See also Maes v. District Court, 180 Colo. 169, 175, 503 P.2d 621, 624 (1972). In Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971) (overruled on other grounds in Marshall v. Kort, 690 P.2d 219 (Colo. 1984)), we relied on Groppi v. Wisconsin in stating that "if a community is prejudiced against a citizen or if other circumstances are likely to deny him a fair and impartial jury trial, then a change of venue must be granted."
It is quite possible that the election to be tried by the judge was a product of the judge's failure to sustain the motion to change venue. However, in this regard, we find the following language from Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1972), persuasive: Nowhere did he (the defendant) complain that he could not obtain a fair trial before the trial judge.
Evans v. District Court, 194 Colo. 299, 572 P.2d 811, 814 (1977). To the extent that Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971) may require a different result in criminal commitment cases, we overrule that decision. "The court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of defendant at a different institution or by different experts.
1983); People v. Gurule, 628 P.2d 99 (Colo. 1981); Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). In Oaks v. People, 150 Colo. 64, 68-69, 371 P.2d 443, 447 (1962), we explained that
See State v. Johnson, 318 N.W.2d 417 (Iowa 1982); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). Contra, Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971), holding that the waiver of the jury rendered a venue question moot. Under Iowa Code Ann. § 778.2, the defendant may obtain a change of venue on the ground that he "cannot receive a fair and impartial trial owing to the prejudice of the judge."
Contrary to the prisoners' contention, there is no conflict between C.R.C.P. 98 and section 13-45-101(1). Stilley v. Tinsley, 153 Colo. 66, 385 P.2d 677 (1963); see also Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). Our decisions as they relate to venue have consistently distinguished between filing and trial.
Thus, "[w]here a jury trial is granted, the right to a fair and impartial jury is a constitutional right which can never be abrogated." Brisbin v. Schauer, 176 Colo. 550, 552, 492 P.2d 835, 836 (1971), overruled on other grounds by Marshall v. Kort, 690 P.2d 219 (Colo.1984). ¶ 110
Instead, § 19-1-117(2) is a venue provision and, as such, is subject to waiver. See Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971) (when statute does not contain procedure for change of venue, party must use procedure contained in applicable procedural rules). Under C.R.C.P. 98(e), a motion to change venue must be filed within the time permitted for the filing of motions under C.R.C.P. 12(b)(1) to (4), that is, within twenty days after the service of the summons and complaint. Otherwise, the objection is deemed waived.
A defendant in a criminal proceeding has a fundamental constitutional right to a trial by fair and impartial jurors, see People v. Abbott, 690 P.2d 1263 (Colo. 1984); Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971), and the purpose of voir dire examination is to enable counsel to determine whether any prospective jurors are possessed of beliefs that would cause them to be biased in such a manner as to prevent the defendant from obtaining a fair and impartial trial. People v. Collins, 730 P.2d 293 (Colo.
In addition, "[i]f a community is prejudiced against a citizen or if other circumstances are likely to deny him a fair and impartial trial, then a change of venue must be granted." Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971). The question as to the existence of prejudice is one of fact and rests within the sound discretion of the trial court.