623 P.2d 565 (N.M. 1981), 12186, State v. Martinez

Docket Nº:12186.
Citation:623 P.2d 565, 95 N.M. 445, 1981 -NMSC- 005
Opinion Judge:JOSEPH E. CALDWELL, District Judge. [10] Caldwell
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Amadeo MARTINEZ, Defendant-Appellant.
Attorney:Reginald J. Storment, Appellate Defender, Roger Bargas, Asst. Appellate Defender, Santa Fe, for defendant-appellant., Toney Anaya, Atty. Gen., Janice Marie Ahern, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. [7] Reginald J. Storment, Appellate Defender, Roger Bargas, Assistant appellate D...
Judge Panel:SOSA, Senior Justice, and PAYNE, J., concur.
Case Date:January 15, 1981
Court:Supreme Court of New Mexico

Page 565

623 P.2d 565 (N.M. 1981)

95 N.M. 445, 1981 -NMSC- 005

STATE of New Mexico, Plaintiff-Appellee,

v.

Amadeo MARTINEZ, Defendant-Appellant.

No. 12186.

Supreme Court of New Mexico.

January 15, 1981

Page 566

As Amended Feb. 16, 1981.

Page 567

[95 N.M. 447] Reginald J. Storment, Appellate Defender, Roger Bargas, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Janice Marie Ahern, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

JOSEPH E. CALDWELL, District Judge.

The defendant, Amadeo Martinez, was convicted in Rio Arriba County on August 22, 1978, and sentenced concurrently to a life term and two terms of two to ten years and one to five years respectively, for first-degree murder, aggravated battery and larceny arising from a 1973 incident in Espanola. Four issues citing error by the trial court were raised on appeal. One issue, concerning the legality of the indictment, has been considered by the Court and is not discussed herein. Any defect in the indictment was not prejudicial to the defendant as the alleged defect was cured long before trial.

We discuss:

I. The trial court's denial of defendant's motion for change of venue because of public excitement and local prejudice.

II. The trial court's denial of the motion to exclude a video-taped transcript of a State's key witness.

III. The trial court's refusal of defendant's challenge of two jurors for cause.

The trial court is affirmed on all issues.

I.

The change of venue motion was heard prior to a first trial which resulted in a deadlocked jury and a mistrial granted by Judge Santiago Campos. The grounds alleged were that the defendant could not receive a fair trial because of public excitement and local prejudice. The issues were apparently raised orally before the second trial without affidavits or hearings.

The murder occurred in 1973 and proceedings began in 1977 (prior to our 1978 statutory revisions, and therefore the applicable statutes are the 1953 New Mexico Statutes Annotated). Under those statutes, two deal with the venue question raised here. These statutes, Sections 21-5-3 and 21-5-4, N.M.S.A.1953 (Repl.Vol.1970), differ in that one, Section 21-5-3, confers no discretion upon the trial court. As stated in State v. Alaniz, 55 N.M. 312, 319, 232 P.2d 982, 986 (1951), interpreting Section 19-503, N.M.S.A.1941 (the predecessor to Section 21-5-3):

Where the defendant files a proper motion for a change of venue, which is duly supported, showing that the state of feeling in a county is such that he cannot obtain a fair trial, and those charges are not controverted, the defendant is entitled to a change of venue and the trial court has no discretion except to sustain his motion for it. (Citation omitted.)

The other statute, Section 21-5-4, places the granting of the venue motion within the discretion of the trial court. As expressed in Deats v. State, 80 N.M. 77, 79, 451 P.2d 981, 983 (1969), quoting State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952):

Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion.

The purpose of having the two statutes, requiring either the uncontroverted affidavit or the hearing of evidence and the making of findings, is to deny the trial court the power to overrule venue motions based solely on the court's own knowledge of the local conditions and prejudices, without the petitioner having an opportunity to present evidence and make a record. Deats, supra; Schultz v. Young, 37 N.M. 427, 24 P.2d 276 (1933).

Here, the defendant called witnesses and presented evidence in support of his motion for a change of venue. The State...

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