Colorado § 16-6-102 - Motion for change of venue.

§ 16-6-102. Motion for change of venue.

(1) A motion for change of venue must be accompanied by one or more affidavits setting forth the facts upon which the defendant relies or by a stipulation of the parties.

(2) Whether circumstances exist requiring, in the interest of justice, a change in the place of trial is a question to be determined by the court in its sound discretion.

Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-102.

ANNOTATION

Annotator's note. Since § 16-6-102 is similar to repealed § 39-9-5, C.R.S. 1963, § 39-9-5, CRS 53, CSA, C. 170, § 4, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

This section is mandatory upon the court only when the party applying for change has brought himself within its provisions. Roberts v. People, 9 Colo. 458, 13 P. 630 (1886).

Decision on motion is discretionary. The question of prejudice of inhabitants rests in the discretion of the court. The decision will not be disturbed unless an abuse of discretion appears. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914); People v. Coit, 961 P.2d 524 (Colo. App. 1997).

A second application in the same cause, for change of venue, is addressed to the discretion of the court, and error cannot be assigned upon refusal to grant it. Fitzgerald v. People, 1 Colo. 56 (1867).

The granting or refusal of a motion for change of venue is a matter lodged in the discretion of the trial court and, in the absence of an abuse of such discretion, will not be disturbed. Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).

A motion for a change of venue due to local prejudice is a matter of judicial discretion. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973).

And decision will not be reversed except where discretion is abused. In passing upon an application for a change of venue on the ground of prejudice of the inhabitants, the trial court should exercise a sound discretion; it is only in case of manifest abuse of such discretion that its decision will be reversed by the supreme court. Power v. People, 17 Colo. 178, 28 P. 1121 (1892).

The finding of the court on a controversy under this section is conclusive on all if he had the right conception of the law, and his conclusions are supported by the evidence or fair deductions therefrom. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Trial court acted within its discretion by only partially granting a motion to change venue by moving the trial to a different county rather than a different judicial district. People v. Coit, 961 P.2d 524 (Colo. App. 1997).

The motion must set forth the ground upon which the venue may be changed, and also the facts which lead to the belief that such ground exists. Solander v. People, 2 Colo. 48 (1873).

Affiant may state grounds of belief that prejudice exists. On motion for change of venue, affiant in a supporting affidavit is entitled to state the grounds of his belief that defendant would not receive a fair trial by reason of prejudice of the inhabitants. Glasson v. Bowen, 84 Colo. 57, 267 P. 1066 (1928).

And facts should be sufficient to inform judge of causes relied on. The law contemplates that upon application for change of venue, facts shall be stated sufficient to inform the judge of the nature of the causes for the change, and their alleged foundation. Hughes v. People, 5 Colo. 436 (1880).

To support a request for a change of venue, a defendant must establish one of two circumstances. First the defendant can show that the pretrial publicity is so massive, pervasive, and prejudicial as to create a presumption that the defendant will be denied a fair trial. Alternatively, the defendant can demonstrate that any pretrial publicity will create actual prejudice and hostility in the jury panel. The defendant must show actual prejudice — a nexus between pretrial publicity and a panel of partial jurors. People v. Hankins, 2014 COA 71, 361 P.3d 1033.

Prejudice of the inhabitants presents a question of fact triable by the court. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).

The trial judge necessarily passes upon the question in controversy as a matter of fact. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).

Attack of denial of motion is by appeal. If appellant desires to attack the validity of the ruling on his motion for change of venue because he could not receive a fair and impartial jury, he should proceed to a jury trial and then appeal if the result returned is unfavorable to him. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971).

Means to insure fair trial not appellate concern. Regardless of the means imposed by the trial judge to insure the accused's constitutional right to a fair trial by a panel of impartial jurors, the critical inquiry on appellate review is whether the chosen means did in fact preserve the accused's right to a fair trial. People v. Botham, 629 P.2d 589 (Colo. 1981).

Reviewing court may look to voir dire. In determining whether a trial court abuse its discretion in denying a motion for a change of venue because of alleged local prejudice, the reviewing court may quite properly look at what occurred upon voir dire examination of the prospective jurors. Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).

Insufficient ground for change. The fact that the deceased was a banker and citizen of high standing in the community is not in itself a ground for change of venue in a murder case. Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).

Prejudice of jury moot if defendant elects trial to the court. By electing to try the case to the court, appellant was foreclosed from asserting error in the denial of a change of venue. His contention in presenting his motion for a change of venue was that he could not obtain trial by a fair and impartial jury in the district in which he was proceeding. Nowhere did he complain that he could not obtain a fair trial before the trial judge. Under such circumstances, the issue of whether the change of venue should have been granted became moot. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971).

No error in failure to grant change of venue. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973); People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973).

Sua sponte change of venue was not error. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 (Colo. 1988).

Applied in People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975).