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Jordan v. Bogner8/15/1991
ased upon ambiguous testimony they elicited from defendant during his deposition, plaintiffs assumed that the lab technician was at the hospital and could have drawn the blood immediately upon defendant's request made at 8:40 a.m., rather than having to be called into the hospital with other emergency support personnel.
The trial court found that any "surprise" was the product of plaintiffs' preparation efforts rather than active concealment by defendant. Later, in denying plaintiffs' motion for new trial based upon their "surprise" in the admission of blood testing evidence, the court repeated that finding and also noted that plaintiffs were provided ample opportunity during the course of the three-week trial to ameliorate the prejudicial effect of any claimed surprise.
We agree with the trial court's assessment and its rulings.
III.
Finally, plaintiffs contend that the trial court erred in denying their motion for change of venue made in advance of trial. We disagree.
The case had been commenced in Denver District Court and the parties later stipulated to change venue to Rio Grande County.
Still later, plaintiffs moved for a second change of venue, claiming that they could not obtain a fair and impartial jury in defendant's "home town."
In denying the motion, the court found plaintiffs' had failed to show the existence of widespread local prejudice sufficient to preclude the availability of an impartial jury. However, the court expressly indicated that plaintiffs could renew the motion if selection of an impartial jury proved difficult or impossible at the time of trial.
Plaintiffs did not renew the motion during voir dire, and they have not provided any record indicating that an adequate venire was unavailable for the selection of impartial jurors.
A ruling on a motion for change of venue is discretionary with the trial court and will not be reversed on appeal in the absence of a clear showing of abuse thereof. Weston v. Mincomp Corp., 698 P.2d 274 (Colo. App. 1985). We find no such abuse of discretion on the record before us.
The judgment is affirmed.
Disposition
JUDGMENT AFFIRMED.
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