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State v. House2/24/1999
ectly accomplish, with the selection of a particular venue, the exclusion of a particular racial group, when it is prohibited from directly discriminating in the selection of the venire.
{87} House is echoing Justice Marshall's Dissent in Mallett v. Missouri, which concerned an African American defendant charged with murdering a white state trooper whose trial was transferred to a venue with no citizens of the defendant's race: "Just as state prosecutors may not use peremptory challenges to exclude members of the defendant's race from the jury, state trial courts may not transfer venue of the trial to accomplish the same result by another means." Mallett v. Missouri, 494 U.S. 1009, 1009 (1990) (Marshall, J., Dissenting) (citation omitted). The United States Supreme Court denied certiorari in that case, and Justice Marshall's argument in favor of granting certiorari is one of the few judicial pronouncements that we have found discussing this principle. See id. at 1009-12; see also State v. Lozano, 616 So. 2d 73, 76 (Fla. Dist. Ct. App. 1993) (reviewing trial court's decision to change venue based on the race of the victim); Osmulski v. Becze, 638 N.E.2d 828, 834-35 (Ind. Ct. App. 1994) (in a personal injury action, applying Batson analysis, and holding that the plaintiff "established a prima facie case of the discrimination in" the defendant's use of the venue-change statute, and that the defendant "utilized the automatic change of venue in such a manner that it resulted in changing the jury pool from one with twenty-five percent African-Americans to one with less than one percent African-Americans, effectively operating as strikes against every potential African-American juror in Lake County"); State v. Harris, 660 A.2d 539, 542-45 (N.J. Super. Ct. App. Div. 1995) (concluding trial court should have considered racial demographics in selecting source from which to draw foreign jury).
{88} House's argument that a particular racial group is excluded by the selection of a venue can be analyzed from two different perspectives: On the one hand, a defendant may allege that the State or the trial court deliberately selected a particular venue with the objective of excluding a racial group; the venue was chosen with discriminatory intent. On the other hand, because the move to a particular venue has resulted in the reduction or exclusion of a racial group, the defendant may claim he or she will not receive a fair trial; the venue change has had a discriminatory impact. House's arguments raise both of these possibilities.
a. Discriminatory intent
{89} As to the first possibility, House suggests that the State deliberately sought a venue with fewer Native Americans than Taos County and thus acted with discriminatory intent. House has failed to prove this contention. The right to equal protection prevents a trial court or a prosecutor from intentionally choosing a venue so as to exclude from the venire persons of a particular race. The Fourteenth Amendment forbids the State from engaging in all actions that are intentionally discriminatory on the basis of race. See Powers, 499 U.S. at 409 (discussing the importance of race neutrality in jury procedures in maintaining the integrity of the Justice system).
{90} As indicated above, we have found surprisingly little jurisprudence on this question. There is no generally accepted test for evaluating discriminatory intent in the selection of a venue. However, we believe that the so-called Batson test may be adapted for this purpose. The United States Supreme Court in Batson v. Kentucky, 476 U.S. at 96, created, and subsequently refined, a three-part test to evaluate whether peremptory challenges were used to purposefully excl
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