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State v. House11/20/1997
e for the State or for the Defendant." Mr. Sanderoff also testified that he believed public awareness levels are relevant because "with awareness oftentimes comes formulation of opinion. Sometimes, sometimes not."
{30} In light of the public awareness and public opinion evidence supplied by Mr. Sanderoff, the district court was understandably concerned about the effect of the pretrial publicity in this case. And indeed, the polling data also suggested that a majority of the people in Taos County may have been biased against Defendant. Nonetheless, we must keep in mind that Defendant vigorously opposed the State's efforts to obtain a change of venue for Defendant's benefit. And because the State must demonstrate such a high degree of prejudice against Defendant before it can successfully move to change venue for Defendant's benefit and against his wishes, see Holloway, 19 N.M. at 546-47, 146 P. at 1071-72 and Archer, 32 N.M. at 323, 255 P. at 398, we believe the record fails to demonstrate the overwhelming bias against Defendant that is necessary before a change of venue can be granted for Defendant's benefit over his objection.
{31} We are even more certain that the general pretrial publicity generated by this case did not raise a presumption of prejudice against the State. As we outlined above, the State was still faced with a heavy burden even if its motion to change venue was concerned only with the State's right to a fair and impartial jury. See Holloway, 19 N.M. at 546-47, 146 P. at 1071-72. However, despite undoubted negative pretrial publicity that existed against the State, the State's own polling evidence demonstrated that only 5% of the Taos County respondents in the poll had preconceived opinions in favor of Defendant and against the State. We simply do not believe that such a slim showing of bias against the State supports the district court's decision to change venue without at least first attempting to select another Taos County jury.
{32} Even if we disregard the polling evidence in this case, we still do not believe that the character of the pretrial publicity in this case raises a presumption of prejudice that would warrant a change of venue without an attempted jury selection. To the extent that the pretrial publicity in this case was inflammatory and prejudicial, most of it was directed against Defendant. And in the estimation of Defendant and his capable counsel, the pretrial publicity in the case did not cause them to believe that a change of venue from Taos County was necessary. Neither the State nor the district court ever suggested that Defendant and his counsel were opposing the change of venue out of ignorance or mistake. See Archer, 32 N.M. at 323, 255 P. at 398 . And since Defendant was adamantly opposed to a change of venue, we do not believe it was appropriate for the district court to order a change of venue with the implication that, at least in part, it was for Defendant's own good. See Susan Bandes, Taking Some Rights Too Seriously: The State's Right to a Fair Trial, 60 S. Cal. L. Rev. 1019, 1042 (1987) ("ssuming a competent defendant with competent counsel, it is safe to assume that an interest asserted by the state and opposed by the defendant is not in the defendant's interest.") (footnote omitted).
{33} We realize, however, that the district court was also concerned about the effect of the pretrial publicity against the State. Although much of the pretrial publicity was directed against Defendant, there was a significant amount of negative publicity directed against the State. In particular, numerous comments were made in the press raising allegations of racism against the prosecution, and expressing resentment against the prosecution
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