State v. Valdez
Court | Court of Appeals of New Mexico |
Citation | 83 N.M. 632,1972 NMCA 14,495 P.2d 1079 |
Docket Number | No. 490,490 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Juan VALDEZ, Defendant-Appellant. |
Decision Date | 21 January 1972 |
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:
Based on these findings, the court concluded:
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:
The defendant's objection to the venue hearing was couched in the following language:
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:
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