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Ward v. State (2/25/00) ap-1664
Ward v. State (2/25/00) ap-1664
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS WARD, )
) Court of Appeals No. A-6842
Appellant, ) Trial Court No. 4FA-S96-3128 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1664 February 25, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline and Charles R. Pengilly,
Judges.
Appearances: Susan Downie, Assistant Public
Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
COATS, Chief Judge, dissenting.
Thomas Ward appeals his conviction for third-degree
assault. [Fn. 1] He claims that the superior court erred by
selecting a jury in Fairbanks rather than renewing its unsuccessful
efforts to select a jury in Fort Yukon. Ward also claims that he
acted in self- defense and that the court erred by not instructing
the jury on that defense. We reject both of Ward's claims and
affirm.
Facts and proceedings
On October 2, 1996, in Fort Yukon, Thomas Ward went to
James Ward's house. James Ward is Ward's father. Ward's former
girlfriend, Lori James, was there. All three had been drinking.
Within a short time, Ward and his father started arguing. James
Ward told his son to leave. Ward did not leave. James Ward picked
up a rifle. Ward took the rifle away and threw it down. Ward
started backing out of the house. James Ward picked up an axe. As
they moved outside, Ward struggled with his father to get control
of the axe. Lori James tried to intervene. Ward hit her in the
head with the axe and caused a cut that required five to six
stitches. For this conduct, the grand jury indicted Ward for one
count of first-degree assault for "recklessly caus[ing] serious
physical injury to Lori James." [Fn. 2]
Jury selection for Ward's trial began in Fort Yukon.
Following normal procedures, the court summoned one hundred sixty-
seven people to report for jury selection. During the first day of
jury selection, seventy-three prospective jurors were excused for
cause. The parties exercised eight peremptory challenges, one from
Ward, and the rest from the State. Some prospective jurors were
excused without voir dire because they were relatives of the
defendant or the victim, had medical excuses, or were not qualified.
Ward did not object to the court excusing these jurors. Eleven
jurors had been excused for cause by the end of the first day.
There were no other prospective jurors in court.
At this point, the court and the parties examined the list
of prospective jurors. Of the one hundred sixty-seven prospective
jurors summoned for jury selection, the court could find only
sixteen people on the list who had not been excused during voir dire
or otherwise accounted for. After a discussion with the parties,
the court decided to broadcast a message on the local radio station
the next morning asking those sixteen prospective jurors, who had
not reported on the first day, to report for jury selection the next
morning. Out of the sixteen, five reported. One other
prospective juror who was thought to be out of town also appeared.
The court continued voir dire. The court excused five of those six
jurors for cause. The State exercised a peremptory challenge to
excuse the sixth. Again, there were no other prospective jurors in
the court.
The State suggested that the court return to Fairbanks
and select a jury there. Ward recommended further attempts to
contact the eleven prospective jurors unaccounted for, who did not
respond to their summons or to the radio messages. Neither Ward nor
the State suggested supplementing the Fort Yukon jurors already
passed for cause with jurors from the Fairbanks area. Nor did
either party suggest obtaining another list of potential jurors from
court administration to contact for potential service on this case.
Judge Beistline decided not to telephone or otherwise
attempt to contact the potential jurors that did not respond to the
summons or the radio messages. Judge Beistline elected to release
the Fort Yukon jurors and return the case to Fairbanks for jury
selection.
The Court: I think that we have seen a
cross section of the community and there is a significant concern
even with regard to members -- other people that we would get. It
appears that there are concerns about knowledge about the incident
as well as relations to the various parties. So at this point I
think we've gone as far as we're required to go and even farther in
attempting to obtain a jury and I frankly think that we're at the
point now where any jury that [we] even obtained would be affected
by the word of mouth in the community[.] . . . And so I'm going
to conclude that we can't get a fair trial at this time in Fort
Yukon, and we'll remand the matter back to Fairbanks[.]
In Fairbanks, the case was reassigned to Superior Court
Judge Niesje J. Steinkruger for trial. The parties selected a jury
and began trial. However, a mistrial was declared at Ward's request
because of a discovery violation. The case was then reassigned to
Superior Court Judge Charles R. Pengilly. A jury was selected and
the case was tried.
At trial, testimony was given by Lori James, James Ward,
a Fort Yukon police officer, a physician's assistant who treated
Lori James, and Ward. The jury acquitted Ward of first-degree
assault, but convicted him of the lesser-included offense of third-
degree assault (recklessly causing physical injury to Lori James by
means of a dangerous instrument).
Discussion
Change of venue to Fairbanks for jury selection
Ward argues that Judge Beistline committed reversible
error by ending jury selection in Fort Yukon. He bases his argument
on Alvarado v. State. [Fn. 3] In Alvarado, the supreme court held
that Alvarado was not afforded an impartial jury because the jury
selection practices in his trial did not provide a pool that
reflected a fair cross-section of his community. Alvarado had
significant ties to the community of Chignik. His case was tried
in Anchorage where jurors were summoned from an area within fifteen
miles of Anchorage. Alvarado showed that this practice had the
effect of virtually excluding all residents of Native villages. The
supreme court held that the practice ensured that the prospective
panel would not adequately represent a fair cross section of the
community where Alvarado committed the offense and, thus, was a
violation of Alvarado's constitutional right to an impartial jury
under Article 1, Section 11 of the Alaska Constitution. [Fn. 4]
Under Erick v. State, [Fn. 5] if the State seeks a change
of venue, the State has the burden to show that it was not
reasonable to obtain a jury from the trial site where the offense
allegedly occurred, as required by Alvarado. [Fn. 6] Like Ward's
case, jury selection for Erick's case began in Fort Yukon. When
Erick's jury selection started, forty-nine potential jurors showed
up. When it became apparent that there would not be enough jurors
to select an entire jury, the superior court elected to supplement
the panel by recessing the trial for a week and notifying other
jurors, who were scheduled to appear the next day for other trials,
to appear the following week for Erick's jury. No more than eight
villagers showed up on the following day. Those that did appear
were personally summoned for the continuation of Erick's jury
selection. The remaining twelve from that second group that did not
show up were mailed notices to appear the following week for Erick's
continued jury selection. [Fn. 7]
When Erick's trial resumed, only five or six villagers
showed up. Thus, there was a potential maximum of only fifty-five
jurors from which to select a jury in Erick's case. Significant in
this court's analysis of Erick's case was the trial court's
ignorance of the potential availability of more names from which to
call potential jurors. Although the trial judge in Erick's case
recognized the need to call additional jurors, apparently there was
a mistaken belief that the only potential jurors available were the
ones that appeared the first day of jury selection and those
villagers scheduled to appear the day after Erick's jury selection
began. In fact, substantial additional names could have been
obtained with little effort or delay. [Fn. 8]
Here, the court did not consider calling additional jurors
from another list, nor did Ward ask the court to take that action.
Fort Yukon is a small community where, as the record of this jury
selection shows, personal and family relationships and local
knowledge of an alleged crime can overshadow jury selection.
Apparently, the court anticipated this potential difficulty in
Ward's case because a panel substantially larger than that summoned
in Erick's case was called for Ward's trial. In fact, more people
were excused for cause during Ward's jury selection than ever
appeared for selection in Erick's case.
Over one hundred sixty potential jurors were summoned for
Ward's case. Of those called, only eleven were not accounted for
by the time the court had exhausted all the potential jurors. A
review of the voir dire in Ward's case during the court's two-day
attempt to seat a jury indicates the problems that existed for this
jury selection in Fort Yukon. The most common disqualifying reason
for the overwhelming majority of those excused from jury service was
that the potential juror was related to Ward, or to James, or to
both. Generally, Ward's relatives expressed a bias in favor of Ward
often stating that they could not convict Ward no matter what the
evidence showed. James's relatives tended to favor conviction. The
prospective jurors who were related to both, and who were excused
because they said they could not be fair, split both ways. As one
potential juror testified about Fort Yukon during voir dire, "[i]t's
one big family."
Many who were excused were close and life-long friends
with Ward or his father and expressed an unwillingness to consider
the evidence. Some expressed bias because Ward's case alleged
violence against a woman. Others had decided what position they
would take on the case based on what they had heard about the case
before trial. Some jurors, not excused for cause, expressed
reservation or alignment. For instance, one juror said: "I really
don't know that I'll be fair." Another stated: "I think [Ward]
is a pretty nice guy. I don't think he [would do] something like
this."
Generally, criminal trials should be held in the same
location as the alleged offense. Nonetheless, the trial court has
discretion to change venue when necessary to ensure a fair trial.
[Fn. 9] Although it might have been possible in Ward's case to
locate additional prospective jurors to complete jury selection, the
process undertaken revealed widespread relationships, both familial
and personal, between the prospective jurors and the participants
in the alleged assault. The process also showed that the jury pool
had extensive knowledge of the incident itself.
Judge Beistline expressed his concern that other potential
jurors from the area would possess the same characteristics already
revealed during jury selection-- knowledge about the incident, and
personal or family relationships with Ward or James. As our supreme
court noted in Mallot v. State, [Fn. 10] voir dire "is not an
infallible Geiger counter of juror prejudice" because latent bias
can remain unexposed in the face of thorough examination. A
significant factor in Mallot was the media attention that exposed
potential jurors to facts of the case. [Fn. 11] While there is no
issue of media attention raised in this case, voir dire showed
pervasive local knowledge of and opinions about this case and its
participants. In Oxereok v. State, the supreme court again
recognized the danger of latent bias in a jury panel when voir dire
exposed the presence of close relationships between the prospective
jurors and the participants in the case, even though many of the
members of the panel that were seated in the case did not
affirmatively express any bias. [Fn. 12]
Judge Beistline's dual concerns following the two-day voir
dire (that prospective jurors demonstrated knowledge of the case and
that prospective panel members had relationships with Ward, his
father, or James) mirrored the concerns discussed in both Mallott
and Oxereok.
Chief Judge Coats faults the superior court for not
suggesting that Ward proceed with a jury of less than twelve in Fort
Yukon, or supplementing the jury with jurors from Fairbanks. Both
of these potential options were mentioned in Erick. [Fn. 13] Erick
stipulated to proceed with less than twelve jurors but reserved his
right to appeal the jury selection issues. [Fn. 14] There is
nothing in this record that suggests that Ward would have agreed to
proceed with less than twelve jurors and waive any issues regarding
jury selection. And when Judge Beistline discussed what to do about
jury selection when the panel had been exhausted the second day,
Ward did not suggest any other solution other than trying yet
another time to contact the remaining panel members who did not
respond either to the summons for jury duty or the radio messages
broadcast by the court.
From our review of the record, we conclude that the
superior court undertook reasonable efforts to obtain a jury in Fort
Yukon. We conclude it was not an abuse of discretion for Judge
Beistline to decide to stop jury selection in Fort Yukon because of
the difficulty that the court experienced in seating jurors over the
two-day effort, that was caused by local knowledge among the jurors
and widespread disqualifying relationships between the prospective
jurors and the participants in the alleged crime.
Jury instruction issues
Next, Ward maintains that the superior court should have
provided the jury with his proposed instructions on "transferred
intent" and self-defense. Ward testified that Lori James was
injured while he and his father struggled for control of the axe and
that he never had exclusive control of the axe.
In contrast, Lori James testified that she followed the
two outside the house and that she pushed Ward away from his father
after his father fell down. Ward's father got up and headed inside
the house. Ward asked James whose side she was on. Before she
could answer, she saw the axe coming towards her.
Ward proposed pattern jury instructions on self-defense
and an additional instruction on "transferred intent." The proposed
transferred intent instruction read as follows:
The doctrine of transferred intent may
apply in this case. The doctrine of transferred intent provides that
where a defendant's action is justified by the doctrine of self
defense, the doctrine of self defense also protects the defendant
from the inadvertent injury of an innocent bystander.
Therefore, unless the state has proved
beyond a reasonable doubt that the defendant did not act in self
defense, you shall find the defendant not guilty, so long as the
injury to Lori James was inadvertent rather than reckless, and
occurred at such time as the defendant was actually acting in self
defense. (Emphasis added.)
The court considered Ward's proposed instructions after
the close of evidence. Judge Pengilly asked Ward why his proposed
instructions were warranted. Ward stated, in part, as follows:
Defense Attorney: If he's using justified
force in defending himself from his father and she gets hurt while
he's using justified force then under transferred intent he's not
guilty as to his dad and as to her.
Judge Pengilly observed that the State had to prove that
Ward's conduct was unjustified.
The Court: If [Ward is] guilty of this
offense he has to have -- been aware of and consciously disregarded
a substantial and unjustifiable risk that Lori James was going to
be hurt. If he's struggling for possession of the axe from his
father and Lori James is hurt in the course of that struggle, I mean
doesn't the definition of reckless give you everything you want?
Ward's proposed instruction itself permitted Ward's
conviction if James was injured by Ward's reckless conduct, by
stating that Ward should be found not guilty "so long as the injury
to Lori James was inadvertent rather than reckless." This was the
same burden that the State had to meet for both first-degree and the
lesser-included offense of third-degree assault. For each of those
crimes, the State had to prove that Ward acted recklessly. That is,
the State had to show that Ward was "aware of and consciously
disregard[ed] a substantial and unjustifiable risk that the result"
that James would be struck and injured--would occur. [Fn. 15]
We agree with Judge Pengilly's analysis that Ward's
requested instructions were superfluous. As Judge Pengilly
instructed the jury, the State had to prove that Ward recklessly
injured James. Under Ward's proposed instructions, the jury could
convict Ward if the State proved that Ward recklessly injured James,
the same burden the State had to meet to convict Ward under the
court's instructions. We conclude that Judge Pengilly did not abuse
his discretion when he declined to give Ward's proposed
instructions. [Fn. 16]
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I agree with Judge Stewart's resolution of this case. I
write separately to explain more fully why Ward was not entitled to
a jury instruction on "transferred intent".
The common-law doctrine of transferred intent was, in
effect, an addendum to the definition of murder. If a defendant,
acting with malice aforethought, engaged in conduct intended to
bring about the death of one person, and in so doing the defendant
accidentally caused the death of another, the defendant would be
guilty of murdering this unintended victim:
[As] was stated by Lord Hale, and repeated
in substance by Blackstone, ... "if A by malice aforethought strikes
at B and missing him strikes C whereof he dies, tho he never bore
any malice to C yet it is murder, and the law transfers the malice
to the party slain."
R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), p. 922.
Hale and Blackstone are among the luminaries of the common
law. But as Perkins & Boyce points out, it is "a misleading half-
truth" to say that the defendant's malice was "transferred" to the
unintended victim. [Fn. 1] Rather, the defendant is chargeable with
murder because (1) common-law murder was defined as the killing of
any person with malice aforethought, and (2) "malice aforethought"
was defined as an intent to kill anyone (not necessarily the
eventual victim) when the killing was neither mitigated, justified,
nor excused. [Fn. 2]
Alaska's modern-day definition of first-degree murder
statute incorporates this same common-law concept; an intent to kill
anyone suffices to establish the mens rea of the crime. Under AS
11.41.100(a)(1)(A), a defendant commits first-degree murder if, "with
intent to cause the death of another person, the [defendant] causes
the death of any person". Thus, it is misleading to speak in these
circumstances of the defendant's "transferred" intent to kill.
Moreover, as explained in Perkins & Boyce, the misleading
nature of this description is revealed more fully when a defendant
seeks the benefit of a "transferred" innocent intent.
For example, B might [be] making a murderous
assault upon A under such circumstances that A was privileged to
kill B in the lawful defense of [his] life. ... If, under those
circumstances, A should shoot at B in the proper and prudent
exercise of his privilege of self-defense, and should happen
unexpectedly ... to cause the death of C, [then] A should be free
from criminal guilt.
. . .
[But this] hypothetical situation ...
supposes not only the privilege to direct deadly force against B in
the defense of A's life, but also the proper and prudent exercise
of this privilege. If ... [A] exercised this privilege so
imprudently and improperly as to constitute a criminally-negligent
disregard of the life of the innocent bystander, C, [then] the
killing of C would be manslaughter.
Perkins & Boyce, p. 922-23.
In other words, even though a person is under attack and
is properly defending himself, he continues to owe a duty of care
to bystanders. A person has no "transferred" privilege to attack
and injure innocent third parties. Obviously, when a judge or jury
assesses the reasonableness of the person's actions, the judge or
jury must take into account the fact that the person was justifiably
defending himself from attack. But if, even given this extenuating
circumstance, a defendant's actions are still reckless or criminally
negligent, then the defendant can be held criminally responsible for
the death or injury of a bystander.
In Ward's case, that bystander was Lori James. Because
Ward was charged with recklessly inflicting injury on James, his
duty of care toward James was specified in AS 11.81.900(a)(3), the
statutory definition of "recklessly":
[A] person acts "recklessly" with respect
to a result [here, injury to another person] ... when the person is
aware of and consciously disregards a substantial and unjustifiable
risk that the result will occur ... ; the risk must be of such a
nature and degree that disregard of it constitutes a gross deviation
from the standard of conduct that a reasonable person would observe
in the situation[.]
If the jury believed that Ward was lawfully defending
himself from his father, then this fact would obviously be crucial
to any assessment of whether Ward's conduct with the axe created an
"unjustifiable risk" of harm to James, and whether Ward's disregard
of this potential danger to James constituted a "gross deviation from
the standard of conduct that a reasonable person would observe in
the situation". But if Ward's conduct did deviate to this degree
from what society reasonably would expect under the circumstances,
then he violated his duty of care toward James and he could properly
be convicted of assaulting her.
Indeed, Ward's own proposed instruction on "transferred
intent" conceded as much. The proposed instruction would have
instructed the jury that Ward could be convicted of assaulting James
if the injury to James was "reckless" rather than "inadvertent".
This principle having been conceded, there was little
point in confusing the jury's deliberations with notions of
"transferred intent". The true question under both the actual jury
instructions and Ward's proposed instruction was whether Ward
acted "recklessly" with regard to the possibility that his conduct
would cause injury to James. Because the court's jury instructions
fully and properly addressed this question, the trial judge could
lawfully decline to give Ward's "transferred intent" instruction.
COATS, Chief Judge, dissenting.
In my view, this court's decision conflicts with the
supreme court's position in Alvarado v. State, [Fn. 1] which was
decided nearly 30 years ago. In Alvarado, the supreme court
condemned the practice of taking a defendant from a small rural
community where his crime allegedly occurred and moving him to a
large city and selecting a jury which represented an urban
population rather than representing a fair cross section of the
rural community where the crime was committed. We summarized the
Alvarado case in Erick v. State as follows:
In Alvarado, a native defendant who was a
resident of Chignik was charged with a rape allegedly committed in
Chignik. He was tried over his objections in Anchorage by a jury
which was selected from within 15 miles of Anchorage. In reversing
Alvarado's conviction, the court emphasized the difference between
Chignik, a remote native village approximately 450 miles from
Anchorage, and the city of Anchorage. The court held that Alvarado
was not provided with an impartial jury. The court said, "[W]e .
. . hold . . . that an individual should not be forced, against his
will, to stand trial before a jury which has been selected in such
a manner as to exclude a significant element of the population of
the community in which the crime was allegedly committed." [Fn. 2]
In Alvarado, the supreme court recognized that carrying
out its decision could entail considerable expense and
inconvenience. But the supreme court concluded that the importance
of the right to be tried by a jury which was representative of the
place where the alleged crime occurred was of paramount importance:
It is of paramount importance that the benefits
conferred by the Constitutions of the United States and Alaska be
extended with an even hand to the people of our state. When a large
segment of the population lives in towns and villages scattered
throughout the regions of the state, we cannot afford to succumb to
the temptation of convenience by allowing the machinery of justice
to become inflexibly entrenched within the enclaves of our major
cities. Instead we must tailor our system of justice to meet the
needs of the people. It is our judicial system which must take the
initiative to assure compliance with the mandates of the
constitution; we cannot simply neglect or ignore communities of
individuals located in remote areas of the state. Justice must be
made available to all of the people of Alaska. [Fn. 3]
In Erick, we specifically recognized the difficulties of
selecting a jury in Fort Yukon but recognized that the Alvarado
decision required courts to overcome these difficulties in order to
make justice available to all the people in Alaska:
We appreciate the difficulties of obtaining a
jury in communities such as Fort Yukon, where the record indicates
that potential jurors are frequently related to or friends of
parties, and where many of the potential jurors will have
information about the case which disqualifies them as jurors. We
also appreciate that there are frequently severe problems of
communication, transportation, and availability of suitable
facilities which make it difficult to hold a jury trial in such an
area. The record shows that all of these problems were present in
Erick's case. However, these problems are typical of the problems
which result from the attempts
of the court system to comply with the mandates of Alvarado, that
"[j]ustice must be available to all of the people of Alaska." [Fn.
4]
In Erick, we concluded that the state had the burden to
show that it was not reasonable to obtain a jury from the area that
had been selected for trial.
We believe that the policies of Alvarado
dictate that we place the burden upon the state to show that it was
not reasonable to obtain a jury of twelve in the Fort Yukon area
once that area had been selected as the site for the trial. [Fn. 5]
In Erick, we concluded that the record did not demonstrate
that the state had met the burden of showing that it was not
reasonable to obtain a jury of twelve from the Fort Yukon area.
We relied on the fact that the trial court was apparently unaware
that it could have obtained the names of many more potential jurors
on short notice through a master jury list. [Fn. 6] We noted that,
had the court been aware of the names of more jurors, it could have
telephoned perspective jurors from the list, [Fn. 7] an emergency
method of contacting jurors which the supreme court approved in
Calantas v. State. [Fn. 8] In Erick, although we concluded that
the trial court had not made reasonable efforts to obtain a jury
in Fort Yukon, we noted that the trial court gave the defendant the
option to have his case tried by seven jurors empaneled in Fort
Yukon or, to have his case tried in Fairbanks before those seven
jurors, supplemented by additional jurors selected in Fairbanks.
[Fn. 9] We indicated that if the court had made reasonable efforts
to obtain a jury in Fort Yukon and failed, that we would have upheld
the court's ruling forcing Erick to elect between being tried by
these seven jurors in Fort Yukon or having the jury pool
supplemented by jurors from Fairbanks:
Assuming reasonable efforts were made to select
a jury for Erick and those efforts failed, we do not believe that
the trial court would be precluded from requiring Erick to choose
between a trial in front of seven jurors selected from Fort Yukon
or having the seven Fort Yukon jurors supplemented from Fairbanks.
[Fn. 10]
Against this legal background, it appears to me that the
manner in which Ward's jury was selected violated his right to an
impartial jury as set out in the Alvarado case. Ward was a Fort
Yukon resident. The incident which led to the charges against Ward
occurred in Fort Yukon. Yet the court forced Ward to try his case
in Fairbanks before an urban jury, rather than in Fort Yukon before
a jury representative of that area. It is clear from the
record that the state wanted to try the case in Fairbanks. The
state opposed trying the case in Fort Yukon in the first place,
opposed most of the court's efforts to supplement the jury, made
frequent motions during jury selection to move the trial to
Fairbanks and exercised essentially all of its peremptory
challenges. By contrast, Ward clearly wanted the case tried in Fort
Yukon. Ward constantly insisted on being tried in Fort Yukon, kept
asking the court to take action to supplement the jury pool, and
exercised few peremptory challenges. As a result of the state's
effort, Ward was "forced, against his will, to stand trial before
a jury which had been selected in such a manner as to exclude a
significant element of the population of the community in which the
crime was allegedly committed." [Fn. 11]
In the first place, I have some question about whether the
court used reasonable efforts to obtain all the jurors which it
could have from Fort Yukon. The defendant asked the court to
attempt to supplement the jury panel by having the court clerk
telephone potential jurors. The court rejected his suggestion,
finding that telephoning jurors was not a sufficiently random method
to obtain jurors. But the supreme court specifically approved this
method of bringing in supplemental jurors in Calantas [Fn. 12] and
we have relied on Calantas in suggesting this method of obtaining
emergency jurors in Erick. [Fn. 13] The record in the present case
shows that, after the state had exercised its challenges for cause
and peremptory challenges, that approximately ten jurors remained.
Ward clearly was satisfied with these jurors. In light of the fact
that the parties were close to selecting a jury in Fort Yukon,
Ward's contention that the court system did not exhaust all
reasonable efforts to obtain a jury in Fort Yukon has merit in light
of the importance of the right set out in Alvarado.
Certainly the trial court did make a substantial effort
to obtain a jury in Fort Yukon. But even if I assume that the
court's efforts were reasonable, I fail to see why the trial court
did not follow the procedure which we approved in Erick: to offer
Ward the option of being tried by a jury of less than twelve
selected from Fort Yukon or having those jurors supplemented with
jurors from Fairbanks. This would have allowed Ward to have his
trial in front of jurors which were representative of the community
where the incident occurred. The record before us shows no
justification for having Ward tried by a jury selected entirely from
an urban area.
I would accordingly reverse Ward's conviction.
FOOTNOTES
Footnote 1:
AS 11.41.220(a)(1).
Footnote 2:
AS 11.41.200(a)(1).
Footnote 3:
486 P.2d 891 (Alaska 1971).
Footnote 4:
Id. at 898-901.
Footnote 5:
642 P.2d 821 (Alaska App. 1982).
Footnote 6:
Id. at 824.
Footnote 7:
Id. at 822-23.
Footnote 8:
Id. at 823-25.
Footnote 9:
See Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980);
Mallott v. State, 608 P.2d 737, 746-48 (Alaska 1980).
Footnote 10:
Mallot, 608 P.2d at 748.
Footnote 11:
Id. at 747.
Footnote 12:
Oxereok, 611 P.2d at 918-22.
Footnote 13:
Erick, 642 P.2d at 826-27.
Footnote 14:
Id. at 827 n. 11.
Footnote 15:
AS 11.81.900(a)(3).
Footnote 16:
See Stoneking v. State, 800 P.2d 949, 950 (Alaska App. 1990).
FOOTNOTES (Concurrence)
Footnote 1:
Perkins & Boyce, p. 921.
Footnote 2:
See id.
FOOTNOTES (Dissent)
Footnote 1:
486 P.2d 891 (Alaska 1971).
Footnote 2:
642 P.2d 821, 823-24 (Alaska App. 1982) (quoting Alvarado,
486 P.2d at 905) (footnote omitted).
Footnote 3:
Alvarado, 486 P.2d at 905-6.
Footnote 4:
Erick, 642 P.2d at 824 (quoting Alvarado, 486 P.2d at 906).
Footnote 5:
Erick, 642 P.2d at 824.
Footnote 6:
Id. at 826.
Footnote 7:
Id.
Footnote 8:
599 P.2d 147, 149-50 (Alaska 1979).
Footnote 9:
Erick, 642 P.2d at 823.
Footnote 10:
Id. at 827 n.11.
Footnote 11:
Alvarado, 486 P.2d at 905.
Footnote 12:
599 P.2d at 149-50.
Footnote 13:
Erick, 642 P.2d at 826.
