State v. Lujan

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAMES D. LUJAN, Defendant-Appellant.

No. A-1-CA-40155

Court of Appeals of New Mexico

August 22, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Kathleen McGarry Ellenwood, District Court Judge

Raúl Torrez, Attorney General Santa Fe, NM Van Snow Assistant Attorney General Albuquerque, NM for Appellee

Bowles Law Firm Jason Bowles Albuquerque, NM for Appellant

MEMORANDUM OPINION

SHAMMARA H. HENDERSON, JUDGE

{¶1} Defendant James Lujan appeals his convictions for one count of intimidation of a witness, contrary to NMSA 1978, Section 30-24-3(A)(3) (1997), and one count of harboring a felon contrary to NMSA 1978, Section 30-22-4 (1963), following a jury trial in Santa Fe County. Defendant contends that his convictions should be reversed because the district court erred in (1) changing the trial venue from Rio Arriba County to Santa Fe County, (2) limiting Defendant's cross-examination of two witnesses, and (3) failing to replace an allegedly sleeping juror. Defendant also asserts that his convictions were not supported by sufficient evidence. For the reasons set forth below, we affirm.

DISCUSSION

I. Change of Venue

{¶2} Defendant argues that the district court erred in granting the State's motion for a change of venue. Defendant was first tried for witness intimidation and harboring a felon in Rio Arriba County. This trial ended in a hung jury and the district court declared a mistrial. The State then moved to transfer the venue of Defendant's second trial, arguing that it could not obtain a fair trial in Rio Arriba County because, Defendant was an elected official and had an undue influence over the community; extensive media coverage of the underlying offenses and the trial biased the community and the jury pool; and the county courthouse was unsuitable for the size of the trial required due to Defendant's status in the community under the COVID-19-related restrictions in place at the time. Defendant opposed the motion and sought an evidentiary hearing, asserting that the trial in Rio Arriba County had been fair and impartial. Following a hearing, the district court granted the State's motion and transferred venue to Santa Fe County.

{¶3} When the State moves to transfer venue from the venue to which the defendant is constitutionally entitled, we review the district court's determination of venue for an abuse of discretion. See State v. House, 1999-NMSC-014, ¶ 29, 127 N.M. 151, 978 P.2d 967 ("[U]pon the need for an evidentiary hearing, this first change of venue ceases to be mandatory and is left to the court's discretion."). "The standard of review required in assessing most abuse[ ]of[ ]discretion claims is whether the [district] court's venue determination is supported by substantial evidence in the record." Id. ¶ 32. "Substantial evidence consists of relevant evidence that might be accepted by a reasonable mind as adequate to support a conclusion." State v. Barrera, 2001-NMSC-014, ¶ 12, 130 N.M. 227, 22 P.3d 1177. "We will not substitute our own judgment for a determination of the [district] court that is supported by substantial evidence in the record." House, 1999-NMSC-014, ¶ 33.

{¶4} Here, Defendant specifically argues that the district court erred when it granted the State's motion to change venue without first holding an evidentiary hearing. Additionally, Defendant asserts that he was prejudiced by the change of venue because it impacted the composition of the jury. We address each issue in turn.

A. Evidentiary Hearing

{¶5} Decisions regarding the venue of a criminal trial are guided by the defendant's constitutional guarantee of 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, 18. However, both the state and defendants have a statutory right to a fair trial under our venue statute. See House, 1999-NMSC-014, ¶ 28 ("[B]oth sides are equally entitled to a fair trial under the venue statute."); see NMSA 1978, § 38-3-3 (2003) (allowing a change in venue when the litigant cannot obtain a fair trial in which the case is brought). Thus, both the defendant and the state may seek a change of venue, "though a criminal defendant's statutory right to a fair trial is guided by [their] constitutional right to an impartial jury in the county in which the crime allegedly occurred." House, 1999-NMSC-014, ¶ 28.

{¶6} A party may move for a change of venue by filing an affidavit alleging that it cannot receive a fair trial in the present county 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.

Section 38-3-3(B). However, when the state, against the defendant's objections, moves to transfer a case from the venue to which the defendant is constitutionally entitled, it bears the burden of demonstrating "why the defendant's constitutional right should be overridden." House, 1999-NMSC-014, ¶ 42 (emphasis added). Thus, the state must prove by clear and convincing evidence at a hearing governed by NMSA 1978, Section 38-3-5 (1929) that it cannot receive its statutory right to a fair trial in the original county. House, 1999-NMSC-014, ¶ 43. To meet the requirements of a hearing under Section 38-3-5, this Court has held that "[t]he [district] court must receive evidence upon which it can make findings of fact." Lewis v. Samson, 1999-NMCA-145, ¶ 64, 128 N.M. 269, 992 P.2d 282, rev'd on other grounds by 2001-NMSC-035, ¶¶ 1, 5, 45, 131 N.M. 317, 35 P.3d 972.

{¶7} In this case, Defendant asserts that the district court abused its discretion when it did not hold the requisite evidentiary hearing before granting the State's motion to change venue. We disagree. In State v. Salas, our Supreme Court stated that a party could produce "affidavits . . . media articles, or . . . juror questionnaires" in addition to testimony to support a motion to change venue. 2010-NMSC-028, ¶ 19,148 N.M. 313,236 P.3d 32. Moreover, in Lewis, this Court stated that "affidavits of... counsel [and a] jury consultant constituted sufficient evidence on which to base a ruling" on a motion to change venue. 1999-NMCA-145, ¶ 66.

{¶8} In this case, the district court held a hearing on the motion in August 2021. The State presented its own affidavit in addition to affidavits from investigators who spoke to jurors from the first trial, affidavits from media professionals who reported on the trial and underlying offenses, and numerous media articles about the trial as evidence supporting its request for a change of venue. This evidence was sufficient on which to base a ruling and conclude that the State had proved by clear and convincing evidence that it could not receive a fair trial in Rio Arriba County. Defendant does not assert that the district court erred in not considering certain evidence proffered by Defendant, nor does he indicate any piece of evidence he intended to introduce. Thus, we conclude that Defendant has not met his burden to demonstrate that the district court abused its discretion. See House, 1999-NMSC-014, ¶ 31 ("The burden of establishing an abuse of discretion is borne by the party that opposes the [district] court's venue decision."). Because Defendant does not otherwise argue that the State failed to meet its burden to prove that it could not obtain a fair trial in Rio Arriba County, we conclude that the district court's hearing on the State's motion to change venue was sufficient.

B. Claim of Prejudice Due to Jury Composition

{¶9} Defendant next argues that the district court erred in granting the State's motion to change venue because he was prejudiced by the makeup of the jury within the new trial venue. An "important factor that would prove abuse of discretion in a venue determination is a showing by the complainant that [they] ha[d] been prejudiced by the [district] court's decision." Id. ¶ 34. "Substantial evidence that a trial in a particular venue was not fair and impartial would require reversal on appeal." Id. However, we decline to address this issue as it is unpreserved.

{¶10} "In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the [district] court of the nature of the claimed error and invokes an intelligent ruling thereon." State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks and citation omitted); see Rule 12-321(A) NMRA. Defendant did not argue in his response to the State's motion to change venue, nor did he argue at the hearing on said motion, that a change of venue would deprive him of a jury of his peers or that the State's motion to change venue was founded on discriminatory intent. Thus, this issue is unpreserved. Because Defendant has not asked us to review this claim for fundamental error, we do not address the matter further. See State v. Druktenis, 2004-NMCA-032, ¶ 122 135 N.M. 223, 86 P.3d 1050 ("[G]enerally, [we] will [not] address issues not preserved below and raised for the first time on appeal."); State v. Gutierrez, 2003-NMCA-077, ¶ 9, 133 N.M. 797, 70 P.3d 787 (stating that courts normally do not review for fundamental or plain error when not...