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State v. House2/24/1999
, but rather an impartial petit jury. See id. Thus, Judge Blackmer, noting that Doña Ana County has a smaller Native American population than Taos, emphasized that the determining factor is not ethnicity, but rather whether the jurors are qualified and impartial. Venue Order, slip op. at 18 (Finding of Fact 21(D)).
{103} Just as the fair-cross-section requirement has no bearing on the racial mix of a petit jury, it does not affect the considerations involved in a change of venue. It refers only to the composition of the venire once a venue has been selected. Nothing in our law demands that the ethnic makeup of a new venue be similar to that of any of the preceding venues. The trial court may in its discretion determine, when selecting a new venue, that a fair trial in a particular case will be impossible unless ethnic proportions remain unchanged. But there is no requirement that the fair cross section of the old venue mirror the fair cross section of the new venue. In New Mexico, such a consideration is left to the discretion of the court. The fair-cross-section principle would have no relevance whatsoever in our review of the choice of a venue; it is relevant only to the selection of the jury pool from that venue.
D. House Received a Fair Trial
{104} The importance of "cultural evidence" to House's defense does indicate the potential for prejudice in a venue whose jurors might be insensitive to Native American culture. However, House has not offered any evidence of actual, presumed, or probable prejudice-nor even the appearance of prejudice-during the third trial in Doña Ana County. The dearth of any evidence in the record that House received an unfair trial, more than any other factor, persuades us that the Court of Appeals should be reversed and the trial court affirmed.
{105} House offered no evidence that the petit jury selection process in his third trial was anything but proper. He did not contend that the prosecution used peremptory challenges to impermissibly distort the racial composition of the petit jury. If House were to challenge, on equal-protection grounds, the racial fairness of the petit jury selection process, he would have had to establish a prima facie case that potential jurors were excluded from the jury for reasons of race. Cf. Aragon, 109 N.M. at 198, 784 P.2d at 17 (discussing exclusion of jurors of defendant's race). We note that equal protection in this context does not necessarily turn on the race of the defendant. See Georgia v. McCollum, 505 U.S. 42, 48-55 (1992) (concluding that "a defendant's discriminatory exercise of a peremptory challenge is a violation of equal protection"). Our cases list several indicia that circumstantially demonstrate purposeful exclusion by the State. Aragon, 109 N.M. at 200, 784 P.2d at 19 (listing such factors as "`disproportionate number of peremptories against'" a racial group (quoting Fields v. People, 732 P.2d 1145, 1156 (Colo. 1987))). House brought no such challenge to the selection of the jury in Doña Ana County.
{106} Moreover, House offered no proof that he was tried before a biased jury in Doña Ana County. He presented no evidence that any of the jurors who actually heard the case were in any way tainted by publicity, fixed opinions, racial prejudice, or any other factor that would bring the fairness of his trial into question. Cf. Shawan, 77 N.M. at 357-58, 423 P.2d at 42 (describing jurors who had been influenced by prejudicial publicity).
{107} Similarly, House attempted to make no prima facie case that would show that the venire was unconstitutionally selected. If House were to bring a prima facie equal-protection challenge to the racial composition of the
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