Ark. Code Ann. § 16-88-201 (2020)

Case Notes

In General.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county; the burden of proof is on the defendant in a motion to change the venue, and the decision of the trial court will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Redding v. State, 22 Ark. App. 81, 733 S.W.2d 424 (1987), rev'd, 293 Ark. 411, 738 S.W.2d 410 (Ark. 1987); Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990); McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

Defendant did not have a right to a jury totally ignorant of the crime. Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990).

Burden of Proof.

The burden is on the defendant to show an inability to obtain a fair trial. Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993).

Motion for change of venue properly denied where defendant failed to meet his burden of proof that a fair trial was not likely to be had in the county. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996).

Discretion of Court.

Unless the trial court abused its discretion in denying motion for a change of venue, it will be affirmed on appeal. Leggett v. State, 227 Ark. 393, 299 S.W.2d 59 (1957), cert. denied, 357 U.S. 942, 78 S. Ct. 1393, 2 L. Ed. 2d 1556 (1958); Perry v. State, 232 Ark. 959, 342 S.W.2d 95 (1961); Walker v. State, 241 Ark. 300, 241 Ark. 663, 408 S.W.2d 905 (1966), appeal dismissed, 386 U.S. 682, 87 S. Ct. 1325, 18 L. Ed. 2d 403 (1967); Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970); Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Redding v. State, 22 Ark. App. 81, 733 S.W.2d 424 (1987), rev'd, 293 Ark. 411, 738 S.W.2d 410 (Ark. 1987); Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990).

A motion for change of venue is addressed to the sound discretion of the trial court. Stout v. State, 247 Ark. 948, 448 S.W.2d 636 (1970).

A change of venue lies within the discretion of the trial court and if the court determines that the appellant can receive a fair trial by an impartial jury, there is no prejudice regardless of the location of the trial. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Trial judge did not err in denying his motion for a change of venue. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987).

Evidence of Prejudice.

Court was held not to have erred in denying change of venue where showing of prejudice was limited to four out of twelve townships in the county. Cheney v. State, 205 Ark. 1049, 172 S.W.2d 427 (1943).

In considering a motion for change of venue, it was proper procedure to receive oral testimony to support the position of either the defendant or the state. Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970).

A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979).

Evidence insufficient to show that the minds of the inhabitants of the county in which the cause was pending were so prejudiced against the defendant that a fair and impartial trial could not be had therein. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979); O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

Where in a prosecution for capital felony murder and other crimes, the trial judge specifically found that none of the defendant's witnesses showed that they were cognizant of prejudice existing throughout the whole county, but merely portions of the county, the trial judge did not abuse his discretion in refusing to grant the defendant's motion for a change of venue. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

A movant in a change of venue proceeding must demonstrate that there is countywide prejudice against him before his motion for a change of venue will be granted. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Redding v. State, 22 Ark. App. 81, 733 S.W.2d 424 (1987), rev'd, 293 Ark. 411, 738 S.W.2d 410 (Ark. 1987).

Where there was ample testimony by the defendant's witnesses at a change of venue hearing from which the trial judge could conclude that the witnesses had no personal knowledge of prejudice that existed throughout the county, the trial judge did not abuse his discretion when he denied the defendant's motion for a change of venue. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982).

There can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated that he could give the defendant a fair trial and follow the instructions of the court. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Redding v. State, 22 Ark. App. 81, 733 S.W.2d 424 (1987), rev'd, 293 Ark. 411, 738 S.W.2d 410 (Ark. 1987); O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988); McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

Where voir dire of jurors showed that some had heard of the case or read about it, but none of those selected said they could not give the defendant a fair trial and the record revealed that, in the six months before trial took place, there was no extraordinary media coverage or local gossip about the crime, defendant was tried by a fair and impartial jury. Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990).

The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial, and where defendant did not exercise all of his peremptory challenges of jurors chosen trial court did not abuse its discretion in refusing to remove the case. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990).

Witnesses on a change of venue motion must demonstrate countywide knowledge of prejudice or the county's state of mind. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

Affidavits that cite little or nothing beyond an affiant's own convictions that a fair trial is not possible are insufficient. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

Insanity.

When the question of insanity is submitted to a jury on writ of error coram nobis, after conviction and sentence, the prisoner is entitled to a change of venue upon such issue, but the change of venue carries with it the whole case. Adler v. State, 35 Ark. 517 (1880); Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915).

Where determination of sanity is the issue, widespread belief in minds of inhabitants of county that accused was the person who robbed and killed a certain man would not show a prejudice that would prevent a fair and impartial trial. Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915).

Knowledge of Case.

It is not necessary that jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

Question of Fact.

Petitioner's anticipation of difficulties in obtaining a fair and impartial trial because of inflamed public sentiment is a question of fact to be determined by the trial court having jurisdiction to try the offense with which she is charged, and thus is not a ground for removal from the state court; if the constitutional rights of petitioner are being denied or invaded by the court, appellate jurisdiction can and will correct the wrong. Rand v. Arkansas, 191 F. Supp. 20 (W.D. Ark. 1961); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994).

Removal Denied.

Defendant's change-of-venue motion alleging adverse pretrial publicity was properly denied in light of the testimony introduced at the hearing which showed less-than-pervasive publicity, the failure of defendant to demonstrate during voir dire that there were publicity-affected jurors, and the fact that he did not use all his peremptory challenges. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

Change-of-venue motion properly denied where an examination of the jury selection showed that an impartial jury was selected; all of the jurors pledged that they could decide the case based solely on the evidence. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).

In a criminal prosecution for capital murder, defendant was not entitled to a change of venue on the basis of pretrial publicity where the jury members were questioned on the change-of-venue point and the circuit court properly concluded that the jurors were impartial. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

Cited: Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994); Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998).