OPINION
{1} Gordon House was convicted of vehicular homicide and various other charges after two hung juries in Taos County and a change of venue to Doña Ana County for the third trial. The Court of Appeals reversed his conviction, holding that the trial court abused its discretion in changing the venue from Taos County to Doña Ana County. The State appealed. We hold that the trial court did not abuse its discretion in concluding that a fair trial could not be guaranteed in Taos County and that Doña Ana County was more likely to be free from exception. We reverse the Court of Appeals and affirm the trial court.
I. FACTS
{2} This case, arising from a fatal traffic accident, was so transformed by publicity that all those involved were compelled to evaluate how the defendant could receive a fair trial. So frenetic was the media attention that the prosecution eventually claimed that even the State was having difficulty receiving a fair adjudication of this case.
{3} On Christmas Day 1992, the citizens of New Mexico awoke to news reports concerning a tragic traffic accident that had occurred the night before.1 Through the constant media coverage, the details of the accident were widely available. The following facts were adduced from the record of the proceedings in the trial court. The incidental endnotes are intended to illustrate the extent and nature of the media coverage surrounding each event in this case.
{4} On that Christmas eve, Paul Cravens, his wife Melanie, and her three daughters, five-year-old Kaycee, seven-year-old Erin, and nine-year-old Kandyce, set off in their Oldsmobile to enjoy the Christmas Lights in Albuquerque. They drove westward on Interstate Highway 40 toward “Nine Mile Hill” which provided a vantage from which they could see the city’s lights.2
{5} Gordon House, an enrolled member of the Navajo nation, is married and the father of two young children, and was employed as executive director of House of Hope, a halfway home for troubled adolescents in Gallup, New Mexico.3 That Christmas Eve, he was driving his Ford pickup from Albuquerque to his home in Thoreau, New Mexico. House admitted that, during that evening, over a period of several hours, he had consumed seven-and-one-half beers.4 House claimed that, shortly after beginning his journey, he became ill with the precursor symptoms of a migraine headache.5 He asserted that his migraine symptoms grew so severe that he was partially blinded.6 He became disoriented and inadvertently entered Interstate Highway 40 going the wrong direction. Thus, at the same time Cravens and his family were driving west in the westbound lane, House was driving east in the same lane.
{6} Several other vehicles were forced to take evasive actions to avoid colliding with House as he drove eastward in the westbound lane of the Interstate.7 A state policeman paced House from the proper eastbound lane, attempting to get his attention with red lights, a siren, and a spotlight directed at House’s truck. At one point House looked at the policeman and accelerated to speeds exceeding 85 miles per hour.8 House hit the Cravens’ car head-on. Melanie Cravens and her three young daughters were killed instantly. Paul Cravens suffered severe injures.
{7} House was seriously injured. The prosecution offered evidence that, shortly after House arrived at a hospital in Albuquerque, his blood-alcohol concentration was measured at .18% and, about five hours later, was measured at .10%.® House asserted that a severe familial hemiplegic migraine, rather than alcohol, was the proximate cause of his driving the wrong way on the freeway and the resultant accident.10 It was later revealed that he had a single prior conviction of driving while intoxicated from magistrate court in McKinley County, New Mexico, in December 1987.11
{8} The accident and all its consequences became one of the most widely publicized cases in New Mexico history. Within days of the accident, newspapers reported that many members of the public reacted, with outrage and demanded tougher DWI laws.12 The accident, and the defendant himself, became figureheads for those who were urging more punitive DWI laws in New Mexico.13 Statements by members of the victims’ families were frequently reported by the media.14 Nadine Milford, Melanie Craven’s mother, was the subject of a feature on national television.15
{9} House’s family, members of the Navajo nation, and others publicly decried the news coverage and prosecutorial tactics as racist and one sided.16 The advocacy of attorneys for both the prosecution and the defense madе for colorful reportage.17
{10} Editorialists heatedly expostulated about the case.18 Newspaper readers frequently expressed their opinions in letters to the editor.19 Talk show listeners expressed their feelings.20 Human interest portraits were published about almost anyone who had any relationship with any of the people involved in the accident.21 The evening TV news and front-page news stories covered even minor developments in the case22 As reported by the news media, the court, on more than one occasion, felt compelled to issue gag orders to the parties in the case, forbidding them from making statements to the news media.23 Even these orders provoked litigation which itself became newsworthy.24 Inevitably, the media coverage itself became an inextricable part of the story.25
{11} The Criminal Complaint was filed on July 13, 1993. In addition to charges of vehicular homicide, great bodily injury by vehicle, driving while intoxicated, reckless driving, and eluding an officer, the prosecution brought charges of first-degree depraved-mind murder. On September 22, 1993, House submitted to this Court a Verified Petition for Extraordinary Writ, asking that we order the State to proceed no further in the first-degree-murder prosecution. We denied the writ.26 The trial court held a preliminary hearing on the matter.27 Upon hearing the evidence, Honorable Frank H. Allen Jr. dismissed the depraved-mind-murder charges on October 27, 1993. Public reactions of outrage and relief were duly reported.28
{12} Both the prosecution and the defense became concerned that House could not receive a fair trial in Bernalillo County because of the extensive pretrial publicity. House made a motion, unopposed by the State, for a venue change. On March 28, 1994, Judge Allen changed the venue of the trial to Taos County.29
{13} Amid extensive print and broadcast coverage, the first of the Taos trials began on June 6, 1994.30 On June 21, 1994, the jury convicted House on the misdemeanor charge of driving while intoxicated but declared that it was deadlocked nine to three in favor of conviction on all the remaining counts including the vehicular homicide counts. News of the hung jury incited a furious round of media attention.31 The court entered an Order declaring a mistrial on the remaining six counts on June 28,1994.
{14} The prosecution made a public avowal to seek a retrial and, on July 29,1994, filed a Motion for Change of Venue in which the District Attorney stated that it was impossible for the State to receive a fair trial in Taos County. This motion was opposed by House.32 The motion to change venue was denied on August 23, 1994. State v. House, CR-93-1693, slip op. (N.M.Dist.Ct. Aug. 23, 1994) (Findings of Facts and Conclusions of Law re: States [sic] Motion to Change Venue.) 33 A few days later Judge Allen recused himself from the case, and the Honorable Richard Blackhurst was assigned to the case.
{15} A second jury trial began in Taos County on November 7, 1994.34 Once again the jury announced that it was deadlocked nine to three in favor of conviction on the vehicular homicide counts. Journalists attempted to explain the non-verdict and recorded the reactions of the participants and the public.35 An order declaring mistrial was entered on November 30,1994.
{16} The prosecution proclaimed its intention to seek a third trial. A newspaper article reported the reaction of a State Senator from Taos accusing the prosecutor of being obsessed with the case.36 Arguing that, because of extensive and pervasive pretrial publicity, it could no longer receive a fair trial in Taos, the prosecution, on November 30, 1994, moved for change of venue to Bernalillo County.
{17} In early December 1994, Judge Blackhurst recused himself due to his pending retirement and the case was eventually assigned to Honorable James F. Blackmer.
{18} House’s attorney, on December 2, 1994, published an article accusing the district attorney of ignoring justice and being controlled by a “lust for vengeance” in seeking a third trial.37 On December 16,1994, in response to a motion by the prosecution,38 Judge Blackmer issued a gag order prohibiting the attorneys in the case from making substantive comments about the case in the media. House’s attorney sought a writ of superintending control to vacate the gag order.39 In March 1995, at a hearing on the matter, we vacated the gag order.40 We later filed a written opinion explaining that the gag order was an unconstitutional prior restraint of speech. See Twohig v. Blackmer,
{19} A few days after the first gag order, on December 5, 1994, House filed a “Defendant’s Motion to Dismiss Remaining Charges For Prosecutorial Misconduct Cruel & Unusual Punishment & Due Process.” Arguments concerning the efficacy of a third trial were aired by the media.41 On January 12, 1995, Judge Blackmer, after holding a hearing on the matter, denied House’s motion to dismiss. After a hearing on the prosecution’s motion to change venue, Judge Blackmer, on February 7, 1995, granted the motion; however, the new trial would not be held, as the prosecutors wished, in Bernalillo County.
{20} Two months later Judge Blackmer issued an “Order Changing Venue For Trial, and Order on Jury Selection in New Venue” which included an extensive analysis of the venue question. He concluded that a fair trial could be held in Doña Ana County, in Southern New Mexico, and ordered that House’s third trial be held at that venue. See State v. House, No. CR-93-1693, slip op. (N.M.Dist.Ct. Apr. 5, 1995) (Order Changing Venue For Trial, and Order on Jury Selection in New Venue) [hereinafter Venue Order]|. House responded, on April 21, 1995, by filing a petition for Writ of Superintending Control to this Court, challenging the refusal of the district judge to dismiss the indictment after two hung juries, and challenging the change of venue to Doña Ana County. Five days later we denied the petition without prejudice. House v. Blackmer, No. 22,864 (N.M. Apr. 26, 1995) (Order denying Petition for Writ of Superintending Control and Request for Stay).42
{21} Shortly thereafter, on May 5, 1995, the third trial began in Doña Ana County. This time it was broadcast nationwide on Court TV.43 The Doña Ana jury, on May 26, 1995, convicted House on all the charges that the Taos juries had been unable to resolve in the two preceding trials. They found him guilty of four counts of Homicide by Vehicle (Driving While Intoxicated), four counts of Homicide by Vehicle (Reckless Driving), one count of Great Bodily Injury by Vehicle (Driving While Intoxicated or in the alternative Reckless Driving), and Reckless Driving.44 On July 24, 1995, before television cameras, Judge Blackmer sentenced House to 22 years in prison.45
{22} House filed an appeal of his convictions to the New Mexico Court of Appeals. House was denied bail pending appeal. He brought this matter before the Court of Appeals which reversed his denial of bail. See State v. House,
{23} Both parties petitioned this Court for certiorari, and on January 14, 1998, we denied House’s petition, State v. House,
{24} To resolve the conflicting issues raised by the arguments of the parties, the trial court’s Venue Order, and the opinions of the majority and dissent in the Court of Appeals opinion below, we must address both sides of the venue question argued in this case: the unsuitability of Taos County and the suitability of Doña Ana County as venues for House’s trial.
{25} As mentioned above, these same issues were brought before us when, before the third trial, House filed a writ of Superintending Control to this Court on April 21, 1995, asking us to reverse the venue change. See House v. Blackmer, No. 22,864 (N.M. Apr. 26, 1995). We denied the petition five days after it was filed. Our denial of House’s petition for a writ of superintending control does not preclude appellate review of the trial court’s action and does not necessarily reflect upon the merits of House’s contentions for purposes of this appeal. See Rule 12-504(C)(1) NMRA 1998 (providing that the Court may deny a petition without hearing if it “is without merit, concerns a matter more properly reviewable by appeal, or seeks relief prematurely”); State v. Ware,
II. RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
{26} All decisions regarding the venue of a criminal trial are guided by the constitutional guarantee of a fair and impartial trial. See N.M. Const. art. II, § 14 (as amended 1980) (guaranteeing “an impartial jury”); N.M. Const, art. II, § 18 (as amended 1972) (due process and equal protection). To that end, our constitution states that the accused is entitled to a trial before “an impartial jury of the county or district in which the offense is alleged to have been committed.” N.M. Const, art. II, § 14. Many years ago, we concluded that this entitlement “has a double aspect. The trial must not only be in the county, but it must also be an impartial jury. If the latter element is not present, the constitutional guaranty no longer controls.” State v. Archer,
{27} The first aspect — the right to be tried where the crime occurred— serves to prevent “the unfairness and hardship involved when an accused is prosecuted in a remote place.” United States v. Cores,
{28} In those circumstances when the second aspect — the right to an impartial jury — cannot be. guaranteed, the site of the trial “shall be changed, upon motion,” from this constitutional vicinage
to some county free from exception:
(2) 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:
(a) the аdverse party has undue influence over the minds of the inhabitants of the county; or
(b) the inhabitants of the county are prejudiced against the party; or
(c) because of public excitement or local prejudice in the county in regard to the case or the questions involved therein, an impartial jury cannot be obtained in the county to try the case; or
(d) any other cause stated in the affidavit.
NMSA 1978, § 38-3-3(A) (1965). By referring to the movant as an unspecified “party,” this statute grants to both the defendant and the State the right to seek a change of venue. See Holloway,
{29} In a case in which there have been no preceding changes of venue, this right to a venue change is generally mandatory and must be granted by the trial court, provided that the moving party has filed an affidavit as prescribed by Section 38-3-3(A)(2). See State v. Turner,
{30} Should either party conclude that a fair trial may be impossible after the first venue change, “[a] second change of venue shall not be allowed in any civil or criminal case, as a matter of right, but shall be within the discretion of the court.” NMSA 1978, § 38-3-6 (1880). The State’s motion to change venue for the second time in this case was therefore within the trial court’s discretion.
III. STANDARD OF REVIEW
A. The Proper Standard of Review
{31} Under our venue statutes, those changes of venue that are not mandatory take place at the discretion of the trial court. See § 38-3-3(A) (mandatory upon proper motion unless evidentiary hearing under Section 38-3-5); § 38-3-6 (second venue change at court’s discretion). The trial court’s discretion in this matter is broad and will not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated. State v. Hargrove,
{32} The standard of review required in assessing most abuse-of-discretion claims is whether the trial court’s venue determination is supported by substantial evidence in the record. See State v. Atwood,
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. On appeal, all disputed facts are resolved in favor of the successful party, all reasonable inferences indulged in support of the verdict, all evidence and inferences to the contrary disregarded, and the evidence viewed in the aspect most favorable to the verdict. Nor does the fact that there may have been contrary evidence which would have supported a different verdict permit us to weigh the evidence.
Tapia v. Panhandle Steel Erectors Co.,
{33} We must be mindful that it is the role of the trial court, and not the аppellate court, to weigh the evidence and determine the credibility of witnesses. See McCauley v. Ray,
{34} Another important factor that would prove abuse of discretion in a venue determination is a showing by the complainant that he or she has been prejudiced by the trial court’s decision. Substantial evidence that a trial in a particular venue was not fair and impartial would require reversal on appeal. See State v. Griffin,
B. House’s Proposed Standards of Review
1. De novo
{35}- In contravention of these principles of review, House argues that decisions under our venue statutes are mixed question of law and fact and that we should review under a de novo analysis rather than an abuse-of-discretion analysis. See State v. Attaway,
2. Heightened scrutiny
{36} Because the chоice of venue is founded on the constitutional guarantee of a fair and impartial trial, House also argues that we should apply a heightened standard of proof in assessing the trial court’s venue decision. It seems that House is asking us to evaluate the trial court’s venue determination using the traditional “heightened,” or “intermediate,” as it is sometimes called, constitutional standard of scrutiny. See, e.g., Trujillo v. City of Albuquerque,
{37} Nevertheless, House insists that this Court has expressly renounced the reasonable probability analysis for a “clear and present danger” test in determining whether pretrial publicity has deprived a defendant of a fair trial. For support he takes out of context a somewhat ambiguous passage in Twohig v. Blackmer, the offshoot of this case in which House’s attorney challenged the constitutionality of Judge Blackmer’s first gag order. House seizes upon the statement from Twohig that
the inquiry is the same regardless of whether a court is analyzing the constitutionality of a gag order, considering the propriety of disciplinary action, or determining whether pretrial publicity was so pervasive as to deprive a criminal defendant of a fair trial.
Twohig,
{38} House further confounds the standards of proof for restraints of speech with those for venue changes when he emphasizes that in Twohig we concluded that the gag order placed upon the parties in this case was an unconstitutional prior restraint because there was “a complete lack of factual findings to support the conclusion that such an order was necessary to preserve the parties’ right to a fair trial.” Twohig,
3. Heavier burden for the State
{39} The majority in the case below caused some controversy with its statement that “when the state does elect to move for a change of venue it carries a heavy burden to show that public sentiment is such that a fair and impartial trial is improbable.” House Majority,
{40} In this context, the majority was concerned by the State’s arguments that it could not receive a fair trial in Taos while House claimed he suffered no prejudice in that venue. The majority emphasized that because the State sought a venue change over the adamant objections of the defendant, it must show strong proof to support its claim that Taos was not an impartial venue. Id. ¶¶ 22-23. The majority warned that the courts “should guard against an abuse of the state’s power when the state moves for a change of venue,” implicitly evoking the almost limitless resources and power of the State to pursue prosecution that, if abused, few defendants could hope to combat. Id. ¶ 21.
{41} The majority has not precisely characterized the State’s burden. In most circumstances, the movant must demonstrate a reasonable probability that a fair and impartial trial is unlikely in a particular venue. See Deals,
{42} However, when the State moves for a change of venue over the defendant’s objections, the nature of the State’s burden depends upon whether the venue from which it seeks a change is the constitutional vicinage in which the crime allegedly occurred. The constitutional right to a trial in the “district in which the offense is alleged to have been committed” rests solely with the accused. See N.M. Const, art. II, § 14. The State has no equivalent constitutional right. Thus, when the State, against the defendant’s objections, exercises its statutory right under Section 38-3-3 to move the trial from this constitutional vicinage, it must demonstrate why the defendant’s constitutional right should be overridden. Under these circumstances the State bears a greater burden of proof than that applicable to other venue motions. Ashley v. State,
{43} We conclude that, when moving, over the defendant’s objections, for a change of venue from the district in which the crime allegedly occurred, the prosecution must prove with clear and convincing evidence that a fair trial in that district is a practical impossibility. Cf. Higginbotham v. State,
[C]lear and convincing evidence is something stronger than a mere “preponderance” and yet something less than “beyond a reasonable doubt.” For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.
In re Sedillo,
{44} Though House argues otherwise, these principles do not apply to this case. As we discuss in detail below, Bernalillo County is the constitutional vicinage in this case. With his motion to change venue before the first trial, House waived his constitutional right to be tried in that venue. See State v. Nichols,
IV. PROBABILITY OF FAIR TRIAL IN TAOS COUNTY
A. Presumed Prejudice, Actual Prejudice, and the Reasonable Probability of Prejudice
{45} House argues that the trial court abused its discretion because it did not have sufficient evidence to support its decision to move the trial from Taos County. The applicable statute, Section 38-3-6, states that “[a] second change of venue shall not be allowed in any civil or criminal case, as a matter of right, but shall be within the discretion of the court.” This statute controls our evaluation of the move to Doña Ana County. However, the exact nature of the trial court’s discretion has not, with the exception of the Court of Appeals majority opinion below, been construed by our appellate courts. The majority below, in discussing this statute, noted that “the court’s discretion should be guided by its obligation to ensure that the parties receive a fair trial from an unbiased, impartial jury” and, more dubiously, posited “that the fact that venue has already been changed once can weigh against a second change of venue.” House Majority,
{46} House seizes upon this ambiguity by raising the distinction between actual prejudice and presumed prejudice. These are concepts applied by federal courts. Actual prejudice requires a direct investigation into the attitudes of potential jurors. Under this inquiry, the court will conduct a voir dire of prospective jurors to establish whether there is such widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible. United States v. Bakker,
{47} There was some skepticism in the Court of Appeals opinion below as to the applicability of the distinction between actual and presumed prejudice. House Majority,
{48} Regarding the nature of the trial court’s discretion under Section 38-3-6, we conclude that the parameters that apply to a first change of venue should also apply to a second. Thus the trial court, in following Section 38-3-6, should rely upon the indicia found in Section 38-3-3(A)(2): “undue influence” by the adverse party “over the minds of the inhabitants of the county,” “public excitement,” “local prejudice,” and “any other cause” showing that a fair trial cannot be obtained “in the county in which the case is pending.” As indicated above, the trial court should apply a reasonable-probability standard of proof when balancing conflicting claims regarding the likelihood of a fair trial in a particular venue.
{49} We emphasize that our holding in this case is founded on the requirement set forth in Section 38-3-6. In other words, the venue issue before us turns on whether the trial court abused its discretion in ordering a second venue change to Doña Ana County. However, we do not believe that, by itself, a finding of a reasonable probability of unfairness in Taos brings us any closer to a resolution of the claims of the parties, the rationale of the trial court’s Order Changing Venue For Trial, and the conflicting arguments of the majority and dissent in the opinion of the Court of Appeals. House’s arguments cannot be so summarily dismissed. Because of the highly contentious evidence in the record, as well as the disparity of opinion among, not only the parties, but members of the judiciary, we must comprehensively analyze whether voir dire was essential to determining the reasonable probability of a fair trial in Taos. We conclude that differentiating actual and presumptive prejudice is useful in evaluating the parameters of Section 38-3-6. As discussed below, New Mexico’s venue statutes require a different standard of proof than would be required in federal courts under the presumptive prejudice standard. Based upon New Mexico venue laws, we conclude, contrary to the arguments of House and the majority of the Court of Appeals, that the trial court’s implicit finding of presumed prejudice in Taos County is supported by substantial evidence. See House Majority,
B. Proof of Actual Prejudice Is Not Required
{50} House contends that the trial court should have permitted a venue change from Taos County only if actual prejudice had been established. He urges that, in this particular case, the only way the triаl court could have established that the venue was hopelessly prejudiced was to attempt to seat a jury by conducting voir dire. Only if interviews with actual potential jurors revealed an extreme level of prejudice would a change of venue be justified.
{51} When courts address actual prejudice, the often quoted inquiry, from Patton v. Yount,
{52} Voir dire is one way of establishing the existence of fixed opinions in the minds of potential jurors. See State v. Chamberlain,
{53} In Twohig we noted that in his first two trials “the court, attorneys for the State, and attorneys for House had used another tool to combat potential prejudice caused by-pretrial publicity-extensive voir dire-which also was available for use in the third trial.” Twohig,
{54} While voir dire is essential in establishing actual prejudice, it is but one method by which the trial court may determine that, because of pretrial publicity, a fair trial is improbable in a particular venue. Cf. State v. Montano,
the presence or absence of voir dire of a third venire [is not] the only determinative factor in deciding whether there were adequate grounds for a venue change, especially where the trial court had the benefit of a record replete with expert analysis of public opinion surveys, published statements of community sentiment, and voir dire conducted in prior mistrials.
House Dissent,
{55} In New Mexico there is no requirement in our constitution, statutes, or case law that a venue change should be supported by proof of actual prejudice through voir dire, even when the change is opposed by the defendant. As with all aspects of a venue change, the choice of waiting until after voir dire before granting a motion to change venue rests with the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. See State v. Robinson,
{56} To summarize, courts will change a venue based upon actual prejudice if they find that the opinions of the community, as reflected by the opinions of prospective jurors in voir dire, are so fixed that, were the trial to be held in that community, the jurors would be unlikely to lay aside their preconceived notions and base their judgment exclusively on the evidence presented at trial. See Irvin v. Dowd,
C. Presumption of Prejudice in Taos County
{57} The сoncept that a venue may be changed because of presumed prejudice is based upon the strong due-process principle that our system of law must endeavor “to prevent even the probability of unfairness.” In re Murchison,
{58} Prejudice may be established if a community is so saturated by a barrage of inflammatory and biased publicity, close to the beginning of legal proceedings, that the trial inevitably takes place in an atmosphere of intense public passion. See Irvin,
{59} Courts that have investigated the presence of presumed prejudice in a particular venue have discussed several factors that indicate prejudice from pretrial publicity has evolved to such a degree that a fair trial is improbable. These factors establish the reasonable probability, under Section 38-3-6, that a fair trial could not be obtained in Taos.
1. Neutrality and timing of publicity
{60} As both sides in the opinion below noted, the mere fact that publicity is widespread and that many people are familiar with a case does not automatically lead to the presumption that a venue has been impermissibly tainted. House Majority,
{61} As the news items cited in the fact section of this opinion demonstrate, the pretrial, during-trial, and post-trial publicity in this case could not be characterized as largely fair, neutral, unemotional, or objective. Publicity about the case appeared frequently throughout the geographical region that included Taos County. Moreover, as noted by Judge Armijo in her dissent, news items werе published concurrent with every legal maneuver and proceeding in the case:
[T]his is not a case where publicity was minimal or had diminished over time.
The trial court’s review of the content of the newspaper articles and television broadcasts presented in the record revealed that the nature of the publicity was, in some instances, emotional, sensational, inflammatory, intrusive, and potentially misleading.
House Dissent,
2. Television, radio, and newspaper publicity
{62} The form in which the publicity is disseminated can also be a factor in determining whether prejudice can be presumed to have overrun a community. It is often asserted that television is the most potentially prejudicial means of publicizing information. The United States Supreme Court has stated, “The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public.” Estes v. Texas,
{63} House and the majority in the opinion below argue that such a conclusion is not supported by evidence in the record. However, the influence of television can be so potent that the United States Supreme Court has intimated that it is reasonable to presume that inflammatory information broadcast by television has introduced biаs into a venue, even if it is not possible to link a particular trend in public opinion to specific televised news items. See Estes,
{64} Though the effect of television news coverage was arguably the most prejudicial, the trial court also correctly acknowledged the detrimental impact of newspaper coverage, which was frequently highly emotional. See Venue Order, slip op. at 13-14 (Finding of Fact 17(C)) (discussing numerous lengthy newspaper articles); House Dissent,
3. Size and nature of the community
{65} The size and nature of a community are factors that can promote or dissipate the probability of prejudice resulting from pretrial publicity. See Mu’Min,
{66} The trial court observed that after the first trial, comments by the attorneys, parties, and family members appeared in the news “adding to the public excitement and opinions and knowledge and information about this case in that small-population city and County.” Id. at 3 (Finding of Fact 5). This potential for bias could only have been exacerbated by the public controversy after the second hung jury. Judge Armijo, in her dissent in thе Court of Appeals opinion below, outlined the evidence mentioned by the trial court relating to the impact of the trial on the small population of Taos. House Dissent,
{67} House claims that the State, with its prejudicial statements to the press, deliberately attempted to spoil the forum. He argues that because “the State brought about the conditions which made necessary the change of venue,” its motion for a venue change should have been denied. See Martin v. Beto,
{68} We are concerned that, in discussing this issue, the trial judge inserted his own impressions of the citizens of Taos:
This Judge has presided over trials and hearing in Taos County and selected Juries there____ From this Judge’s FINE experiences with Taos county jury selections and juries, the Court notes that Taos area citizens/jurors are close-knit, know and socialize with each other well, exchange news and information and points of view openly and freely, and have a great deal of personal respect and consideration for each other and their opinions and of view. Thus, they are more likely to share and learn of and know about this case and its facts, and the opinions and points of views [sic] of those who served in the two juries in this case.
Venue Order, slip op. at 5 (Finding of Fact 9). In the past, we have expressed disapproval of trial judges who base a venue decision on their own opinions and impressions. In Alaniz we reversed a conviction in part because the trial judge based his denial of a venue change upon personal impressions similar to those expressed by the judge in this case:
(“The court doesn’t feel that these men cannot get a fair trial in Lincoln County. On the other hand, he thinks they can get a fair trial as they can get in any county. The Court is somewhat familiar with the people in Lincoln County, having dealt with them six or seven years, and as far as the influence of the Nalda family, they have quite a bit of influence in one portion of the county, around Corona, but Capitan, Picacho, San Patricio, Green Tree, Ruidoso, there I would say that half of the people never heard of the Nalda family. I am going to overrule the motion.”)
Alaniz,
{69} In the case at hand, the judge’s observations do not substantively distinguish Taos County from any other community in New Mexico and do not constitute substantive reasons for a venue change. See Deats,
4. Juror prejudice
{70} Though we conclude that there is substantial evidence in the record to support a presumption of prejudice that would preclude a fair trial in Taos County, it is notable that the trial court indicated that its decision was in part supported by what may arguably be described as actual prejudice. Judge Blackmer intimated that, after the second trial, it became apparent that some jurors had entered the proceeding with fixed opinions that prevented them from making a judgment exclusively on the evidence presented at trial.
[A]t the Jury’s request at the end of the second trial in November 1994, Judge Blaekhurst spoke privately with the Jury; he then returned to the Courtroom and advised all Counsel that some of the jurors apparently did not disclose their biases during jury selection.... As additional examples and considerations before this Court, post-trial interviews with jurors by the news media indicated hard feelings among the jurors (especially in the second trial), and apparent sympathy of some jurors that may have affected their deliberations and ensuing hung jury-and may have violated the Court’s instruction that “Neither sympathy nor prejudice should influence your verdict.”
Venue Order, slip op. at 6 (Finding of Fact 10). As noted above, the trial court must “prevent even the probability of unfairness.” Murchison,
5. Statements by politicians
{71} As analyzed by the Court of Appeals opinion below, the trial court based its determination in part upon the inflammatory comments about the trial made by local Taos politicians. A letter, purportedly by a former State Senator from Taos, was published in the Taos News, about two weeks after the first hung jury, harshly criticizing the prosecution and the media as racist in their treatment of House. Venue Order, slip op. at 3-4 (Finding of Fact 7) (discussing Letter from Francisco El Comanche Gonzales, Racist remarks, in Favor y Contra, Taos News, July 7, 1994, at A4 (“Since the Christmas of 1992, the media, [prosecutor] Robert Schwartz and other bigots seem to have enjoyed what I contend to be a field day with the Gordon House DWI case.”)). After the second trial, the incumbent State Senator from Taos was quoted in the Albuquerque Journal accusing the prosecutor of seeking to “ ‘try the case 10, 15 times until he gets what he wants.’ ” Id. at 4-5 (Finding of Fact 8) (quoting Colleen Heild, Senators Grill DA on Gordon House Case, Albuquerque J., Feb. 25, 1995, at A10.). Judge Blackmer concluded that “[s]uch public comments by well-known Taos area citizens ([who were] presumptively aware of-or speaking on behalf оf-the Taos county constituency and their attitudes and feelings) are further circumstantial indication that at least one party probably would not receive a fair trial if a third trial were to occur in Taos County.” Id. at 4-5 (Finding of Fact 8).
{72} The first of these newspaper articles was published approximately seven months prior to the second trial and likely was not widely remembered in Taos by the time of the third trial. See Murphy,
6. Fixed opinions
{73} In addressing the prejudicial effect of pretrial publicity, this Court, in the past, has adopted the pronouncement in Patton v. Yount,
{74} In .this case, the trial court in its Order did not expressly conclude that “fixed opinions” predominate in Taos County. It did, however, discuss a number of events and factors that tended to “reinforce and solidify” the sentiments of the local populace. See Venue Order, slip op. at 4 (Finding of Fact 7). Similarly, the court also surmised that television publicity “likely would cause viewers to form opinions and make decisions about the case before trial-and thus more likely to be biased and prejudiced against one Party or the other.” Id. at 10-11 (Finding of Fact 17(A)). The dissent below outlines a number of factors, including opinion polls, published statements by members of the community, and evidence from the jury selection during the first two trials, that tend to show a significant number of people in Taos had formed opinions about the case. See House Dissent,
{75} A venue change based upon a presumption of prejudice does not require empirical proof of the presence of fixed opinions when, as in this case, there is relentless inflammatory publicity that brings a case to the attention of a substantial percentage of a comparatively small community. If anything, it is unreasonable in this particular case to assume that a great many citizens did not follow the news about the case, discuss it with their neighbors, and form their own opinions. If, as Patton says, the “relevant question” is whether or not there are “fixed opinions,” the essential objective of this entire inquiry is to guard against even the probability of an unfair trial. Murchison,
D. The Presumption of Prejudice in Taos Is Supported by Substantial Evidence
{76} As the preceding evidence demonstrates, Judge Blackmer found many indicia of prejudice in Taos County. We hold that the trial court did not abuse its discretion in ordering a change of venue from Taos County. There is substantial evidence in the record to support the court’s conclusions: Widespread inflammatory publicity saturated Taos County close to the time of the trials; the television, newspaper, and radio publicity was highly emotional; the comments by the parties, relatives, and the attorneys in this case further affected public sentiment; the risk of prejudice was increased by the comparatively smаll population of Taos; jurors in the second trial did not disclose bias during voir dire; and there was a strong likelihood that many potential jurors would enter the third trial with strong predilections toward one party or the other.
{77} We emphasize that these factors establish a strong presumption of prejudice and that there is no requirement that the venue change be based upon empirical proof of actual prejudice.
Applications for change of venue under our law are predicated on a well-grounded “fear” that [the defendant] is unlikely to obtain a fair trial and an impartial jury, in the county where the claimed crime occurred. We do not understand the statute to 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 and impartial trial or that the jury are under an influence inimical to the accused.
Alaniz,
E. Taos Is Not The Constitutional Vicinage
{78} In addition to disputing the presumption of prejudice in Taos, House intimates that, because the State raised no objection to the move to Taos, that county is the constitutional vicinage in this case. He suggests that he had an actual right to keep the third trial in Taos. In a similar vein-though it mischaracterizes the posture of the move as a mutual stipulation rather than an unopposed motion-the majority below states that, “[s]ince both Defendant and the State stipulated to the first change of venue to Tаos County, we believe both sides committed themselves to resolving this matter in Taos County unless a fair and impartial jury could not be impaneled from Taos County.” House Majority,
{79} As we noted above, under our constitution, the first choice of venue-the constitutional vicinage-must include “an impartial jury” that is from “the county or district in which the offense is alleged to have been committed.” N.M. Const, art. II, § 14. In this ease the vicinage was Bernalillo County where the accident took place. The defendant has a right to be tried in the vicinage, and convictions can be reversed when defendants have been denied this right. See, e.g., State v. Ramirez,
Y. PROBABILITY OF A FAIR TRIAL IN DOÑA ANA COUNTY
A. House’s Claims of Prejudice in Doña Ana County
{80} House asserts that he was prejudiced by the change of venue to Doña Ana County. Throughout the legal proceedings in this case, House and his supporters have accused the prosecution of vilifying House because he is a Native American.50 Consistent with this accusation, he charges that the State sought to offensively use the venue statute against him by obtaining a new venue that is largely devoid of Native Americans. Furthermore, House argues that, with this scheme to deprive him of a racially fair jury pool, the State intended to seat a jury that would be more likely to convict. The Court of Appeals in the opinion below focused on whether the trial court abused its discretion in concluding that Taos was a biased venue. The Court did not address House’s claim, discussed in the briefs of both parties to this Court, that he suffered prejudice from the choice of Doña Ana County as a venue.
{81} The trial court and all the participants in this trial were well aware that Taos County has a 6.5% Native American adult population while Doña Ana County has only about 0.8%. See Venue Order, slip op. at 19 (Finding of Fact 21). House claimed that the State sought a venue free from the influence of Native American jurors because it could not get a conviction of a Native American defendant after twice trying unsuccessfully in a district with a significant Native American population. Thus, House argues that the district court abused its discretion by acceding to the move to Doña Ana County and by failing to earnestly question the State’s motives in seeking a venue with a Native American population of less than 1%.
{82} The practical impact of such a venue, according to House, is that it deprived him of a jury that would understand aspects of his defense that were cognizable only in the context of Native American culture. For example, much was made of the fact that House did not mention to emergency room personnel that he was suffering from a migraine headache when he was brought to the hospital immediately after the accident. This showed, according to the State, that House was disoriented, not because of a blinding headache, but because he was drunk. House countered with evidence that he did not mention the headache because Navajos do not discuss pain and are taught to deal with it on an internal basis. Navajo medicine men testified at trial about these cultural traditions and House’s earlier treatment for migraine headaches.51 The President of the Navajo Nation wrote a letter to Judge Blackmer, urging him to select a venue that would be sensitive to this type of evidence:
It would be a travesty of justice to see the third trial take place in a community that has little or no familiarity with our customs or culture. We have often experienced misunderstanding and discrimination. We realize that stereotypes are common where contact and communication with our people does not occur. We ask that you consider the importanсe of having jurors who are not hostile to nor ignorant of our culture consider this case.
Letter from Albert Hale, President of the Navajo Nation to Hon. James F. Blackmer (circa April 5, 1995). Thus, House suggests that he suffered prejudice from the change of venue because his defense rested largely on such “cultural evidence” and would not be understood by jurors in Doña Ana County. Though House’s claims of prejudice may raise disturbing questions, these claims are inconsequential unless there is substantial evidence in the record proving that he received an unfair trial in Doña Ana County. No such evidence was provided.
B. Venue, Venire, And Petit Jury
{83} When addressing the racial composition' of groups of citizens who may be empaneled to decide a case, courts have applied different rules depending upon whether the question concerns the racial makeup of a venue, which is the particular geographical area, usually a county or judicial district, in which a court will hear and determine a case; a venire, which is the jury pool or group of citizens from whom a jury is chosen in a given ease; or a petit jury, which is an ordinary jury selected from a venire, sworn to hear the evidence presented at trial and to declare a verdict of guilt or innocence. House appears to be urging that venire and petit jury principles should be applied, by analogy, to the selection of a venue. However, our research has disclosed few courts or judges that have been willing to consider such a theory.
1. Racial composition of the petit jury
{84} It is well established in Federal and New Mexico law that the State may not, during the jury selection process, use its peremptory challenges to exclude otherwise unbiased and well-qualified individuals solely on the basis of their race, gender, economic status, or any other similar discriminatory characteristic. J.E.B. v. Alabama,
2. Racial composition of the venire
{85} As with the petit jury, the venire must be selected in an entirely neutral and nondiscriminatory manner. “The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors.” Batson,
3. The State did not use the venue statute to achieve venire discrimination
{86} We have said that the State is forbidden from accomplishing “indirectly at the selection of the petit jury what it has not been able to accomplish directly at the selection of the venire.” State v. Aragon,
{87} House is echoing Justice Marshall’s dissent in Mallett v. Missouri, which concerned an African American defendant charged with murdering a white state trooper whose trial was transferred to a venue with no citizens of the defendant’s race: “Just as state prosecutors may not use peremptory challenges to exclude members of the defendant’s race from the jury, state trial courts may not transfer venue of the trial to accomplish the same result by another means.” Mallett v. Missоuri,
{88} House’s argument that a particular racial group is excluded by the selection of a venue can be analyzed from two different perspectives: On the one hand, a defendant may allege that the State or the trial court deliberately selected a particular venue with the objective of excluding a racial group; the venue was chosen with discriminatory intent. On the other hand, because the move to a particular venue has resulted in the reduction or exclusion of a racial group, the defendant may claim he or she will not receive a fair trial; the venue change has had a discriminatory impact. House’s arguments raise both of these possibilities.
a. Discriminatory intent
{89} As to the first possibility, House suggests that the State deliberately sought a venue with fewer Native Americans than Taos County and thus acted with discriminatory intent. House has failed to prove this contention. The right to equal protection prevents a trial court or a prosecutor from intentionally choosing a venue so as to exclude from the venire persons of a particular race. The Fourteenth Amendment forbids the State from engaging in all actions that are intentiqnally discriminatory on the basis of race. See Powers,
{90} As indicated above, we have found surprisingly little jurisprudence on this question. There is no generally accepted test for evaluating discriminatory intent in the selection of a venue. However, we believe that the so-called Batson test may be adapted for this purpose. The United States Supreme Court in Batson v. Kentucky,
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.
Purkett v. Elem,
{91} The application of a modified Batson test is further justified by the fact that, unlike a mandatory change of venue under Section 38-3-3, a change of venue in the trial court’s discretion effectively requires the trial court to engage in a Batsonlike inquiry. In other words, a trial court’s findings of fact that a fair trial cannot be obtained in the current venue and that an alternate venue is free from exception necessarily determines that a change of venue is justified by race-neutral reasons, thereby satisfying step two of the Batson test. Cf. Hernandez v. New York,
{92} Though there was no express use of such a test by the trial court, the issue of intentional discrimination was raised below and the record contains ample evidence applicable to each step in the test. In the first step, House, as opponent of the venue change, needed to make out a prima facie case of racial discrimination in the State’s motion to select a particular venue, in this case Doña Ana County. The opponent will rely on the facts concerning the selection of the specific venue in establishing a prima facie ease. Batson,
{93} In the second step, the State, as proponent of that venue, must present a race-neutral explanation. Throughout this ease the State was accused of racism and, in arguing in favor of the move to Doña Ana, presented several race-neutral explanations. The State’s explanations included the fact that, in contrast to Taos County, Doña Ana County had not been subjected to the frequent, pervasive, contemporaneous, and highly prejudicial publicity regarding the case. Moreover, Doña Ana had a much larger population than the small close-knit community of Taos and would be less likely to be tainted by the prejudicial publicity. The State’s justifications are “ 'plausible’ ” though there is no requirement that they be even “minimally persuasive.” See Purkett,
{94} In the third step, once a race-neutral explanation has been tendered, the trial court must exercise its discretion in determining whether the opponent of the venue change has proven intentional racial discrimination. The trial court in its Venue Order reiterated many of thе State’s arguments in enumerating those factors that rendered Doña Ana suitable and Taos unsuitable as a venue for this trial. As our discussion of the Venue Order establishes, most of the trial court’s reasons are supported by substantial evidence and show no abuse of discretion. We note that the Mallett dissent focused primarily on the discrimination of the trial court. No such discrimination has been shown here. We conclude that the selection of Doña Ana County as a new venue was race-neutral and that there is no proof of discriminatory intent.
b. Discriminatory impact
{95} As to the question of discriminatory impact, House argues that, in ordering the venue change, the trial court abused its discretion by failing to conclude that an unfair trial was more probable because fewer Native Americans live in Doña Ana than in Taos. We disagree. There is simply no constitutional requirement in New Mexico that, prior to a venue change, a court must consider the percentage of prospective jurors who are of the same race as the defendant. “There is no outstanding precedent for requiring a trial court to consider demographic composition sua sponte every time a venue change is requested. The Equal Protection Clause does not require exactitude of this nature.” Rogers v. Director, TDCJ-ID,
{96} Courts have overwhelmingly been unwilling to summarily conclude that the citizens in an entire geographical region — all the potential jurors in a county or judicial district — are tainted by racial prejudice. This is why the mere statistical measure of a venue’s ethnic proportions cannot, by itself, lead to the presumption that a person of a given race will be unable to receive a fair trial in that venue. There may be such homogenous geographical pockets of prejudice in America, but, even in such cases, the unsuitability of a venue can only be demonstrated in the microcosm of the venire, not in the macrocosm of census figures about the venue’s ethnic composition. It is, in fact, preposterous — and a form of racism — to presume that persons of a particular color will perform jury duty in a particular way. A person’s race is utterly unrelated to his or her suitability as a juror. State v. Guzman,
{97} That is why Judge Blackmer emphasized that Doña Ana was chosen “to promote and protect BOTH Parties’ RIGHT to a fair and impartial trial and a fair and impartial jury” and that his “decision and order selecting Doña Ana County as Venue for retrial of this case is NOT based (in whole or in part) on any other factor or consideration (including, but not limited to, ethnic/racial considerations or ra'cial/ethnic populations or proportions in various Counties of New Mexico ... ).” Venue Order, slip op. at 19 (Finding of Fact 22). Only by conducting voir dire, and listening to the racial opinions of individual potential jurors, can it be demonstrated that a particular venue cannot provide a jury free from racial prejudice. Through careful voir dire, fair-minded jurors can most likely be found, even in a community which has few members of the defendant’s race.
{98} That is what happened in this case. The trial court conducted exhaustive voir dire in Doña Ana County. After voir dire, House did not object that, because he is Native American, he would receive an unfair trial before the petit jury that was finally seated. Nor has he suggested in retrospect that it has been revealed that the jury was tainted by racial prejudice. There is simply no evidence that House received an unfair trial because Doña Ana County has a Native American population of less than 1%.
{99} Thus, in the selection of the venue of Doña Ana County, House has shown neither that the State acted with discriminatory intent, nor that the venue change had a discriminatory impact on his fight to a fair trial.
C. Pair Cross Section
{100} House asserts that the State’s choice of venue deprived him of his right to a jury “drawn from a fair cross section of the community.” Taylor v. Louisiana,
{101} Once again, House is asking us to intermingle incompatible principles that apply variously to the seating of a petit jury, the composition of the venire, and the selection of a venue. The fair-cross-section requirement applies neither to the venue nor the petit jury. It addresses the constitutional fight to a venire which fairly represents the community from which it is drawn. Thus, there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.” Taylor,
{102} The use of peremptory challenges by the parties to exclude individuals “thought to be inclined against their interests” is likely to result in a jury that does not mirror the community. See Holland,
{103} Just as the fair-cross-section requirement has no bearing on the racial mix of a petit jury, it does not affect the considerations involved in a change of venue. It refers only to the compositiоn of the venire once a venue has been selected. Nothing in our law demands that the ethnic makeup of a new venue be similar to that of any of the preceding venues. The trial court may in its discretion determine, when selecting a new venue, that a fair trial in a particular case will be impossible unless ethnic proportions remain unchanged. But there is no requirement that the fair cross section of the old venue mirror the fair cross section of the new venue. In New Mexico, such a consideration is left to the discretion of the court. The fair-cross-section principle would have no relevance whatsoever in our review of the choice of a venue; it is relevant only to the selection of the jury pool from that venue.
D. House Received a Fair Trial
{104} The importance of “cultural evidence” to House’s defense does indicate the potential for prejudice in a venue whose jurors might be insensitive to Native American culture. However, House has not offered any evidence of actual, presumed, or probable prejudice — nor even the appearance of prejudice — during the third trial in Doña Ana County. The dearth of any evidence in the record that House received an unfair trial, more than any other factor, persuades us that the Court of Appeals should be reversed and the trial court affirmed.
{105} House offered no evidence that the petit jury selection process in his third trial was anything but proper. He did not contend that the prosecution used peremptory challenges to impermissibly distort the racial composition of the petit jury. If House were to challenge, on equal-protection grounds, the racial fairness of the petit jury selection process, he would have had to establish a prima facie ease that potential jurors were excluded from the jury for reasons of race. Cf. Aragon,
{106} Moreover, House offered no proof that he was tried before a biased jury in Doña Ana County. He presented no evidence that any of the jurors who actually heard the case were in any way tainted by publicity, fixed opinions, racial prejudice, or any other factor that would bring the fairness of his trial into question. Cf. Shawan,
{107} Similarly, House attempted to make no prima facie case that would show that the venire was unconstitutionally selected. If House were to bring a prima facie equal-protection challenge to the racial composition of the venire, he would have to prove “the degree of under representation [of a particular racial group] by comparing the proportion of the group in the total population to the proportion called to serve as ... jurors, over a significant period of time .” Castaneda v. Partida,
{108} Though House emphasizes that a small number of Native Americans lived in Doña Ana County, he offers no evidence that Doña Ana County was an unfair venue in which to try this case. He never suggests that the people of that community, as reflected by the opinions of prospective jurors in voir dire, had such fixed opinions about this case that the jurors were incapable of laying aside their preconceived notions' and basing their judgment exclusively on the evidence presented at trial. In other words, he makes no showing of actual prejudice. Similarly, he offers no evidence of the kind of presumed prejudice that rendered Taos County an unfair venue in this ease. If anything, the trial court offered strong evidence to the contrary, showing that there was no inundation in the community of inflammatory publicity that would give reason to presume that the trial would be unfair. We conclude, based upon exhaustive examination of the record, that House did receive a fair trial in Doña Ana County.
{109} The trial court diligently sought a fair venue in which to hold the third trial. Judge Blackmer, in examining the various venues proffered by the parties, attempted to balance the demographic composition of the community with the amount of prejudicial publicity to which the citizens had been exposed. The trial court noted that the television stations in Albuquerque had, more than any other television market, given the House case extensive and inflammatory coverage. Doña Ana County was among those New Mexico counties that receive little coverage from Albuquerque broadcasters. See Venue Order, slip op. at 11-12 (Finding of Fact 17(A)). The trial court drew similar conclusions about the limited influence of Albuquerque radio and newspaper coverage on Doña Ana County. See Id. at 13-14 (Findings of Fact 17(B)-(C)).
{110} In Doña Ana County the trial court conducted extensive voir dire that included questions about pre-trial publicity and inquiry about racial attitudes. The trial court granted all but one of House’s challenges for cause. House struck from the panel two of the jurors who identified themselves as Native Americans. House has offered no evidence that any of the prosecution’s challenges involved the ethnicity of any juror. House did not object to the racial composition of the jury that was eventually seated. See United States v. Morales,
{111} Trial courts have not only the duty to insure a fair trial, but also significant power to take precautions when prejudice" threatens to deny the defendant an impartial jury. See Martin v. Beto,
VI. CONCLUSION
{112} Substantial evidence supports the reasonable probability that a fair trial could not be obtained in Taos County, and the trial court did not abuse its discretion by ordering a venue transfer to Doña Ana County. Though House argued he was prejudiced by the move to a venue with few Native Americans, he failed to present evidence that the third jury was biased or that his third trial was unfair. Without supporting evidence, House’s claims of prejudice must fail.
VII. ENDNOTES
1. See, e.g., Nelson Martinez, Action 7 News (KOAT-TV, Albuquerque, N.M., news broadcast, Dec. 25, 1992) (showing images of devastated vehicles; describing accident in which “a mother and her three small children” were killed); Headr-On Wreck Kills at Least 3 on I-UO at 98th, Albuquerque J., Dec. 25.1992, at D2.
2. See, e.g., Ed Asher, Christmas joy filled car, then deadly crash wiped it all away, Albuquerque Tribune, June 9, 1994, at Al (“Paul Cravens took the stand in the Gordon House trial to recount his last thoughts before the collision that killed his wife and three stepdaughters and left him severely injured.”); Brent Hunsberger & Tim Archuleta, Driver charged with homicide, Albuquerque Tribune, Dec. 28, 1992, at Al (“The relatives of a mother and her three children killed in a Christmas Eve head-on collision vow to make New Mexico toughen its laws against DWL”).
3. See, e.g., Greg Gurulé, News J New Mexico (KOB-TV, Albuquerque, N.M., news broadcast, probably Dec. 1992 or Jan. 1993) (showing images of devastated vehicles; interview with one of House’s co-workers at House of Hope expressing “state of shock”); Gene Bellard, I-jO DWI Suspect Runs Gallup Treatment Center, Albuquerque J., Dec. 27.1992, at Al.
4. See, e.g., Steve Shoup, Police Suspect Alcohol in Christmas Eve Wreck, Albuquerque J., Dec. 26,1992, at Al.
5. See, e.g., Nelson Martinez, Action 7 News (KOAT-TV, Albuquerque, N.M., news broadcast, circa May 5, 1994) (showing images of devastated vehicles; interview with district attorney, who, referring to House’s statement that he bought a hamburger on Christmas Eve, derides the migraine defense as a claim that “what killed thоse people was a hamburger and a headache”); Ed Asher, House’s claim that migraine caused crash draws skepticism, Albuquerque Tribune, May 5,1994, at Al.
6. See, e.g., Stuart Dyson, News J New Mexico (KOB-TV, Albuquerque, N.M., news broadcast, circa May 5, 1994) (showing images of devastated vehicles; interview with House saying migraine, rather than alcohol was the cause); Leslie Linthicum, Migraine Caused Crash, House’s Lawyer Says, Albuquerque J., May 5,1994, at Al.
7. See, e.g., Ed Asher, Witnesses: 90 mph wrong-way driver was unstoppable, Albuquerque Tribune, July 14,1993, at Al.
8. See, e.g., Patricia Gabbett Snow, Officer: Pickup Sped Wrong Way 10 Miles: Witness Reports Seeing Vehicle West of City, Albuquerque J., Jan. 9,1993, at Al.
9. See, e.g., Andrew Amador, Q 13 News (KRQE-TV, Albuquerque, N.M., news broadcast, Dec. 29, 1992) (stating House’s blood alcohol content was released showing 1.0% five hours after accident and revealing House’s prior DWI conviction); Leslie Linthicum, Experts Debate Crash Cause: Effects of Migraine, Alcohol Key to Case, Albuquerque J., May 18,1995, at Cl.
10. See, e.g., Ed Asher, House’s migraines almost like strokes, defense says, Albuquerque Tribune, June 8,1994, at A3.
11. See, e.g., Ed Asher, Suspect had DWI conviction: Driver told rescuers he drank before crash, Albuquerque Tribune, Dec. 29, 1992, at A5.
12. See, e.g., David Gregory, Q 13 News (KRQE-TV, Albuquerque, N.M., news broadcast, Dec. 29, 1992) (showing images of devastated vehicles; grieving and angry mourners at funeral service, minister proclaiming “I pronounce to this state that a new DWI law will go into effect called the ‘Cravens Bill’ ”); Ed Asher, A heart cry of thousands, Albuquerque Tribune, Dec. 29, 1992, at Al (“More than 2,500 poured into Victory Love Fellowship to mourn the death of a young mother and her three daughters and to pray for an end to the state’s DWI problem.”).
13. See, e.g., Tom Joles, A New Mexico Family Tragedy: DWI (KOB-TV, Albuquerque, N.M., news broadcast, probably early 1993) (Closing comments to one-hour news special: “I have been in the news business for thirteen years and never have I heard people talk about a car accident like they have about the one on Christmas Eve. The timing of the accident couldn’t have been worse. But, as one member of the Cravens family told me, it couldn’t have been better. It came at a time when most of us were getting together with our families to celebrate life, togetherness, and the future. The future has now been altered forever for the Cravens, the Milfords, the Woodards, and the Houses. But it does not have to be altered for you or me or maybe that child who may be sitting next to you on the сouch____It’s time for us to face up to our [DWI] problem and do something about it.”); Greg Gurulé, Neivs J New Mexico (KOB-TV, Albuquerque, N.M., news broadcast, probably Dec. 1992) (showing images of devastated vehicles; State Representative Marty Lambert, a relative of victims, on phone “pushing for tougher DWI laws” by asking other politicians to attend funeral); Phil Casaus, Mourners Shed Countless Tears, Albuquerque J., Dec. 30,1992, at Al (“Thousands Ask DWI Reform At Funeral of Mother, 3 Girls”).
14. See, e.g., Laura K. Trujillo, We’ve lost all our dreams’, Albuquerque Tribune, Jan, 8, 1993, at Al (“Dead girls’ father struggling to cope after crash”); Ed Asher, Milford vents fury on man who ‘killed my babies’, Albuquerque Tribune, June 16, 1994, at Al.
15. See, e.g., Joel Loy, Inside Edition (King World Prods., Inc., syndicated national news program, Dec. 17, 1993) (showing images of devastated vehicles; feature on Nadine Milford’s crusade against drunk driving; emotional interviews with Milford and her relatives, and with weeping House; beginning, “This is the story of a tragedy, a senseless horror that belies the scenic beauty of the State of New Mexico in which it occurred. It is also the story of a grandmother’s crusade to see that her loved ones did not die in vain.”).
16. See, e.g., Conroy Chino, News J New Mexico (KOB-TV, Albuquerque, N.M., news broadcast, probably early 1993) (showing images of devastated vehicles; emotional interviews with House’s family, describing their experiences of threats and racism); Valerie Taliman, Family seeks fair Justice,’ Navajo Times, Jan. 14, 1993, at 1; Leslie Linthicum, Navajos Rally Around Man Charged in Crash, Albuquerque J., Jan. 16, 1993, at Al (“Media Accused of Ignoring Alcohol-Related Indian Deaths”).
17. See, e.g., John Fleck, DA Denies Race Charge by House’s Lawyer, Albuquerque J., May 11, 1994, at C3; Laura K. Trujillo, Scum of the earth or a hero?, Albuquerque Tribune, June 22, 1994, at Al (“The lawyer who represented Gordon House is loved and hated by New Mexicans, admired and criticized by other attorneys for his creative defenses.”); Leslie Linthicum, DA Regrets Harsh House Comments: Schwartz Apologizes for Criticizing Jury, Albuquerque J, June 28,1994, at Al.
18. See, e.g., Tim Gallagher, Give up the lame excuses, Gordon: This drunken driver made a tragic mistake; he should just admit it, Albuquerque Tribune, June 20, 1994, at A10.
19. See, e.g., Letter from Marie Chavez, Far too many killers go free, in Letters to the Editor, Albuquerque Tribune, June 23, 1994, at A13; Letter from Frank J. Crosby, First, House: now Simpson, in Letters to the Editor, Albuquerque Tribune, June 27, 1994, at All; Letter from Dan Porter, Why do we keep such bad judges?, in Letters to the Editor, Albuquerque Tribune, Nov. 29, 1994, at A9.
20. Pris Gineris, Pris Gineris Show, (KDEF-AM, Albuquerque, N.M., radio broadcast, Dee. 13, 1994) (interview and call-in talk show featuring Ray Twohig, House’s attornеy; including listener who speculates that Twohig will suffer on Judgment Day because of his representation of House).
21. See, e.g., Lesley Casias, Vacant desks reminders of 3 lovable little girls, Albuquerque Tribune, Dec. 29,1992, at C8. .
22. See, e.g., House Trial Judge Hushes Families: Loud Talk Before Jurors Could Cause Mistrial, Albuquerque J., May 12, 1995, at Al.
23. See, e.g., Associated Press, Lawyers in Gordon House case gagged, Albuquerque Tribune, May 18,1994, at A3.
24. See, e.g., N.M. High Court Lifts House Case Gag Order, Albuquerque J., Mar. 23, 1995, at C3; Associated Press, House’s Attorney Fights Gag Order, Albuquerque J., Dec. 28,1994, at C3.
25. See, e.g., David Gregory & Andrew Amador, Q 13 News (KRQE-TV, Albuquerque, N.M., news broadcast, probably July 1993) (showing images of devastated vehicles; discussing whether publicity has prejudiced the case); Ed Asher, Experts say fair trial for House will be difficult, Albuquerque Tribune, June 6, 1994, at Al; Leslie Linthicum, The Gordon House Show: N.M. ’s AllrToo Familiar Courtroom Drama New to Court TV Viewers, Albuquerque J., May 21, 1995, at B12.
26. See, e.g. Court Denies House’s Request, Albuquerque J., Sept. 24,1993, at D3.
27. See, e.g., Susanne Burks, House Murder Hearing Begins, Albuquerque J., Sept. 28, 1993, at Al (“Alcohol Level Estimated at 0.18%”).
28. See, e.g., David Gregory, Q 13 News (KRQE-TV, Albuquerque, N.M., news broadcast, Oct. 29, 1993) (showing images of devastated vehicles; reactions to dismissal of murder charges; interview with Melanie Craven’s father claiming victims of crime have no rights); Leslie Linthicum, No Murder Charges For House: Judge ‘Caved In’ Victims’ Grandpa Says, Albuquerque J., Oct. 29. 1993, at Al; Ed Asher, DWI ruling: Strong or wimpy?, Albuquerque Tribune, Oct. 29, 1993, at Al (“The victims’ family members are angry, while Gordon House’s attorney said the judge showed great strength in dropping four murder charges.”).
29. See, e.g., Susanne Burks, Judge Moves House Trial to Taos, Albuquerque J., Mar. 24,1994, at B4.
30. See, e.g., Leslie Linthicum, House’s Legal Drama Enters Jury Selection, Albuquerque J., June 5,1994, at Al.
31. See, e.g., Leslie Linthicum, Jurors Took Emotional Offramp: Public Dismayed by House Decision, Albuquerque J., June 21, 1994, at Al.
32. See, e.g., Laura K. Trujillo & Gilbert Gallegos, DA wants House retrial moved, Albuquerque Tribune, June 21, 1994, at Al. 33. See, e.g., Susanne Burks, House Re-trial To Stay In Taos, Judge Rules, Albuquerque J., Aug. 24,1994, at C3.
34. See, e.g., Leslie Linthicum, House ReTrial Starts With Battle: Jurors’ Driving Files Spur Defense Motion, Albuquerque J., Nov. 8,1994, at C3.
35. See, e.g., Karen Canto, Q IS News (KRQE-TV, Albuquerque, N.M., news broadcast, Nov. 23,1994) (announcing second mistrial; interviews with attorneys, House, members of Cravens family); Leslie Linthicum, House Jury Deadlocks: DA Wants Third Trial in Another Town, Albuquerque J., Nov. 24, 1994, at Al; Ed Asher, Behind closed doors, Albuquerque Tribune, Nov. 25, 1994, at D I (“A woman and three daughters die in a wreck with a man driving drunk on the wrong side of the highway. How could two juries fail to convict Gordon House of killing them? Jurors are confronted with realities that casual observers never see.”).
36. Colleen Hеild, Senators Grill DA on Gordon House Case, Albuquerque J., Feb. 25.1995, at A10.
37. Ray Twohig, Justice Would Not Be Served by Third Trial for Gordon House, Albuquerque J., Dec. 2,1994, at A15.
38. See, e.g., Leslie Linthicum, House Judge Gets Gag Request, Albuquerque J., Dec. 14, 1994, at C3 (“Twohig Remarks Irk Prosecutors”).
39. See, e.g., Associated Press, House’s Attorney Fights Gag Order, Albuquerque J., Dec. 28,1994, at C3.
40. See, e.g., N.M. High Court Lifts House Case Gag Order, Albuquerque J., Mar. 23, 1995, at C3.
41. See, e.g., Tribune Staff, Third House trial: Justice or cruelty ?, Albuquerque Tribune, Nov. 25, 1994, at Al (“Anti-DWI activists favor another trial, while some attorneys say it would be unfair to the defendant.”).
42. See, e.g., Associated Press, High Court Allows Third House Trial: Hearing Set Today On Delay Request, Albuquerque J., Apr. 28.1995, at D3.
43. See, e.g., Pete Herrera, Third House trial opens here Friday, Las Cruces Sun-News, May 4, 1995, at Al; Leslie Linthicum, Court TV Picks Up Third House Trial: Cruces Proceedings Will Fill O.J. Gaps, Albuquerque J., May 5,1995, at Al.
44. See, e.g., Leslie Linthicum, Guilty On All Counts: House Jury Mulls Less Than 5 Hours, May 27,1995, at Al.
45. See, e.g., Leslie Linthicum, Judge Gives House %% Years, DWI Wreck Killed Mother, Three Girls, Albuquerque J., July 25,1995, at Al.
46. See, e.g., Leslie Linthicum, Fatal-Crash Convictions Tossed, Albuquerque J., Nov. 21, 1997, at Al (“Court: Moving Trial a Mistake”).
47. See, e.g., Barry Massey, High Court To Review House Case: Vehicular Homicide Overturned on Appeal, Albuquerque J., Jan. 15,1998, at D3.
48. See, e.g., Leslie Linthicum, Court Urged To Resolve House Case: State Wants Convictions In U Deaths Reinstated, Albuquerque J., Apr. 1,1998, at Al.
49. See, e.g., Leslie Linthicum, Jurors Took Emotional Offramp: Public Dismayed by House Decision, Albuquerque J., June 21, 1994, at Al; Leslie Linthicum, House’s Lawyer Calls Murder Charge ‘Flaky’, Albuquerque J., Apr. 2,1993, at D3.
50. See, e.g., Conroy Chino, News J New Mexico (KOB-TV, Albuquerque, N.M., news broadcast, probably early 1993) (showing images of devastated vehicles; emotional interviews with House’s family, describing their experiences of threats and racism); John Fleck, DA Denies Race Charge by House’s Lawyer, Albuquerque J., May 11, 1994, at C3; Associated Press, Racism A Factor, House Says, Albuquerque J., Mar. 30, 1993, at Al.
51. Leslie Linthicum, Navajo Explains Culture to Jury, Albuquerque J., May 20, 1995, at C3 (“Medicine Man Tréated House’s Headaches On Three Occasions”).
{113} We therefore reverse the Court of Appeals and affirm the trial court.
{114} IT IS SO ORDERED.
Notes
In State v. Begay,