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Smith v. State (3/1/2019) ap-2640

Smith v. State (3/1/2019) ap-2640

                                                                             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@ akcourts.us  



                            IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                  



TEDDY  SMITH,  

                                                                                                                                            

                                                                                                   Court of Appeals No. A-12309  

                                                                                                                                                         

                                                    Appellant,                                  Trial Court Nos. 2KB-12-603 CR  

                                                                                                                                            

                                                                                                              & 2KB-12-625 CR  

                                       v.  



STATE  OF  ALASKA,                                                                                              O   P   I   N   I   O   N  



                                                    Appellee.                                         No.  2640  -  March   1,  2019  



                          Appeal  from  the  Superior  Court,  Second  Judicial  District,  

                                         

                                                                                                                               

                          Kotzebue, Timothy Dooley, Judge.  

                                                                               



                          Appearances:  Kelly R. Taylor, Assistant Public Defender, and  

                                                                                                                                         

                          Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                 

                          Ann B. Black, Assistant  Attorney General, Office of Criminal  

                                                                                                                               

                          Appeals,  Anchorage,  and Jahna Lindemuth,  Attorney General,  

                                                                                                                               

                          Juneau,  for  the  Appellee.                             Erin  Dougherty  Lynch,  Native  

                                                                                                                                  

                          American              Rights         Fund,          Anchorage,               for      Amicus           Curiae  

                                                                                                                                

                          Association  of  Village  Council  Presidents,  aligned  with  the  

                                                                                                                                        

                          Appellant.              Susan  Orlansky,  Anchorage,  for  Amicus  Curiae  

                                                                                                                                 

                          ACLU  of   Alaska  Foundation,  aligned  with  the   Appellant.  

                                                                                                                                                 

                          Thomas Amodio, Reeves Amodio, LLC, Anchorage, for Amicus  

                                                                                                                                  

                          Curiae Alaska Court System, aligned with the Appellee.  

                                                                                                                                  



                          Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                               

                          Superior Court Judge.*  

                                                                      



       *     Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                           


----------------------- Page 2-----------------------

                                                                       Judge MANNHEIMER.   



                                                                       In early September 2012,                                                                                                                      in the village of Kiana,                                                                                                          Teddy   Smith fired a                                                                                        



 shotgun at a group of people.                                                                                                                               He then fled into the wilderness, where he spent seven to                                                                                                                                                                                                                                         



ten days subsisting on berries and water.                                                                                                                                                                              Smith became exhausted and delirious, and he                                                                                                                                                                                           



later reported that he had been visited by "inukins" - supernatural beings who are                                                                                                                                                                                                                                                                                                                                                                      



reputed to live on the tundra.                                                                                                                               



                                                                       Eventually, Smith                                                                                   came upon a hunting cabin north of Kiana, along the                                                                                                                                                                                                                           



 Squirrel River.                                                                  There was no one in the cabin when Smith                                                                                                                                                                                                                  found it,                                            but the cabin                               



contained food.                                                                      Smith decided to stay in the cabin.                                                                                                                                                          



                                                                       While Smith was there, two brothers - Paul and Chuck Buckel - arrived                                                                                                                                                                                                                                                                                          



 at the cabin.                                                       Paul had lived in Kotzebue for more than twenty years, and his brother                                                                                                                                                                                                                                                                                       



 Chuck was visiting from out of state.                                                                                                                                                           The Buckels were on a bear-hunting trip, and they                                                                                                                                                                                                 



had permission from the cabin owner to use the cabin.                                                                                                                                                                                                                                               



                                                                        Smith greeted the Buckels,                                                                                                                          identifying himself by a false name.                                                                                                                                                                      Smith  



helped the brothers bring their gear into the cabin, and he conversed with them for about                                                                                                                                                                                                                                                                                                                                                   



 an hour.                                     All of a sudden, Smith began screaming for the Buckels to "get the fuck out".                                                                                                                                                                                                                                                                                                                                                  



 Smith then grabbed his pistol and shot Chuck Buckel in the chest.                                                                                                                                                                                                                                                                                             



                                                                        Smith forced the Buckels out of the cabin, and he ordered Paul Buckel to                                                                                                                                                                                                                                                                                                                



bring the brothers' boat closer to the cabin.                                                                                                                                                                                      After Paul tied off the boat, Smith shot Paul                                                                                                                                                                   



in the arm.                                                 Fearing for his life, Paul ran into the woods.                                                                                                                                                                                                     His brother Chuck also tried                                                                                                       



to run, but because of his chest wound, he had to stop and lean against a tree to catch his                                                                                                                                                                                                                                                                                                                                                                



breath.   Smith watched Chuck from about ten feet away, but he did not shoot Chuck                                                                                                                                                                                                                                                                                                                                                    



 again.     Eventually   Chuck   made   his   way   into   the   woods,   where   the   brothers   were  



reunited.    



                                                                                                                                                                                                                           - 2 -                                                                                                                                                                                                                      2640
  


----------------------- Page 3-----------------------

                                                                                                                             

                     In the meantime, Smith loaded most of the Buckels' gear into their boat,  



                                                                                                                              

and then he took off in their boat down the river.   When the Buckels discovered that  



                                                                                                                                

 Smith had left, they returned to the cabin and used the cabin owner's marine radio to call  



                                                                                                                             

for  help.  The  following morning,  the  state  troopers  arrived,  and  the  Buckels  were  



                                                                                                             

medivacked to receive care for their wounds.  Both of them survived.  



                                                                                                                               

                     The troopers found Smith down-river from the cabin, and they took him  



                       

into custody.  



                                                                                                                        

                     Smith was brought to trial in Kotzebue on charges of attempted murder,  



                                                                                                                      

first-degree assault, first-degree robbery, and third-degree assault.   He was convicted  



                                   

following a jury trial.  



                                                                                                                              

                     Smith now seeks reversal of his  convictions.   He raises a series of legal  



                                                                                                                   

challenges to the rules that the Alaska Court System uses for summoning prospective  



                                                                                                                               

jurors for criminal trials in court locations around the state - including the authority that  



                                                                                                                              

the rules give the presiding judges of each judicial district to restrict the geographic area  



                                                                        

from which prospective jurors are summoned.  



                                                                                                                           

                     For the reasons explained in this opinion, we reject most of Smith's claims  



                                                                                                                                 

and we affirm the rulings of the trial court.   But with respect to Smith's claim that he  



                                                                                                                          

should be able to challenge a ruling made by the presiding judge of his judicial district  



                                                                                                                         

to restrict the area from which jurors are summoned, we conclude that we must remand  



                                                                                                          

this case to the superior court for further proceedings on this matter.  



                                                                                                                      

           The law that governs the summoning of prospective jurors for trials in the  

                                                             

           different court locations within Alaska  



                                                                                                                             

                     The Alaska Supreme Court has established venue districts for every court  



                                                                                                                                 

location in Alaska.  These venue districts are defined by a venue map promulgated by  



                                                               - 3 -                                                          2640
  


----------------------- Page 4-----------------------

                                                                                                                                                                          1  

 the Alaska Supreme Court.                                                                                                                                                     See  Alaska Criminal Rule 18(a).                                                                                                                                                                                  The purpose of these                                                                                     



 venue districts is to identify the court site where a defendant's trial will presumptively                                                                                                                                                                                                                                                                                                                                                         



 be held if the crime is alleged to have occurred within that venue district.                                                                                                                                                                                                                                                                                                                                                                             



                                                                                  For example, as defined by the supreme court's venue map, the Kotzebue                                                                                                                                                                                                                                                                                                                          



 venue district is a sizeable region that (1) extends east from Kotzebue approximately 250                                                                                                                                                                                                                                                                                                                                                                                                                          



 miles inland, (2) extends south from Kotzebue approximately 100 miles, and extends                                                                                                                                                                                                                                                                                                                                                                                                         



 more than 150 miles northwest from Kotzebue along the coast of Kotzebue Sound, past                                                                                                                                                                                                                                                                                                                                                                                                                             



 Point Hope.                                                                When a crime is alleged to have occurred within this district, the trial will                                                                                                                                                                                                                                                                                                                                                            



 presumptively be held in Kotzebue.                                                                                                                                                                                      



                                                                                  As might be imagined, all of the venue districts in Alaska include smaller                                                                                                                                                                                                                                                                                                                                    



 towns and villages in addition to the court site itself.                                                                                                                                                                                                                                                                  For example, the Kotzebue venue                                                                                                                                            



  district includes approximately a dozen smaller villages in addition to the regional hub                                                                                                                                                                                                                                                                                                                                                                                                                        



  city of Kotzebue.                                                                                          But when the Alaska Court System prepares its lists of prospective                                                                                                                                                                                                                                                                                      



jurors within the various venue districts -                                                                                                                                                                                                                  i.e., the lists of people who can be summoned                                                                                                                                                              



 to serve on juries at the various court locations around the state - these jury lists will                                                                                                                                                                                                                                                                                                                                                                                                                         



  often exclude the people living in outlying towns and villages.                                                                                                                                                                                                                                                                                                                  



                                                                                  Under   Alaska   Administrative   Rule   15(c)   -   a   rule   that   was   numbered  



  "15(b)" at the time of the proceedings in this case - the list of prospective jurors for any                                                                                                                                                                                                                                                                                                                                                                                                                       



 particular court site is not drawn from the population of the entire corresponding venue                                                                                                                                                                                                                                                                                                                                                                                                             



  district.   Rather, the list of prospective jurors comprises only the people living within a                                                                                                                                                                                                                                                                                                                                                                                                                                    



  50-mile   radius   of   that   court   site,   unless   the   presiding judge                                                                                                                                                                                                                                                                                                             of   that   judicial district   



  designates a different selection area.                                                                                                                                                                                     



                      1                   This map is available at:
                                                                                                               



                     https://public.courts.alaska.gov/web/rules/docs/venuemap.pdf
  



                                                                                                                                                                                                                                                          - 4 -                                                                                                                                                                                                                                                     2640
  


----------------------- Page 5-----------------------

                                                                                                                       

                     In some venue districts, this 50-mile selection radius excludes a relatively  



                                                                                                                        

small percentage of the population of that district.  But in far-flung rural venue districts,  



                                                                                                                      

the 50-mile radius rule can exclude the residents of many towns and villages.  



                                                                                                                                

                     In the Kotzebue venue district, for example, only two villages (Noorvik and  



                                                                                                       

Noatak) are located within a 50-mile radius of the Kotzebue court.  



                                                                                                                         

                     Moreover,  for the past thirty years,  the presiding judges of the Second  



                                                                                                                               

Judicial District (the judicial district that includes Kotzebue) have concluded that the cost  



                                                                                                                                 

of  transporting  and  housing  prospective  jurors  from  even  these  two  villages  is  



                                                                                                                                

unreasonably high.  For this reason, over the years, the various presiding judges of the  



                                                                                                                             

 Second Judicial District have exercised their authority under Administrative Rule 15(c)  



                                                                                                                         

to alter the 50-mile jury selection  radius.                        Instead of employing the normal 50-mile  



                                                                                                                   

radius, these presiding judges have issued orders declaring that the list of prospective  



                                                                                                                           

jurors for  trials in Kotzebue should be confined to the people living within a 5-mile  



                                 

radius of Kotzebue.  



                                                                                                                                  

                     In  other  words,  the  list  of  prospective  jurors  for  trials  in  Kotzebue  is  



                                                                                                                       

essentially limited to the people living in or nearby the city of Kotzebue itself.  



                                                                                                                       

           The constitutional limitations on the Alaska Court System's authority to  

                                                                                  

           define jury selection areas based on cost and convenience  



                                                                                                                               

                     On  its  face,  Administrative  Rule  15  gives  the  Court  System,  and  the  



                                                                                                                     

presiding judges of the four judicial districts, broad authority to define jury selection  



                                                                                                                               

areas so as to reduce jury expenses and increase the convenience of jurors' travel and  



               

lodging.  



                                                                                                                        

                     However, the working of Administrative Rule 15 hinges in large measure  



                                                                                                                                     

on the boundaries of the various venue districts drawn in the supreme court's venue map.  



                                                               - 5 -                                                          2640
  


----------------------- Page 6-----------------------

And   the   driving force                     behind   the   supreme   court's   selection   of   those   venue   district  



boundaries is the supreme court's 1971 decision in                                                      Alvarado v. State                   , 486 P.2d                  891  



(Alaska 1971).                 Alvarado  is the seminal Alaska case defining a criminal defendant's right                                                          



to demand that prospective jurors summoned for jury service reflect                                                                         the   community  



where the crime is alleged to have occurred.                                              



                           The defendant in                   Alvarado  was an Alaska Native man who was charged                                            

                                                                                                2   This village is located on the Alaska  

with committing a rape in the village of Chignik.                                                                                                             



Peninsula, approximately 450 air miles southwest of Anchorage, and the great majority  

                                                                                                                                                           



of   its  residents  were  Alaska  Natives  who  primarily  pursued  a  rural,  subsistence  

                                                                                                                                                    



                 3  

lifestyle.             However,  the  city  of  Anchorage  was  the  specified  court  site  for  crimes  

                                                                                                                                                              



committed in Chignik - and, under the jury selection rules that were in force at the time,  

                                                                                                                                                                  



the prospective jurors for Alvarado's trial were drawn from the people living within  

                                                                                                                                                               



                                              4  

 15 miles of Anchorage.  

                                                   



                           This  15-mile  jury  selection  radius  effectively  excluded  not  only  the  

                                                                                                                                                                    



residents of Chignik but also the residents of every other Native village.                                                                             And even  

                                                                                                                                                                 



though the Alaska Natives comprised nearly 30 percent of the population of the Third  

                                                                                                                                                                



Judicial  District  (where  Anchorage  is  located),  Alaska  Natives  comprised  only  3.5  

                                                                                                                                                                    



                                                                               5  

percent of the population of Anchorage.  

                                                                                   



                           The supreme court held  that the 15-mile jury selection radius - and its  

                                                                                                                                                                       



concomitant exclusion of jurors from Chignik and every other Native village - violated  

                                                                                                                                                            



Alvarado's right under the Alaska Constitution to have prospective jurors drawn from  

                                                                                                                                                                 



       2     Alvarado ,  486 P               .2d  at  892-93.   



       3     Id.  at  894.   



       4     Id.  at  892-93.   



       5     Id.  at  895.   



                                                                                 - 6 -                                                                             2640
  


----------------------- Page 7-----------------------

a pool of people that represents a fair cross-section of the community where the crime                                                        



                 6  

occurred.     



                        In reaching this conclusion, the supreme court relied on evidence presented  

                                                                                                                                        



to the trial court concerning the salient characteristics of Alaska Native cultures, and the  

                                                                                                                                                   



profound differences between those Alaska Native cultures and the urban lifestyle that  

                                                                                                                                                 



typified Alaska's larger cities, such as Anchorage.  As the supreme court observed, the  

                                                                                                                                                   



distinguishing characteristics of Alaska Native cultures include:  

                                                                                                                



                          

                        economies  which  rely  on  hunting,  fishing,  and  gathering  

                                                                                                                

                        activities, strong kinship bonds, isolation from those parts of  

                                                                                                                             

                        Alaska  that   approximate  mainstream  America,   different  

                                                                                                                 

                        seasonal activity patterns, concepts of time and scheduling  

                                                                                                               

                        which ... may be  quite different from those of mainstream  

                                                                                                             

                        America,  and finally,  very limited participation in the cash  

                                                                                                                         

                        economy.  



                                                   

Alvarado, 486 P.2d at 894.  



                                                                                                                                                   

                        The supreme court noted that, even though most Alaska Native villages are  



                                                                                                                                      

exposed to some extent to the  Western culture of Alaska's cities, "the gap separating  



                                                                                                             

Native villages from the mainstream of urban society is vast":  



                          

                                                                                                                            

                        Examples  of  the  unique   qualities  of  Native  culture  ...  

                                                                                                                          

                        encompass  such  factors  as  ...  childhood  exposure  to  two  

                                                                                                                             

                        languages, cultural disorientation reflecting the imposition on  

                                                                                                                               

                        the Native villages of the dominant society's way of life, a  

                                                                                                                     

                        distinct  social  history,  ...  and  basic  differences  in  family  

                                          

                        structure.  



                    

Id.  at 895.  



      6     Id.  at 903-05.         



                                                                        - 7 -                                                                   2640
  


----------------------- Page 8-----------------------

                              Based on all of these significant differences, the supreme court concluded                                                                  



that "the remote Native villages of the third judicial district" - villages such as Chignik                                                                                    



-  were "vastly dissimilar from the metropolis of Anchorage":                                                 



                                

                              The   gap   stretching between                                    these   two   distinct   classes   of  

                                                                                                                                                    

                              community  is  of  far  greater  magnitude  than  that  which  

                              normally   separates city from city or small town from city                                                                 

                              elsewhere in the United States.                                        We are faced here with the                             

                                                                                                                                                       

                              order  of  differences  which  distinguishes  one  culture  from  

                              another.    



Id.   at 900.               And because of this cultural divide between life in Alaska's large urban                                                                               



                                                                                                                                                                                            

 centers and life in the Native villages,  the supreme court held that,  when a crime is  



                                                                                                                                                                      

 alleged to have occurred in a Native village, it is unconstitutional to select prospective  

                                                                                                                                                                               7       The  

                                                                                                                                                                                     

jurors  in  a  manner  that  essentially  excludes  all residents  of  Native  villages.  



 supreme court declared that, in such cases, the pool of prospective jurors must include  

                                                                                                                                                                                



people who are representative of the community residing at the location of the alleged  

                                                                                                                                                                                 



 offense.  Id.  at 902.  

                                              



                              This rule means that a jury can be validly selected even if the pool of  

                                                                                                                                                                                           



prospective jurors does not actually include people living at the location of the alleged  

                                                                                                                                                                                

                                                                                                                            8     Instead,  the  supreme  court  

 offense  -  what  the  law  calls  the  rule  of  "vicinage".  

                                                                                                                                                                                    



 endorsed Alvarado's suggestion that the concept of vicinage was no longer an inflexible  

                                                                                                                                                                             



requirement of jury selection - "no longer a mechanical formula which requires, in all  

                                                                                                                                                                                           



                                                                                                                                                        9  

 cases, that the jury be selected from the precise locale of the crime".  

                                                                                                                                                            



        7      Id.  at  895,  903.   



        8      Id.  at  896.   



        9      Ibid.  



                                                                                           - 8 -                                                                                       2640
  


----------------------- Page 9-----------------------

                        Nevertheless,   the   supreme   court   declared   that   the   concept   of   vicinage  



"serves   primarily   as   a   guide"   to   assessing whether                                 the   people   who   live   in   the   jury  



selection area are properly "representative" of the community that lives at the location                                                    



                                        10  

of the alleged offense.                                                                                                                              

                                             Thus, even though the jury selection area does not include the  



                                                                                                                                           

residents of the place where the crime occurred, the people living in that jury selection  



                                                                                                                                                     

area may "still reasonably represent a cross-section of the community [residing at] the  



                                                                                                                                               

scene  of  the  offense"  if  the  population  of  the  jury  selection  area  does  not  differ  



                                                                                                                               11  

                                                                                                                                   

significantly from the population of the place where the crime occurred.  



                        In order to facilitate jury pools that comply with Alvarado, the supreme  

                                                                                                                                           



court promulgated Alaska Criminal Rule 18 and an accompanying series of venue district  

                                                                                                                                              

maps. 12         The current venue district  map  divides Alaska into 25 superior court venue  

                                                                                                                                               



districts, with each venue district containing a city or town designated as a suitable site  

                                                                                                                                                    



for felony trials.  As this Court explained in John v. State, "The supreme court's goalwas  

                                                                                                                                                   



that, by using Rule 18(b) in combination with the venue map, judges would be able to  

                                                                                                                                                      



identify a presumptive trial site where the composition of the jury pool could be expected  

                                                                                                                                           

to satisfy Alvarado ." 13  

                                           



                        However, if it is shown that the pool of prospective jurors prescribed by the  

                                                                                                                                                     



provisions of Criminal Rule 18 and Administrative Rule 15(c) does not satisfy Alvarado,  

                                                                                                                                        



      10    Ibid .   



      11    Id. at 902 n. 29.  

                                        



      12  

                                                                                                                                                  

            John v. State , 35 P.3d 53, 55 (Alaska App. 2001); see also Dana v. State, 623 P.2d  

                                                                                                                                            

348, 351 (Alaska App. 1981) (stating that a former version of Criminal Rule 18 was "directly  

                                                                                                

aimed at avoiding the type of situation which gave rise to Alvarado ").  



      13  

                                                                                     

            John v. State , 35 P.3d 53, 55 (Alaska App. 2001).  



                                                                         - 9 -                                                                    2640
  


----------------------- Page 10-----------------------

                                                                                                                                

then  the  trial court  must  use  a  different  pool of  prospective  jurors  -  because  the  



                                                                                         

constitutional requirements of Alvarado take precedence.  



                                                                                             

           The litigation of Smith's jury claims in the superior court  



                                                                                                                                 

                     As we explained earlier, Administrative Rule 15(c) normally calls for the  



                                                                                                                                  

list of prospective jurors to be drawn from the people living within a 50-mile radius of  



                                                                                                                           

the court location, but over the years the presiding judges of the Second Judicial District  



                                                                                                                             

have issued orders limiting the jury selection area for Kotzebue to a 5-mile radius.  Thus,  



                                                                                                                                

as a practical matter, the pool of prospective jurors included only the people living in and  



                                      

nearby Kotzebue itself.  



                                                                                                                         

                     Prior to Smith's trial, Smith's attorney filed a motion asking the superior  



                                                                                                                       

court to expand the jury selection area to include everyone living in the entire Kotzebue  



                                                                                                                       

venue  district.          (As  we  have  explained,  there  are  about  a  dozen  villages  scattered  



                                                                 

throughout the Kotzebue venue district.)  



                                                                                                                            

                     Smith's attorney argued that any smaller pool of prospective jurors would  



                                                                                                                    

violate Smith's constitutional right under Alvarado  to  have the group of prospective  



                                                                                                                            

jurors drawn from a pool that  included a fair cross-section of the community where  



                                                                                                                                       

 Smith's crimes allegedly occurred - i.e., the village of Kiana and the surroundingareas.  



                                                                                                                             

                     The defense attorney also argued that any smaller poolof prospective jurors  



                                                                                                                                  

would violate the rights of all the village residents within the Kotzebue venue district -  



                                                                                                                             

specifically, the right of these village residents to serve on juries.  Smith's attorney noted  



                                                                                                                                

that the total population of these outlying villages was  significantly greater than the  



                                                                                                                                   

population  of  Kotzebue.                 Thus,  jury  pools  in  Kotzebue  were  being drawn  from  a  



                                                                         

minority of the residents of the venue district.  



                                                              -  10 -                                                         2640
  


----------------------- Page 11-----------------------

                                                                                                                           

                    In support of Smith's Alvarado claim (i.e., his claim that a jury pool drawn  



                                                                                                                                

solely from the residents of Kotzebue would not represent a fair cross-section of the  



                                                                                                                            

community where the crimes occurred), Smith's attorney argued that each and every  



                                                                                                                               

village in the Kotzebue venue district had its own distinct characteristics, and thus it was  



                                                                                                                      

especially important for the jury selection area to include the village of Kiana.  However,  



                                                                                                                    

the defense attorney's fall-back claim was that the dozen outlying villages, considered  



                                                                                                                                

as a whole, constituted a distinct cultural group that was not fairly represented by the  



                                     

residents of Kotzebue.  



                                                                                                                           

                    With regard to this latter claim (that the outlying villages, taken as a whole,  



                                                                                                                         

constituted  a distinct cultural group for purposes of an Alvarado  analysis),  Smith's  



                                                                                                                      

attorney argued that these villagers were far more likely than the residents of Kotzebue  



                                                                                                                              

to practice a subsistence hunting lifestyle.  According to the defense attorney, this was  



                                                                                                                               

important because it meant that these villagers would be more familiar with firearms, and  



                                                                                                                         

they would more readily understand that Smith would have been able to kill the Buckels  



                                 

if he had wanted to.  



                                                                                                                              

                    The defense attorney also argued that the villagers living in Kiana  and  



                                                                                                                                 

along the Squirrel River would be more familiar with people who believed in inukins -  



                                                                                                                            

and, therefore, these villagers would be more likely to credit Smith's statements about  



                                                                                                                  

encountering inukins while he was wandering in the wilderness, rather than immediately  



                                                                                  

concluding that Smith was either lying or delusional.  



                                                                                                                         

                    The superior court,  in  a  lengthy written decision,  rejected the defense  



                                                                                                                           

attorney's contention that the residents of the outlying villages constituted a group whose  



                                                                                                                                

culture  was  distinct,  for  Alvarado  purposes,  from  the  culture  of  the  residents  of  



                   

Kotzebue.  



                                                                                                                           

                    The superior court noted that, even though Kotzebue was a hub city, almost  



                                                                                                                     

75  percent  of  the  residents  of  Kotzebue  were  Alaska  Natives,  with  an  additional  



                                                              -  11 -                                                         2640
  


----------------------- Page 12-----------------------

                                                                                                                                

5 percent identifying themselves as having an Alaska Native heritage.   (In Kiana, the  



                                                                                                                        

percentage of Alaska Natives was 90 percent.)  Perhaps more importantly, the superior  



                                                                                                                       

court also found that  the "attitudes[,] ideas, [and] experience" of Kotzebue residents  



                                                                                                                             

exhibited a "basic similarity" to the attitudes, ideas, and experience of the people living  



                                                                                      

in the other villages within the Kotzebue venue district.  



                                                                                                                                  

                     The superior court explained that Smith was essentially asking the court to  



                                                                                                                                   

assume that, because Kotzebue was a city, the people living in Kotzebue must have a  



                                                                                                                                      

materially different culture and lifestyle from the people living in the smaller  villages.  



                                                                                                                   

But the court declined to make this assumption in the absence of evidence.  



                                                                                                                         

                     The  court  noted  that  even  though  Smith's  attorney  had  made  several  



                                                                                                                               

assertions about the purported culturaldifferences between the residents of Kotzebue and  



                                                                                                                              

the residents of the outlying villages,  Smith's attorney "present[ed] no evidence that  



                                                                                                                            

hunting or the subsistence lifestyle [was] any less prevalent in Kotzebue than in other  



                                                                                                                              

communities [within the venue district]".                           Nor did Smith present any evidence that  



                                                                                                                             

Kotzebue residents would not reflect "the same attitudes, ideas, and experiences as other  



                                                      

residents of the [venue] district."  



                                                                                                                          

                    Apparently  on  its  own  initiative,  the  superior  court  examined  census  



                                                                                                                       

information comparing the residents of Kotzebue to the residents of Kiana, the residents  



                                                                                                                              

of House District 40, and residents of the Second Judicial District as a whole.  This data  



                                                                                                                           

included information as to what percentage of residents identified themselves as Alaska  



                                                                                                                   

Natives, or as having an Alaska  Native heritage.   The data also included information  



                                                                                                                            

regarding  how  many  people  had  salaried  employment,   how  many  people  were  



                                                                                                                    

unemployed, how many people were receiving food stamps, and how many households  



                                        

were multi-generational.  



                                                                                                                       

                     The court found that this data supported the conclusion that the residents  



                                                                                                                              

of Kotzebue "[fell] squarely within the same culture as Kiana [and] House District 40",  



                                                              -  12 -                                                         2640
  


----------------------- Page 13-----------------------

                                                                                                                               

and that there was "no cognizable group ... present in Kiana [or] House District 40" that  



                                                          

was not "also present in Kotzebue".  



                                                                                                                               

                    And with particular respect to the belief in "inukins", the court noted that  



                                                                                                                             

Smith presented no evidence regarding how many residents of Kiana believed in these  



                                                                                                                        

supernatural beings.  Rather, Smith's only evidence of this cultural belief was a decades- 



                                                                                                                        

old Kotzebue newspaper article which stated that some residents of Kotzebue believed  



                   

in inukins.  



                                                                                                                             

                    Based on allthis, the superior court concluded that Smith had failed to show  



                                                                                                                       

that a jury pool drawn from the residents of Kotzebue would not adequately represent  



                                                                                                                          

the "attitudes, ideas[,] and experiences" of the residents of Kiana and the other villages  



                                                        

within the Kotzebue venue district.  



                                                                                                                    

                    After  the  superior  court  issued  this  ruling,  Smith's  attorney  separately  



                                                                                                                             

challenged the presiding judge's decision to reduce the Kotzebue jury selection area from  



                                                                                                                                

the normal 50-mile radius to a smaller 5-mile radius.  As we have already explained, the  



                                                                                                                            

Administrative Rules give presiding judges the authority to reduce a jury selection radius  



                                                                                                                           

if the transportation and housing of prospective jurors from this normal 50-mile radius  



                                                            

would pose an unreasonable expense.  



                                                                                                                             

                     Smith's attorney noted that, in the case of the Kotzebue jury selection area,  



                                                                                                                                 

the presiding judge's order declared that a 50-mile jury selection radius would pose an  



                                                                                                                        

unreasonable expense, but the judge's order did not provide any of the data or financial  



                                                                                                                        

information that the judge relied on when reaching this conclusion.  The defense attorney  



                                                                                                                         

asked the superior court to give him an opportunity to show that the presiding judge's  



                                                                                                                                

conclusion  was  wrong,  so  that  the  Kotzebue  jury  selection  area  could  at  least  be  



                                                                                                                         

expanded to the normal 50-mile radius - a radius that would include the two villages  



                                       

of Noorvik and Noatak.  



                                                                                                                               

                    The superior court summarily denied the defense attorney's motion.  



                                                              -  13 -                                                         2640
  


----------------------- Page 14-----------------------

                                        

           Smith's claims on appeal  



                                                                                                                              

                     On appeal, Smith asserts that all residents of Alaska have a right to serve  



                                                                                                                                   

on juries.        Based on this assertion,  Smith suggests that Administrative Rule 15(c) is  



                                                                                                                          

unconstitutional, at least as it is applied in many areas of Alaska, because the 50-mile  



                                                                                                                               

jury selection radius prescribed by Rule 15(c) often excludes significant numbers of rural  



                                                                                                                              

residents,  and because there are many areas of the state where these excluded rural  



                                                                     

residents are predominantly Alaska Native.  



                                                                                                               

                     Smith did not raise this generalized, state-wide attack on Administrative  



                                                                                                                          

Rule 15(c) in the trial court.  Nor is it clear that Smith has standing to attack the method  



                                                                                                                          

of jury selection that is employed in other areas of Alaska.   We therefore will address  



                                                                                                                       

 Smith's contentions only as they apply to the method of jury selection in the Kotzebue  



                        

venue district.  



                                                                                                                                

                     Smith contends that allresidents of the Kotzebue venue district have a right  



                                                                                                                                       

to serve on juries,  and that Administrative Rule 15(c) unlawfully abridges this right.  



                                                                                                                        

But while courts often speak of jury service as a "right", such statements are generally  



                                                                                                                                  

made in the context of ensuring that all adults within a legally defined vicinage have an  



                                                                                                                               

equal chance  of  being included  in  the  lists  of  prospective  jurors  drawn  from  that  



                 

vicinage.  



                                                                                                                              

                     As the Supreme Court of California has explained, citizens have no free- 



                                                    

standing right to serve on juries:  



                       

                                                                                                            

                               While trial by jury is constitutionally implanted in our  

                                                                                                           

                     system of justice, an individual's interest in serving on a jury  

                                                                                                                  

                     cannot be held a fundamental right.  The [jury trial] guarantee  

                                                                                                            

                     of the Sixth Amendment is primarily for the benefit of the  

                                                                                                          

                     litigant - not persons seeking service on the jury; and even  

                                                                                                           

                     though  [a  citizen  is]  lawfully  qualified,  a  citizen  may  not  



                                                              -  14 -                                                         2640
  


----------------------- Page 15-----------------------

                                                                                                              

                     demand to serve on a jury.  At most, the citizen is entitled to  

                                                                                                               

                     be considered for jury service.   His  interest in becoming a  

                                                                                                              

                    juror is clearly secondary to the interests of the litigants in  

                                                                                                

                     securing  an  impartial  jury,  as  shown  by  the  traditional  

                                                                                                

                     exclusion of prospective jurors for cause or upon peremptory  

                                                                                                               

                     challenge.         Jury  service  is  commonly  viewed  more  as  a  

                                                                                                   

                     combination of duty and privilege than as a right, sanctions  

                                                                             

                     being imposed for failure to appear.  

                       

                                                                                                                             

Adams v. Superior Court of San Diego County , 524 P.2d 375, 379 (Cal. 1974).  



                                                                                                                                  

                     Moreover,  because Smith's argument implicitly rests on the concept of  



                                                                                                                           

vicinage (i.e., the assertion that all adults within a vicinage should have an equal chance  



                                                                                                                                  

of  being included in the lists of prospective jurors), his argument is fundamentally  at  



                                                                                   

odds with our supreme court's decision in Alvarado .  



                                                                                                                                 

                     As we have explained,  Alvarado expressly holds that Alaska law does not  



                                                                                                                              

incorporate the traditional notion of vicinage - and, thus, juries need not be drawn from  



                                                                                                                                  

the geographic locale where the crime was allegedly committed, so long as the pool of  



                                                                                                                                   

prospective jurors includes people who are representative of the community residing at  



                                                                                                                                  

the location of the alleged offense.  Alvarado, 486 P.2d at 902.   Thus, the decision in  



                                                                                                                             

Alvarado implicitly rejects the idea that all citizens within a venue district have an equal  



                                                                                                 

right to be included in that district's lists of prospective jurors.  



                                                                                                                              

                     For these reasons, we reject Smith's argument  that Administrative Rule  



                                                                                                                                

 15(c) is unconstitutional because it authorizes the Alaska Court System to compile lists  



                                                                                                                                   

of prospective jurors that do not include all residents of the Kotzebue venue district.  



                                                                                                                         

                     We now turn to Smith's argument that the Alaska Court System is violating  



                                                                                                                             

his rights under Alvarado by limiting the pool of prospective jurors to those people living  



                                                                        

within a 5-mile radius of the Kotzebue court.  



                                                              -  15 -                                                         2640
  


----------------------- Page 16-----------------------

                                                                    To   prevail on this claim, Smith must show (1) that the residents of                                                                                                                                                                                                                                                                                    the  



 community where his crime occurred (Kiana and its environs) are members of a culture                                                                                                                                                                                                                                                                                                                   



 that is materially distinct from the culture of the residents of Kotzebue under the test                                                                                                                                                                                                                                                                                                                                   



 announced in                                                       Alvarado, and (2) that a jury pool drawn from the residents of Kotzebue                                                                                                                                                                                                                                                    



 will   fail to fairly and reasonably represent the culture of the residents of Kiana                                                                                                                                                                                                                                                                                                                                         (in  



 proportion to the number of Kiana residents within the venue district).                                                                                                                                                                                                                                                                                        See Tugatuk v.                                                        



 State, 626 P.2d 95, 100 (Alaska 1981).                                                                                                                                                           See also Wyatt v. State                                                                                         , 778 P.2d 1169, 1170-71                                                           



 n.   2 (Alaska App. 1989) (clarifying that                                                                                                                                                               Alvarado   does not invariably require that the                                                                                                                                                                     



jury selection pool include residents of the place where the crime occurred, so long as                                                                                                                                                                                                                                                                                                                                             



 the jury selection pool includes a reasonable number of people who share the culture of                                                                                                                                                                                                                                                                                                                                            



 that place).   



                                                                    Here, it was Smith's burden to affirmatively demonstrate to the superior                                                                                                                                                                                                                                                          



 court that the residents of Kiana and its environs were members of a separate, cognizable                                                                                                                                                                                                                                                                                                 



 cultural group whose interests could not be adequately protected by a jury pool whose                                                                                                                                                                                                                                                                                                                         



 members were drawn from the residents of Kotzebue.                                                                                                                                                                                                                         See Hampton v. State                                                                                              , 569 P.2d                



   138, 148 (Alaska 1977);                                                                                                 Dana v. State                                                          , 623 P.2d 348, 351-52 (Alaska App. 1981).                                                                                                                                                                                    



                                                                    In  Alvarado, the supreme court found that the defendant met this burden                                                                                                                                                                                                                                                               



 through census                                                                and   sociological data of the kind that the superior court examined in                                                                                                                                                                                                                                                                               



  Smith's case,                                                        as well as through the testimony of a professor of                                                                                                                                                                                                                     sociology and the                                                               



 affidavits submitted by a cultural anthropologist and by the former director of the Alaska                                                                                                                                                                                                                                                                                                                   



                                                                                                                                               14  

 Human Rights Commission.                                                                                                                               



                                                                    But  as  we  have  already  explained,  Smith  relied  on  arguments  and  

                                                                                                                                                                                                                                                                                                                                                                                                                          



 assumptions that were supported by very little evidence.  

                                                                                                                                                                                                                                                                                           



                  14              Alvarado v. State                                                                    , 486 P.2d 891, 894-95 (Alaska 1971).                                                                                                                                                    



                                                                                                                                                                                                            -  16 -                                                                                                                                                                                                         2640
  


----------------------- Page 17-----------------------

                                                                                                                             

                    Unlike the defendant in Alvarado, Smith did not provide the superior court  



                                                                                                                      

with testimony or other evidence to back up his assertion that the residents of  Kotzebue  



                                                                                                                         

and the residents of the outlying villages constituted two distinct cultural groups.  Indeed,  



                                                                                                                             

the only evidence pertinent to Smith's claim was the census data that the superior court  



                                                                                                                     

provided sua sponte.  And based on the record in front of it, the superior court concluded  



                                                                              

that Smith had failed to meet his burden of proof.  



                                                                                                                                 

                    To the extent that the superior court's ruling rested on questions of fact -  



                                                                                                                                

for example, findings regarding the general attitudes, experiences, and lifestyles of the  



                                                                                                                        

residents of Kiana versus the residents of Kotzebue - we conclude that the superior  



                                                                  

court's findings are not clearly erroneous.  



                                                                                                                       

                    The superior court's ruling also rested on its legal conclusion that, whatever  



                                                                                                                                

differences might exist between life in Kiana and life in Kotzebue, those differences did  



                                                                                                                     

not amount to a "cognizable" cultural difference for purposes of Alvarado, Hampton,  



                                                                                                                                

Tugatuk, and Wyatt.  We review this aspect of the superior court's ruling de novo.  



                                                                                                                               

                    But given the superior court's ultimate finding of fact - its finding that  



                                                                                                                               

Smith failed to establish any  significant differences between the attitudes,  ideas,  and  



                                                                                                                           

experience of Kotzebue residents and the attitudes, ideas, and experience of the people  



                                                                                                                         

living in the other villages within the venue district - we affirm the superior  court's  



                                                                                                                                

legal conclusion that Smith failed to demonstrate any cognizable cultural difference for  



                                                                                     

purposes of Alvarado, Hampton, Tugatuk, and Wyatt.  



                                                                                                                                 

                    We therefore reject Smith's claim that the Alaska Court System violated his  



                                                                                                                                      

rights under Alvarado by limiting the jury selection area to a 5-mile radius of Kotzebue.  



                                                                                                                                

                    Finally, Smith argues that even if the 5-mile jury selection radius did not  



                                                                                                                       

violate his rights under Alvarado ,  this jury selection area was nevertheless unlawful  



                                                                                                                          

because the presiding judge of the Second Judicial District lacked a sufficient factual  



                                                              -  17 -                                                         2640
  


----------------------- Page 18-----------------------

                                                                                                                             

basis for reducing the Kotzebue jury selection to a radius of 5 miles, rather than using  



                                                                                                                              

the normal 50-mile jury selection radius prescribed by Administrative Rule 15(c).  



                                                                                                                          

                     As we have explained, the presiding judge's order was based on a finding  



                                                                                                                               

that the transportation and housing of prospective jurors from Noorvik and Noatak (the  



                                                                                                                                      

two villages within a 50-mile radius of Kotzebue) would pose an unreasonable expense.  



                                                                                                                         

In the superior court, Smith argued that the facts did not support the presiding judge's  



                                                                                                                            

finding, or (alternatively) that conditions had changed since the  presiding judge made  



                                                                                                                             

this finding, and the finding was now outdated.  But the superior court refused to grant  



                                                         

 Smith an evidentiary hearing on this issue.  



                                                                                                                                   

                     We conclude that  it was error for the superior court to refuse Smith a  



                                                                                                                        

hearing on this issue.  In reaching this conclusion, we express no opinion as to whether  



                                                                                                                            

the facts support the presiding judge's finding that it would be unreasonable for the Court  



                                                                                                                          

 System to bear the cost of transporting and housing prospective jurors from the villages  



                                                                                                                           

of Noorvik and Noatak.  Nor do we express any opinion as to what remedy Smith would  



                                                                                                                      

be entitled to, even if he could show that the presiding judge's finding was not supported  



                     

by the facts.  



           Conclusion  



                                                                                                                                

                     Based on the findings of the superior court, we reject Smith's claim that the  



                                                                                                                   

jury selection pool in his case failed to represent a fair cross-section of the community  



                                                                                                                         

living where the crime occurred.                     We  also  reject Smith's claim that all adult citizens  



                                                                                                                          

living in the Kotzebue venue district have a right to serve on juries,  and  that Alaska  



                                                                                                                              

Administrative Rule 15(c) is unconstitutional because it restricts the jury selection area  



                                                               

to a 50-mile radius of the court location.  



                                                              -  18 -                                                         2640
  


----------------------- Page 19-----------------------

                                                                                                                        

                     But with respect to Smith's claim that the facts do not support the presiding  



                                                                                                                           

judge's decision to restrict the Kotzebue jury selection area to a  5-mile radius (rather  



                                                                                                                        

than the normal 50-mile radius prescribed by Administrative Rule 15(c)), we conclude  



                                                                                                                       

that it was error for the superior court to deny Smith a hearing on this issue.  



                                                                                                                                 

                     We therefore remand Smith's case to the superior court, to give Smith the  



                                                                                                                             

opportunity to make his case that the costs of transportingand housingprospective jurors  



                                                                                                                                  

from Noorvik and Noatak - the two villages within a 50-mile radius of Kotzebue -  



                                                                                                                    

would not be unreasonable.  If Smith establishes that the cost of summoning prospective  



                                                                                                                           

jurors from these two villages would not be unreasonable, then the superior court should  



                                                                                                     

decide the further issue of whether Smith is entitled to any relief.  



                                                                                                                                  

                     The superior court shall conduct these additional proceedings within 90  



                                                                                                                              

days of the issuance of this opinion.  After the superior court issues its decision on these  



                                                                                                                                 

matters, the parties (either or both of them) shall have 30 days to seek our review of the  



                                                                                                                           

superior court's decision.  We retain jurisdiction of this appeal for that purpose.  



                                                              -  19 -                                                         2640
  

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