Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Stickman-Sam v. State (5/12/2006) ap-2049

Stickman-Sam v. State (5/12/2006) ap-2049

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9307
Petitioner, ) Trial Court No. 4FA-05-934 CR
v. ) O P I N I O N
Respondent. ) No. 2049 - May 12, 2006
          Petition for Review from the Superior  Court,
          Fourth  Judicial District, Fairbanks, Charles
          R. Pengilly, Judge.

          Appearances: James M. Hackett, Law Office  of
          James   M.   Hackett,  Fairbanks,   for   the
          Petitioner.    Nancy  R.  Simel,    Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          This  case requires us to construe Criminal Rule 18(e),
which  allows  defendants to request alternative venue  sites  in
criminal cases.
          The    State   charged   Len   W.   Stickman-Sam   with
manslaughter.   This offense was alleged to have occurred  at  or
near  Galena.   Under  Criminal Rule 18(b) and  the  accompanying
table  of  venue  locations,  Superior  Court  Judge  Charles  R.
Pengilly set Stickman-Sams trial in Fairbanks.
          Stickman-Sam filed a timely motion under Criminal  Rule
18(e) for a change of venue to Nenana.  Rule 18(e) provides that,
after  venue is initially assigned, a defendant may move by right
for  the  setting  of  venue  in [another]  approved  trial  site
location  if  [that] location is the community within  the  venue
district  with  trial  facilities nearest  the  place  where  the
alleged crime was committed.
          The  Administrative Director of the  Court  System  has
approved  Nenana as a felony trial location.  See  Administrative
Bulletin  No.  27  (as  amended  effective  February  19,  2004).
However,  Judge  Pengilly rejected Stickman-Sams  request  for  a
change  of  venue to Nenana because he concluded that Nenana  was
not  the court location nearest the place where the alleged crime
was committed  that is, nearest Galena.
             Judge  Pengilly  acknowledged  that,  geographically
speaking,  Galena  is nearer to Nenana than it is  to  Fairbanks.
But  Judge Pengilly noted that, as a practical matter, Galena  is
nearer  to Fairbanks  because a person wishing to travel  between
Galena  and  Nenana must normally travel through Fairbanks.   The
judge concluded that Criminal Rule 18(e) should be interpreted as
referring to alternative court locations that are nearest to  the
site  of  the  crime as a matter of travel and logistics,  rather
than as a matter of geography.
          For  the reasons explained here, we conclude that  this
is  not  the proper interpretation of Criminal Rule 18(e)   that,
regardless of available transportation routes, Rule 18(e)  refers
to  a  court  locations geographic proximity to the site  of  the
alleged crime.  We accordingly reverse Judge Pengillys ruling and
direct that Stickman-Sams trial be held in Nenana.
          Why  we  conclude  that Criminal  Rule  18(e)
          refers  to  geographic proximity rather  than
          logistical proximity

          As  this  Court pointed out in John v. State,1 Criminal
Rule  18  was  designed  to carry out the Alaska  Supreme  Courts
landmark  decision  in  Alvarado v. State.2    In  Alvarado,  the
supreme  court  held  that  the  Alaska  Constitution  guarantees
criminal defendants the right to have a jury selected from a pool
that  represented a fair cross section of the community in  which
the  crime  occurred[.]3   In  light  of  the  profound  cultural
differences4 that separate the life of a typical Alaskan villager
from  the type of existence led by residents of the larger cities
of  this state, the supreme court held that it is unlawful for  a
trial  court  to  draw juries solely from the  larger  cities  to
decide the cases of defendants charged with committing crimes  in
rural villages.5
          In  order to comply with Alvarado, Alaska Criminal Rule
18  divides  the  state  into twenty-five  superior  court  venue
districts.  Each venue district is centered around a city or town
designated as a suitable site for felony trials.  Under  Criminal
Rule  18(b), Fairbanks is the presumptive site for a felony trial
for  a case that arises in the venue district in which Galena  is
          Criminal  Rule  18(e)  gives defendants  the  right  to
demand  venue  in  an  alternative site if  that  site  has  been
approved by the Administrative Director and if that site  is  the
community within the venue district with trial facilities nearest
the place where the alleged crime was committed.
          Judge   Pengilly   recognized  that  the   geographical
distance   between  Nenana  and  Galena  was  shorter  than   the
geographical  distance between Fairbanks and  Galena.  But  Judge
Pengilly  noted  that the most economical and  efficient  way  to
travel  between  Galena and Nenana was by commercial air  carrier
and  the  commercial  carriers all use Fairbanks  as  their  hub.
Thus,  anyone traveling between Galena and Nenana must   make  an
intermediate stop in Fairbanks.
          Based  on  this, Judge Pengilly concluded  that,  in  a
practical  sense   that  is,  for  the  purpose  of  transporting
attorneys,   witnesses,  court  personnel,  and  law  enforcement
officers  Galena is closer to Fairbanks than it is to Nenana.
          Judge  Pengillys reasoning makes sense,  but  it  gives
insufficient  weight to the underlying purpose of  Criminal  Rule
18.   As  we  explained above, Criminal Rule 18 was  intended  to
codify the Supreme Courts decision in Alvarado.  And Alvarado  is
based  on  the premise that, when a crime is committed  in  rural
Alaska,  the  defendant has a right to a jury pool drawn  from  a
rural  community.   The Alvarado court condemned the  process  of
bringing  defendants  charged with  committing  crimes  in  rural
villages into the larger cities of Alaska, where their fate would
be decided by urban juries.
          The  supreme court expressly recognized that its ruling
would, in all likelihood, result in an increase in expenditures.6
But  the  court concluded that no monetary savings would  justify
the  perpetuation of a system which denies to a large segment  of
our  citizens  the opportunity to participate in  our  system  of
justice.7    Thus,  the  supreme  court  rejected  administrative
convenience  and  monetary  savings in  favor  of  providing  the
defendant with a jury pool that represented a fair cross  section
of the community in which the crime occurred[.]8
          Against this background, we conclude that when Criminal
Rule  18(e)  speaks  of the approved court location  nearest  the
place  where  the  alleged  crime  was  committed,  the  rule  is
referring   to   geographic  proximity  rather   than   ease   of
transportation   and  logistics.   Ease  of  transportation   and
logistics will almost always favor holding the trial in an  urban
center   thus  defeating  the  policy  of  Alvarado.   Geographic
proximity  best serves the aim of obtaining jurors who  are  more
likely  to share the culture and life experience of the community
where the crime occurred.
          We  accordingly conclude that the superior court should
have  granted  Stickman-Sams motion for  a  change  of  venue  to

     1 35 P.3d 53, 55-56 (Alaska App. 2001).

     2 486 P.2d 891 (Alaska 1971).

     3 Id. at 903.

     4 Id. at 894.

     5 Id. at 899-901.

     6 Id. at 905.

     7 Id. at 905.

     8 Id. at 903.

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights