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State v. Mantelli1/29/2002
_________ (name of victim) (name of person) who committed __________ (name felony)].
Homicide is necessarily committed when a public officer or public employee has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties described above. For there to be probable cause, the facts must be such as would warrant a belief by a reasonable officer based upon the expertise and experience of the officer. [When feasible, a public officer or employee should give warning prior to using deadly force.]
The burden is on the state to prove beyond a reasonable doubt that the killing was not justifiable. If you have reasonable doubt as to whether the killing was justifiable, you must find the defendant not guilty.
III. CHANGE OF VENUE
Defendant moved for a change of venue pursuant to NMSA 1978, § 38-3-3(A)(2)(c) (1965), arguing that there had been extensive and prejudicial media coverage of the shooting which created an inordinate amount of public excitement and prejudice towards Defendant. After conducting an evidentiary hearing on the motion, the trial court denied the motion, but approved a supplemental jury questionnaire to gauge the jury panel's susceptibility to the media, prejudgment of the case, and bias. The trial court also reserved the right to grant the motion after voir dire. Defendant renewed his motion after voir dire and that motion was also denied. Defendant argues that the trial court abused its discretion in denying the motion and thereby violated his right to a fair trial.
At the hearing, seven witnesses testified in support of the motion. All of the witnesses were community leaders or persons with direct involvement in the local media. Most of them felt it unlikely that the officers could receive a fair trial in San Miguel County. Multiple exhibits, including articles from the Las Vegas Daily Optic, the Albuquerque Journal and Journal North, the Santa Fe New Mexican and the Santa Fe Reporter, were admitted. Videotapes from three television stations, KOB, KOAT and KRQE, affiliated with the major networks were also presented as evidence.
After reviewing the evidence, the trial court found that all but a few of the articles were neutral, unbiased, unemotional, and not inflammatory. The trial court also observed that most of the articles and on-air news reports had appeared in February and March of 1998 right after the shooting, and nineteen months before trial.
There were one-hundred-thirty-four individuals on the available jury panel. One-hundred-thirteen individuals returned the supplemental questionnaires. Thirty-nine were determined to have prejudged the case and were excused from service based on their responses to the questionnaires. Twenty-one failed to return the questionnaire and were also excused from service. Sixty-nine persons appeared for voir dire. Five of those people professed a bias and were excused for cause.
After voir dire, a jury of twelve persons and two alternates were selected to serve. None of the jurors selected for the petit jury indicated that they had any prejudice against Defendant, and would be anything but fair and impartial.
The New Mexico constitution guarantees a criminal defendant a trial before an impartial jury. N.M. Const. Art. II, § 14; see also State v. House, 1999-NMSC-014, 26, 127 N.M. 151, 978 P.2d 967. To this end, Section 38-3-3 grants an accused the right to seek a change of venue. "In a case in which there been no preceding changes of venue, this right to a venue change is generally mandatory and must be granted. . . ." House, 1999-NMSC-014, 29. However, if the trial
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