NE Code § 29-1301 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-1301 - Venue; change; when allowed.

29-1301.  Venue; change; when allowed.All criminal cases shall be tried in the county where the offense was committed, except as otherwise provided in section 25-412.03 or sections 29-1301.01 to 29-1301.04, or unless it shall appear to the court by affidavits that a fair and impartial trial cannot be had therein. In such case the court, upon motion of the defendant, shall transfer the proceeding to any other district or county in the state as determined by the court.Source   G.S.1873, c. 58, § 455, p. 823;   R.S.1913, § 9024;   C.S.1922, § 10048;   C.S.1929, § 29-1301;   R.S.1943, § 29-1301;   Laws 1957, c. 103, § 1, p. 363;   Laws 1975, LB 97, § 7;   Laws 1978, LB 562, § 1;  Laws 2021, LB500, § 1.   Effective Date: August 28, 2021  Cross References   Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01.  Trial, agreements under Interlocal Cooperation Act, see section 25-412.03. Annotations  1. Venue of offense 2. Change of venue 3. Miscellaneous 1. Venue of offense A criminal defendant has a right to be tried in the county in which the criminal offense is alleged to have been committed. In re Interest of Leo L. II, 258 Neb. 877, 606 N.W.2d 783 (2000). The right to be tried in the county in which the criminal offense is alleged to have been committed is secured by statute rather than by the federal or state constitution. When a criminal defendant does not object at trial to holding the trial in a county other than the county in which the criminal offense is alleged to have been committed, the defendant waives his or her objection to the statutorily designated trial provision in this section. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999). Venue may be proven like any fact, by testimony or by conclusion reached as the only logical inference under the facts. State v. Liberator, 197 Neb. 857, 251 N.W.2d 709 (1977). Where defendant resisted officer in execution of his office on county line road, prosecution could be in either of the counties divided by the road. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975). Trial of offense of failing to support child was properly held in county where child resided. State ex rel. Brito v. Warrick, 176 Neb. 211, 125 N.W.2d 545 (1964). Criminal cases must be tried in county where crime was committed, or in county to which change of venue is taken. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958). Venue of an offense may be proven like any other fact. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955). Where defendant had entered a plea of guilty, he could not on error proceedings retry issue of fact as to venue of offense. Clark v. State, 150 Neb. 494, 34 N.W.2d 877 (1948). Where an offense consists of a series of acts, prosecution may be had in any county where any one of the acts took place. Yost v. State, 149 Neb. 584, 31 N.W.2d 538 (1948). Where a person in one county procures the commission of a crime in another through the agency of an innocent person, he is subject to prosecution in the county where the acts were done by the agent. Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944). Conviction was sustained as not violative of this section. Forney v. State, 123 Neb. 179, 242 N.W. 441 (1932). County in which matrimonial domicile of husband and wife is located fixes venue in action for abandonment. Preston v. State, 106 Neb. 848, 184 N.W. 925 (1921). 2. Change of venue A change of venue is mandated when a defendant cannot receive a fair and impartial trial in the county where the offense was committed. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). An appellate court evaluates a court's change of venue ruling under eight factors unless the defendant claims that the pretrial publicity was so pervasive and prejudicial that the appellate court should presume the unconstitutional partiality of the prospective jurors. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). The Nebraska Supreme Court has recognized two circumstances when the prospective jurors- claims of impartiality can be presumptively unreliable: (1) pervasive pretrial publicity that is sufficiently inflammatory can create a presumption of prejudice in a community and require a change of venue to a location untainted by the publicity, and (2) if most of the prospective jurors admit to a disqualifying prejudice, the reliability of the others- claims of impartiality is called into question. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). A court must evaluate several factors in determining whether a defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial jury. These factors include (1) the nature of the publicity, (2) the degree to which the publicity has circulated throughout the community, (3) the degree to which the venue could be changed, (4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care exercised and ease encountered in the selection of the jury, (6) the number of challenges exercised during voir dire, (7) the severity of the offenses charged, and (8) the size of the area from which the venire was drawn. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). Pretrial publicity regarding a retrial after a conviction may in some cases present more difficult venue issues than those of an initial trial, but a determination of whether a change in venue is necessary remains within the discretion of the trial court. State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996). Trial court does not abuse its discretion in denying defendant's motion for change of venue when there is no evidence that jury could not be fair and impartial after viewing news reports which reference a polygraph examination. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995). A party seeking change of venue must show that publicity has made it impossible to secure a fair and impartial jury. The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). The factors to be considered in determining whether this section authorizes a change in venue due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated in the areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. A trial court's ruling on a motion for a change of venue under this section will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992). The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity has circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987). Showing made was insufficient to require change of venue. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952); Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952). Motion for change of venue was properly denied in first degree murder case. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951). Application for change of venue is addressed to sound discretion of trial court; ruling will not be disturbed unless abuse of discretion is shown. Simmons v. State, 111 Neb. 644, 197 N.W. 398 (1924); Clarence v. State, 89 Neb. 762, 132 N.W. 395 (1911); Sweet v. State, 75 Neb. 263, 106 N.W. 31 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905). Change of venue on application of accused is waiver of his right to trial in county where crime is charged. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909). Ruling of district court upon motion supported by affidavits will not be disturbed unless clearly without support of sufficient evidence. Lindsay v. State, 46 Neb. 177, 64 N.W. 716 (1895). Change can only be granted by court of county where offense was committed. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889). Party seeking change of venue must show by best evidence that can be obtained bias and prejudice against him. Simmerman v. State, 16 Neb. 615, 21 N.W. 387 (1884). On showing made, change of venue should have been granted. Richmond v. State, 16 Neb. 388, 20 N.W. 282 (1884). Motion for change to particular county is bad, and may be overruled. Olive v. State, 11 Neb. 1, 7 N.W. 444 (1880). Requirements of this section have no application to receiving plea of guilty and imposing sentence in chambers. Canada v. Jones, 170 F.2d 606 (8th Cir. 1948). 3. Miscellaneous The State has the burden to prove proper venue beyond a reasonable doubt in the absence of defendant's waiver. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). Voir dire examination provides the best opportunity to determine whether venue should be changed. Mere jury exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process; rather, to warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). Voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward the accused than is a public opinion poll. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990). A defendant may waive the issue of statutorily designated venue by requesting a change of venue in accordance with this section, but does not waive the venue issue by failing to raise venue before or during trial. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989). A motion to change venue under this provision is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. An abuse occurs where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987). Under facts in this case it was not error to deny motions grounded on pretrial publicity for change of venue and continuance, sequestration of jury during voir dire and trial, and for admission of a photograph which merely illustrated testimony received without objection. State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976). Section considered in reviewing order restricting publication of certain information before trial of murder case. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). Appeal by a county in criminal case from order allowing attorney's fees is not authorized as the district court merely determines the reasonable charges for which claim may be filed with the county board. State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975). Where state and local purposes are commingled, the crucial issue turns upon a determination of whether the controlling purposes are state or local. Counties may be required to pay attorney's fees for one appointed to defend an indigent defendant. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).