State v. Valdez

CourtCourt of Appeals of New Mexico
Citation83 N.M. 632,1972 NMCA 14,495 P.2d 1079
Docket NumberNo. 490,490
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Juan VALDEZ, Defendant-Appellant.
Decision Date21 January 1972
OPINION

COWAN, Judge.

Defendant appeals from a judgment and sentence following his conviction of assault with intent to commit a violent felony, § 40A--3--3, N.M.S.A.1953 (Repl.Vol. 6), and false imprisonment, § 40A--4--3, N.M.S.A. 1953 (Repl.Vol. 6). Trial was in Bernalillo County on a change of venue.

We affirm.

The defendant was one of eleven persons against whom various charges were filed, arising out of a raid on the Rio Arriba County Courthouse on June 5, 1967. The matter was given extensive press coverage and there was a great deal of public excitement, high feeling and prejudice in the area.

After a venue hearing, the court entered findings of fact as follows:

'1. That there exists in the three counties of the First Judicial District, widespread and general local prejudice, knowledge, and public excitement concerning the subject matter of this case.

'2. That there are grounds for a reasonable apprehension, and it is probable, that the parties herein will not secure a trial in the First Judicial District by a fair and impartial jury, due to the widespread and general knowledge, prejudice, and public excitement and public involvment (sic) in the subject matter of this case.

'3. That by reason of the present existence of public excitement, sentiment, and impressions still in the minds of the people generally, and opinions formed and expressed, and the at large knowledge and publicity by word of mouth as well as the news media, the parties cannot receive a trial by a fair and impartial jury in the First Judicial District.

'4. That Bernalillo County is free from exception; and there is not such general and widespread knowledge and involvement and public excitement in connection with the subject matter of this case, as to prevent a fair and impartial trial there by jury, and the parties can receive a trial in Bernalillo County by a fair and impartial jury.

'5. That the county which has the most cosmopolitan population in the State of New Mexico and which from all points of view, is most likely to provide citizens and residents for jury service with minds open and free of preconceived notions as to the guilt or innocence of any of the defendants, and in which the parties to this cause, the State as well as all of the defendants, are the most certain to get a fair and impartial trial is the County of Bernalillo.'

Based on these findings, the court concluded:

'1. That the venue herein should be changed from the First Judicial District for the reason that the parties herein cannot receive a trial by a fair and impartial jury in said judicial district.

'2. That none of the three counties of the First Judicial District is free from exception; and the County of Bernalillo is in a contiguous judicial district, and is free from exception.'

An order was entered changing venue from all counties of the First Judicial District to the County of Bernalillo.

It is this change of venue which defendant first urges as error. For unexplained reasons, the record, while extensive, is not complete. There were various pleadings and motions which do not appear in the record but whose existence is established by dispositive action of the court. Such is true of various motions for changes of venue, including one in cause No. 4028, of which defendant now complains under his first point.

Hearing on the venue question was set for September 9, 1968. When court convened that morning, the attorneys for all the defendants were present and extended conversations were had between the court, defense counsel and the prosecution. The record is clear that there had been several motions for changes of venue by some of the defendants, although none by the defendant here, as well as by the state. The state's original motion for a change of venue did not include cause No. 4028. Most of the morning was taken up with a discussion of venue.

Recessing until 1:00 P.M., the court announced it would at that time proceed with hearing testimony on the venue question, stating its position as follows:

'I'll tell you what I'm going to do, gentlemen, in view of, they have changed their motion for Change of Venue now at this late hour when all the witnesses have been called for the purpose directed at the Motions, as the(y) existed as of 9:00 o'clock this morning. I am going to give the State the right to file whatever Motions or Affidavits they have concerning any change of venue they may feel they want filed. Court will be in recess until 1:00 o'clock this afternoon. I think before the Court takes a recess I want the record to show that one of the reasons, this matter is being put off and not acted upon as it should be is because of these late changes that are being made by the defendants in the case. And that the State is not entirely to blame for the continuances in this case in asking for more time.'

The defendant's objection to the venue hearing was couched in the following language:

'The defendants Juan Valdez * * * object to proceeding upon the amended Motion for Change of Venue filed by the State of New Mexico, in cases * * * and 4028 upon the grounds that, one: the District Attorney's Office has had many months to file a Motion for a Change of Venue with respect to Santa Fe County, and has not seen fit to do so, except within the last few minutes. And it is contrary to the Court's order that all Motions be filed by the 19th day of August. Number two: upon the grounds that the amended Motion was served upon counsel for all defendants herein, just within the last few minutes. And we are entitled to five days notice before appearing upon the Motion for Change of Venue.'

Defendant's objections were directed to the state's amended motion, which included cause No. 4028, and are of a general nature although the grounds were specific. He made no claim of prejudice because of the time of the venue hearing. He made no claim that he was unprepared or that he was unable to produce witnesses. He made no claim of surprise nor did he ask for a continuance or postponement. He fully participated in the entire hearing. He does not attack the sufficiency of the evidence supporting the court's change of venue order. He has failed to show, in any particular, how the claimed errors surrounding the hearing on the change of venue constituted a denial of due process. Hanson v State, 79 N.M. 11, 439 P.2d 228 (1968). In his brief, defendant further argues a constitutional right to be tried in the county of the offense, lack of affidavit under the change of venue statute and lack of timely filing. Section 21--5--3, N.M.S.A.1953 (Repl.Vol. 4). None of these were raised in the trial court; however, the previous discussion hereinabove disposes of them.

Although the foregoing very well disposes of defendant's first point, we believe the inherent power of the court to be even more decisive. Under the facts of the incident out of which the charges against the defendant arose, with the attendant publicity and the fear, unrest and prejudice of the citizens of Rio Arriba and surrounding counties, the trial court's inherent power permitted it to order a change of venue on its own motion.

The right to trial by an impartial jury is a right extending to the public, represented by the state, as well as the criminally accused. State v. Archer, 32 N.M. 319, 255 P. 396 (1927). In State v. Hollway, 19 N.M. 528, 146 P. 1066 (1914), our Supreme Court said:

'As indicated by this opinion thus far, we agree with those courts which have held that an exception to the general rule (that the accused has a right to trial by an impartial jury in the district in which the offense was alleged to have been committed) must be made when an impartial jury cannot be obtained, assuming that statutory authority for a change of venue exists, and that this was the true rule of the common law.

'While of this opinion we desire to make our position plain, it is our conclusion that by the common law an accused had the right to be tried in the county in which the offense was alleged to have been committed, where the witnesses were supposed to have been accessible, and where he might have the benefit of his good character if he had established one there, but, if an impartial trial could not be had in such county, it was the practice to change the venue upon application of the people to some other county where such trial could be obtained.'

While Holloway did not answer the question of a trial court's inherent power to change venue, it did answer the question of whether the adoption of our constitution modified or reduced the court's common law power to order a change of venue. The court stated:

"* * * Our duty in this case is therefore to ascertain whether it was the understanding of the framers of the constitution, and the people who adopted it, that the right of trial by jury included, as one of its substantial elements, an absolute right to a trial by a jury of the county where the offense was committed. If such was their intent it must be given effect, the same as though it had been expressly written into the constitution. We are unable, however, to find any ground whatever to sustain the existence of any such intent. On the contrary, there is, in our opinion, convincing evidence that the right of a trial by jury as that right was known at the time of the adoption of the constitution, did not include an absolute right to a trial by a jury of the county where the offense was committed, but that the right was conditioned upon the possibility of a fair and impartial trial being had in that county. In other words, the right of...

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