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State v. House11/20/1997
ully move for a change of venue over the defendant's objection when there is such bias and prejudice against the defendant that he or she cannot receive a fair trial. See State v. Archer, 32 N.M. 319, 255 P. 396 (1927). The Court reasoned that the state has the duty to move for a change of venue to protect the defendant from his or her own ignorance and mistake. Id. at 323, 255 P. at 398.
{21} From Holloway and Archer, we perceive three basic lessons. First, the state may move for a change of venue to protect its own right, and the defendant's right, to a fair trial. Second, when the state does elect to move for a change of venue it carries a heavy burden to show that public sentiment is such that a fair and impartial trial is improbable. We describe the state's burden as heavy because its duty to the defendant differs from attorneys' obligations in a civil case. See Archer, 32 N.M. at 323, 255 P. at 398. In a civil case, parties must protect their own interests against their adversaries. Id. In a criminal case, however, the state owes a duty to the defendant to insure that the defendant receives a fair trial. Id. Further, the court should guard against an abuse of the state's power when the state moves for a change of venue. See Holloway, 19 N.M. at 546, 146 P. at 1071. We believe this is particularly true when the state purports to change venue for the defendant's benefit, but over the repeated objections of the defendant and his attorney. Third, the state must move for a change of venue for the benefit of the defendant, even over the defendant's objection, when it is necessary to protect the defendant from his or her own mistake and ignorance.
{22} Thus, in this case, to the extent that the State sought a change of venue for Defendant's benefit and over Defendant's objection, we question whether it was entitled to do so in light of Archer. The district court did rely to some extent on statements that defense counsel made in the press following the first mistrial suggesting that pretrial publicity had permeated Taos County and that both sides would have to rethink venue. Nevertheless, it is clear from the record that by the time the second mistrial occurred, Defendant was adamantly opposed to the State's efforts to change venue from Taos County. The State cannot seriously contend that Defendant's objection to a change of venue from Taos County was the product of mistake or ignorance. Indeed, the district court commended defense counsel for his very well-argued position on the question of venue. For purposes of this appeal, however, we assume without deciding that the State was entitled to rely on whatever prejudice there was against Defendant and the State to support its motion to change venue.
{23} Nevertheless, we remain convinced that the State was still required to show that public sentiment in Taos County had risen to such a level that a fair and impartial jury for the State or Defendant was improbable. Holloway, 19 N.M. at 546-47, 146 P. at 1071-72; Archer, 32 N.M. at 323, 255 P. at 398. Further, because the district court did not attempt to select a third jury from Taos County before deciding to change venue to Doa Ana County, the State must shoulder the additional burden of showing that the pretrial publicity in the case was of the rare and extreme character justifying a presumption of prejudice against Defendant and the State.
{24} The Dissent suggests that Defendant has less of an interest in the venue of this case because he originally moved for a change of venue from Bernalillo County. However, our decision is not based on the assumption that Defendant has a right to be tried in Taos County. Since both Defendant and the State stipulated to the first change o
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