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Wholecheese v. State (10/15/2004) ap-1950
Wholecheese v. State (10/15/2004) ap-1950
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
LARRY L. WHOLECHEESE, )
) Court of Appeals No.
A-8496
Appellant, )
Trial Court No. 4FA-01-3591 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1950 October 15, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Neisje J.
Steinkruger and Charles R. Pengilly, Judges.
Appearances: William R. Satterberg Jr.,
Fairbanks, for the Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Gregg D. Renkes, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In this appeal, we review the superior courts
application of Alaska Criminal Rule 18, the rule that controls
venue in a criminal case. Larry L. Wholecheese was charged with
committing a felony in Galena, a town on the Yukon River west of
Fairbanks. Criminal Rule 18 specifies Fairbanks as the
designated site for Wholecheeses trial. Wholecheese moved to
have trial in Galena, but Galena is not an approved felony trial
site. Ultimately, the superior court ordered that trial be held
in Nenana which was both an approved felony trial site under
Criminal Rule 18 and which Wholecheese himself had suggested as
an appropriate alternative venue for trial.
Wholecheese argues that venue should have been in
Galena and that venue in Nenana was improper. We conclude that
the superior court did not abuse its discretion when it ordered
trial in Nenana. Accordingly, we affirm Wholecheeses
convictions.
Facts and proceedings
Wholecheese was arrested in Galena and ultimately
indicted for two counts of attempted first-degree sexual abuse of
a minor,1 three counts of first-degree sexual abuse of a minor,2
second-degree sexual abuse of a minor,3 first-degree escape,4 and
third-degree assault.5 Under Criminal Rule 18, the presumptive
trial site for a felony occurring in Galena is Fairbanks.
Wholecheese moved under Criminal Rule 18(e) to change
venue for trial from Fairbanks to Galena. Wholecheese argued
that trial should be held in Galena because the alleged crimes
took place in Galena, because holding trial in Galena would
provide Wholecheese with a jury pool of his peers, and because
holding trial in Galena would be convenient for the witnesses.
Judge Steinkruger noted that Galena was not an approved site for
a felony trial under the Criminal Rules. Wholecheese responded
that if the court would not move the trial to Galena, then the
trial should be held in Ft. Yukon, and if not there, then in
Nenana. Judge Steinkruger granted Wholecheeses motion to change
venue, ruling that trial would be held in Nenana.
Wholecheese was tried in Nenana before Superior Court
Judge Charles R. Pengilly. A jury found Wholecheese not guilty
of all the sexual abuse crimes, but found him guilty of second-
degree escape and third-degree assault.
The Alaska Supreme Court's decision in
Alvarado, and the supreme court's
codification of Alvarado in Criminal Rule 18
Recently, in John v. State,6 we reviewed the Alaska
Supreme Courts decision in Alvarado v. State.7 In Alvarado, the
supreme court recognized that profound cultural differences exist
between the Native villages and urban areas of Alaska.8 Because
of the enormous gulf which separates the mode of life of the
typical Alaskan villager from the type of existence led by most
residents of [the larger] cities of the state,9 the supreme court
held that it was a constitutional violation for juries drawn
solely from a larger city to decide the case of a defendant
charged with committing a crime in a rural village. The court
declared that the Alaska Constitution guarantees a criminal
defendant the right to have a jury selected from a pool that
represents a fair cross section of the community in which the
crime occurred.10
In John, we recognized that the supreme court designed
Alaska Criminal Rule 18 to implement the Alvarado decision.11
Under section (a) of the rule, the supreme court created a venue
map that divides Alaska into twenty-five superior court venue
districts.12 Each venue district is centered around a city or
town designated as a suitable site for felony trials. Section
(b) of Rule 18 sets out a four-part formula for establishing
venue for a crime committed in any given location in Alaska.13
By using Rule 18(b) in combination with the venue map, judges can
identify a trial site where the composition of the jury pool
could be expected to satisfy Alvarado.14
Subsections (c) and (d) of Rule 18 authorize the
administrative director of the Alaska Court System to designate
other trial sites in addition to those identified on the venue
map. The published list of these additional trial sites states
whether each additional site is approved for six-person juries,
twelve-person juries, or both.15
Although a defendants trial site is first determined
under Rule 18(b), Rule 18(e) gives a defendant the right to
request trial in another approved location if that location is
the community within the venue district ... nearest the place
where the alleged crime was committed. In addition, if a trial
site identified by Rule 18(a)-(e) will not provide a petit jury
[pool] which is a representative cross-section of the appropriate
community, Rule 18(f) authorizes the court to draw prospective
jurors from another area under Administrative Rule 15(c).
The superior courts application of Rule 18 in
this case
Wholecheeses initial trial site was properly designated
as Fairbanks because Fairbanks is the city within the venue
district that is the designated trial site for felony crimes that
occur in Galena.16 However, Rule 18(e) authorized Wholecheese to
request a change in venue to an approved trial site location if
such location is the community within the venue district with
trial facilities nearest the place where the alleged crime was
committed.
In the superior court, Wholecheese argued that Galena
was an appropriate trial site. In support of his motion,
Wholecheese offered evidence that he claimed showed that Galena
met the minimum standards for an additional trial site location
established by the administrative director pursuant to Rule
18(c).17 Wholecheese apparently argues here that the superior
court should have evaluated the evidence that he presented and
should have made its own determination whether Galena met the
standards for an additional trial site. But the superior court
does not have that authority under Criminal Rule 18. Rule 18
authorizes only the administrative director to designate
additional trial sites, not the superior court. We reject
Wholecheeses claim that the superior court should have approved
Galena as an additional trial site because he presented evidence
that purportedly showed that Galena met the administrative
directors standards for a felony trial site.
Wholecheese also argues that the selection of Nenana as
a trial site precluded a jury pool from Galena and the
surrounding area and that the selection of Nenana was
inconsistent with his rights under Alvarado. But Alvarado does
not entitle Wholecheese to draw a panel from Galena. It entitles
Wholecheese to a panel that represent[s] a fair cross section of
the community in which the crime occurred.18 As the supreme
court explained in Alvarado, the source of prospective jurors
does not always have to include residents of the location where
the alleged crime was committed, for it is conceivable that the
source of prospective jurors may exclude the scene of the alleged
offense, yet still reasonably represent a cross section of the
community which includes the scene of the offense.19
Furthermore, Wholecheese has not pointed out anywhere in the
record where he objected to the composition of the jury panel
that was called in Nenana or attempted to show that the
composition of the Nenana jury pool did not adequately represent
a fair cross section of the people who would have been summoned
for jury duty if the trial had been held in Galena. It was
Wholecheeses burden to show that the jury panel was deficient,20
and Wholecheese did not undertake this burden.
Wholecheese next claims that his motion in the superior
court is more properly characterized as a motion under Rule 18(f)
to change venue to obtain a jury panel that represented a fair
cross-section of Galena. But Rule 18(f) does not deal with
motions to change venue. Instead, Rule 18(f) authorizes the
trial court to proceed under Administrative Rule 15(c) and summon
a jury pool from outside the area where the trial will be held as
determined by Criminal Rule 18(a)-(e).
Moreover, as noted above, Wholecheese did not attempt
to show that the Nenana jury pool did not adequately represent a
fair cross section of the pool that would have been summoned for
a trial in Galena. This inaction is fatal to his claims that the
panel called for his trial was constitutionally deficient. Even
if the superior court understood that Wholecheese was asking the
court under Rule 18(f) to summon a jury pool from a different
area, the court could properly deny the motion because
Wholecheese made no showing that the Nenana jury pool was
deficient.
Criminal Rule 18(e) allowed Wholecheese to request a
change in venue from Fairbanks to another approved felony trial
site if such location is the community within the venue district
with trial facilities nearest the place where the alleged crime
was committed. The trial site that fits this definition is
Nenana. Judge Steinkruger did not abuse her discretion when she
granted Wholecheeses request to change venue from Fairbanks by
ordering that the trial be held in Nenana.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.31.100(a), AS 11.41.434(a).
2 AS 11.41.434(a).
3 AS 11.41.436(a).
4 AS 11.56.300(a).
5 AS 11.41.220(a).
6 35 P.3d 53 (Alaska App. 2001).
7 486 P.2d 891 (Alaska 1971).
8 Id. at 894.
9 Id. at 899.
10 Id. at 903.
11 John, 35 P.3d at 55.
12 Criminal Rule 18(a) states: Venue Districts. Districts
establishing venue for all criminal cases shall be devised and
promulgated by the supreme court in the form of a map. The map
shall indicate venue district boundaries for each existing court
location capable of holding six-person jury trials or both six
and twelve-person jury trials.
13 Criminal Rule 18(b) provides: Trial Location
Assignment. When a request for trial is made, all cases shall be
initially assigned to:
(1) The existing court location;
(2) Nearest to the situs of the alleged crime;
(3) Within the venue district;
(4) That has a judge and facilities for
either a six-person or twelve-person
jury as is necessary to the case.
14 See John, 35 P.3d at 55.
15 Alaska R. Crim. P. 18(d)(2).
16 See Alaska R. Crim. P. 18(d) and attached list of trial
sites.
17 See Administrative Bulletin No. 28 (1987), available at
http://www.state.ak.us/courts/ab28.htm.
18 Alvarado, 486 P.2d at 903.
19 Id. at 902 n.29.
20 See Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981).
