NM Stat § 38-3-3 (2021)
2021 New Mexico Statutes|Chapter 38 - Trials|Article 3 - Venue; Change of Judge|Section 38-3-3 - Change of venue in civil and criminal cases.

The venue in all civil and criminal cases shall be changed, upon motion, to another county free from exception: A. whenever the judge is interested in the result of the case or is related to or has been counsel for any of the parties; or B. when the party moving for a change files in the case an affidavit of himself, his agent or attorney, that he believes he cannot obtain a fair trial in the county in which the case is pending because: (1) the adverse party has undue influence over the minds of the inhabitants of the county; (2) the inhabitants of the county are prejudiced against the party; (3) of public excitement or local prejudice in the county in regard to the case or the questions involved in the case, an impartial jury cannot be obtained in the county to try the case; or (4) of any other cause stated in the affidavit. History: Laws 1929, ch. 60, § 1; C.S. 1929, § 147-105; 1941 Comp., § 19-503; 1953 Comp., § 21-5-3; Laws 1965, ch. 187, § 1; 2003, ch. 52, § 1. ANNOTATIONSCross references. — For requirement of evidence in support of motion for change of venue, see 38-3-5 NMSA 1978. For locations to which cases removed, see 38-3-7 NMSA 1978. For changes of judges, see 38-3-9 and 38-3-10 NMSA 1978. For costs of changes of venue, see 38-3-11 NMSA 1978. For disqualification of judges, see N.M. Const., art. VI, § 18. The 2003 amendment, effective March 19, 2003, deleted former designation A and redesignated former A(1), A(2), A(2)(a) to A(2)(d) as designations A, B, B(1) to B(4) respectively; substituted "another country" for "some country" in the introductory paragraph; in Paragraph B(3) deleted "because" at the beginning; substituted "in the case" for "therein" in present Paragraph B(3); deleted former Subsection B which provided that any party in any civil or criminal case who objects to a change of venue shall move for a change of venue on or before the first day of any regular or special term of court; and deleted Subsection C which read: "If the motion for change of venue is filed in vacation, five days' notice of the time and place of presenting the motion must be given to the opposite party or his attorney". Necessity of proving that no fair trial can be had. — A court which renders the initial decree in child custody and visitation proceedings is the proper venue for subsequent modifications over other district courts of this state. A change of venue for "other cause" under Section 38-3-3A(2)(d) NMSA 1978 (now 38-3-3B(4) NMSA 1978) requires that the movant show that the movant cannot get a fair trial without a change of venue. Dugie v. Cameron, 1999-NMSC-002, 126 N.M. 433, 971 P.2d 390. Voir dire answers. — Answers of prospective jurors to questions on voir dire was evidence to be considered in deciding the venue motions. The evidence of the answers moved the venue question out of the mandatory provisions of Section 38-3-3A NMSA 1978, and into the discretionary provisions of Section 38-3-5, NMSA 1978. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69. The legislature intended Section 38-3-3A NMSA 1978 to apply to the single-judge districts of the territorial courts and early statehood and is now without force or effect. Cook v. Anding, 2008-NMSC-035, 144 N.M. 400, 188 P.3d 1151. Power of trial court to order change of venue upon own motion. — A trial court, in a proper case and in the exercise of its discretion, has the power to order a change of venue sua sponte. This power existed at common law and the common law is the rule of practice and decision in New Mexico. Valdez v. State, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972). Change of venue may be based on presumed prejudice or on actual prejudice. — The trial court may change venue based on presumed prejudice or on actual prejudice; presumed prejudice arises when the evidence shows that the community is so saturated with inflammatory publicity about the crime that it must be presumed that the trial proceedings are tainted; actual prejudice requires a direct investigation into the attitudes of potential jurors during voir dire to establish whether there is such widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible. State v Astorga, 2015-NMSC-007. Where district court found insufficient evidence of presumed prejudice and proceeded to voir dire, potential jurors filled out extensive questionnaires, and over the course of voir dire, each potential juror was questioned regarding actual prejudice, jurors who could not be impartial were excused, and the jury that was finally impaneled was composed of jurors who affirmed their ability to remain impartial, defendant's right to a fair and impartial jury was safeguarded, and the district court did not err in denying defendant's motion to change venue. State v Astorga, 2015-NMSC-007. Court not to change venue of misfiled suit. — Absent a statute giving it such authority, a trial court has no power to change the venue of a misfiled lawsuit. Jones v. N.M. State Hwy. Dep't, 1979-NMSC-033, 92 N.M. 671, 593 P.2d 1074. The trial court may not transfer venue of a misfiled suit. Team Bank v. Meridian Oil, Inc., 1994-NMSC-083, 118 N.M. 147, 879 P.2d 779. Change of venue over objection of defendant in criminal case. — The venue of a criminal case may be changed on application of the state, even over the objection of the defendant, where public excitement and local prejudice would prevent a fair trial. State v. Archer, 1927-NMSC-002, 32 N.M. 319, 255 P. 396; see also State v. Holloway, 1914-NMSC-086, 19 N.M. 528, 146 P. 1066, but see State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, aff'd, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974). Waiver of constitutional vicinage. — Once defendant has successfully moved for a change of venue, he cannot subsequently claim a constitutional right to the original venue, as he has waived his right to trial in the county of constitutional vicinage. State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967. Requirements as to form and time for filing of motion for change of venue. Valdez v. State, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972); State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 688 (1968); Askew v. Fort Sumner Irrigation Dist., 1968-NMCA-084, 79 N.M. 671, 448 P.2d 183; State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), and cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970); State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31. 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; 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. The provisions of this section are mandatory when the prescribed steps have been taken, unless evidence is called for. The mandatory provisions become discretionary once additional evidence is requested. 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). See also 38-3-5 NMSA 1978. Procedure when motion based upon ground of interest of judge. — This section and 38-3-5 NMSA 1978 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. Motion for venue change by prosecution. — Trial court did not abuse its discretion in holding, following two highly publicized trials in Taos County, both of which ended in hung juries, that the prosecution was unable to obtain a fair trial in that county and that therefore the trial could be relocated. State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967. Responsive pleading to motion not required. — In the absence of statutory requirement no answer or other pleading is required to a motion for change of venue. 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. There is no statutory requirement for filing of a responsive pleading to a motion for change of venue, and the state's failure to controvert the motion cannot be made the basis for concluding that movant is entitled to a change of venue as a matter of law. 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. 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. Exposure of venire members to publicity about a case by itself does not establish prejudice or create a presumption of prejudice. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673. Potential venue problem cured by instruction. — Trial court did not abuse its discretion in holding trial in courtroom of building where crime scene was located; any possible prejudice to defendant was cured by instructions to jury that they were not to visit the crime scene on their own. State v. Hernandez, 1998-NMCA-167, 126 N.M. 377, 970 P.2d 149, cert. denied, 126 N.M. 533, 972 P.2d 352. Sufficiency of showing of grounds for change of venue. — This section does not mean that it must be conclusively shown that it is impossible to have a fair trial in the county where the venue is laid, but it is sufficient to show a reasonable apprehension that the defendant will not secure a fair trial or that the jury is under an influence inimical to the accused. State v. Alaniz, 1951-NMSC-049, 55 N.M. 312, 232 P.2d 982; McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Media publicity. — 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. Evidentiary hearing on motion permitted. — In a case in which there has been no preceding changes of venue, the right to a venue change is generally mandatory and must be granted; however, if the trial court determines that evidence in support of the motion is required, it may hold an evidentiary hearing. State v. Mantelli, 2002-NMCA-033, 131 N.M. 692, 42 P.3d 272, cert. denied, 131 N.M. 737, 42 P.3d 842. 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. Standard of review of trial court's denial of motion to change venue. — If the trial court denies a motion to change venue based on presumed prejudice and proceeds with voir dire, an appellate court's review is limited to the evidence of actual prejudice. The determination of actual prejudice requires a direct investigation into the attitudes of potential jurors. A finding of no actual prejudice following voir dire, if supported by substantial evidence, necessarily precludes a finding of presumed prejudice. To prove that reversible error occurred during voir dire, the defendant must show that the trial court abused its discretion by not excusing a juror who demonstrated actual prejudice. State v. Romero, 2019-NMSC-007.Trial court did not abuse its discretion in denying motion to change venue. — In defendant's trial for first-degree murder for the killing of a police officer, where defendant renewed a motion to change venue after voir dire was complete and a jury selected, the district court did not abuse its discretion in denying defendant's motion, because each empaneled juror affirmed the ability to be a neutral finder of fact, and therefore voir dire revealed no actual prejudice in the jury selected. State v. Romero, 2019-NMSC-007.Standard of appellate review. — An order of a district court denying a motion for a change of venue will not be reversed by the supreme court unless the record shows an abuse of discretion. State v. Ancheta, 1915-NMSC-003, 20 N.M. 19, 145 P. 1086; Territory v. Cheney, 1911-NMSC-050, 16 N.M. 476, 120 P. 335. 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. An appellate court will reverse a trial court's denial of a motion for change of venue only when it is shown that the trial court acted unfairly or committed a palpable abuse of discretion. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. The determination, as to whether a change of venue should be granted after a hearing on a motion rests in the sound discretion of the trial court, and this determination will not be disturbed on appeal absent a showing of abuse of this discretion and the burden of showing such an abuse rests on the movant. State v. Rushing, 1973-NMSC-092, 85 N.M. 540, 514 P.2d 297. The trial court possesses broad discretion in ruling on motions to change venue, and the supreme court will not disturb its decision absent a showing of an abuse of that discretion. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673. Burden of showing abuse of discretion. — The burden to show an abuse of discretion in the case of a ruling on a motion for change of venue lies with the movant. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673. Motion properly denied. — Where defendant drove a pickup toward a group of trick-or-treaters on Halloween; the chaperone pushed the children out of the way but was struck and killed; defendant then left the scene of the accident; because of the local media coverage, defendant moved for a change of venue; the district court denied the motion, called two jury panels for selection and conducted voir dire; the court asked pointed questions to potential jurors who had heard of the case, including questions that asked those jurors to assess the impact of the publicity on their ability to be fair, whether they could evaluate the evidence without reference to information external to the court proceeding, and whether they had come to any conclusions about who was responsible for the accident; defendant had an opportunity to question jurors; and defendant did not point to any actual prejudice on the part of any juror, the court did not abuse its discretion in refusing to change the venue. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006. Where the child, who was charged with murder, asked for a change of venue on the grounds that pre-trial publicity and public excitement surrounding the case would make it impossible for the child to obtain a fair trial by an impartial jury; the pre-trial publicity occurred when the child escaped from detention; no publicity occurred after the child was recaptured; substantial time elapsed between the publicity and the trial; the publicity consisted of newspaper articles and editorials, online forum postings, and a program on the television show "America's Most Wanted"; and voir dire by the trial court and defense counsel did not reveal any prejudice of the jury panel from the pre-trial publicity, the trial court did not abuse its discretion in denying the motion to change venue. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024. The trial court did not abuse its discretion by denying defendant's change of venue motion where substantial evidence supported the court's determination that there was no evidence of actual prejudice among the members of the jury. State v. Barrera, 2001-NMSC-014, 130 N.M. 227, 22 P.3d 1177. Trial court did not abuse its discretion in denying oral request for change of venue where defendant presented no evidence indicating that she was deprived of a fair and impartial jury. State v. Wynne, 1988-NMCA-106, 108 N.M. 134, 767 P.2d 373. Denial of motion held error. — Where defendant filed a proper motion for change of venue showing circumstances whereunder he could not obtain fair trial, such charges not being controverted, trial court committed prejudicial error in not sustaining his motion for it. State v. Alaniz, 1951-NMSC-049, 55 N.M. 312, 232 P.2d 982. Law reviews. — For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984). For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. — 77 Am. Jur. 2d Venue § 48. Contempt in violating injunction in industrial dispute, statute as to right of one charged with, to change of venue, 35 A.L.R. 462, 97 A.L.R. 1333, 106 A.L.R. 361, 120 A.L.R. 316, 124 A.L.R. 751, 127 A.L.R. 868. Corporations, prejudice against officer, stockholder, or employee, as ground for change of venue on application of corporation, 63 A.L.R. 1015. Lis pendens as affected by change of venue, 71 A.L.R. 1094. Civil action or civil proceeding, what is, within statute relating to change of venue, 102 A.L.R. 397. Statute affecting number of changes of venue, 104 A.L.R. 1494. Appearance to apply for change of venue as submission to jurisdiction of court, 111 A.L.R. 934. Delay in proceeding to trial, proceedings for change of venue as affecting applicability of statutory requirement or rule of court that action be brought to trial within specified time, 112 A.L.R. 1173. Power of guardian ad litem or next friend to apply for change of venue, 115 A.L.R. 574. Nonsuit, dismissal or discontinuance of action, effect on previous orders, 11 A.L.R.2d 1407. Construction of effect of statutes providing for venue of criminal case in either county, where crime is committed partly in one county and partly in another, 30 A.L.R.2d 1265, 73 A.L.R.3d 907, 100 A.L.R.3d 1174, 11 A.L.R.4th 704. District and prosecuting attorneys: power or duty of prosecuting attorney to proceed with prosecution after change of venue, 60 A.L.R.2d 864. Witnesses: construction and effect of statutory provision for change of venue for the promotion of the convenience of witnesses and the ends of justice, 74 A.L.R.2d 16. Binding effect of order on motion for change of venue, where action is terminated otherwise than on merits and reinstituted, 85 A.L.R.2d 993. Prohibition as appropriate remedy to review ruling on change of venue in civil case, 93 A.L.R.2d 802. Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331. Fair trial: right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like, 34 A.L.R.3d 804. State's right to change of venue in criminal case, 46 A.L.R.3d 295. Choice of venue to which transfer is to be had, where change is sought because of local prejudice, 50 A.L.R.3d 760. 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. Power of state trial court in criminal case to change venue on its own motion, 74 A.L.R.4th 1023. Forum non conveniens in products liability cases, 76 A.L.R.4th 22. What constitutes "initial pleading" for purposes of computing time for removal of civil action from state to federal court under 28 USCS § 1446(b), 130 A.L.R. Fed. 581. 92 C.J.S. Venue § 128.