Rule 21 Transfer from County for Trial

(a) Prejudice within county. — Upon timely motion of the defendant, the court shall transfer the proceeding as to that defendant to another county, but only if the court is satisfied that there exists within the county where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county.

(b) Other cases. — For the convenience of parties and witnesses, and in the interest of justice, the court upon consent of the parties may transfer the proceeding as to that defendant or any one or more of the counts thereof to another county.

(c) Proceedings on transfer. — When a transfer is ordered the clerk shall transmit to the clerk of the court to which the proceeding is transferred the court file in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that county. Compare. — Rule 21, Fed. Rules Cr. Proc. Constitutional standard for fairness requires that defendant have panel of impartial jurors. — Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979). Change of venue ordinarily within sound discretion of trial court. — Whether a change of venue should be granted is ordinarily within the sound discretion of the trial court. Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972). It is ordinarily within the discretion of the trial court to decide when a change should be granted. Mares v. State, 500 P.2d 530, 1972 Wyo. LEXIS 294 (Wyo. 1972). Allowance of a change of venue is ordinarily within the sound discretion of the trial court. Jackson v. State, 522 P.2d 1356, 1974 Wyo. LEXIS 212 (Wyo.), cert. denied, 419 U.S. 1055, 95 S. Ct. 637, 42 L. Ed. 2d 652, 1974 U.S. LEXIS 3665 (U.S. 1974). Denial of venue change stands unless clearly erroneous. — The trial judge’s decision to deny a change of venue will stand unless it is clearly against the logic or reasonable deduction to be reached on the evidence; stated otherwise, the decision will stand unless it is clearly erroneous. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980). Prejudice must be such as to prevent fair trial. — Prejudice against the defendant must be shown which is so great or general as to prevent him from receiving a fair and impartial trial. Mares v. State, 500 P.2d 530, 1972 Wyo. LEXIS 294 (Wyo. 1972); Jackson v. State, 522 P.2d 1356, 1974 Wyo. LEXIS 212 (Wyo.), cert. denied, 419 U.S. 1055, 95 S. Ct. 637, 42 L. Ed. 2d 652, 1974 U.S. LEXIS 3665 (U.S. 1974). It is not sufficient merely to show prejudice against the accused; it must appear the prejudice is so great or general as to prevent him from receiving a fair and impartial trial. Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972). The evidence to support a transfer of trial to another county must show prejudice so great and general in the community that a fair and impartial trial could not there be obtained. Valerio v. State, 542 P.2d 875, 1975 Wyo. LEXIS 176 (Wyo. 1975). Venue changed where fair, impartial, jury questioned. — If the right to a fair and impartial jury is questioned, a motion for a change of venue is the proper recourse under this rule. Johnson v. State, 806 P.2d 1282, 1991 Wyo. LEXIS 29 (Wyo. 1991), reh’g denied, 1991 Wyo. LEXIS 45 (Wyo. Mar. 27, 1991). Standard of impartiality. — To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979). Standard for demonstration of partiality. — While a juror’s claim that he is impartial and can decide the case fairly does not finally take away any further claim of the defendant that he did not have a fair and impartial jury, he must demonstrate the actual existence of an opinion of guilt in the mind of the juror as will raise a presumption of partiality. There must be a showing of corrupting inflammatory publicity. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979). Burden upon defendant. — Under this rule, in order for a change of venue to be granted, the burden is upon the defendant to show prejudice so great or general as to prevent his receiving a fair and impartial trial and the decision is within the sound discretion of the trial judge. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979). In order for a change of venue to be granted, the burden is upon the defendant to show prejudice so great or general as to prevent his receiving a fair and impartial trial, and the decision is within the sound discretion of the trial judge. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980). Affidavits of opinions or conclusions are not in and of themselves sufficient to require a change of venue. Mares v. State, 500 P.2d 530, 1972 Wyo. LEXIS 294 (Wyo. 1972). When affidavits of opinions or conclusions are alone relied on, they furnish no basis for granting a change of venue. Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972). Affidavits submitted to the district court to prove prejudice are not, in and of themselves, sufficient to require a change in venue. A defendant must actually demonstrate existing prejudice in the minds of the jurors at the time of voir dire. Wilcox v. State, 670 P.2d 1116, 1983 Wyo. LEXIS 374 (Wyo. 1983). Extent of prejudice determined upon voir dire. — A motion for a change of venue on account of claimed prejudicial publicity cannot be passed upon logically until the extent of the prejudice, if any, is determined upon voir dire examination of the jurors. Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972). Interest and indignation of the people are the natural result of shocking crimes and do not of themselves require a change of venue. Moss v. State, 492 P.2d 1329, 1972 Wyo. LEXIS 220 (Wyo. 1972); Mares v. State, 500 P.2d 530, 1972 Wyo. LEXIS 294 (Wyo. 1972). Pretrial publicity is not of itself inherently prejudicial. — Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). Two-pronged test determines whether change of venue should be granted because of publicity. — First, the nature and extent of the publicity must be considered; second, the difficulty or ease in selecting a jury must be considered, along with the amount of prejudice which actually appears during voir dire examination. Murry v. State, 713 P.2d 202, 1986 Wyo. LEXIS 459 (Wyo. 1986). In determining whether prejudice exists, consideration should be given, before jury selection, to the nature and extent of the publicity. If not satisfied that there is a showing of prejudice so great as to preclude a fair trial, the court may deny the motion for change of venue or take it under advisement and then, in addition, also consider the difficulty or ease in selecting a jury, and whether the prejudice claimed actually appears during jury selection. Murray v. State, 671 P.2d 320, 1983 Wyo. LEXIS 378 (Wyo. 1983). Juror exposure to publicity about a criminal case is to be anticipated, and jurors may even have formed an opinion as to the guilt of the accused, which by itself, is not a ground for requiring a change of venue. The test is whether a juror can lay aside his opinion and render a verdict based on the evidence. Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999). Extensive news coverage does not automatically require change of venue. — Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982). Extensive news coverage does not automatically require a change of venue, as pretrial publicity, per se, does not create prejudice sufficient to prevent a fair trial. Wilcox v. State, 670 P.2d 1116, 1983 Wyo. LEXIS 374 (Wyo. 1983). The mere fact that potential jurors may have heard of a criminal incident or read about it in news articles is not determinative of the issue of prejudice. That is to be expected with a free press; and where the news articles are largely factual and not inflammatory, they cannot be considered prejudicial. Murray v. State, 671 P.2d 320, 1983 Wyo. LEXIS 378 (Wyo. 1983). Juror need not be isolated to be fair. — One need not be isolated from all the information concerning the incident under consideration to be a fair and impartial juror. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980). Record supportive of denial of venue change. — Where the record does not reflect any news articles that are other than objective, nor any difficulty in selecting an impartial jury, and where the defendant has not exercised all of his peremptory challenges and has not objected to the jury selection, there is nothing to indicate an abuse of discretion by the trial judge in denying a motion for a change of venue. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). In defendant’s felony murder case, change of venue was properly denied where sixty-five jurors were summoned for the trial, and of those, 12 had heard about the case, and each of those jurors was closely examined; moreover, at the close of voir dire, defendant passed the jury for cause and had no objections to the jury selection process. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007). The judge did not abuse his discretion in not granting a change of venue, although 15 jurors were excused for cause, there being no indication that the 15 reflected the opinions and attitudes of the other members of the jury panel or that the 15 influenced the remaining panel members. Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985). Pretrial publicity did not require a change of venue where trial court found newspaper articles which had run prior to trial were not likely to have been read by a sufficient number in jury pool to prevent impaneling an impartial jury. Punches v. State, 944 P.2d 1131, 1997 Wyo. LEXIS 118 (Wyo. 1997). Denial of defendant’s motion for a change of venue based on pretrial publicity was not an abuse of discretion where, even though many prospective jurors heard of the case, there was nothing to suggest prejudicial publicity and, where, as part of his overall trial strategy, defendant’s counsel actually read portions of newspaper articles to the jury. Sides v. State, 963 P.2d 227, 1998 Wyo. LEXIS 109 (Wyo. 1998). Trial court properly denied defendant’s motion for change of venue due to pretrial publicity about defendant’s crimes and a separate investigation in which he was a murder suspect, where (1) although there were 12 articles published about defendant, none were sensational or inflammatory and the last was published 3 months before trial, (2) only five of 48 prospective jurors expressed concern about their ability to be impartial in light of the pretrial publicity, (3) none of the five were seated on the jury, and (4) the record does not indicate that it was difficult to seat an impartial jury. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003). Although there was extensive media coverage, change of venue was not warranted for trial of a defendant accused of murdering a victim who intended to testify against the defendant concerning sexual abuse offenses; the pretrial publicity was largely factual in nature rather than inflammatory nor judgmental, and a complex jury selection process and extensive questioning of potential jurors resulted in the seating of an unbiased jury despite the adverse pretrial publicity. Proffit v. State, 2008 WY 103, 193 P.3d 228, 2008 Wyo. LEXIS 108 (Wyo. 2008). In defendant’s felony murder case, change of venue was properly denied where sixty-five jurors were summoned for the trial, and of those, 12 had heard about the case, and each of those jurors was closely examined; moreover, at the close of voir dire, defendant passed the jury for cause and had no objections to the jury selection process. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007). Venue change denied where careful voir dire. — The court did not abuse its discretion in denying a change of venue where the effects of inflammatory publicity on potential jurors were mitigated by a carefully controlled voir dire so as to avoid denial of a fair trial to the defendant. Armstrong v. State, 826 P.2d 1106, 1992 Wyo. LEXIS 28 (Wyo. 1992). Ineffective assistance of counsel. — District court did not err when it concluded defendant did not establish ineffective assistance of counsel at his resentencing because he received a more favorable sentence than he originally had; defendant did not shown how the results of his sentencing would have been different if more information about his Security Threat Group validation or his cooperation with the Department of Correction had been presented to the sentencing court, and he was not prejudiced by his absence in chambers. Sides v. State, 2021 WY 42, 483 P.3d 128, 2021 Wyo. LEXIS 49 (Wyo. 2021). District court properly denied appellant’s Wyo. R. Crim. P. 21 motion to withdraw his guilty plea because appellant did not show a conflict of interest that impacted counsel performance and did not otherwise show deficient performance by his attorneys. Keller v. State, 2024 WY 71, 551 P.3d 450, 2024 Wyo. LEXIS 73 (Wyo. 2024).