1998 -NMCA- 18, State v. House

• Citation: 953 P.2d 737,124 N.M. 564,1998 NMCA 18
• Decision Date: 20 November 1997
• Docket Number: Nos. 16913,16918,s. 16913
• Parties: , 1998 -NMCA- 18 STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 737

953 P.2d 737

124 N.M. 564, 1998 -NMCA- 18

STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.

Nos. 16913, 16918.

Court of Appeals of New Mexico.

Nov. 20, 1997.

Certiorari Granted Jan. 14, 1998.

[124 N.M. 566] Tom Udall, Attorney General, Steven S. Suttle, Assistant Attorney General, Albuquerque, for Plaintiff-Appellee.

William J. Friedman, Albuquerque, for Defendant-Appellant.

Herb Yazzie, Attorney General, Judith A. Leaming, The Navajo Nation Dep't of Justice, Window Rock, Navajo Nation, AZ, Amicus Curiae for The Navajo Nation.

Barbara E. Bergman, Chair, Amicus Curiae Committee, Albuquerque, Amicus Curiae for the New Mexico Criminal Defense Lawyers Association.

OPINION

FLORES, Judge.

¶1 Defendant appeals his convictions for driving while intoxicated (DWI) (second offense), reckless driving, great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). Defendant raises numerous issues on appeal. The primary focus of Defendant's appeal concerns the district court's decision to grant the State's second change of venue motion in this case. Defendant contends that the district court erred in deciding to change venue from Taos County. Defendant also contends that the district court violated Defendant's federal and state constitutional rights by deciding to change venue to Dona Ana County. Because we determine that the district court's decision to change venue from Taos County must be reversed, we do not reach the merits of Defendant's constitutional challenges to the district court's selection of Dona Ana County as the new venue for the third trial.

¶2 However, we will consider a number of other issues raised by Defendant because they have the potential of affording Defendant greater relief on appeal or because they will likely recur at a new trial. In particular we also address Defendant's challenges to the district court's decisions to (1) deny Defendant's motion to dismiss; (2) admit Defendant's blood alcohol test results into evidence; and (3) enhance Defendant's sentences based on a prior misdemeanor DWI conviction. For the reasons that follow, we affirm Defendant's conviction for DWI from the first trial in this case. With regard to the remainder of Defendant's convictions following the third trial, we reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case arises from a devastating and tragic automobile accident that occurred on Christmas Eve, 1992. Defendant was traveling in the wrong direction on Interstate 40 when he collided head-on with another automobile. The driver of the other vehicle was seriously injured, and the other four passengers, a mother and her three young daughters, were all killed. Defendant admitted to drinking seven and one-half beers earlier in the evening before the accident. However, Defendant maintained that shortly after he began to drive home he became disoriented because of a migraine headache and inadvertently turned on Interstate 40 going the wrong way.

¶4 Defendant was ultimately bound over for trial in Bernalillo County on one count of driving while intoxicated (DWI), one count of reckless driving, one count of great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). Because of the widespread publicity surrounding the incident, Defendant moved for a change of venue to Taos County. Thereafter District Judge Frank H. Allen, Jr., with the concurrence of the State, granted Defendant's motion. The first trial began in Taos County in June 1994, with Judge Frank H. Allen, Jr., presiding. Following Defendant's first trial in Taos County, the jury convicted Defendant of DWI. However, the jury deadlocked on the more serious charges of homicide by vehicle and great bodily injury by vehicle, voting 9 to 3 in favor of conviction. Following the first mistrial, the State moved for a change of venue because of the publicity attending the mistrial. Judge Allen denied the State's motion for change of venue.

¶5 Judge Allen subsequently recused from the case, and District Judge Richard Blackhurst was assigned to preside over the second trial in Taos County. Before the second trial, the State renewed its motion for change of venue, which Judge Blackhurst also denied. Defendant was retried in November 1994, but a Taos County jury again deadlocked 9 to 3 in favor of conviction. Judge Blackhurst declared a mistrial and shortly thereafter he also recused from the case. The case was then reassigned to District Judge James F. Blackmer.

¶6 After the case was reassigned to Judge Blackmer, the State again moved for a change of venue. Following a hearing on the matter, and over Defendant's objection, Judge Blackmer decided to grant the State's motion to change venue from Taos County. Judge Blackmer held another hearing to consider alternative counties to which venue could be changed. Again over Defendant's objection, Judge Blackmer decided to change venue to Dona Ana County. Following Defendant's third trial in May 1995, the Dona Ana County jury convicted Defendant on all counts. Judge Blackmer ultimately sentenced Defendant to a total of twenty-five years, with three years of the sentence suspended, and Defendant appealed.

II. CHANGE OF VENUE

¶7 The district court's change of venue order noted that the court had the discretion to order a second change of venue under NMSA 1978, Section 38-3-6 (1953). The district court also noted that it was changing venue pursuant to NMSA 1978, Section 38-3-3(A)(2)(c) (1965), because an impartial jury could not be selected in Taos County due to public excitement and local prejudice. We agree with the district court that a second change of venue is discretionary. However, the court's discretion should be guided by its obligation to ensure that the parties receive a fair trial from an unbiased, impartial jury. See generally State v. Woods, 92 W.Va. 331, 115 S.E. 470 (1922); 21 Am.Jur.2d Criminal Law § 375 (1981). We also note that the fact that venue has already been changed once can weigh against a second change of venue. See People v. Gallego, 52 Cal.3d 115, 276 Cal.Rptr. 679, 703, 802 P.2d 169, 193 (1990) (en banc) (recognizing that when considering request for second change of venue the reputations and standing of the victims and defendant in the local community are less likely to prevent a fair trial); see also People v. Cooper, 53 Cal.3d 771, 281 Cal.Rptr. 90, 108, 809 P.2d 865, 883 (1991) (en banc) (applying Gallego ).

¶8 Defendant raises a number of questions concerning the district court's decision to change venue from Taos County. His primary focus on appeal is the district court's decision to change venue without first trying to select a third jury from Taos County through the use of voir dire. In response, the State maintains that the district court is not required to attempt jury selection before deciding to change venue. The State further asserts that under the circumstances of this case the district court did not abuse its discretion by changing venue from Taos County.

¶9 The district court's extensive and thoughtful explanation reveals a number of reasons why the court believed that a change of venue from Taos County was necessary. Permeating the district court's entire decision was a concern about the effect of the extensive pretrial publicity in this case. Because of the amount of pretrial publicity, the district court also appeared concerned about the impact of that publicity in Taos County, which Judge Blackmer characterized as a small, close-knit community. In addition, the court expressed reservations about the effect of comments in the press made by the prosecutors, defense counsel, Defendant, and Defendant's family. Also listed as a basis for the district court's ruling was a concern about comments made by a former Taos state senator, and a current Taos state senator, that were critical of the prosecution. The district court's decision to change venue was also affected by the belief that there was undisclosed bias among jurors in the second trial. And finally, the court worried about the effect that two hung juries would have on a third jury from Taos County.

¶10 At the outset, we note Defendant's contention that this Court should use a heightened standard of review to examine the district court's change of venue decision. Defendant cites a number of out-of-state authorities and commentaries to support the use of a more rigorous standard of review on appeal. However, a long line of cases in New Mexico establish that the district court's decision on a motion for change of venue is reviewed for an abuse of discretion. See, e.g., State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991); State v. Hargrove, 108 N.M. 233, 239, 771 P.2d 166, 172 (1989); State v. Fernandez, 56 N.M. 689, 692, 248 P.2d 679, 681 (1952); see also McCauley v. Ray, 80 N.M. 171, 174-76, 453 P.2d 192, 195-97 (1968) (in determining whether substantial evidence supports a venue decision, the appellate court considers the effects of media coverage, crowds, and witnesses' testimony concerning undue influence on the judicial process). Although there may be authority for a more demanding standard of review in other jurisdictions, this Court is bound by our Supreme Court's numerous decisions that apply an abuse of discretion standard. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (Supreme Court precedent controls).

¶11 Defendant suggests that the trend in New Mexico is toward a heightened, de novo review when substantial rights of constitutional dimension are involved in criminal cases. See, e.g., State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994); State v. Werner, 117 N.M. 315, 316-17, 871 P.2d 971, 972-73 (1994); Aguilar v. State, 106 N.M. 798, 799, 751...