rely in opposing a second change of venue. Second, the prior move to Taos County placed the trial in a smaller and more closely-knit community than either Bernalillo County or Dona Ana County. See People v. Adcox, 763 P.2d 906, 917 (Cal. 1989) (en banc) (under some circumstances, court may infer that the smaller the community, the greater the chance of an unfair trial); Alfred Friendly & Ronald L. Goldfarb, Crime and Publicity 79 n. 3 (1967) (impact of media coverage is less likely to dissipate over time in smaller community). Finally, because Defendant waived his constitutional right to be tried in Bernalillo County by moving for a change to Taos County, that right no longer carries any weight in the analysis of whether to grant a second change of venue.
{86} Defendant's waiver of this right makes this case distinguishable from the authorities that the majority cites to support its imposition of a heavier burden of proof upon the State in this case. Those authorities are limited to situations in which a prosecutor's motion to change venue is an attempt to override a defendant's constitutional right to be tried in the venue where the crime was alleged to have been committed. See Mast v. Superior Ct., 427 P.2d 917 (Ariz. 1967) (en banc) (defendant objected to prosecutor's motion to change venue from county where crime was alleged to have been committed); Ashley v. State, 72 So. 647 (Fla. 1916) (per curiam) (same); Rhoden v. State, 179 So. 2d 606 (Fla. Dist. Ct. App. 1965) (same). When the defendant has waived his or her constitutional right to be tried in a particular venue, as Defendant has done in the present case, this right no longer provides a basis for raising the standard of proof or requiring voir dire of prospective jurors.
{87} Because there is no basis for requiring a heightened standard of proof in this case, I do not regard the presence or absence of voir dire of a third venire as the only determinative factor in deciding whether there were adequate grounds for a venue change, especially where the trial court had the benefit of a record replete with expert analysis of public opinion surveys, published statements of community sentiment, and voir dire conducted in prior mistrials. See ; 1991 ABA Standards, (supra) 8-3.3. A change of venue is not simply a last-minute appendage to the jury selection process. See Note, The Efficacy of a Change of Venue in
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|