In the event of disagreement between the trial judge and the chief judge of the transfer circuit, the district administrative judge for the proposed transfer of venue shall have final responsibility for resolving the dispute.
(Ga. L. 1895, p. 70, § 2; Penal Code 1895, § 939; Penal Code 1910, § 964; Ga. L. 1911, p. 74, § 1; Code 1933, § 27-1201; Code 1933, §§ 27-1201, 27-1202, enacted by Ga. L. 1972, p. 536, § 1; Ga. L. 1995, p. 1292, § 12.)
Editor's notes.- Ga. L. 1995, p. 1292, § 14, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all criminal cases in which the county of transfer has not been designated by court order.
Cross references.- Change of venue in criminal grand jury investigation, § 15-12-82.
Payment of costs and expenses when venue changed, § 17-11-5.
Procedure for transfer of person in custody of sheriff upon change of venue, § 42-4-11.
Law reviews.- For article, "Criminal Venue and Related Problems," see 2 Ga. St. B.J. 331 (1966). For article, "Rule of Law Doesn't Just Happen," see 16 (No. 2) Ga. St. B.J. 24 (2010). For case note, "Coleman v. Kemp: The Problem of Pretrial Publicity and its Effect on the Alday Murder Cases," see 38 Mercer L. Rev. 1477 (1987).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality
- O.C.G.A. § 17- 7-150 (a)(3) is not unconstitutional. Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639, cert. denied, 528 U.S. 1006, 120 S. Ct. 502, 145 L. Ed. 2d 388 (1999).
Conflicting Superior Court Rule unenforceable.
- Because Uniform Superior Court Rule 19.2(B) conflicts with O.C.G.A. § 17-7-150(a), a trial court may not return jurors from the county of venue to the original county for trial. Hardwick v. State, 264 Ga. 161, 442 S.E.2d 236 (1994).
Venue determination reserved for trier of fact.
- Trial court erred by making a per se determination of venue and granting the defendant's motion to transfer the case to a different county within the response to the defendant's motion to suppress because a determination of venue was reserved for the finder of fact at trial. State v. Hasson, 334 Ga. App. 1, 778 S.E.2d 15 (2015).
To establish that a change of venue is warranted, a defendant must show either circumstances which are prejudicial to the defendant's right to an impartial trial or actual jury partiality. Brooks v. Francis, 716 F.2d 780 (11th Cir. 1983).
Change of venue in death penalty cases.
- Trial courts will order a change of venue for death penalty trials in those cases in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity. Jones v. State, 261 Ga. 665, 409 S.E.2d 642 (1991).
To prevail on a motion for change of venue, a defendant must show either that the setting of the trial was inherently prejudicial or that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Cheeks v. State, 203 Ga. App. 47, 416 S.E.2d 336, cert. denied, 203 Ga. App. 905, 416 S.E.2d 336 (1992).
Change of venue is in court's discretion.
- Question as to whether venue should be changed addresses itself to the sound discretion of the trial court. Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978); Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).
Grant or denial of a motion for change of venue lies largely within the discretion of the trial court. Attaway v. State, 149 Ga. App. 693, 256 S.E.2d 94 (1979).
Because the granting of the defendant's motion for a change of venue had been based solely on the consent of the parties and there was no finding by the trial court that an impartial jury could not be obtained in the county and no transfer county had ever been designated, the court did not err by ordering an evidentiary hearing, and the court had the discretion to order that venue remain in the county. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001).
Trial court did not abuse the court's discretion in moving Bibb County jurors to Chatham County and in sequestering the jurors because local media coverage necessitated the jury's sequestration; the defendant had no legal right to demand that the jurors be instructed that the jurors had been brought to Chatham County over the defendant's objection. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).
In a murder case wherein the defendant killed the defendant's father and brother and was involved with the defendant's brother's wife, the trial court did not abuse the court's discretion by denying the defendant's motion for a change of venue because the defendant only alleged that there was a lot of gossip, rumor, and innuendo about the defendant's affair with the defendant's sister-in-law, but the defendant did not claim that the stories about the affair were untrue or even disputed at trial, and the defendant failed to show that the pretrial publicity was inflammatory or created a hostile atmosphere. Heidt v. State, 292 Ga. 343, 736 S.E.2d 384 (2013).
Counsel was not ineffective in failing to move for change of venue when the record showed that the decision was based on sound trial strategy and, even if the parties had agreed to change venue to a particular county, the trial court would have had to determine venue. Hammond v. State, 264 Ga. 879, 452 S.E.2d 745, cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 54 (1995).
Since the parties could not agree as to when the case should be transferred upon the defendant's first motion for change of venue and the judge exercised judicial discretion in selecting the county for trial of the case, and, then, when the defendant made no effort to question prospective jurors about the jurors' prior knowledge of the case, it was not an abuse of discretion for the trial court to deny the defendant's second motion to change venue. Taylor v. State, 219 Ga. App. 475, 465 S.E.2d 473 (1995).
Trial court did not abuse the court's discretion under O.C.G.A. § 17-7- 150(a)(1) in transferring venue since: (1) the parties could not agree on a transfer county; (2) the new venue was in the same judicial circuit as the county in which the defendant committed the crime; (3) the new county had a similar population and racial breakdown; and (4) the main newspaper of the county in which the defendant committed the crime had a limited circulation in the new county. Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003).
Court's rejection of parties' agreement.
- O.C.G.A. § 17-7-150(a) does not preclude the trial court from exercising the court's discretion to reject the parties' agreement regarding venue and to order venue in another county. Hardwick v. State, 264 Ga. 161, 442 S.E.2d 236 (1994).
Time for ruling on change of venue in death penalty cases.
- Upon hearing a motion for change of venue, the trial court may reserve ruling until after voir dire responses. Jones v. State, 261 Ga. 665, 409 S.E.2d 642 (1991).
Order for change of venue is a judgment to that effect.
- Order of the Supreme Court directing a change of venue is substantially a judgment to that effect. Graham v. State, 143 Ga. 440, 85 S.E. 328, 1917A Ann. Cas. 595 (1915).
County from which venue transferred loses jurisdiction.
- When venue is changed, the county from which the case is transferred loses all jurisdiction to try the accused for the offense concerned. Johnston v. State, 118 Ga. 310, 45 S.E. 381 (1903).
County retains power to compel obedience of county's judgment changing venue.
- Power of the court from which the case is thus transferred to compel obedience to the court's judgment so changing the venue is neither lost nor impaired. Ruffin v. State, 28 Ga. App. 40, 110 S.E. 311 (1921).
Jurisdiction under subsequent indictment for different offense is unimpaired.
- When a subsequent indictment charges a different offense, the jurisdiction of the court of the county where the indictment is found is unimpaired by the change of venue under the former indictment. Ruffin v. State, 28 Ga. App. 40, 110 S.E. 311 (1921).
Petitioner bound by change of venue once obtained.
- If a judgment of the superior court refusing to grant a change of venue is excepted to by the petitioner, and is reversed by the Supreme Court, and the change granted, the petitioner is bound by the decree and may not then demand to be tried in the original venue. Graham v. State, 143 Ga. 440, 85 S.E. 328, 1917A Ann. Cas. 595 (1915).
Procedure upon denial of motion.
- If the accused moves for a change of venue and the motion is denied, the proper procedure is to except to the overruling of the accused's motion. Williford v. State, 121 Ga. 173, 48 S.E. 962 (1904).
Consideration of motions pending when new judge takes office.
- When the term of office of a judge expires and a successor takes office pending a motion for a change of venue, the incoming judge should pass upon the motion in the light of the record presented to that judge. Marshall v. State, 20 Ga. App. 416, 93 S.E. 98 (1917).
Motion as evidence on trial of issues raised by motion.
- Motion for change of venue, though sworn to, is not evidence on the trial of the issues raised by the motion unless it is formally introduced in evidence. Rawlings v. State, 33 Ga. App. 825, 127 S.E. 881, cert. denied, 33 Ga. App. 829 (1925).
This section makes no specific provision for the filing of an answer to a petition for change of venue, but does provide for a hearing on the issues. Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952).
Timeliness of state's response to petition.
- Since there is no time set for the filing of an answer to such motion, the defendant cannot complain that a pleading, reducing the contentions of the state to writing and filed within 48 hours, is filed too late. Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952).
Standard of proof for petition to change venue.
- If there is a greater weight of evidence in support of the petition for a change of venue than to the contrary, if the evidence inclines the mind to belief but leaves some room for doubt, and yet is sufficient to incline a reasonable and impartial mind to the movant's side of the issue rather than to the other, the motion for change of venue should be granted. It does not mean that the judge's mind shall be free from uncertainty and doubt. Johns v. State, 47 Ga. App. 58, 169 S.E. 688 (1933); Geer v. State, 54 Ga. App. 216, 187 S.E. 601 (1936).
Proof requirements for likelihood of violence and for jury fairness compared.
- Requirement for showing a likelihood or probability of violence is considerably less stringent than that relative to the matter of whether a fair and impartial jury can be obtained. Whitus v. State, 112 Ga. App. 29, 143 S.E.2d 649 (1965).
Applicant for a change of venue on the ground that a fair and impartial jury cannot be obtained must show such by clear and convincing evidence. As to the ground of personal danger the showing required is much less stringent and if a feeling emerges, after considering all the evidence, that something untoward is likely to happen the application should be granted. In both instances, it is the duty of the trial judge to hear the evidence and find the facts of the matter. The judgment may not be disturbed unless it appears that the judge has manifestly violated the judge's duty. Pierce v. State, 125 Ga. App. 490, 188 S.E.2d 181 (1972).
Ineffective assistance of counsel not established.
- Defendant's claim that counsel was ineffective with regard to a motion for a change of venue failed; the defendant had not shown that the jury was tainted and had not shown how live evidence or a citizen survey could have accomplished any more than the introduction in evidence of existing pretrial publicity or voir dire. Harvey v. State, 284 Ga. 8, 660 S.E.2d 528 (2008).
No evidence supporting change in venue.
- See White v. State, 221 Ga. App. 860, 473 S.E.2d 539 (1996).
Trial court properly denied murder defendant's motion for change of venue under O.C.G.A. § 17-7-150(a) based on a 1983 manslaughter conviction; trial counsel acknowledged that no potential juror indicated that he or she was aware of the 1983 homicide. Harvey v. State, 284 Ga. 8, 660 S.E.2d 528 (2008).
Trial court did not abuse the court's discretion in refusing to transfer venue of a defendant's trial on a felony murder charge because the defendant failed to show that the setting of the trial was inherently prejudicial due to inflammatory or incorrect pretrial publicity, and the defendant failed to demonstrate that the defendant could not receive a fair trial due to the prejudice of individual jurors. Edmond v. State, 283 Ga. 507, 661 S.E.2d 520 (2008).
Cited in Gunn v. State, 245 Ga. 359, 264 S.E.2d 862 (1980); Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (1982); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Devier v. State, 250 Ga. 604, 323 S.E.2d 150 (1984); Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985); Whitehead v. State, 255 Ga. 526, 340 S.E.2d 885 (1986); Rower v. State, 264 Ga. 323, 443 S.E.2d 839 (1994); Glean v. State, 268 Ga. 260, 486 S.E.2d 172 (1997); Torres v. State, 272 Ga. 389, 529 S.E.2d 883 (2000); Lucas v. State, 274 Ga. 640, 555 S.E.2d 440 (2001); EHCA Cartersville, LLC v. Turner, 280 Ga. 333, 626 S.E.2d 482 (2006).
Juror Impartiality
Determination of impartiality generally.
- On the hearing of evidence regarding the possibility of obtaining an impartial jury, the fair trial issue relates to a future thing. Being an issue which only the future can determine absolutely, it is necessarily a matter of opinion at the time when the testimony is being heard. Jones v. State, 101 Ga. App. 851, 115 S.E.2d 576 (1960).
Discretion of trial judge regarding decision as to whether impartial jury can be obtained.
- Motion for a change of venue based upon the ground that an impartial jury cannot be obtained in the county where the crime was allegedly committed is addressed to the sound discretion of the presiding judge and will not be disturbed unless an abuse of discretion is shown. Grenoble v. State, 41 Ga. App. 663, 154 S.E. 304 (1930); Ledford v. State, 107 Ga. App. 244, 129 S.E.2d 555 (1963).
The decision as to whether or not the accused can obtain an impartial jury in the county in which the indictment was presented is essentially within the discretion of the trial judge and, unless this discretion is abused and the decision reached manifestly erroneous, the decision will not be reversed. Garrett v. State, 80 Ga. App. 118, 55 S.E.2d 672 (1949).
Test as to prejudicial publicity.
- Test as to whether pretrial publicity has so prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from the pretrial publicity. Wilkes v. State, 238 Ga. 57, 230 S.E.2d 867 (1976); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979); Shinholster v. State, 150 Ga. App. 221, 257 S.E.2d 342 (1979); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979); Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983); Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983); Ponder v. State, 194 Ga. App. 446, 390 S.E.2d 869 (1990).
Test as to whether newspaper publicity has so prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence of the accused from reading such newspaper articles. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978).
Test as to whether unfavorable newspaper publicity had so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S. Ct. 1707, 52 L. Ed. 2d 394 (1977).
Test to determine if a change of venue is appropriate is whether the prospective jurors have formed fixed opinions as to appellant's guilt or innocence based upon reports in the media. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).
Test is whether jurors can lay aside their impressions and opinions.
- Test for determining whether adverse pretrial publicity has so affected the community that the defendant cannot receive a fair trial is whether the prospective jurors summoned to try the case can lay aside the jurors' impressions and opinions and render a verdict based on the evidence presented at trial. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S. Ct. 1707, 52 L. Ed. 2d 394 (1977); Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).
Publicity is not grounds in itself for change of venue.
- Widespread or even adverse publicity of a criminal incident is not in itself grounds to grant a change of venue. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S. Ct. 1707, 52 L. Ed. 2d 394 (1977); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).
Prejudice resulting from news publicity.
- Inference of prejudice requiring a change of venue is not to be drawn from the fact alone that newspapers published in the vicinity have contained articles descriptive of the offense or editorials denunciatory of the accused. Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954).
From the fact that two local newspapers gave a large amount of publicity to the case, it does not follow that such prejudice existed in the whole county as to make a fair and impartial trial impossible. Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954).
Mere fact that newspapers carried items and editorials stating that the defendant confessed to the crime for which the defendant stood indicted, or had published articles in regard to the defendant which were inflammatory in nature, would not of itself be sufficient to establish the fact that a fair and impartial trial could not be had in the county in question, without further alleging that the jurors who had been summoned to try the case had read the articles and formed a fixed opinion as to the guilt or innocence of the defendant from reading such articles. Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954).
When the transcript revealed that although the defendant asked the jurors whether the jurors had heard of arrests of drug dealers, the defendant did not inquire whether the jurors could render an impartial decision despite whatever knowledge the jurors had gleaned from the media, the defendant failed to demonstrate the required prejudice, and the trial court did not err by denying the motion for a change of venue. Cheeks v. State, 203 Ga. App. 47, 416 S.E.2d 336, cert. denied, 203 Ga. App. 905, 416 S.E.2d 336 (1992).
Defendant's motion for a change in venue was properly denied as the trial court reviewed the media coverage of the case and properly determined that the coverage would not affect the jurors' ability to remain impartial. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).
Trial court did not abuse the court's discretion in denying a defendant's motion for change of venue based upon pretrial publicity because the defendant failed to show that the pretrial publicity created an inherently prejudicial atmosphere or affected the jurors' ability to be fair and impartial. Holmes v. State, 284 Ga. 330, 667 S.E.2d 71 (2008).
Mere reference to the defendant in a newspaper article does not demand a finding that a need for change of venue exists. Miller v. State, 141 Ga. App. 382, 233 S.E.2d 460 (1977).
Remoteness of time between trial and adverse pretrial publicity is one factor in determining whether change of venue is required. Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, cert. denied, 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982).
Effect of publicity regarding defendant's escape.
- Courts will generally be less likely to closely scrutinize the prejudicial effect of publicity upon a defendant's trial in cases where that publicity is created by the defendant's escape attempt than in cases where the publicity stems from other sources. Goodman v. State, 255 Ga. 226, 336 S.E.2d 757 (1985).
Qualified jurors need not be totally ignorant of the facts and issues involved in order to guarantee that a defendant has a panel of impartial, indifferent jurors. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979).
Defendant is entitled to a panel of impartial jurors, but this does not require that the jurors be totally ignorant of the facts and issues involved. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).
If no evidence of considerable publicity surrounding the incident to be tried has been shown to the court, the motion for change of venue is properly denied. Futch v. State, 151 Ga. App. 519, 260 S.E.2d 520 (1979).
If no showing is made that the veniremen have formed fixed opinions as to the guilt or innocence of the defendants from exposure to pretrial publicity, the trial court does not abuse the court's discretion in overruling a motion for change of venue. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980).
Juror sufficiently impartial if juror can lay aside impression or opinion.
- Mere existence of a preconceived notion as to the guilt or innocence of an accused, without more, is not sufficient to rebut the presumption of a prospective juror's impartiality. Rather, a juror's impartiality is sufficient if the juror can lay aside the juror's impression or opinion and render a verdict based on the evidence presented in court. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).
Juror's assurances that juror is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).
If 20 percent of veniremen are excused for partiality regarding guilt, a change of venue is not required due to jury prejudice regarding the guilt-innocence phase. Collier v. State, 244 Ga. 553, 261 S.E.2d 364, cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1979), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
When of the 89 prospective jurors who underwent voir dire, 17 were excused for bias and prejudice, three others were excused because those jurors had participated in the establishment of or had contributed to a reward fund with respect to the case, and these 20 jurors constituted only 22 percent of the entire panel, this percentage corroborated the absence of such prejudicial publicity as would require the grant of a motion for change of venue. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).
If there is no reason to presume prejudice, the trial court does not abuse the court's discretion in refusing a pre-voir dire motion to change venue. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).
If there is no evidence that any juror has formed a fixed and unchangeable opinion as to the guilt or innocence of the defendant such as would not yield readily to the testimony, it cannot be said that the trial court abused the court's discretion in denying the motion for change of venue. Hopkins v. Hopper, 234 Ga. 236, 215 S.E.2d 241 (1975).
If the evidence greatly preponderates that an impartial jury can be obtained to try the case, it is not an abuse of discretion by the trial court to deny a motion based upon this ground. Pinkston v. State, 80 Ga. App. 268, 55 S.E.2d 877 (1949).
Relevance of opinion evidence.
- If opinion evidence is relevant to show that the defendant may obtain a fair trial, opinion evidence is also relevant when offered to show that the defendant may not obtain a fair trial when the facts upon which the opinion is based are stated. Jones v. State, 101 Ga. App. 851, 115 S.E.2d 576 (1960).
If the evidence in support of a motion consists of the opinions of witnesses of the county where venue has been laid, unsupported by facts upon which the opinions are based, the trial judge is not bound, in the absence of a showing to the contrary, to grant the change when in the judge's opinion the change of venue is not required in order for the defendant to procure a fair trial. Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (1949).
Allegation of bias and prejudice of trial court does not address itself to change of venue.
- In a criminal case, a change of venue is predicated upon the determination of the trial judge that an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. That ground of a motion for change of venue which alleges bias and prejudice on the part of the trial court does not address itself to a change of venue, but addresses itself to the disqualification of the trial judge. Wyciskala v. State, 147 Ga. App. 518, 249 S.E.2d 329 (1978).
Superior court judge lacks the authority to grant a change of venue on the judge's own motion in a criminal case and over defense objection, on the ground that a fair and impartial jury cannot be obtained in the county where the crime was allegedly committed. Patterson v. Faircloth, 256 Ga. 489, 350 S.E.2d 243 (1986), disapproving dicta in Wheeler v. State, 42 Ga. 306 (1871).
When motion asserting systematic exclusion of groups insufficient for appeal.
- If counsel does not move to quash the indictments but rather on the morning the trial begins files a motion for change of venue complaining of systematic exclusion of blacks and women, such a motion is insufficient to preserve for appeal an assertion of error on the ground that the trial court erred in failing to quash the indictment or, in the alternative, failed to grant counsel a delay of the trial so counsel might have sufficient opportunity to prove counsel's claim of systematic exclusion of blacks and women from grand and petit jury. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).
Danger of Violence to Defendant
Right of defendant and witnesses to freedom from intimidation and violence generally.
- Any defendant is entitled to have the venue of the defendant's case laid in a county where the defendant and the defendant's witnesses are free from intimidation and violence, and when the defendant has the right to expect protection on behalf of oneself and the defendant's witnesses from all law enforcement agencies. Yancey v. State, 98 Ga. App. 797, 107 S.E.2d 265 (1959).
What constitutes violence.
- Violence referred to in this section meant not only that physical violence threatened by mobs or other lawless elements, but also violence to the defendant's fundamental right to a fair trial. Yancey v. State, 98 Ga. App. 797, 107 S.E.2d 265 (1959).
This section was sufficiently broad to include danger or probability of violence to the defendant's attorney. Ferguson v. State, 104 Ga. App. 215, 121 S.E.2d 338 (1961).
"Probability" defined.
- Probability is defined as likelihood or appearance, a resemblance of truth founded upon reason. Johns v. State, 47 Ga. App. 58, 169 S.E. 688 (1933).
Degree of evidence which would be sufficient to establish a danger of violence to the accused is a question of much difficulty, and which must necessarily vary so greatly with the circumstances of each case that it would be impossible to define its limits with exactitude. The danger may be obvious in some cases and latent in others and may be more threatening because the danger is unannounced. Pinkston v. State, 80 Ga. App. 268, 55 S.E.2d 877 (1949).
When the evidence fails to reasonably show the probability or danger of lynching or other violence, it is not error on the part of the judge to refuse to change the venue. Grenoble v. State, 41 Ga. App. 663, 154 S.E. 304 (1930); Goumas v. State, 44 Ga. App. 210, 160 S.E. 682 (1931); Morakis v. State, 72 Ga. App. 790, 35 S.E.2d 155 (1945), aff'd, 201 Ga. 425, 40 S.E.2d 120 (1946).
Duty of trial judge when probability of violence shown.
- If the evidence reasonably shows that there is a probability of violence, then it shall be mandatory upon the judge to change the venue. Johns v. State, 47 Ga. App. 58, 169 S.E. 688 (1933); Pinkston v. State, 80 Ga. App. 268, 55 S.E.2d 877 (1949); Ledford v. State, 107 Ga. App. 244, 129 S.E.2d 555 (1963).
Under former Code 1933, § 27-1201 (see O.C.G.A. § 17-7-150), it was the duty of the trial judge, upon the judge's own motion or upon it being shown at a hearing on a motion for change of venue, that there is probability or danger of lynching, or other violence, to grant a change of venue. This provision was mandatory. Griffin v. State, 59 Ga. App. 333, 1 S.E.2d 41 (1939); Crane v. State, 94 Ga. App. 63, 93 S.E.2d 667 (1956), appeal dismissed, 213 Ga. 386, 98 S.E.2d 903 (1957); Ferguson v. State, 104 Ga. App. 215, 121 S.E.2d 338 (1961).
Georgia Laws 1911, p. 74, § 1, which amended Ga. L. 1895, p. 70, § 2, showed that the General Assembly was unwilling to leave change of venue, as it stood before that amendment, to the general determination of the judge as to whether a fair and impartial trial could be obtained. It passed this additional Act which did not merely confer upon the judge a power or discretionary right but placed upon the judge a solemn and mandatory duty. A reading of this amendment will show the imperative nature of the duty placed upon the judge if the evidence reasonably shows that there is a probability or danger of lynching or other violence. The judge's mind does not necessarily have to be free from uncertainty or doubt but if there exists in the judge's mind a probability that personal violence will be done the accused the judge should change the venue. Avery v. State, 83 Ga. App. 700, 64 S.E.2d 589 (1951), aff'd, 209 Ga. 116, 70 S.E.2d 716 (1952).
After all of the evidence is considered, if the mind of a reasonable man is left with the feeling that something untoward is likely to happen in the event of a trial of the defendants in the county where the crime was committed, the judge ought to move the trial by granting the motion. Whitus v. State, 112 Ga. App. 29, 143 S.E.2d 649 (1965).
State and county also have interest in removing threat of armed violence.
- When there is doubt as to the threat of future armed violence, the welfare of the state, as well as that of the citizens of the county in which the alleged crime was committed, demands no less than the welfare of the individual defendant that such doubt should be removed. This can only be accomplished by a change of venue by which the state's case is in no way prejudiced and the society of this state as a whole in no way suffers. It is the province and duty of the courts, not only to punish lawlessness, but insofar as possible to guard against lawlessness, and a reasonable doubt as to the safety of the defendant, in the event of acquittal, should be resolved in the defendant's favor for the welfare of society as a whole by laying the venue in a county disassociated from the turbulence and rancor of the disturbances. Pinkston v. State, 80 Ga. App. 268, 55 S.E.2d 877 (1949).
Withdrawal or waiver of change of venue, once obtained, is not permitted.
- When the accused has obtained, on the accused's motion, a change of venue from the county where the crime was alleged to have been committed to another county, on the ground that there was a probability or danger of violence to the accused, the accused cannot subsequently withdraw or waive the change of venue and demand a trial in the county of the offense. Geer v. State, 58 Ga. App. 424, 198 S.E. 829 (1938).
Determination of probability of violence is primarily a question for the judge.
- While it is mandatory upon the judge to whom a petition for a change of venue is presented to change the venue if the evidence submitted reasonably shows that there is a probability of danger, of lynching or other violence, it is primarily a question for the judge, upon the hearing of such petition, to determine from the evidence whether or not such probability or danger of lynching or other violence exists. Wilburn v. State, 140 Ga. 138, 78 S.E. 819 (1913); Graham v. State, 141 Ga. 812, 82 S.E. 282 (1914); Nix v. State, 22 Ga. App. 136, 95 S.E. 534 (1918); Davis v. State, 23 Ga. App. 223, 98 S.E. 111 (1919); Broxton v. State, 24 Ga. App. 31, 99 S.E. 635 (1919); Ruffin v. State, 28 Ga. App. 40, 110 S.E. 311 (1921); Wilson v. State, 28 Ga. App. 574, 112 S.E. 295, cert. denied, 28 Ga. App. 820 (1922); Grenoble v. State, 41 Ga. App. 663, 154 S.E. 304 (1930); Goumas v. State, 44 Ga. App. 210, 160 S.E. 682 (1931); Griffin v. State, 59 Ga. App. 333, 1 S.E.2d 41 (1939); Morakis v. State, 72 Ga. App. 790, 35 S.E.2d 155 (1945), aff'd, 201 Ga. 425, 40 S.E.2d 120 (1946); Barronton v. State, 80 Ga. App. 44, 55 S.E.2d 252 (1949); Crane v. State, 94 Ga. App. 63, 93 S.E.2d 667 (1956), appeal dismissed, 213 Ga. 386, 98 S.E.2d 903 (1957); McGruder v. State, 96 Ga. App. 874, 102 S.E.2d 54 (1958).
Judge's discretion is coupled with a duty, and the Supreme Court may remedy the abuse of such discretion. Kennedy v. State, 141 Ga. 314, 80 S.E. 1012 (1914).
Appellate Review
Issue on review generally.
- In determining whether the trial court erred in denying a change of venue, the reviewing court asks whether it was too clear and certain to admit of dispute that the court erred in refusing to change the venue, or whether it manifestly appears that the lower court erred in the court's judgment under the evidence. Geer v. State, 54 Ga. App. 216, 187 S.E. 601 (1936).
Test on appeal for reversal of trial court's decision.
- Decision to grant a motion for a change of venue is largely within the trial court's discretion and the court's decision will be reversed on appeal only for an abuse of discretion. Allen v. State, 235 Ga. 709, 221 S.E.2d 405 (1975).
Decision to grant a change of venue motion lies within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Watson v. State, 147 Ga. App. 847, 250 S.E.2d 540 (1978); Shinholster v. State, 150 Ga. App. 221, 257 S.E.2d 342 (1979); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979); Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980); Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).
Fair trial issue is in the judge's discretion, and the judge's ruling will not be reversed unless manifestly abused. Miller v. State, 141 Ga. App. 382, 233 S.E.2d 460 (1977).
Test on appeal of a trial judge's order refusing a change of venue is whether the trial judge abused the judge's discretion in denying the change of venue. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).
Overruling of motion is not appealable absent a certificate of review.
- Overruling of the motion for change of venue is an interlocutory order which is not an appealable judgment absent a certificate of review. Butler v. State, 127 Ga. App. 386, 193 S.E.2d 641 (1972).
In the absence of a certificate for immediate review, the denial of a motion for a change of venue under former Code 1933, § 27-1201 (see O.C.G.A. § 17-7-150) standing alone was not an appealable judgment under Ga. L. 1965, p. 18 (see O.C.G.A. T. 5, C. 6, Art. 2). Brooks v. State, 229 Ga. 593, 194 S.E.2d 256 (1972).
Appellant must exhaust peremptory challenges before overruling of motion is reversed on appeal. The general rule is that appellate courts will not reverse the trial court's overruling of a motion for change of venue when the appellant has not exhausted the appellant's peremptory challenges. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S. Ct. 1707, 52 L. Ed. 2d 394 (1977); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979).
Review of the trial judge's finding should not be merely perfunctory, and simply because any citizen or county official states that the individual has not heard of any intended violence or expresses the opinion that the individual thought there was no danger, the reviewing court should not, as a matter of course, affirm the judgment denying a change of venue. Johns v. State, 47 Ga. App. 58, 169 S.E. 688 (1933).
Reversal requires showing that discretion was abused.
- Granting of the change of venue is within the discretion of the court, and the Supreme Court will not control that discretion unless the discretion has been plainly and manifestly abused. Rawlins v. State, 124 Ga. 31, 52 S.E. 1 (1905), aff'd, 201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906).
If after hearing evidence, the trial court is satisfied that a fair and impartial jury may be had in the county where the crime is alleged to have been committed, the court on appeal will not reverse the court's judgment refusing to change the venue unless it is made to appear that there has been an abuse of discretion. Grenoble v. State, 41 Ga. App. 663, 154 S.E. 304 (1930); Goumas v. State, 44 Ga. App. 210, 160 S.E. 682 (1931).
Before the Court of Appeals is authorized to reverse the judgment of the lower court in a proceeding to change venue, it must appear that such discretion was abused. Hartley v. State, 76 Ga. App. 390, 46 S.E.2d 71 (1948).
Trial court's finding that a defendant can receive a fair trial in the county in which the crime was committed must be upheld if not manifestly erroneous. Cheeks v. State, 203 Ga. App. 47, 416 S.E.2d 336, cert. denied, 203 Ga. App. 905, 416 S.E.2d 336 (1992).
Jurisdiction on review.
- Jurisdiction on review of all venue cases not involving capital convictions has been vested in the Court of Appeals and not the Supreme Court, provided no constitutional question was raised in the lower court. Humphrey v. State, 175 Ga. 666, 165 S.E. 587 (1932).
Finality of finding and judgment when evidence conflicts.
- When the evidence is conflicting upon the issue as to whether or not upon the petition such a case for a change of venue is made as requires the judge to grant the motion, the judge hearing the motion passes upon the issues that are to be determined upon evidence, and the judge's finding and judgment is final and controlling, unless manifestly erroneous. Butler v. State, 56 Ga. App. 126, 192 S.E. 238 (1937).
Reversal of denial of motion when evidence conflicts.
- If the evidence upon the issue of violence conflicts, the judgment denying the defendant's motion to change the venue will not be reversed, unless manifestly erroneous. Grenoble v. State, 41 Ga. App. 663, 154 S.E. 304 (1930); Goumas v. State, 44 Ga. App. 210, 160 S.E. 682 (1931) ; Griffin v. State, 59 Ga. App. 333, 1 S.E.2d 41 (1939); Morakis v. State, 72 Ga. App. 790, 35 S.E.2d 155 (1945), aff'd, 201 Ga. 425, 40 S.E.2d 120 (1946); Barronton v. State, 80 Ga. App. 44, 55 S.E.2d 252 (1949); Crane v. State, 94 Ga. App. 63, 93 S.E.2d 667 (1956), appeal dismissed, 213 Ga. 386, 98 S.E.2d 903 (1957); McGruder v. State, 96 Ga. App. 874, 102 S.E.2d 54 (1958); Ledford v. State, 107 Ga. App. 244, 129 S.E.2d 555 (1963).
Venue change based on opinion evidence.
- When the evidence upon the issue of violence is based upon opinion evidence without specific facts or acts upon which to base a judgment changing venue, a judgment denying the defendant's motion for such change will not be reversed. Crane v. State, 94 Ga. App. 63, 93 S.E.2d 667 (1956), appeal dismissed, 213 Ga. 386, 98 S.E.2d 903 (1957); McGruder v. State, 96 Ga. App. 874, 102 S.E.2d 54 (1958).
Denial of motion for change of venue not abuse of discretion.
- Because only 12 potential jurors were dismissed on account of their inability to be impartial based on their prior knowledge of the case, the excusal rate was only 23%, which was not indicative of such prejudice that the trial court's denial of the defendant's motion for a change of venue was an abuse of discretion. Moss v. State, 305 Ga. 878, 828 S.E.2d 309 (2019).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, §§ 504 et seq., 521, 527, 532, 537.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 1 et seq.
ALR.
- Propriety or effect of denial of application for change of venue in criminal prosecution predicated upon local prejudice as affected by the fact that trial jury was obtained from another county or district, 136 A.L.R. 1405.
Binding effect of order on motion for change of venue, where action is terminated otherwise than on merits and reinstituted, 85 A.L.R.2d 993.
Pretrial publicity in criminal case as ground for change of venue, 33 A.L.R.3d 17.
Right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like, 34 A.L.R.3d 804.
Change of venue by state in criminal case, 46 A.L.R.3d 295.
Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942.