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State v. House11/20/1997
timately convict this gentleman[,]" and stating that "Taos juries have spoken twice but that he believes [District Attorney] Schwartz will try the case 10, 15 times until he gets what he wants." In addition, a local community leader and former state senator wrote and published a letter in the Taos News accusing prosecutors of "want to exploit the incident for political enhancements or just . . . allow their racist attitudes to secrete from the depth of their ingrained self." Francisco "El Comanche" Gonzales, "Racist Remarks," Taos News, July 7, 1994.
{111}There is sufficient evidence in the record to support a finding that political factors, and their coverage in the Taos media market, weighed in favor of a venue change in this case.
4. Presence of "Fixed Opinions"
{112}In (quoting ), our Supreme Court stated that "xposure of venire members to publicity about a case by itself does not establish prejudice[,]" and therefore courts must also inquire as to whether such exposure caused jurors to have "`such fixed opinions that they could not Judge impartially the guilt of the defendant.'" However, insofar as such "fixed opinions" involve the subjective mental states of people in the Taos community, they are seldom, if ever, susceptible to direct proof, and therefore may be proved by circumstantial evidence. See (applying this principle to element of crime requiring proof of a defendant's intent), overruled on other grounds by ; 21 Am. Jur. 2d 381 (noting that no witness can swear as a matter of fact, independent of his judgment, that local prejudice exists in the minds of county inhabitants); 1980 ABA Standards, (supra) 8-3.3 (allowing various forms of circumstantial evidence).
{113}In this case, the trial court had before it expert testimony regarding public opinion polls taken in Taos County after the first trial in July 1994, published statements by members of the Taos community including past and current elected representatives, and the evidence adduced during jury selection at two prior mistrials in Taos County. The State's polling expert opined that, after the first trial, "88 percent of the people in Taos County know who is or about the incident he was involved in, and this level of awareness could impact on . . . the court's ability to impanel an impartial jury." The trial court could reasonably infer the presence of "fixed opinions" among prospective jurors in Taos County from this expert testimony and public opinion polling. See 1991 ABA Standards, (supra) 8-3.3.
{114}As noted, past and current elected representatives from Taos County made public comments that accused the prosecution of harboring racial bias and engaging in "jury chasing." Other individuals from Taos County, including some jurors and prospective jurors, also had their opinions regarding the case published in the media. It was reasonable for the trial court to infer that the elected representatives from Taos who voiced their opinions in the media were representing the views of their constituents.
{115}The trial court also had the benefit of all the evidence adduced during jury selection at the two prior mistrials in Taos County. At the first trial, approximately forty percent of the 90 prospective jurors were removed for cause. The transcript of the voir dire in the first mistrial indicates that several jurors had read or heard media coverage about the case and formed opinions. A significant percentage of jurors were removed for cause from the second mistrial as well. During voir dire, defense counsel stated that "most of you have read about [the case] it appears from your questionnaires." The statistics from juror selection in the first two mistrials could support a re
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