Ark. Code Ann. § 16-88-204 (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 there was an abuse of discretion in denying the motion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

Affidavits.

Transfer may be allowed where public sentiment is so strong that affidavits cannot be obtained. Hildreth v. State, 214 Ark. 710, 217 S.W.2d 622 (1949).

The language requiring affidavits by two persons is mandatory, as evidenced by use of the word “shall.” Singleton v. State, 337 Ark. 503, 989 S.W.2d 533, 1999 Ark. LEXIS 226 (1999).

—Basis of Opinion.

A change on the ground of prejudice will be refused where the examination of the affiants discloses the fact that their information or means of knowledge is insufficient. Duckworth v. State, 80 Ark. 360, 97 S.W. 280 (1906); White v. State, 83 Ark. 36, 102 S.W. 715 (1907); Duckworth v. State, 86 Ark. 357, 111 S.W. 268 (1908); Williams v. State, 103 Ark. 70, 146 S.W. 471, 1912 Ark. LEXIS 152 (1912); Wolfe v. State, 107 Ark. 29, 153 S.W. 1100 (1913).

Affiants' opinions held based on insufficient information to warrant change of venue. Jordan v. State, 141 Ark. 504, 217 S.W. 788 (1920); Davis v. State, 155 Ark. 245, 244 S.W. 750 (1922)Questioned byAllison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942); Mullen v. State, 193 Ark. 648, 102 S.W.2d 82 (1937); 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); Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982).

Affiants' opinions held based on sufficient information to warrant change of venue. Sisson v. State, 168 Ark. 783, 272 S.W. 674 (1925).

This section contemplates that the subscribing witnesses shall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the defendant. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942); Cheney v. State, 205 Ark. 1049, 172 S.W.2d 427 (1943); Fancher v. State, 205 Ark. 1085, 172 S.W.2d 680 (1943)Questioned byRobertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

—Credibility of Affiants.

The prosecuting attorney may introduce counter affidavits to show that the person making affidavit in support of the application is not a credible person. Curtis v. State, 36 Ark. 284 (1880).

Affiant may be examined orally in open court in order to ascertain his credibility. Jackson v. State, 54 Ark. 243, 15 S.W. 607 (1891); Spurgeon v. State, 160 Ark. 112, 254 S.W. 376 (1923).

Court could not determine that attesting witnesses were not credible witnesses on ground that it knew facts stated in affidavit were not true where it refused to call such witnesses for examination. Ward v. State, 68 Ark. 466, 60 S.W. 31, 1900 Ark. LEXIS 95 (1900).

While the credibility of the affiants may be investigated, the truth or falsity of their affidavits cannot be inquired into. Strong v. State, 85 Ark. 536, 109 S.W. 536 (1908)Questioned byRush v. State, 238 Ark. 149, 379 S.W.2d 29 (Ark. 1964); Kendrick v. State, 180 Ark. 1160, 24 S.W.2d 859 (1930).

Affiants held not to be credible persons. Brown v. State, 134 Ark. 597, 203 S.W. 1031, 1918 Ark. LEXIS 564 (1918).

It was the duty of the defendant to produce the affiants so that the state could test their credibility by oral examination to determine their means of knowledge concerning the facts about which they made affidavits. Spurgeon v. State, 160 Ark. 112, 254 S.W. 376 (1923).

Court was authorized to inquire, not only as to whether the affiants had sworn or were likely to swear falsely, but into their motives, intent and feelings and their opportunities and means of knowledge as to existing prejudice, in order that the court might determine whether they were credible persons within this section. Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925).

Affiants held to be credible persons. Padgett v. State, 171 Ark. 556, 286 S.W. 819 (1926).

In passing upon applications for change of venue in criminal cases, the court's discretion is limited to passage upon the credibility of the affiants, and in doing so the court may orally examine the affiants as to their informations to determine whether they have sworn recklessly or falsely without sufficient information as to the state of mind of the inhabitants of the county. Kendrick v. State, 180 Ark. 1160, 24 S.W.2d 859 (1930).

One who swears recklessly or who is generally known to be wanting in reputation for truth and veracity is not credible. Fancher v. State, 205 Ark. 1085, 172 S.W.2d 680 (1943)Questioned byRobertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

Burden of Proof.

The burden is on the applicant for a change of venue to make credible proof to support his motion. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963); DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975).

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).

County with Two Districts.

Petition filed in one district of a county, asking for a change of venue from both districts of that county to a second county, should have been granted and it was error to merely change venue to the other district of the first county. Williams v. State, 160 Ark. 587, 255 S.W. 314 (1923).

Discretion of Court.

Denial of a motion for a change of venue is within the discretion of the trial judge and his order is conclusive on appeal in the absence of an abuse of that discretion. Speer v. State, 130 Ark. 457, 198 S.W. 113 (1917); Adams v. State, 179 Ark. 1047, 20 S.W.2d 130 (1929); Meyer v. State, 218 Ark. 440, 236 S.W.2d 996 (1951); Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982).

Court has broad discretion in determining credibility of affiants, and this discretion should not be disturbed except for compelling reasons. Ragsdale v. State, 132 Ark. 210, 200 S.W. 802 (1918); Mullen v. State, 193 Ark. 648, 102 S.W.2d 82 (1937); Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942).

Evidence.

Trial court cannot rely on its own knowledge of local condition in passing upon petition for change of venue due to hostile public sentiment, but it must hear evidence upon the same and make its decision upon the evidence submitted. Ward v. State, 68 Ark. 466, 60 S.W. 31, 1900 Ark. LEXIS 95 (1900); Hildreth v. State, 214 Ark. 710, 217 S.W.2d 622 (1949).

Where attorneys for defendant presented a petition to the trial court in which they asked for a change of venue due to hostile public opinion, swore on oath that affidavits could not be obtained from residents of the community due to fear of reprisal from the other residents of the community, and agreed to testify to this condition, trial court erred in refusing to consider petition and to listen to their evidence. Hildreth v. State, 214 Ark. 710, 217 S.W.2d 622 (1949).

—Sufficiency.

Evidence held insufficient to support change of venue. Meyer v. State, 218 Ark. 440, 236 S.W.2d 996 (1951); 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); Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957), cert. denied, Moore v. Arkansas, 358 U.S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353 (1959); Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963); Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), cert. denied, Trotter v. Arkansas, 379 U.S. 890, 85 S. Ct. 164 (1964); Bailey v. State, 238 Ark. 210, 381 S.W.2d 467 (1964); Stout v. State, 247 Ark. 948, 448 S.W.2d 636 (1970); Blanton v. State, 249 Ark. 181, 458 S.W.2d 373 (1970), cert. denied, Blanton v. Arkansas, 401 U.S. 1003, 91 S. Ct. 1240 (1971); Scott v. State, 249 Ark. 967, 463 S.W.2d 404 (1971); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

Evidence sufficient to warrant change of venue. Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (Ark. 1964).

A motion for change of venue is not supported by “credible persons” when the movants, affiants, or witnesses are unable to show in their testimony that they have general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

The trial court did not abuse its discretion in not granting the change of venue based on two affidavits, where the state was able to show by cross-examination to the satisfaction of the trial court that the affiants for the defendant were not credible because they did not possess knowledge of the state of mind of the inhabitants of the entire county, and all the jurors selected either had heard nothing regarding the case or said they could set aside anything they had heard and decide the case on the evidence. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

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).

Although voir dire reflected that publicity concerning the case was considerable, the record of the voir dire did not reveal such hostility towards the defendant by jurors who served in his trial as to suggest a partiality that could not be laid aside. Swindler v. Lockhart, 885 F.2d 1342 (8th Cir. 1989), cert. denied, 495 U.S. 911, 110 S. Ct. 1938 (1990).

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).

—Witnesses.

Court had a right to consider not only the counter affidavit, but to hear the witnesses offered. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942).

Witnesses may be heard to assist the court in determining whether allegations contained in the affidavit are true. Fancher v. State, 205 Ark. 1085, 172 S.W.2d 680 (1943)Questioned byRobertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

Court may hear testimony on the question of credibility, but it should not permit witnesses to be called for the purpose of giving independent testimony that a fair trial may be had and that prejudice does not exit, nor may the court substitute its own information or beliefs for those of the affiant when such information is dehors the record. Fancher v. State, 205 Ark. 1085, 172 S.W.2d 680 (1943)Questioned byRobertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

Failure to produce any of the affiants or to assign any reason for such failure is proper ground for refusal of the petition. Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945).

Where a petition for a change of venue is filed in a criminal case, and supporting affidavits accompany the petition, the court may summon and examine the affiants. Robertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947).

It is not necessary for state affiants to appear in court although trial court may require their presence. DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975).

Form.

An order changing the venue in a criminal cause need not set forth the ground thereof, the same appearing in the petition which is a part of the record. Dixon v. State, 29 Ark. 165, 1874 Ark. LEXIS 22 (1874).

Where venue was changed, defendant could not complain of want of jurisdiction of such court on ground that his affidavit for change of venue was not signed by clerk. Bittick v. State, 67 Ark. 131, 53 S.W. 571 (1899).

Error in reference to circuit court to which case was transferred was only a clerical error which could result in no prejudice to the defendant. Ragsdale v. State, 132 Ark. 210, 200 S.W. 802 (1918).

Ineffective Counsel.

Where petitioner asserted that his counsel was ineffective because he failed to follow statutory procedures when moving for a change of venue, but the motions were all decided on the merits, as if they had been properly submitted, the court did not find that the counsel's failure was an error so serious as to amount to constitutionally deficient performance. Swindler v. Lockhart, 693 F. Supp. 760 (E.D. Ark. 1988), aff'd, 885 F.2d 1342 (8th Cir. 1989).

Motion to Annul Order.

Where defendant who had been granted a change of venue moved to annul the order, but furnished no supporting affidavits that the minds of the inhabitants of the county to which the change had been made were prejudiced, the motion was properly denied. Watson v. State, 177 Ark. 708, 7 S.W.2d 980, 59 A.L.R. 356 (1928).

Notice.

Court may not arbitrarily make a rule requiring three day's notice to the attorney for the state of the intention to ask for a change of venue. Maxey v. State, 76 Ark. 276, 88 S.W. 1009 (1905).

Presence of Defendant.

Defendant should be present when the order is made, but his absence is not reversible error. Polk v. State, 45 Ark. 165 (1885); Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891).

Presumption.

Where local prejudice rendering impossible an impartial trial is made cause for change of venue, legal presumption is that defendant can get a fair and impartial trial in the county in which the offense was committed, and to overcome this presumption defendant must show clearly that this cannot be done, and before a court is justified in sustaining an application on account of the prejudice of the inhabitants of the county, it must affirmatively appear that there is such a feeling of prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942).

Sufficiency of Application.

Motion for a change of venue alleging that the minds of the inhabitants in the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein, verified by the defendant's affidavit, is a sufficient “petition” within the meaning of this section. Jackson v. State, 54 Ark. 243, 15 S.W. 607 (1891).

Motion for change of venue was properly overruled where it contained the supporting affidavit of only one person. Davis v. State, 170 Ark. 602, 280 S.W. 636 (1926); Gaines v. State, 208 Ark. 293, 186 S.W.2d 154 (1945).

Application for a change of venue was held properly denied where the supporting affidavit did not state that the affiants were not related to the defendant. Crow v. State, 190 Ark. 222, 79 S.W.2d 75 (1935).

Petition for change of venue not supported by affidavits of two qualified electors of the county is not sufficient, and more especially so when testimony permitted by lower court after overruling the petition did not support the petitioner's contention. Chitwood v. State, 210 Ark. 367, 196 S.W.2d 241 (1946).

Where no affidavits had been filed in support of petition, there was no evidence that the minds of the inhabitants of the county 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).

Affidavits or sworn testimony must be offered to support a motion for a change of venue. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

Where the defendant failed to attach affidavits to his motion for a change of venue, there was no evidence that the jurors were prejudiced by the pretrial publicity, and the motion was properly denied. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986).

Waiver.

While it was error to overrule an application for a change of venue which complied with the statutory requirements, the error was waived by the defendant by subsequently entering a plea of guilty. Hudspeth v. State, 188 Ark. 323, 67 S.W.2d 191 (1933), cert. denied, Hudspeth v. Arkansas, 296 U.S. 642, 56 S. Ct. 178, 80 L. Ed. 456 (1935).

Cited: White v. State, 83 Ark. 36, 102 S.W. 715 (1907); Jordan v. State, 141 Ark. 504, 217 S.W. 788 (1920); Cain v. State, 183 Ark. 606, 37 S.W.2d 708 (1931); Cheney v. State, 205 Ark. 1049, 172 S.W.2d 427 (1943); Meyer v. State, 218 Ark. 440, 236 S.W.2d 996 (1951); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994).