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State v. House11/20/1997
f venue to Taos County, we believe both sides committed themselves to resolving this matter in Taos County unless a fair and impartial jury could not be impaneled from Taos County. Although the district court has discretion to change venue a second time, we do not believe that discretion is unfettered. To the contrary, under the unique procedural circumstances of this case, the district court could only exercise its discretion to change venue if the record demonstrated that a fair and impartial jury from Taos County was improbable.
{25} Apparently aware of the extreme circumstances that needed to exist before the State's change of venue motion could be granted without first attempting jury selection, the district court was careful in its attempt to consider all of the information before it that may have been pertinent to the question of venue. And as we outlined above, the district court was able to articulate a number of factors it considered before deciding to change venue from Taos County. However, after carefully reviewing the extensive record in this case and considering each of the factors relied upon by the district court, individually and as a whole, we do not believe the record supports the district court's decision to take the drastic step of changing venue without first attempting to select a new jury from Taos County.
{26} A major factor in the district court's decision to change venue was the amount of pretrial publicity in this case. It is self-evident to anyone who has lived in New Mexico the past few years that this case has received an enormous amount of publicity. The record is replete with exhibits and testimony concerning the pretrial publicity in this case. What the record does not contain, however, is a clear showing by the State that the pretrial publicity created such an insurmountable amount of bias and prejudice against the parties that it was improbable that a fair and impartial jury could be selected from Taos County.
{27} For both of its change of venue motions, the State relied heavily on the testimony and public polling report of Brian Sanderoff, the president of Research & Polling, Inc. Mr. Sanderoff was recognized as an expert in survey research and demographic analysis. The survey report generated by Mr. Sanderoff's firm for this case reveals that it was designed to measure awareness levels and public opinion concerning this case. The final Conclusions from the survey were that awareness of Defendant and the events surrounding the accident and first trial were higher in Taos County than in Doa Ana County, primarily because Taos County receives its news primarily from the Albuquerque media market while Doa Ana County is also informed by the El Paso media market.
{28} Mr. Sanderoff also testified to some of the Conclusions he drew from the survey. In Taos County, 88% of the respondents knew who Defendant was or knew something about the event he was involved in. Mr. Sanderoff also noted that about 60% of the respondents from Taos County gave an opinion of guilt or innocence (55% guilty or probably guilty and 5% not guilty or probably not guilty). Mr. Sanderoff was of the opinion that the high level of awareness in Taos County could impact on the district court's ability to impanel an impartial jury, and that there would be a better chance of getting a fair and impartial trial in Doa Ana County.
{29} Mr. Sanderoff did acknowledge that of the people surveyed who had formulated an opinion about the case, more of them formulated a guilty opinion in Doa Ana County than in Taos County (67% vs. 62%). Mr. Sanderoff was of the opinion that Taos County was not "the best county to have a fair and impartial jury impaneled for this cas
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