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State v. House2/24/1999
768 (quoting with disapproval and reversing Elem v. Purkett, 25 F.3d 679, 683 (8th Cir. 1994)). This is because the ultimate determination of discriminatory intent rests with the discretion of the trial court in the third part of the test. Id.
{94} In the third step, once a race-neutral explanation has been tendered, the trial court must exercise its discretion in determining whether the opponent of the venue change has proven intentional racial discrimination. The trial court in its Venue Order reiterated many of the State's arguments in enumerating those factors that rendered Doña Ana suitable and Taos unsuitable as a venue for this trial. As our Discussion of the Venue Order establishes, most of the trial court's reasons are supported by substantial evidence and show no abuse of discretion. We note that the Mallett Dissent focused primarily on the discrimination of the trial court. No such discrimination has been shown here. We conclude that the selection of Doña Ana County as a new venue was race-neutral and that there is no proof of discriminatory intent.
b. Discriminatory impact
{95} As to the question of discriminatory impact, House argues that, in ordering the venue change, the trial court abused its discretion by failing to conclude that an unfair trial was more probable because fewer Native Americans live in Doña Ana than in Taos. We disagree. There is simply no constitutional requirement in New Mexico that, prior to a venue change, a court must consider the percentage of prospective jurors who are of the same race as the defendant. "There is no outstanding precedent for requiring a trial court to consider demographic composition sua sponte every time a venue change is requested. The Equal Protection Clause does not require exactitude of this nature." Rogers v. Director, TDCJ-ID, 864 F. Supp. 584, 598 (E.D. Tex. 1994).
{96} Courts have overwhelmingly been unwilling to summarily conclude that the citizens in an entire geographical region-all the potential jurors in a county or judicial district-are tainted by racial prejudice. This is why the mere statistical measure of a venue's ethnic proportions cannot, by itself, lead to the presumption that a person of a given race will be unable to receive a fair trial in that venue. There may be such homogenous geographical pockets of prejudice in America, but, even in such cases, the unsuitability of a venue can only be demonstrated in the microcosm of the venire, not in the macrocosm of census figures about the venue's ethnic composition. It is, in fact, preposterous-and a form of racism-to presume that persons of a particular color will perform jury duty in a particular way. A person's race is utterly unrelated to his or her suitability as a juror. State v. Guzman, 119 N.M. 190, 192, 889 P.2d 225, 227 (1994); see also Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., Dissenting) (stating "the color of a man's skin is unrelated to his fitness as a juror"). In the selection of a jury, race may be used neither to justify a person's removal nor to compel a person's inclusion. Cf. Powers, 499 U.S. at 409 ("An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race.").
{97} That is why Judge Blackmer emphasized that Doña Ana was chosen "to promote and protect BOTH Parties' RIGHT to a fair and impartial trial and a fair and impartial jury" and that his "decision and order selecting Doña Ana County as Venue for retrial of this case is NOT based (in whole or in part) on any other factor or consideration (including, but not limited to, ethnic/racial considerations or racial/ethnic po
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