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State v. Mantelli1/29/2002
court determines that evidence in support of the motion is required, it may hold an evidentiary hearing. Upon the need for a evidentiary hearing, the "first change of venue ceases to be mandatory and is left to the court's discretion." Id. (citing State v. Turner, 90 N.M. 79, 81, 559 P.2d 1206, 1208 (Ct. App. 1976)). The trial court's discretion in granting or denying a change of venue is "broad and will not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated." House, 1999-NMSC-014, 31. "The burden of establishing an abuse of discretion is borne by the party that opposes the trial court's venue decision." Id. In determining if the trial court abused its discretion, we examine whether its decision is supported by substantial evidence in the record. Id. 32.
In this case, the trial court heard evidence on the presumed prejudice of the residents of San Miguel County as a result of the surrounding publicity. Presumed prejudice makes inferences about the effect of publicity on the community as a whole, while actual prejudice is based upon direct evidence of bias in the minds of the individual prospective jurors. In House, our Supreme Court discussed the nature of the inquiry into presumed prejudice. Id. 46. A "change of venue should be granted if evidence shows that the community is so saturated with inflammatory publicity about the crime that it must be presumed that the trial proceedings are tainted." Id.
Upon hearing and viewing the evidence presented by Defendant at the hearing on his motion to change venue, the trial court was not persuaded that the news coverage of this case had been so biased and recent that an impartial jury could not be seated within San Miguel County and chose to conduct voir dire of prospective jurors. As with all aspects of a venue change, the choice of waiting until voir dire before granting or denying a motion to change venue rests with the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Id. 55. Defendant has not carried his burden to establish that the trial court's decision to wait until voir dire before granting or denying his motion for change of venue was an abuse of discretion.
The trial court's decision to conduct a voir dire of prospective jurors was a decision to conduct a direct examination of the actual prejudices of prospective jurors to establish whether there was such "widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible." Id. 46. Defendant cites no such evidence and instead argues that the "mere possibility of undisclosed, actual juror prejudice is a strong argument in favor of changing venue." Defendant cites State v. Shawan, 77 N.M. 354, 358, 423 P.2d 39, 42 (1967), and asserts that " o expect a juror to confess prejudice is not always a reliable practice." "We mindful that it is the role of the trial court, and not the appellate court, to weigh the evidence and determine the credibility of witnesses." House, 1999-NMSC-014, 33. By failing to cite any evidence that the petit jury's opinions about the case were so fixed that jurors would be unlikely to lay aside their preconceived notions and base their judgments exclusively on the evidence presented at trial, Defendant has not carried his burden that the trial court's decision to deny a change of venue was an abuse of discretion. Any future change of venue shall remain at the discretion of the trial court.
IV. EXCUSAL OF THE TRIAL JUDGE
Defendant filed a peremptory notice of excusal, pursuant to Rule 5-106 NMRA 2001, to excuse the trial judge from hearing this case. The trial court refused to honor the notice of ex
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