NM Stat § 38-3-5 (2021)
2021 New Mexico Statutes|Chapter 38 - Trials|Article 3 - Venue; Change of Judge|Section 38-3-5 - [Evidence in support of application; findings; decision.]

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. History: Laws 1929, ch. 60, § 2; C.S. 1929, § 147-106; 1941 Comp., § 19-504; 1953 Comp., § 21-5-4. ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Cross references. — For motion for change of venue generally, see 38-3-3 NMSA 1978. Decision is discretionary. — Trial court's decision on a motion for change of venue is discretionary and is reviewed only for an abuse of discretion. Lopez v. Truckstops Corp. of Am., 1987-NMCA-058, 105 N.M. 782, 737 P.2d 894, cert. denied, 105 N.M. 720, 737 P.2d 79. Procedure required upon motion generally. — When requisite motion to change venue is made, the venue must be changed or in the alternative, the court may require evidence in its support; and if a hearing is had thereon it is the duty of the court to determine the question by its findings. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679; see also State v. Turner, 1976-NMCA-119, 90 N.M. 79, 559 P.2d 1206, cert. denied, 90 N.M. 9, 558 P.2d 621 (1977). Procedure when motion based upon ground of interest of judge. — Section 38-3-3 NMSA 1978 and this section do not require any evidence in support of the motion for change of venue when based upon the interest of the judge, and dispense with any findings by the judge upon that question. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511. See also 38-3-9 and 38-3-10 NMSA 1978. Necessity for hearing upon motion. — In view of this statutory right, a denial of a change of venue without hearing movant's tendered proof is reversible error. Schultz v. Young, 1933-NMSC-064, 37 N.M. 427, 24 P.2d 276. Where motion for a change of venue was timely filed in the form and substance required by 38-3-3 NMSA 1978, the trial court could require a hearing thereon, and where no hearing was held, denial of the motion was reversible error. State v. Childers, 1967-NMCA-014, 78 N.M. 355, 431 P.2d 497. Burden of proof when a motion and affidavit are submitted for a change of venue remains on the moving party and, when evidence is produced, that evidence must be persuasive of the probability that a fair trial cannot be obtained in the county where the cause is pending. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. The mere fact no counter-evidence was presented by the state in response to motion for change of venue furnished no basis for a holding that movant was entitled to a change of venue as a matter of law since the burden of proof on the removal motion was on movant. State v. Montoya, 1968-NMCA-069, 80 N.M. 64, 451 P.2d 557; aff'd sub nom. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. The burden of showing that the trial court abused its discretion in denying the motion for a change of venue is on the movant. Lopez v. Truckstops Corp. of Am., 1987-NMCA-058, 105 N.M. 782, 737 P.2d 894, cert. denied, 105 N.M. 720, 737 P.2d 79. Process of determining whether or not the facts necessary for a change of venue exist is the same as that followed in determining any other fact in a case. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. It is for the trial court to determine, on the basis of substantial evidence, whether there is a reasonable apprehension that a fair trial cannot be obtained. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Section requires the court to make findings of fact if there has been a hearing on a motion, but where there was no hearing on the motion, and the court ruled summarily, the court was not so required. State v. Shawan, 1967-NMSC-013, 77 N.M. 354, 423 P.2d 39. When evidence is required by the trial court in support of the motion for a change of venue, the court must make findings and decide the issue. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. Failure to request specific findings upon motion precludes appellate review. — Though a defendant moves for change of venue in murder trial, if he does not request specific findings with reference thereto from the trial court, denial of the motion is not open for appellate review. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679. Unless specific findings are requested, the absence of findings is waived. State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471. Findings made on a motion to change venue will not be disturbed upon review unless it appears from the evidence that the trial court acted unfairly and committed palpable abuse of discretion. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679. A motion for change of venue which is disposed of after a hearing and upon stated findings will not be disturbed on appeal unless a clear abuse of the trial court's discretion can be shown. State v. Evans, 1973-NMCA-053, 85 N.M. 47, 508 P.2d 1344. Denial of change of venue held not error. — The trial court did not abuse its discretion in denying a change of venue where substantial evidence existed for finding that residents of the county where the venue was had were not prejudiced against defendant and where no reasons were shown why defendant would not receive a fair and impartial trial in that county. State v. Jones, 1948-NMSC-014, 52 N.M. 118, 192 P.2d 559. Numerous newspaper articles and radio and television stories wherein an accused was mentioned, without more, did not necessarily establish prejudice or such public excitement as would make a fair trial impossible, and a change of venue necessary. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. Am. Jur. 2d, A.L.R. and C.J.S. references. — Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942. Change of venue as justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to state civil action, 10 A.L.R.4th 1046.