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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| GREGORY T. LESTENKOF, | ) |
| ) Court of Appeals No. A-10007 | |
| Appellant, | ) Trial Court No. 3ST-06-009 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2258 April 23, 2010 |
| ) | |
| Appeal from the Superior Court, Third Judi cial District, Saint Paul, William F. Morse and Fred Torrisi, Judges. | |
Appearances: Brian
T. Duffy, Assistant Public Advocate, and
Rachel Levitt, Public Advocate, Anchorage,
for the Appellant. Tamara de Lucia,
Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Richard A. Svobodny, Acting Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
COATS, Chief Judge, dissenting.
This case involves the competing values protected by
the constitutional guarantee that a criminal defendant must have
an impartial jury.1 The jury venire must include a fair cross
section of the community in which the alleged offense occurred.2
In addition, the individual jurors may not be biased by their
relationships to the parties or their knowledge of the dispute.3
These values sometimes become difficult to balance when a jury
trial is scheduled in a small town or village. In the current
case, we conclude that the superior court properly balanced these
competing values by making a reasonable, diligent attempt to seat
a jury in the small community of Saint Paul before moving the
trial to Dillingham.
Factual And Procedural Background
Saint Paul is a small community located on St. Paul
Island in the Bering Sea. During the early morning hours of June
3, 2006, Carol Melovidov and her boyfriend, Gregory T. Lestenkof,
engaged in heavy drinking, ending up at the home they shared.
When Melovidovs son returned from Anchorage on June 4, Lestenkof
physically prevented him from seeing his mother. This made him
suspicious, so he waited in the hallway until his mother emerged
late that night to use the bathroom. When the son saw his
mother, he noticed that her face was all swollen purple and that
she had two black eyes.
Melovidov was eventually taken to the village clinic
and then transported to Anchorage, where doctors at the Alaska
Native Medical Center discovered that she had life-threatening
bleeding in her brain. On June 19, 2006, Lestenkof was indicted
on one count of second-degree assault for recklessly causing
serious physical injury to Melovidov.4
Superior Court Judge William F. Morse traveled to Saint
Paul for jury selection. Judge Morse faced numerous problems in
his attempts to obtain a jury, however, and most potential jurors
were excused for cause due to knowledge of the facts of the case,
relationships to Lestenkof or Melovidov through blood or
marriage, work commitments, or a professed inability to be
impartial in the case. On the fourth day of jury selection, only
eleven unexcused jurors remained in the trial panel; all of the
other prospective jurors had been excused.
Lestenkof requested a special venire, and suggested
that additional prospective jurors could be flown in from Saint
George, a village on another island. Judge Morse determined that
the only way to bring jurors from Saint George would be to
commandeer the PenAir flight, which did not arrive until the next
day, and that this was not a viable option. Judge Morse stated
that [i]n terms of locating additional ... jurors who are not on
the original list, Im not sure if thats possible. Later that
day, Judge Morse stated that he had obtained from Anchorage a
list of the ... 2005 jury list and that there were three or so
new names on it. The court contacted two of the three potential
jurors, and noted that the third juror had a prior criminal
conviction that disqualified him from serving.
Judge Morse ultimately decided that he would not
deviate from the [selection] procedure that resulted in the
master jury list. He stated I dont know why it was ninety
[names] whatever our list was, and some other number at some
other time. ... Im not going to canvass the community seeking
additional jurors. Based on the apparent impossibility of
seating a jury in Saint Paul, Judge Morse determined that the
[only] alternative [was] to change venue. According to Judge
Morse, [t]he likely [alternative venue] would be Unalaska rather
than any other community, since [it] is closest and its sort of
[the same] socioeconomic makeup [as] Saint Paul.
At a status hearing after the jury had been released,
Lestenkof raised an argument based on Batson v. Kentucky5: He
argued that the State had used its peremptory strikes for the
purpose of ensuring that a jury would not be seated in Saint
Paul, and that the trial would be moved to a demographically
different location. Lestenkof requested that the State provide
race- and gender-neutral reasons for its peremptory strikes.
After the parties provided briefing on the issue, Judge Morse
denied Lestenkofs Batson claim. Judge Morse determined that the
State had not used the peremptory challenges intending to deny
Lestenkof a trial by a jury of the [same] racial or socio-
economic makeup as that of the ... jurors that were selected or
of the jury venire or of the population of Saint Paul. Judge
Morse set a tentative trial date for Unalaska, and transferred
the case to Superior Court Judge Fred Torrisi.
At a status hearing before Judge Torrisi, Lestenkof
argued that Unalaska was an improper venue. Lestenkof argued
that if the court would not return venue to Saint Paul, then it
should be moved from Unalaska, because it was not a similar
community to Saint Paul. Judge Torrisi suggested that Dillingham
would have more Alaska Native representation than Unalaska.
Lestenkofs trial was transferred to Dillingham, where a jury
convicted him of assault in the second degree. He now appeals.
Judge Morse Undertook Reasonable Efforts to Empanel a Jury
in Saint Paul
A trial judge has a great deal of discretion in
determining what efforts should be undertaken to obtain a jury in
a rural area.6 We will, therefore, uphold a trial courts
decision where it is clear that the court has weighed the
different possibilities for supplementing a jury and made a
reasonable, diligent attempt to obtain a jury.7
In Lestenkofs case, the record reveals that the trial
court made considerable efforts to empanel a jury in Saint Paul.
For four days, Judge Morse and the parties attempted to select a
jury from the names contained on the 2006 St. Paul Island Master
List. This master list contained 100 printed names and two names
added in handwriting.
When a large number of the people on the list failed to
respond to a summons, Judge Morse took steps to have a public
service announcement read on the local radio station, encouraging
the other prospective jurors to come to court. Judge Morse had
the court clerk call the prospective jurors (those with
telephones), and the clerk even enlisted neighbors to visit the
homes of the prospective jurors to learn why the jurors were not
reporting to court.
According to the handwritten record kept by the clerk,
the result of all of these efforts was that about seventy percent
of the prospective jurors appeared in court sixty-eight of the
102 people listed on the St. Paul Island master list. However,
because of challenges for cause, peremptory challenges, and court-
granted excuses, these sixty-eight prospective jurors yielded
only eleven qualified jurors.
At this point, Lestenkof made several suggestions to
Judge Morse to try to complete the jury selection. Lestenkof
first suggested that Judge Morse should revoke the States
eleventh peremptory challenge the challenge that reduced the
jury panel to eleven. He argued that the State was entitled to
use only ten peremptory challenges for the regular jury panel and
that the eleventh challenge could be used only for an alternate
juror. Lestenkof renews this argument on appeal, contending that
the State violated the procedures required by Alaska Criminal
Rule 24(b).
Peremptory Challenge Rulings
Ordinarily, each party is entitled to ten peremptory
challenges in a felony case.8 Criminal Rule 24(b)(1)(B) provides
that each side is entitled to one additional peremptory challenge
if one or two alternate jurors are to be empaneled. Before jury
selection, Judge Morse relied on this rule when he decided that
the jury panel would include two alternate jurors and that each
side would have a total of eleven peremptory challenges.
Lestenkof agreed to this procedure. But Lestenkof now argues
that the States eleventh peremptory challenge violated Rule
24(b)(2)(A), which provides that [t]he additional peremptory
challenges allowed by section (b)(1)(B) may be used against an
alternate juror only.
Lestenkofs argument is based on one of the alternative
procedures for jury selection authorized by Criminal Rule 24(b).
He is referring to the procedure described in Rule 24(b)(2)(A),
where the court separately empanels designated alternate jurors
in addition to the twelve-person panel. When a court uses this
procedure, the additional peremptory challenges for alternate
jurors may only be used to challenge alternate jurors.
But Judge Morse used a different procedure for
Lestenkofs jury selection an alternative procedure authorized by
Rule 24(b)(2)(B). When the court employs this procedure, the
court calls additional jurors to be added to the panel during
jury selection without designating which jurors are alternate
jurors. The alternate jurors are excused by random selection at
the conclusion of the trial before the jury retires for
deliberations. When the court uses this procedure, there is no
limitation that the additional challenges be used for alternate
jurors because the alternate jurors are not designated until the
end of the trial. Lestenkofs objection to the States eleventh
peremptory challenge fails because his argument is based on a
jury selection procedure that was not used in this case.
Lestenkof also asked Judge Morse to allow him to
withdraw one of the peremptory challenges he had previously
exercised. But, under Alaska law it is not clear whether a
previously challenged juror who has been formally excused remains
available for jury service.
We note that Criminal Rule 24(c)(8) declares that
potential jurors are disqualified for cause if they were excused
... peremptorily on a previous trial of the same action.
Although we are not dealing with a retrial in Lestenkofs case,
the underlying rationale of Rule 24(c)(8) would seemingly suggest
that, once a juror is excused due to a partys peremptory
challenge, the juror becomes legally ineligible for any future
service in that case.9
We further note that courts from other jurisdictions
have recognized that trial judges have the discretion to deny
parties requests to withdraw peremptory challenges after those
challenges have been effectively exercised.10 Indeed, in People
v. McNeil, the court held that the trial judge committed
reversible error by allowing the prosecutor to withdraw two
previously exercised peremptory challenges in order to complete
jury selection from a venire that had been nearly exhausted.11
We do not intend to formally declare Alaska law on this
issue. However, based on the foregoing authorities, we conclude
that Judge Morse did not abuse his discretion when he rejected
Lestenkofs request to rescind one of his previously exercised
peremptory challenges.
Reliance on the Master Jury List
Lestenkof also suggested that Judge Morse should summon
a special venire. In particular, he asked the judge to charter a
flight to neighboring St. George Island to bring additional
prospective jurors or to round up extra people from Saint Paul.
Judge Morse declined to seek additional jurors that were not on
the courts jury list.
Judge Morses response was based on Alaska
Administrative Rule 15, which defines the procedures for
compiling the lists of prospective jurors for the various court
locations around the state. Administrative Rule 15(b)(1) directs
the administrative director of the court system to annually
prepare a statewide master jury list that is, a list of all
prospective jurors in the State of Alaska. Rule 15(b)(2) then
directs the administrative director to divide the statewide
master list into local master jury lists for each court location.
According to Rule 15(b)(2), each local master list is to include
the names of all prospective jurors who live in [that] community
and [the] other areas assigned to that court for jury selection
purposes basically, all the smaller communities within a fifty-
mile radius of the court location.
This understanding of Rule 15 clarifies Judge Morses
response when Lestenkof requested a special venire.
The Court: If there were more jurors
available in the pool that we could identify,
I would bring them in here. But we have
contacted everyone on those lists, and theyre
either off-island or not responding to phone
calls and radio messages, public radio
messages ... .
[With respect to your request that we simply
call up another twenty or so people], Im not
sure that thats an appropriate thing to do.
... I dont see anything in Administrative
Rule 15 that permits me to do that. ...
[T]here is a provision [in that rule] that
lays out how the master jury list is to be
crafted; that procedure has presumably I can
only assume its been followed. ...
I dont know why the list has the specific
number [of names] that it has on it ... .
All I know is that the master list that was
crafted annually pursuant to the rule. And
... it produced the [group] of prospective
jurors that are out there.
I know that the rule includes a provision for
... exclusion of people who request a change
in the timing [of their jury service and]
some other medical or other reasons. And I
can only assume that [the rule] was followed.
I dont see any authority that ... I have to
[go outside the master list].
Then, after more argument from the parties,
Judge Morse concluded:
Im not going to deviate from the procedure
[specified in Administrative Rule 15] that
resulted in the master jury list. While I
dont know the specifics, certainly the intent
of [Administrative Rule] [15](b)(2) is that
the master list is to include the names of
all prospective jurors. ... [It] would be
pure speculation on my part I dont know why
[our master list contained only] ninety
[names] ... and [had] some other number [of
names] at some other time. I just dont know.
Im not going to canvass the community seeking
additional jurors.
In other words, Judge Morse relied on the
procedures specified in Rule 15 for compiling
the master list, and on the presumption of
regularity that is, the presumption that the
master list did contain the names of all
eligible prospective jurors residing in Saint
Paul and the other communities within a fifty-
mile radius.
The dissenting opinion suggests
that there was a more extensive list of
jurors available. But although Lestenkofs
attorneys contended that more jurors were
available, they did not present any evidence
to support their claim. We therefore
conclude that the record supports Judge
Morses finding that the master list contained
all of the jurors who were available to serve
in Lestenkofs trial.
Judge Morses findings distinguish
this case from the inadequate jury selection
efforts that this court reviewed in Erick v.
State.12 In Erick, after the parties had
exercised their peremptory challenges on the
prospective jurors who had not been excused
for cause, only seven jurors remained on the
trial panel in Fort Yukon.13 But the court
system did not provide the trial judge or the
local court clerk with the master list for
the Fort Yukon area.14 If the judge had used
the master list, he could have summoned at
least 437 additional jurors from the
surrounding area.15 Under these
circumstances, the State had failed to meet
its burden to show that it was not reasonable
to obtain a jury of twelve from the Fort
Yukon area.16 This court noted that in
Calantas v. State, the Alaska Supreme Court
approved an emergency supplementation of the
jury venire with additional names available
from the master jury list when it became
apparent that too few jurors would be
available for a trial in Kodiak.17
In Lestenkofs case, however, the
court exhausted all of the potential jurors
available on the master list for the Saint
Paul area. There were no additional jurors
remaining on the master list who could be
summoned. We accordingly conclude that the
judge did not abuse his discretion when he
declined to summon a special venire.
Twelve-person Jury Requirement
Lestenkof also suggested that the
State could stipulate to an eleven-person
jury. In response, Judge Morse noted that
the State had not agreed to such a
stipulation. The dissenting opinion suggests
that the court should have proceeded with an
eleven-person jury, even without the States
consent.
However, Criminal Rule 23(b)
requires the jury to consist of twelve
persons, unless the parties stipulate in
writing that the jury may consist of a number
less than twelve. This rule requires the
court to obtain the States consent before
reducing the jury to a number less than
twelve. Both this court and the United
States Supreme Court have held that the
corresponding requirement in Criminal Rule
23(a) the requirement that the State must
consent to any waiver of jury trial does not
violate the defendants right to due
process.18 Other courts have held that the
prosecution must agree before a case may be
tried to an eleven-person jury.19
The dissenting opinion suggests
that Erick holds that the trial court may
require the prosecution to proceed with a
jury of less than twelve. But Erick does not
address this issue because the State in that
case agreed to proceed with a seven-person
jury.20
Lestenkof did not ask Judge Morse
to proceed with the trial before an eleven-
person jury without the States consent. In
view of the foregoing authority, we cannot
conclude that the judge committed plain error
when he declared a mistrial without requiring
the State to proceed to trial with an eleven-
person jury. Lestenkof not only failed to
object when the judge noted that the State
had not stipulated to trial before an eleven-
person jury, he also waived this issue by his
failure to raise it in this appeal.21
In summary, Judge Morse undertook
considerable efforts to empanel a jury in
Saint Paul. The additional steps that
Lestenkof proposed were either legally
questionable or factually unreasonable. We
therefore conclude that Judge Morse did not
abuse his discretion when he declared a
mistrial.
The Trial Court Had the Discretion to
Order the Change of Venue
A jury should be representative of
a fair cross section of the community where
the alleged offense occurred.22 But a
superior court may change the venue for trial
when there is reason to believe that an
impartial trial cannot be had.23 Jury
selection should generally be commenced in
the venue location specified by Criminal Rule
18, and then moved only if voir dire reveals
that an impartial jury cannot be obtained.24
The dissenting opinion suggests
that a defendant has the right to a home
field advantage if he has a good reputation
in the community where the prosecution
arises. But the fair-cross-section
requirement derives from a defendants
constitutional right to an impartial jury,25
not a right to an unfair advantage. By
contrast, it would be particularly unfair to
allow a jury in a small community to convict
a defendant based on community knowledge
about the defendant or the crime.26 It would
likewise be contrary to our system of justice
to require the trial to be held in a venue
where the jury cannot be fair to both
parties.
The trial judge is in the best
position to evaluate the jury selection he or
she has conducted.27 And because the judge
must balance both tangible and intangible
factors to decide whether to change the
venue, reasonable judges might come to
differing conclusions based on the same
underlying facts.28 We therefore employ the
abuse of discretion standard when we review a
trial courts decision to grant a change of
venue.29
In the present case, Judge Morse
entered specific findings supporting his
decision to change the venue based on what he
had observed during the jury selection in
Saint Paul:
The Court can perceive
little likelihood that a
jury can be seated on
Saint Paul. The alleged
event that underlies the
criminal charge was the
topic of much discussion
on the island. Both
Lestenkof and the alleged
victim are well-known on
the island. Many
residents are related by
birth and/or marriage to
either or both of them.
The attempt to seat a
jury caused additional
discussion on the island
and reduced the chance of
selecting a jury.
These findings are supported by the record of
the jury selection.
These circumstances are similar to
the challenges the Dillingham court faced in
Nickolai v. State.30 In Nickolai, ninety-one
potential jurors were examined before the
jury could be seated; thirty-three of those
examined were excused because they were
related to either the defendant or the
victim.31 In addition, all of the jurors who
were seated expressed some knowledge about
the facts of the case.32 This court held
that it was an abuse of discretion not to
grant Nickolais motion for a change of
venue.33
Likewise, in Ward v. State,34 the
trial court encountered difficulty when
selecting a jury in the village of Fort
Yukon. The court summoned 167 people to
report for jury selection, but seventy-three
of those summoned were excused for cause
during the first day.35 Approximately ten
jurors remained after the parties had
exercised all of their challenges for cause
and peremptory challenges.36 Many of those
excused were related to the victim, the
defendant, or both.37 This court concluded
that the judge did not abuse his discretion
when he stopped jury selection and moved the
trial to Fairbanks.38
Judge Morse faced difficulties
similar to those in Nickolai and Ward. Many
of the potential jurors in Saint Paul were
familiar with the victim, the defendant, or
both. Many of the potential jurors were also
familiar with the facts of the case. The
judge could reasonably conclude that the
process of jury selection, which involved a
large portion of the population, would
naturally increase the discussion of the case
in such a small community. This discussion
would make a second attempt to select a jury
even more difficult. We therefore conclude
that the trial courts decision to move the
trial from Saint Paul was not an abuse of
discretion.
Lestenkofs Jury Represented a Fair Cross
Section of the Community
Lestenkof argues that the jury
eventually empaneled in Dillingham excluded a
fair cross section of the community where the
alleged offense occurred. His argument is
primarily based on the Alaska Supreme Courts
decision in Alvarado.39 Alvarado challenged
the long-standing court practice of selecting
jurors from the population living within a
fifteen-mile radius of Anchorage. The court
held that the Anchorage jury pool did not
represent a fair cross section of Chignik,
the community in which the crime occurred,
because the jury selection area excluded
almost all residents of Alaska Native
villages.40
Lestenkof must satisfy the
following elements to establish that the jury
selection process violated the fair-cross-
section requirement:
(1) that the group
alleged to be excluded is
a distinctive group in
the community; (2) that
the representation of
this group in venires
from which juries are
selected is not fair and
reasonable in relation to
the number of such
persons in the community;
and (3) that this
underrepresentation is
due to systematic
exclusion of the group in
the jury-selection
process.[41]
On appeal, Lestenkof argues that the
residents of Saint Paul comprise a
distinctive group, different from other
Alaska Natives, that is systematically
excluded in the jury-selection process.
Lestenkof did not raise this
argument in the trial court. In his
arguments against a trial in Anchorage or
Unalaska, Lestenkof submitted only that he
was an Alaska Native of Aleut heritage. He
argued that 85% of the residents of Saint
Paul were Alaska Native or American Indian,
compared to only 7.3% of the residents of
Anchorage and only 7.7% of the residents of
Unalaska. In response, the State submitted
that Dillingham had a similar racial
composition to Saint Paul, with 52.6% of the
residents identifying as Alaska Native or
American Indian. The superior court
eventually selected Dillingham as the site
for Lestenkofs trial.
On appeal, Lestenkof does not
contend that Alaska Natives or residents of
rural villages have been systematically
excluded from the Dillingham jury pool.
Lestenkof instead relies on historical
sources suggesting that the residents of
Saint Paul are a distinctive group for jury
selection purposes. Lestenkofs claim fails
for two reasons.
First, we note that there is a
limitation on the Alvarado holding, which
applies to this case. Alvarado did not
hold that the citizens from the community
where the crime occurred may never be
excluded from the jury panel.42 In
particular, the area surrounding the location
of the crime may be excluded from the source
for jury selection when an unbiased jury
cannot be drawn from that area.43 The
superior court was not required to include
Saint Paul in the venire for jury selection
because Judge Morses ruling changing venue
determined that a fair jury could not be
drawn from that community.
Second, Lestenkof failed to argue
and prove this point in the trial court.
There are no prior Alaska cases recognizing
that a single community can constitute a
cognizable group for jury selection
purposes.44 Lestenkof bore the burden of
proving to the trial court that there were
significant differences between the residents
of Dillingham and the residents of Saint Paul
that would prevent the Dillingham residents
from adequately representing a fair cross
section of the community.45 Lestenkof waived
this claim by his failure to argue and prove
to the trial court that the residents of
Saint Paul are a cognizable group.46
We also note that the Alvarado
court recognized that feasible alternatives
may be employed for jury selection in the
rural and predominately Native areas of the
state.47 One acceptable alternative is the
selection of jurors from the state senate
election district in which the crime is
alleged to have occurred.48 In this case,
Judge Torrisi elected to hold Lestenkofs
trial in Dillingham. Dillingham is not one
of the urban centers referenced in Alvarado.
Dillingham is a rural and predominately
Native community in the same senate election
district as Saint Paul.49 Lestenkof has not
established that any cognizable group was
systematically excluded from the jury
selection process conducted in Dillingham.
The Jury Selection Process Did Not
Violate Equal Protection
Lestenkof also argues that the jury
selection process disqualified all Saint Paul
residents in violation of their right to
equal protection of the laws. This issue is
similar to the issue resolved in the previous
section of this opinion regarding the
requirement that the jury must represent a
fair cross section of the community.
Ordinarily, the fair-cross-section analysis
also applies to claims raised under the equal
protection clause of the Alaska
Constitution.50 However, we will analyze
this claim separately to address Lestenkofs
argument.
The Equal Protection Clause
guarantees the defendant that the State will
not exclude members of his race from the jury
venire on account of race ... or on the false
assumption that members of his race as a
group are not qualified to serve as jurors.51
Lestenkofs argument that a particular racial
group was excluded by the change of venue to
Dillingham can be analyzed in two different
ways:
On the one hand, a
defendant may allege that
the State or the trial
court deliberately
selected a particular
venue with the objective
of excluding a racial
group; the venue was
chosen with
discriminatory intent. On
the other hand, because
the move to a particular
venue has resulted in the
reduction or exclusion of
a racial group, the
defendant may claim he or
she will not receive a
fair trial; the venue
change has had a
discriminatory
impact.[52]
Lestenkof has argued both of these equal
protection claims at different times during
this litigation.
In the trial court, Lestenkof
argued that the State deliberately
discriminated against Alaska Natives by using
its peremptory challenges and challenges for
cause, and by opposing the drawing of a
special venire. Judge Morse concluded that
the States actions were not motivated by a
desire to obtain a jury with a different
racial or socioeconomic makeup than the
population of Saint Paul. This claim has not
been reasserted in this appeal, so there is
no reason to reexamine Judge Morses
conclusion.
After Judge Morse declared a
mistrial in Saint Paul, both he and Judge
Torrisi attempted to choose trial locations
with a racial composition representative of
Saint Paul. But Lestenkof complains that the
resulting venire did not include any Saint
Paul residents. This is a type of
discriminatory impact claim that we
previously considered in Brower v. State.53
In Brower, the defendant claimed an
equal protection violation because the
population of Fairbanks, where his grand jury
convened, had a much smaller percentage of
Alaska Natives than Barrow, where the offense
occurred.54 This court concluded that in
order to establish underrepresentation of a
cognizable group, the defendant must
establish a disparity between the proportion
of the group that exists in the population
from which the grand jury is chosen and the
proportion of that group among those selected
to serve on grand juries.55 We noted that,
[a]s long as the area from which the grand
jury is chosen does not underrepresent a
cognizable group when compared to the state
as a whole, we will find no equal protection
violation.56
Lestenkof did not litigate this
claim in the trial court. So there is no
record indicating that any cognizable group,
such as Alaska Natives, was underrepresented
in the Dillingham venire or the master list
for the state as a whole. Lestenkof simply
argues that the residents of Saint Paul were
excluded from the jury selection area after
the court changed the venue to Dillingham.
As we noted above, this argument was resolved
long ago by an express limitation in
Alvarado: The area surrounding the location
of the crime may be excluded from the source
for jury selection when an unbiased jury
cannot be drawn from that area.57
Conclusion
[E]ach step the state makes in
including a defendants community in his or
her trial and thus achieving greater general
impartiality increases the difficulty of
obtaining jurors who are not biased in the
narrow sense.58 In the current case, we
conclude that the superior court properly
balanced these competing values by making a
reasonable, diligent attempt to obtain a jury
in Saint Paul. We therefore AFFIRM the
superior courts judgment.
COATS, Chief Judge, dissenting.
Lestenkof was entitled to have his
case tried, if possible, on St. Paul Island,
the place where his crime allegedly occurred.
The record in this case shows that Lestenkof
made extensive efforts to have his case tried
in Saint Paul. The State made similar
efforts to avoid trying the case in Saint
Paul. The State ultimately prevailed. The
State succeeded in having Lestenkofs trial
moved from Saint Paul to Dillingham, where he
was convicted. In my view, the State has not
met its burden of proving the necessity of
depriving Lestenkof of his right to have his
case tried in Saint Paul. I would
accordingly reverse Lestenkofs conviction.
I base my conclusion on Alvarado v.
State,59 a case decided by the Alaska Supreme
Court nearly forty 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,
where the jury did not represent a fair cross-
section of the rural community in which the
crime allegedly occurred. The Alaska Supreme
Court held that the defendant had a right to
be tried by a jury that was representative of
the place where the alleged crime occurred.60
The Alvarado decision is based upon the
defendants constitutional rights to be tried
by an impartial jury and his right to due
process of law.61
The supreme court recognized that
it would be difficult and expensive to
conduct trials in some of the remote areas of
the state. But the supreme court concluded
that the United States and Alaska
Constitutions required this result:
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.[62]
In its holding in Alvarado, the
supreme court emphasized the necessity of
selecting juries that represented the
community. The court emphasized that the
jury is a safeguard against the possibility
of governmental tyranny and oppression . ...
As an institution, the jury offers our
citizens the opportunity to participate in
the workings of our government, and serves to
legitimize our system of justice in the eyes
of both the public and the accused.63 The
court pointed out that one of the factors
precipitating the American revolution was the
fact that the King of England had made a
practice of transporting colonists to England
for trial.64
St. Paul Island is the largest
Aleut community in the United States.65
Approximately 500 people live on the island,
and approximately 86% are Alaska natives.66
The people of St. Paul Island have a
distinctive culture and history.67 Lestenkof
and his wife were long-term residents, who
were well known by and related to many people
on the island. It is not, therefore,
surprising that there would be some
difficulty in selecting a jury in Saint Paul.
If a defendant has a good reputation, that
will tend to be reflected in the jury pool.
If the community has an interest in the case,
that will also be reflected in the jury pool.
In addition, there may be cultural
differences in how members of the jury regard
different offenses. Although these factors
make it difficult to select a jury, those
same factors are strong reasons for holding a
trial in a place such as Saint Paul when the
offense occurred there. If the defendant has
a good reputation, he will have a home field
advantage. If there is significant interest
in the community about the case, it is
important that the community is able to
participate in the trial and to see that
justice is done in a way that reflects the
values of the community. All of these
factors are undermined if the defendant is
forced to stand trial in a different
community.
Consequently, the burden is upon
the State to show that it was not reasonable
to obtain a jury from the Saint Paul area
once that area had been selected as the site
of the trial.68 In my view, the State has
not met its burden of proof in this case.
The United States Census Bureau
estimated that the population of Saint Paul
in 2006 was 449.69 The census fact sheet
states that in 2000, 375 of the residents of
Saint Paul were age eighteen or older.70 And
yet there were apparently only about ninety
names on the list of people called for jury
duty. Apparently only sixty-eight of these
jurors appeared in court.
Judge Morse expressed concern about
whether there were sufficient jurors.
Lestenkofs attorney suggested that the court
issue a public service announcement on the
radio to ask more people to appear for jury
service. Judge Morse agreed to do this, but
questioned whether they would be able to
obtain a full jury. Later, Judge Morse had
the court clerk make telephone calls and
other efforts to contact the jurors who had
not appeared.
In a felony case, each party is
entitled to ten peremptory challenges.71 But
in this case, because the court and the
parties anticipated having alternate jurors,
each party was entitled to eleven peremptory
challenges. Although it must have been clear
that the court was going to have difficulty
obtaining twelve jurors and that there would
be no possibility of alternate jurors, the
State exercised its eleventh peremptory
challenge on the twelfth juror, leaving only
eleven jurors to try the case.
Judge Morse stated that he could
not force the State to go to trial with a
jury of less than twelve unless they
consented. Lestenkofs attorney asked the
court to bring in potential jurors from St.
George, a nearby island. The State objected.
Judge Morse concluded that it was not
possible to bring in additional jurors from
St. George. He concluded that he was going
to have to declare a mistrial unless he could
come up with some additional jurors.
When court reconvened, Lestenkofs
attorney pointed out that the State had used
eleven peremptory challenges and that the
State had been awarded the extra peremptory
challenge on the basis that there would be
alternate jurors. The attorney asked Judge
Morse to revoke the States peremptory
challenge and reinstate the challenged juror.
Judge Morse indicated that he would not
revoke a peremptory challenge that had
already been used. Next, Lestenkofs attorney
asked to be able to revoke one of the
peremptory challenges she had previously
exercised. Judge Morse denied this motion.
The defense made several other suggestions,
including re-contacting jurors who had been
excused on the basis of hardship or
contacting people from the telephone book.
The State opposed every suggestion. The
State indicated that, in its view, the court
had made considerable effort to obtain a jury
in Saint Paul and that under these
circumstances, the defendant was not entitled
to have his case tried in Saint Paul. The
State indicated that, in a prior murder case
in Saint Paul, the court had obtained a jury
pool of 230 people. But this had been done
by a different procedure which had been
agreed to by the public defender agency and
the district attorneys office. Lestenkofs
attorney pointed out that the pool of
eligible jurors was obviously much larger
than the number of jurors who had been
summoned, so it would be possible to obtain
more jurors. Judge Morse indicated that he
was not going to take any further steps to
obtain a jury. Lestenkofs attorney suggested
that the State could stipulate to have the
case tried by eleven jurors. But Judge Morse
indicated that he would not require the State
to stipulate. Judge Morse declared a
mistrial.
The next day, Lestenkofs attorney
again asked Judge Morse to expand the jury
pool. She pointed out that apparently only
one-third of the people eligible for jury
duty had been summoned and that the court
could easily obtain additional people
available for jury service. She asked the
court to supplement the jury panel and bring
back the eleven members of the jury who had
previously been selected. Judge Morse again
denied the motion. He stated that he was
unable to obtain a jury in Saint Paul.
The case was later transferred for
trial from Judge Morse to Superior Court
Judge Fred Torrisi, who resides in
Dillingham. Lestenkof again argued that the
case should be tried in Saint Paul. He
pointed out that he was entitled to be tried
in Saint Paul if possible, there were
approximately 300 potential jurors in Saint
Paul, and therefore it would be possible to
obtain a jury in Saint Paul. Judge Torrisi
declined to reconsider Judge Morses decision
to move the case from Saint Paul. Lestenkof
was tried in Dillingham. The State chartered
a plane to transport all of the witnesses
from Saint Paul to Dillingham for the trial.
Lestenkof was convicted.
Under the Alvarado decision,
Lestenkof had the right to be tried in Saint
Paul, the place where his alleged crime
occurred.72 In Alvarado, the supreme court
recognized that it would be difficult and
expensive to conduct trials in some of the
remote areas of the state. It is obvious
from the record that Lestenkof concluded that
his best chance at trial was to be tried in
Saint Paul. Consequently he made every
effort to obtain a trial in Saint Paul.
Conversely, the record shows that the State
concluded that the jury pool in Saint Paul
would not be favorable to it. Consequently,
the State used all of its peremptory
challenges and consistently opposed any
proposals which Lestenkof made to expand the
jury pool or try the case in Saint Paul.
The State has the burden to show
that it was not reasonable to obtain a jury
from the Saint Paul area once that area had
been selected as the site of the trial.73
The State has not met this burden.
First, it appears that the court
started out with an insufficient number of
potential jurors to be able to seat a twelve-
person jury. According to the census, 375
residents of Saint Paul were eighteen or
older. It is reasonable to assume that 300
people were eligible for jury duty. Yet
apparently only ninety potential jurors were
asked to report for jury duty. When only
sixty-eight jurors reported, Judge Morse
immediately recognized that it was
questionable whether there were sufficient
potential jurors to select a jury. It was
foreseeable that it would be difficult to
select a jury in Saint Paul. It is clear
that the court started out with an inadequate
list of jurors. It appears from the record
that, in an earlier case, the court had
anticipated this problem and had obtained a
jury pool of 230 people. That was not done
in this case.
Second, although Judge Morse
certainly made significant efforts to obtain
a jury based upon the limited list with which
he started, in my view he should have been
willing to take additional measures to secure
Lestenkofs right to have his case tried in
Saint Paul. The case law supports this.
Calantas v. State74 involved a trial in
Kodiak. In order to obtain a sufficient jury
pool on short notice, the clerk of court
obtained fourteen additional potential jurors
from a list of 300 people. In order to do
this, in violation of state statutes and a
court rule, the clerk excluded approximately
100 people who did not live in Kodiak. From
the remaining 200 names, she identified those
whose names appeared in the Kodiak telephone
directory. This left eighty names. From
these people, the clerk was able to reach
fourteen. Those fourteen, together with
twenty-one from the original list, made up
the panel of prospective jurors provided for
Calantass trial.75
Calantas objected to the method the
court used to obtain the jury pool. He
pointed out that the clerks decision to
disqualify all of the potential jurors who
lived outside of Kodiak and to only summon
the residents of Kodiak that she could reach
by telephone was in clear violation of Alaska
statutes and the court rules.76 The Alaska
Supreme Court stated:
Selection of jurors by
any method which fails to
substantially comply with
the statutory
requirements is
reversible error if the
failure prejudices the
rights of a party. Here
there is no doubt that
there were technical
violations of the
statutory selection
methods; like the Fifth
Circuit, however, we
believe that such
violations constitute
substantial failure to
comply [only] when they
affect the random nature
or objectivity of the
selection process.[77]
The Supreme Court upheld the trial courts
finding that the situation was the result of
extraordinary circumstances calling for him
to exercise his discretion and upheld his
finding that the selection procedures had not
prejudiced the defendant.78
In addition, in Erick, we concluded
that the trial court had not made an adequate
effort to secure a jury trial for the
defendant in Fort Yukon.79 But we went on to
say that, if the trial court had used
reasonable efforts to obtain a jury in Fort
Yukon but had been unable to do so, we would
be inclined to uphold the trial courts
decision to give Erick a choice to have his
case tried before a jury of seven selected
from the Fort Yukon area, or before a jury of
twelve with the jury panel supplemented from
the Fairbanks area.80
Reading Calantas and Erick
together, it is clear that Judge Morse had
numerous options to secure Lestenkofs right
to have his case tried in Saint Paul. He
could have started out with a more extensive
list of jurors, or he could have taken other
actions, many of which were suggested by
Lestenkofs attorney. He also could have
given Lestenkof the opportunity to be tried
by a jury of eleven. It is clear from the
record that Lestenkof would have availed
himself of this opportunity.
It is therefore clear from the case
law that Judge Morse had numerous options
available to him to obtain a jury in Saint
Paul. In Calantas, the Alaska Supreme Court
approved departing from the normal procedures
for selecting a jury over the defendants
objection in order to hold a trial in Kodiak.
And this court approved even more of a
departure in Erick, had the defendant
consented to such a departure. Yet even
though it is obvious that Lestenkof would
have agreed to almost any procedure to obtain
a trial in Saint Paul, Judge Morse refused to
consider these options.
From the record, it seems clear
that Judge Morse was unaware of the full
extent of his authority. We have previously
held that when a court does not consider the
various alternatives available as a matter of
discretion ... the court [has failed] to
exercise any discretion at all.81
There is no question that it is
extremely difficult to conduct trials in
relatively isolated areas such as St. Paul
Island. But in Alvarado, the Alaska Supreme
Court made the decision, as a constitutional
matter, to bring justice to all of the
citizens of Alaska. For an individual
defendant, such as Lestenkof, it was
obviously critical for him to be tried in the
area where he was known and where he was part
of the culture. Also, for the residents of
Saint Paul, it was important for them to see
that justice was done and to participate in
the justice system. Instead, Lestenkof and
all of the witnesses were hauled off to
Dillingham for trial. Lestenkof had a
constitutional right to be tried in Saint
Paul if at all possible. And it seems clear
to me, from this record, that it was possible
for him to be tried in Saint Paul.
In my view, unless we have a high
standard for requiring defendants to be tried
in places such as Saint Paul, defendants in
those areas will frequently be deprived of
their right to be tried in those areas and
the promise of Alvarado to bring justice to
all of the areas of Alaska will be
compromised unnecessarily. I therefore
dissent from the decision of the court.
_______________________________
1 U.S. Const. amend. VI; Alaska Const. art. 1, 11.
2 Alvarado v. State, 486 P.2d 891, 902-03 (Alaska 1971).
3 Oxereok v. State, 611 P.2d 913, 918-19 (Alaska 1980).
4 AS 11.41.210(a)(2).
5 476 U.S. 79, 98, 106 S. Ct. 1712, 1724, 90 L. Ed. 2d 69
(1986) (requiring the State to provide a clear and reasonably
specific racially neutral explanation for a peremptory challenge
once the defendant makes a prima facie showing of racial
discrimination).
6 See Erick v. State, 642 P.2d 821, 825 (Alaska App. 1982).
7 Id.
8 Alaska R. Crim. P. 24(d).
9 See Zartman v. State, 667 P.2d 1256, 1257-58 (Alaska App.
1983) (holding that the trial court committed reversible error by
failing to excuse jurors who sat on a similar case the preceding
week and heard similar witnesses).
10 See United States v. Anderson, 562 F.2d 394, 397 (6th
Cir. 1977); Davis v. State, 922 So. 2d 454, 455 (Fla. App. 2006);
Biddle v. State, 10 A. 794 (Md. 1887).
11 834 N.Y.S.2d 99, 101-02 (N.Y. App. Div. 2007).
12642 P.2d 821.
13Id. at 823.
14Id. at 824-25.
15Id. at 825.
16Id. at 824.
17Id. at 826 (citing Calantas v. State, 599 P.2d 147
(Alaska 1979)).
18 Singer v. United States, 380 U.S. 24, 36, 85 S. Ct.
783, 790-91, 13 L. Ed. 2d 630 (1965); Horton v. State,
758 P.2d 628, 629-30 (Alaska App. 1988).
19 State v. Gorwell, 661 A.2d 718, 723-26 (Md. 1995);
State v. Romeo, 203 A.2d 23, 29 (N.J. 1964); State v.
McFerron, 628 P.2d 440, 443 (Or. App. 1981).
20 Erick, 642 P.2d at 823.
21 See Buckwalter v. State, 23 P.3d 81, 88 (Alaska App.
2001) (where a claim is inadequately briefed it is
considered waived on appeal).
22Alvarado, 486 P.2d at 902-03 (The necessity for selection
of juries from a source which truly represents a fair
cross section of the community cannot be
overemphasized.).
23AS 22.10.040(1); see also Mallott v. State, 608 P.2d 737,
746 (Alaska 1980) (explaining that trial court should
not fail to exercise the discretion conferred on it by
AS 22.10.040(1) to change venue when there is reason to
believe that an impartial trial cannot be had);
Oxereok, 611 P.2d at 919 (finding the superior courts
refusal to change venue after voir dire revealed that a
large number of venirepersons were not impartial
amounted to an abuse of discretion).
24Wylie v. State, 797 P.2d 651, 656 (Alaska App. 1990).
25See Alvarado, 486 P.2d at 896 (citing U.S. Const. amend.
VI; Alaska Const. art. I, 11).
26See Titus v. State, 963 P.2d 258, 262 (Alaska 1998)
(explaining that pre-existing knowledge about a case or
a defendant can constitute extraneous prejudicial
information).
27Stavenjord v. State, 66 P.3d 762, 770 (Alaska App. 2003).
28Harmon v. State, 193 P.3d 1184, 1200 (Alaska App. 2008).
29Id.
30708 P.2d 1292 (Alaska App. 1985).
31Id. at 1293.
32Id.
33Id.
34997 P.2d 528 (Alaska App. 2000).
35Id. at 529.
36Id. at 536 (Coats, J., dissenting).
37Id. at 530-31.
38Id. at 532.
39486 P.2d 891.
40Id. at 903.
41Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981) (quoting
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664,
668, 58 L. Ed. 2d 579 (1979)); see Berghuis v. Smith,
559 U.S. ---- (2010), 2010 WL 1189555 at *4.
42Alvarado, 486 P.2d at 904; see also Wyatt v. State, 778
P.2d 1169, 1171 (Alaska App. 1989) (affirming an order
excluding residents of Metlakatla from the jury pool);
Kelly v. State, 652 P.2d 112, 112 (Alaska App. 1983)
(affirming an order excluding residents of Ninilchik).
43Alvarado, 486 P.2d at 904 n.38 ([I]t is well established
that the area surrounding the location of the crime may
be excluded from the source of selection when it
appears that an unbiased jury could not be drawn
therefrom.).
44See Wyatt, 778 P.2d at 1170-71 (declining to identify
residents of Metlakatla as a cognizable group where
defendant failed to sustain his burden of proof under
Tugatuk); Kelly, 652 P.2d at 113 ( finding offer of
proof was insufficient to show residents of Ninilchik
were a cognizable group where defendant offered no
evidence regarding the attitudes, ideas, experiences,
or beliefs of the members of the group in question).
45See Wyatt, 778 P.2d at 1171; Kelly, 652 P.2d at 113.
46See Fawcett v. State, Alaska App. Memorandum Opinion and
Judgment No. 2007 (May 23, 1990), 1990 WL 10511504 at
*2 (explaining that defendant waived his claim by
declining to argue that the residents of Metlakatla
were a cognizable group).
47Alvarado, 486 P.2d at 905.
48Id. A second alternative is that jurors may be selected
from the entire judicial district in which the crime is
alleged to have occurred. Id.
49Dillingham is also in the same house election district as
Saint Paul. See the description of House District 37
in the Revised Final Plan House Districts (Alaska
Redistricting Board May 2002),
http://ltgov.state.ak.us/elections/distdes.php and
http://www.elections.alaska.gov/maps/districts/dist37.p
df. House districts are required by the Alaska
Constitution to be formed of contiguous and compact
territory containing as nearly as practicable a
relatively integrated socio-economic area. Alaska
Const. art. 6, 6.
50See Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 580 n.7
(Alaska 1973).
51Batson, 476 U.S. at 86, 106 S. Ct. at 1717 (internal
citations omitted).
52State v. House, 978 P.2d 967, 993 (N.M. 1999).
53683 P.2d 290 (Alaska App. 1984).
54Id. at 291.
55Id. at 292.
56Id.
57Alvarado, 486 P.2d at 904 n.38.
58Devon Knowles, From Chicken to Chignik: The Search for
Jury Impartiality in Rural Alaska Native Communities,
37 Colum. Hum. Rts. L. Rev. 235, 251 (2005).
59486 P.2d 891 (Alaska 1971).
60Id. at 904.
61Id. at 896-97, 903.
62Id. at 905-06.
63Id. at 903-04.
64Id. at 902 n.28.
65http://www.amiq.org/aleuts.html.
66U.S. Census Bureau, 2000 Census of Population and
Housing, Summary Population and Housing
Characteristics, PHC-1-3 Alaska 37 (2002), available at
http://www.census.gov/prod/cen2000/phc-1-3.pdf.
67http://www.tanadgusix.com;
http://www.commerce.state.ak.us/dca/commdb/CIS.
cfm?comm_boro_name=SaintPaul.
68Erick v. State, 642 P.2d 821, 824 (Alaska App. 1982).
69http://www.census.gov/popest/cities/tables/SUB-EST2007-04
-02.csv.
70U.S. Census Bureau, 2000 Census of Population and
Housing, Summary Population and Housing
Characteristics, PHC-1-3 Alaska 15 (2002), available at
http://www.census.gov/prod/cen2000/phc-1-3.pdf.
71Alaska R. Crim. P. 24(d).
72Alvarado, 486 P.2d at 904.
73Erick, 642 P.2d at 824.
74599 P.2d 147 (Alaska 1979).
75Id. at 149.
76Id.
77Id. (citations and footnote omitted).
78Id. at 150.
79Erick, 642 P.2d at 826-27.
80Id. (footnote omitted).
81Cano v. Anchorage, 627 P.2d 660, 664 (Alaska App. 1981).
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