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State v. House2/24/1999
pulations or proportions in various Counties of New Mexico . . . )." Venue Order, slip op. at 19 (Finding of Fact 22). Only by conducting voir dire, and listening to the racial opinions of individual potential jurors, can it be demonstrated that a particular venue cannot provide a jury free from racial prejudice. Through careful voir dire, fair-minded jurors can most likely be found, even in a community which has few members of the defendant's race.
{98} That is what happened in this case. The trial court conducted exhaustive voir dire in Doña Ana County. After voir dire, House did not object that, because he is Native American, he would receive an unfair trial before the petit jury that was finally seated. Nor has he suggested in retrospect that it has been revealed that the jury was tainted by racial prejudice. There is simply no evidence that House received an unfair trial because Doña Ana County has a Native American population of less than 1%.
{99} Thus, in the selection of the venue of Doña Ana County, House has shown neither that the State acted with discriminatory intent, nor that the venue change had a discriminatory impact on his right to a fair trial.
C. Fair Cross Section
{100} House asserts that the State's choice of venue deprived him of his right to a jury "drawn from a fair cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 527 (1975). Though the phrase "fair cross section" does not appear in either the New Mexico or the United States Constitution, it has been held to be implicit in the right to a fair trial. See N.M. Const. art. II, § 14 (impartial jury); N.M. Const. art. II, § 18 (due process); U.S. Const. amend. VI (impartial jury); see also Holland v. Illinois, 493 U.S. 474, 480 (1990) (implicit). House's argument is somewhat unclear, but he seems to be contending that the State, by choosing a venue with a small Native American population, has racially distorted the jury pool, and has deprived him of a fair cross section of citizens from whom a fair-minded jury could be selected. The purposeful conduct of the State has, as House says, "dramatically diluted the representation of the defendant's race" within the cross section of the particular community represented by the venire. The practical consequence of House's interpretation of the fair-cross- section principle would be an increased likelihood of representation by Native Americans on the petit jury in this case.
{101} Once again, House is asking us to intermingle incompatible principles that apply variously to the seating of a petit jury, the composition of the venire, and the selection of a venue. The fair- cross-section requirement applies neither to the venue nor the petit jury. It addresses the constitutional right to a venire which fairly represents the community from which it is drawn. Thus, there is "no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition." Taylor, 419 U.S. at 538. It is the venire from which the petit jury is chosen that must constitute a representative cross section of the community in which the trial takes place. See Aragon, 109 N.M. at 198- 99, 784 P.2d at 17-18.<BR>
{102} The use of peremptory challenges by the parties to exclude individuals "thought to be inclined against their interests" is likely to result in a jury that does not mirror the community. See Holland, 493 U.S. at 480. However, the purpose of the fair-cross-section requirement is to assure, not a petit jury that includes members of the defendant's race or that represents the community from which it is drawn
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