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State v. House11/20/1997
Defendant is also correct in suggesting that many cases advocate the use of voir dire as the preferred method of determining whether pretrial publicity has made it impossible to select a fair and impartial jury. See, e.g., ; ; . However, we do not advocate a rigid rule that always requires the district court to conduct voir dire before deciding to change venue. Indeed, Defendant recognizes that there are situations when the district court may change venue without the benefit of voir dire because of a presumption of prejudice. Defendant simply argues that the extreme circumstances that are necessary for such an approach are not present in this case. We agree.
{16} One of the leading cases cited by Defendant, Rideau v. Louisiana, 373 U.S. 723 (1963), is also recognized by Professors LaFave and Israel as establishing that there can be extreme situations in which "the pretrial publicity is so pervasive that it is not curable by the most careful voir dire, so that a change of venue is a necessary remedy." See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 22.2(a), at 764 (1984). At the same time, however, LaFave and Israel have observed that "it remains common practice after Rideau for trial courts to refuse to rule on a request for a change of venue until after an attempt has been made to select an impartial jury[.]" Id. The question is, therefore, whether this case presents those rare and extreme circumstances raising a presumption of prejudice that would warrant a change of venue without exploring the possibility of selecting a jury with the benefit of voir dire.
{17} We note that the Dissent views our references to Rideau as the use of a "two-step test" that should not be employed in this case. We do not view our decision in those terms, nor do we believe that the result in this case is controlled by the acceptance or rejection of any such test. Our Supreme Court has interpreted Rideau to stand for the proposition that "there may be a denial of due process because of publicity even though no direct showing of prejudice is made." . But as we discuss below, the pretrial publicity in this case simply did not establish that a fair trial could not be had in Taos County.
{18} Without a doubt the pretrial publicity in this case was extreme. Indeed, neither side escaped the publicity generated by this case. As a consequence of this publicity, the State sought a second change of venue arguing that the pretrial publicity in the case prevented either side from obtaining a fair and impartial jury. In fact, the district court decided to change venue from Taos County in the belief that neither Defendant, nor the State, could receive an unbiased, impartial jury. As a result, this Court must determine whether the pretrial publicity in this case raised a presumption of prejudice against the State, or Defendant, or both. However, we must also keep in mind that it was the State seeking a change of venue, and it was doing so over Defendant's strenuous objection.
{19} Many years ago, the New Mexico Supreme Court declared that the state could move for a change of venue on its own behalf. See State v. Holloway, 19 N.M. 528, 546-47, 146 P. 1066, 1071-72 (1914). However, our Supreme Court cautioned that a change of venue on behalf of the state should only be done with great care and deliberation. Id. at 546, 146 P. at 1071. Moreover, our Supreme Court proclaimed that a change of venue motion by the state should only be granted when the state shows that public sentiment is such as to render improbable a fair and impartial trial. Id.
{20} Thirteen years later, our Supreme Court expanded the state's right to move for a change of venue, holding that the state may successf
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