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Lestenkof v. State (4/23/2010) ap-2258

Lestenkof v. State (4/23/2010) ap-2258

     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-10007
Appellant, ) Trial Court No. 3ST-06-009 CR
v. )
) O P I N I O N
Appellee. ) No. 2258 April 23, 2010
Appeal from the Superior Court, Third Judi cial District, Saint Paul, William F. Morse and Fred Torrisi, Judges.
Appearances:    Brian
          T.  Duffy,  Assistant Public  Advocate,  and
          Rachel  Levitt, Public Advocate,  Anchorage,
          for   the   Appellant.   Tamara  de   Lucia,
          Assistant   Attorney  General,   Office   of
          Special Prosecutions and Appeals, Anchorage,
          and  Richard  A.  Svobodny, Acting  Attorney
          General, Juneau, for the Appellee.

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

          BOLGER, Judge.
          COATS, Chief Judge, dissenting.

           This  case involves the competing values protected  by
the  constitutional guarantee that a criminal defendant must have
an  impartial jury.1  The jury venire must include a  fair  cross
section  of the community in which the alleged offense occurred.2
In  addition,  the individual jurors may not be biased  by  their
relationships to the parties or their knowledge of the  dispute.3
These  values sometimes become difficult to balance when  a  jury
trial  is  scheduled in a small town or village.  In the  current
case, we conclude that the superior court properly balanced these
competing values by making a reasonable, diligent attempt to seat
a  jury  in  the small community of Saint Paul before moving  the
trial to Dillingham.

     Factual And Procedural Background
           Saint  Paul is a small community located on  St.  Paul
Island in the Bering Sea. During the early morning hours of  June
3, 2006, Carol Melovidov and her boyfriend, Gregory T. Lestenkof,
engaged  in  heavy drinking, ending up at the home  they  shared.
When  Melovidovs son returned from Anchorage on June 4, Lestenkof
physically prevented him from seeing his mother.  This  made  him
suspicious, so he waited in the hallway until his mother  emerged
late  that  night  to use the bathroom.  When  the  son  saw  his
mother, he noticed that her face was all swollen purple and  that
she had two black eyes.
          Melovidov  was  eventually taken to the village  clinic
and  then  transported to Anchorage, where doctors at the  Alaska
Native  Medical  Center discovered that she had  life-threatening
bleeding  in her brain.  On June 19, 2006, Lestenkof was indicted
on  one  count  of  second-degree assault for recklessly  causing
serious physical injury to Melovidov.4
          Superior Court Judge William F. Morse traveled to Saint
Paul for jury selection.  Judge Morse faced numerous problems  in
his attempts to obtain a jury, however, and most potential jurors
were excused for cause due to knowledge of the facts of the case,
relationships  to  Lestenkof  or  Melovidov  through   blood   or
marriage,  work  commitments,  or a  professed  inability  to  be
impartial in the case.  On the fourth day of jury selection, only
eleven  unexcused jurors remained in the trial panel; all of  the
other prospective jurors had been excused.
          Lestenkof  requested  a special venire,  and  suggested
that  additional prospective jurors could be flown in from  Saint
George, a village on another island.  Judge Morse determined that
the  only  way  to  bring jurors from Saint George  would  be  to
commandeer the PenAir flight, which did not arrive until the next
day,  and that this was not a viable option.  Judge Morse  stated
that [i]n terms of locating additional ... jurors who are not  on
the  original  list, Im not sure if thats possible.   Later  that
day,  Judge  Morse stated that he had obtained from  Anchorage  a
list  of the ... 2005 jury list and that there were three  or  so
new  names on it.  The court contacted two of the three potential
jurors,  and  noted  that the third juror had  a  prior  criminal
conviction that disqualified him from serving.
          Judge  Morse  ultimately  decided  that  he  would  not
deviate  from  the  [selection] procedure that  resulted  in  the
master  jury  list.   He stated I dont know  why  it  was  ninety
          [names]  whatever our list was, and some other number at some
other  time.  ...  Im not going to canvass the community  seeking
additional  jurors.   Based  on  the  apparent  impossibility  of
seating  a  jury in Saint Paul, Judge Morse determined  that  the
[only]  alternative  [was] to change venue.  According  to  Judge
Morse,  [t]he likely [alternative venue] would be Unalaska rather
than  any other community, since [it] is closest and its sort  of
[the same] socioeconomic makeup [as] Saint Paul.
          At  a  status hearing after the jury had been released,
Lestenkof  raised an argument based on Batson v.  Kentucky5:   He
argued  that  the State had used its peremptory strikes  for  the
purpose  of  ensuring that a jury would not be  seated  in  Saint
Paul,  and  that  the trial would be moved to  a  demographically
different  location.  Lestenkof requested that the State  provide
race-  and  gender-neutral reasons for  its  peremptory  strikes.
After  the  parties provided briefing on the issue,  Judge  Morse
denied Lestenkofs Batson claim.  Judge Morse determined that  the
State  had not used the peremptory challenges intending  to  deny
Lestenkof  a  trial  by  a jury of the [same]  racial  or  socio-
economic  makeup as that of the ... jurors that were selected  or
of  the  jury  venire or of the population of Saint Paul.   Judge
Morse  set  a  tentative trial date for Unalaska, and transferred
the case to Superior Court Judge Fred Torrisi.
            At  a  status hearing before Judge Torrisi, Lestenkof
argued  that  Unalaska was an improper venue.   Lestenkof  argued
that  if the court would not return venue to Saint Paul, then  it
should  be  moved  from Unalaska, because it was  not  a  similar
community to Saint Paul.  Judge Torrisi suggested that Dillingham
would  have  more  Alaska  Native representation  than  Unalaska.
Lestenkofs  trial  was transferred to Dillingham,  where  a  jury
convicted him of assault in the second degree.  He now appeals.

     Judge  Morse Undertook Reasonable Efforts to Empanel a  Jury
in Saint Paul
          A  trial  judge  has  a  great deal  of  discretion  in
determining what efforts should be undertaken to obtain a jury in
a  rural  area.6   We  will, therefore,  uphold  a  trial  courts
decision  where  it  is  clear that the  court  has  weighed  the
different  possibilities for supplementing  a  jury  and  made  a
reasonable, diligent attempt to obtain a jury.7
          In  Lestenkofs  case, the record reveals that the trial
court  made considerable efforts to empanel a jury in Saint Paul.
For four days, Judge Morse and the parties attempted to select  a
jury  from the names contained on the 2006 St. Paul Island Master
List.  This master list contained 100 printed names and two names
added in handwriting.
          When a large number of the people on the list failed to
respond  to  a summons, Judge Morse took steps to have  a  public
service announcement read on the local radio station, encouraging
the  other prospective jurors to come to court.  Judge Morse  had
the   court  clerk  call  the  prospective  jurors  (those   with
telephones), and the clerk even enlisted neighbors to  visit  the
homes of the prospective jurors to learn why the jurors were  not
reporting to court.
          According to the handwritten record kept by the  clerk,
          the result of all of these efforts was that about seventy percent
of  the prospective jurors appeared in court  sixty-eight of  the
102  people listed on the St. Paul Island master list.   However,
because of challenges for cause, peremptory challenges, and court-
granted  excuses,  these sixty-eight prospective  jurors  yielded
only eleven qualified jurors.
          At  this point, Lestenkof  made several suggestions  to
Judge  Morse  to  try to complete the jury selection.   Lestenkof
first  suggested  that  Judge  Morse  should  revoke  the  States
eleventh  peremptory challenge  the challenge  that  reduced  the
jury  panel to eleven.  He argued that the State was entitled  to
use only ten peremptory challenges for the regular jury panel and
that  the  eleventh challenge could be used only for an alternate
juror.  Lestenkof renews this argument on appeal, contending that
the  State  violated the procedures required by  Alaska  Criminal
Rule 24(b).

          Peremptory Challenge Rulings
          Ordinarily,  each party is entitled to  ten  peremptory
challenges in a felony case.8  Criminal Rule 24(b)(1)(B) provides
that each side is entitled to one additional peremptory challenge
if  one or two alternate jurors are to be empaneled.  Before jury
selection,  Judge Morse relied on this rule when he decided  that
the  jury panel would include two alternate jurors and that  each
side   would  have  a  total  of  eleven  peremptory  challenges.
Lestenkof  agreed  to this procedure.  But Lestenkof  now  argues
that  the  States  eleventh peremptory  challenge  violated  Rule
24(b)(2)(A),  which  provides  that [t]he  additional  peremptory
challenges  allowed by section (b)(1)(B) may be used  against  an
alternate juror only.
          Lestenkofs  argument is based on one of the alternative
procedures for jury selection authorized by Criminal Rule  24(b).
He  is  referring to the procedure described in Rule 24(b)(2)(A),
where  the court separately empanels designated alternate  jurors
in  addition to the twelve-person panel.  When a court uses  this
procedure,  the  additional peremptory challenges  for  alternate
jurors may only be used to challenge alternate jurors.
          But   Judge  Morse  used  a  different  procedure   for
Lestenkofs jury selection  an alternative procedure authorized by
Rule  24(b)(2)(B).   When the court employs this  procedure,  the
court  calls  additional jurors to be added to the  panel  during
jury  selection  without designating which jurors  are  alternate
jurors.  The alternate jurors are excused by random selection  at
the   conclusion  of  the  trial  before  the  jury  retires  for
deliberations.  When the court uses this procedure, there  is  no
limitation  that the additional challenges be used for  alternate
jurors because the alternate jurors are not designated until  the
end  of  the trial.  Lestenkofs objection to the States  eleventh
peremptory  challenge fails because his argument is  based  on  a
jury selection procedure that was not used in this case.
          Lestenkof  also  asked  Judge Morse  to  allow  him  to
withdraw  one  of  the peremptory challenges  he  had  previously
exercised.   But,  under Alaska law it is  not  clear  whether  a
previously challenged juror who has been formally excused remains
available for jury service.
          We  note  that  Criminal  Rule 24(c)(8)  declares  that
potential jurors are disqualified for cause if they were  excused
...  peremptorily  on  a  previous  trial  of  the  same  action.
Although  we  are not dealing with a retrial in Lestenkofs  case,
the underlying rationale of Rule 24(c)(8) would seemingly suggest
that,  once  a  juror  is  excused due  to  a  partys  peremptory
challenge,  the juror becomes legally ineligible for  any  future
service in that case.9
          We  further  note that courts from other  jurisdictions
have  recognized  that trial judges have the discretion  to  deny
parties  requests to withdraw peremptory challenges  after  those
challenges have been effectively exercised.10  Indeed, in  People
v.  McNeil,  the  court  held  that  the  trial  judge  committed
reversible  error  by  allowing the prosecutor  to  withdraw  two
previously exercised peremptory challenges in order to   complete
jury selection from a venire that had been nearly exhausted.11
          We do not intend to formally declare Alaska law on this
issue.   However, based on the foregoing authorities, we conclude
that  Judge  Morse did not abuse his discretion when he  rejected
Lestenkofs  request  to rescind one of his  previously  exercised
peremptory challenges.

          Reliance on the Master Jury List
          Lestenkof also suggested that Judge Morse should summon
a special venire.  In particular, he asked the judge to charter a
flight  to  neighboring  St. George Island  to  bring  additional
prospective  jurors or to round up extra people from Saint  Paul.
Judge  Morse declined to seek additional jurors that were not  on
the courts jury list.
          Judge    Morses   response   was   based   on    Alaska
Administrative   Rule  15,  which  defines  the  procedures   for
compiling  the lists of prospective jurors for the various  court
locations around the state.  Administrative Rule 15(b)(1) directs
the  administrative  director of the  court  system  to  annually
prepare  a  statewide master jury list  that is, a  list  of  all
prospective  jurors in the State of Alaska.  Rule  15(b)(2)  then
directs  the  administrative director  to  divide  the  statewide
master list into local master jury lists for each court location.
According to Rule 15(b)(2), each local master list is to  include
the  names of all prospective jurors who live in [that] community
and  [the]  other areas assigned to that court for jury selection
purposes  basically, all the smaller communities within a  fifty-
mile radius of the court location.
          This  understanding of Rule 15 clarifies  Judge  Morses
response when Lestenkof requested a special venire.
          The   Court:   If  there  were  more   jurors
          available in the pool that we could identify,
          I  would  bring them in here.   But  we  have
          contacted everyone on those lists, and theyre
          either off-island or not responding to  phone
          calls   and  radio  messages,  public   radio
          messages ... .
          [With  respect to your request that we simply
          call up another twenty or so people], Im  not
          sure  that thats an appropriate thing to  do.
          ...   I  dont  see anything in Administrative
          Rule  15  that  permits me to do  that.   ...
          [T]here  is  a provision [in that rule]  that
          lays  out how the master jury list is  to  be
          crafted; that procedure has presumably  I can
          only assume its been followed.  ...

I  dont  know  why the list has the  specific
number  [of names] that it has on  it  ...  .
All  I know is that the master list that  was
crafted  annually pursuant to the rule.   And
...  it  produced the [group] of  prospective
jurors that are out there.

I know that the rule includes a provision for
...  exclusion of people who request a change
in  the  timing [of their jury  service  and]
some  other medical or other reasons.  And  I
can only assume that [the rule] was followed.
I  dont see any authority that ... I have  to
[go outside the master list].
Then,  after more argument from the  parties,
Judge Morse concluded:
Im  not  going to deviate from the  procedure
[specified  in Administrative Rule  15]  that
resulted  in the master jury list.   While  I
dont know the specifics, certainly the intent
of  [Administrative Rule] [15](b)(2) is  that
the  master list is to include the  names  of
all  prospective jurors.  ...  [It] would  be
pure speculation on my part  I dont know  why
[our   master  list  contained  only]  ninety
[names]  ... and [had] some other number  [of
names] at some other time.  I just dont know.
Im not going to canvass the community seeking
additional jurors.
In  other  words, Judge Morse relied  on  the
procedures specified in Rule 15 for compiling
the  master  list, and on the presumption  of
regularity  that is, the presumption that the
master  list  did contain the  names  of  all
eligible prospective jurors residing in Saint
Paul and the other communities within a fifty-
mile radius.
          The   dissenting  opinion  suggests
that  there  was  a  more extensive  list  of
jurors  available.   But although  Lestenkofs
attorneys  contended that  more  jurors  were
available, they did not present any  evidence
to   support   their  claim.   We   therefore
conclude  that  the  record  supports   Judge
Morses finding that the master list contained
all of the jurors who were available to serve
in Lestenkofs trial.
           Judge  Morses findings distinguish
this  case from the inadequate jury selection
efforts that this court reviewed in Erick  v.
State.12   In  Erick, after the  parties  had
exercised their peremptory challenges on  the
prospective  jurors who had not been  excused
for  cause, only seven jurors remained on the
trial  panel in Fort Yukon.13  But the  court
system did not provide the trial judge or the
local  court clerk with the master  list  for
the Fort Yukon area.14  If the judge had used
the  master  list, he could have summoned  at
least   437   additional  jurors   from   the
surrounding     area.15      Under      these
circumstances, the State had failed  to  meet
its burden to show that it was not reasonable
to  obtain  a  jury of twelve from  the  Fort
Yukon  area.16   This  court  noted  that  in
Calantas  v. State, the Alaska Supreme  Court
approved an emergency supplementation of  the
jury  venire with additional names  available
from  the  master jury list  when  it  became
apparent   that  too  few  jurors  would   be
available for a trial in Kodiak.17
          In  Lestenkofs case,  however,  the
court  exhausted all of the potential  jurors
available  on the master list for  the  Saint
Paul  area.  There were no additional  jurors
remaining  on  the master list who  could  be
summoned.  We accordingly conclude  that  the
judge  did not abuse his discretion  when  he
declined to summon a special venire.

          Twelve-person Jury Requirement
          Lestenkof  also suggested that  the
State  could  stipulate to  an  eleven-person
jury.   In  response, Judge Morse noted  that
the   State   had  not  agreed  to   such   a
stipulation. The dissenting opinion  suggests
that the court should have proceeded with  an
eleven-person jury, even without  the  States
          However,   Criminal   Rule    23(b)
requires  the  jury  to  consist  of   twelve
persons,  unless  the  parties  stipulate  in
writing that the jury may consist of a number
less  than  twelve.  This rule  requires  the
court  to  obtain the States  consent  before
reducing  the  jury  to a  number  less  than
twelve.   Both  this  court  and  the  United
States  Supreme  Court  have  held  that  the
corresponding  requirement in  Criminal  Rule
23(a)   the  requirement that the State  must
          consent to any waiver of jury trial  does not
violate   the   defendants   right   to   due
process.18  Other courts have held  that  the
prosecution must agree before a case  may  be
tried to an eleven-person jury.19
          The   dissenting  opinion  suggests
that  Erick  holds that the trial  court  may
require  the  prosecution to proceed  with  a
jury of less than twelve.  But Erick does not
address this issue because the State in  that
case  agreed  to proceed with a  seven-person
          Lestenkof  did not ask Judge  Morse
to  proceed with the trial before an  eleven-
person  jury without the States consent.   In
view  of  the foregoing authority, we  cannot
conclude that the judge committed plain error
when he declared a mistrial without requiring
the State to proceed to trial with an eleven-
person  jury.  Lestenkof not only  failed  to
object  when the judge noted that  the  State
had not stipulated to trial before an eleven-
person jury, he also waived this issue by his
failure to raise it in this appeal.21
          In  summary, Judge Morse  undertook
considerable  efforts to empanel  a  jury  in
Saint   Paul.   The  additional  steps   that
Lestenkof   proposed  were   either   legally
questionable  or factually unreasonable.   We
therefore conclude that Judge Morse  did  not
abuse  his  discretion  when  he  declared  a

     The  Trial  Court Had the Discretion  to
Order the Change of Venue
          A  jury should be representative of
a  fair cross section of the community  where
the  alleged  offense  occurred.22    But   a
superior court may change the venue for trial
when  there  is  reason to  believe  that  an
impartial   trial  cannot  be  had.23    Jury
selection  should generally be  commenced  in
the venue location specified by Criminal Rule
18,  and then moved only if voir dire reveals
that an impartial jury cannot be obtained.24
          The   dissenting  opinion  suggests
that  a  defendant has the right  to  a  home
field  advantage if he has a good  reputation
in   the   community  where  the  prosecution
arises.      But    the    fair-cross-section
requirement   derives   from   a   defendants
constitutional right to an impartial  jury,25
not  a  right  to  an unfair  advantage.   By
contrast, it would be particularly unfair  to
allow  a jury in a small community to convict
          a defendant based on community knowledge
about the defendant or the crime.26  It would
likewise be contrary to our system of justice
to  require the trial to be held in  a  venue
where  the  jury  cannot  be  fair  to   both
          The  trial  judge is  in  the  best
position to evaluate the jury selection he or
she  has conducted.27  And because the  judge
must  balance  both tangible  and  intangible
factors  to  decide  whether  to  change  the
venue,   reasonable  judges  might  come   to
differing  conclusions  based  on  the   same
underlying facts.28  We therefore employ  the
abuse of discretion standard when we review a
trial  courts decision to grant a  change  of
          In  the  present case, Judge  Morse
entered  specific  findings  supporting   his
decision to change the venue based on what he
had  observed  during the jury  selection  in
Saint Paul:
          The  Court  can  perceive
          little likelihood that  a
          jury  can  be  seated  on
          Saint  Paul.  The alleged
          event that underlies  the
          criminal charge  was  the
          topic  of much discussion
          on   the  island.    Both
          Lestenkof and the alleged
          victim are well-known  on
          the     island.      Many
          residents are related  by
          birth and/or marriage  to
          either  or both of  them.
          The  attempt  to  seat  a
          jury   caused  additional
          discussion on the  island
          and reduced the chance of
          selecting a jury.
These findings are supported by the record of
the jury selection.
          These circumstances are similar  to
the challenges the Dillingham court faced  in
Nickolai v. State.30  In Nickolai, ninety-one
potential  jurors  were examined  before  the
jury  could be seated; thirty-three of  those
examined  were  excused  because  they   were
related  to  either  the  defendant  or   the
victim.31  In addition, all of the jurors who
were  seated  expressed some knowledge  about
the  facts  of the case.32  This  court  held
that  it  was an abuse of discretion  not  to
grant  Nickolais  motion  for  a  change   of
          Likewise,  in Ward v. State,34  the
trial   court  encountered  difficulty   when
selecting  a  jury  in the  village  of  Fort
Yukon.   The  court summoned  167  people  to
report  for jury selection, but seventy-three
of  those  summoned  were excused  for  cause
during  the  first day.35  Approximately  ten
jurors   remained  after  the   parties   had
exercised  all of their challenges for  cause
and  peremptory challenges.36  Many of  those
excused  were  related  to  the  victim,  the
defendant,  or both.37  This court  concluded
that  the  judge did not abuse his discretion
when he stopped jury selection and moved  the
trial to Fairbanks.38
          Judge   Morse   faced  difficulties
similar to those in Nickolai and Ward.   Many
of  the  potential jurors in Saint Paul  were
familiar  with the victim, the defendant,  or
both.  Many of the potential jurors were also
familiar  with  the facts of the  case.   The
judge  could  reasonably  conclude  that  the
process  of jury selection, which involved  a
large   portion  of  the  population,   would
naturally increase the discussion of the case
in  such  a small community.  This discussion
would make a second attempt to select a  jury
even  more difficult.  We therefore  conclude
that  the  trial courts decision to move  the
trial  from  Saint Paul was not an  abuse  of

     Lestenkofs Jury Represented a Fair Cross
Section of the Community
          Lestenkof  argues  that  the   jury
eventually empaneled in Dillingham excluded a
fair cross section of the community where the
alleged  offense occurred.  His  argument  is
primarily based on the Alaska Supreme  Courts
decision  in Alvarado.39  Alvarado challenged
the long-standing court practice of selecting
jurors  from the population living  within  a
fifteen-mile radius of Anchorage.  The  court
held  that  the Anchorage jury pool  did  not
represent  a  fair cross section of  Chignik,
the  community  in which the crime  occurred,
because  the  jury  selection  area  excluded
almost   all   residents  of  Alaska   Native
          Lestenkof    must    satisfy    the
following elements to establish that the jury
selection  process violated  the  fair-cross-
section requirement:
          (1)    that   the   group
          alleged to be excluded is
          a  distinctive  group  in
          the  community; (2)  that
          the   representation   of
          this   group  in  venires
          from  which  juries   are
          selected is not fair  and
          reasonable in relation to
          the    number   of   such
          persons in the community;
          and    (3)   that    this
          underrepresentation    is
          due     to     systematic
          exclusion of the group in
          the        jury-selection
On   appeal,   Lestenkof  argues   that   the
residents   of   Saint   Paul   comprise    a
distinctive  group,  different   from   other
Alaska   Natives,   that  is   systematically
excluded in the jury-selection process.
          Lestenkof   did  not   raise   this
argument   in  the  trial  court.    In   his
arguments  against a trial  in  Anchorage  or
Unalaska,  Lestenkof submitted only  that  he
was  an Alaska Native of Aleut heritage.   He
argued  that  85% of the residents  of  Saint
Paul  were Alaska Native or American  Indian,
compared  to  only 7.3% of the  residents  of
Anchorage  and only 7.7% of the residents  of
Unalaska.   In response, the State  submitted
that   Dillingham   had  a   similar   racial
composition to Saint Paul, with 52.6% of  the
residents  identifying as  Alaska  Native  or
American   Indian.    The   superior    court
eventually  selected Dillingham as  the  site
for Lestenkofs trial.
          On   appeal,  Lestenkof  does   not
contend  that Alaska Natives or residents  of
rural   villages   have  been  systematically
excluded  from  the  Dillingham  jury   pool.
Lestenkof    instead  relies  on   historical
sources  suggesting  that  the  residents  of
Saint  Paul are a distinctive group for  jury
selection  purposes.  Lestenkofs claim  fails
for two reasons.
          First,  we  note that  there  is  a
limitation  on  the Alvarado  holding,  which
applies  to  this case.   Alvarado   did  not
hold  that  the  citizens from the  community
where   the  crime  occurred  may  never   be
excluded   from   the   jury   panel.42    In
particular, the area surrounding the location
of  the crime may be excluded from the source
for  jury  selection when  an  unbiased  jury
          cannot be drawn from that area.43  The
superior  court was not required  to  include
Saint  Paul in the venire for jury  selection
because  Judge  Morses ruling changing  venue
determined  that  a fair jury  could  not  be
drawn from that community.
          Second,  Lestenkof failed to  argue
and  prove  this  point in the  trial  court.
There  are  no prior Alaska cases recognizing
that  a  single  community can  constitute  a
cognizable    group   for   jury    selection
purposes.44   Lestenkof bore  the  burden  of
proving  to  the trial court that there  were
significant differences between the residents
of Dillingham and the residents of Saint Paul
that  would prevent the Dillingham  residents
from  adequately representing  a  fair  cross
section of the community.45  Lestenkof waived
this  claim by his failure to argue and prove
to  the  trial  court that the  residents  of
Saint Paul are a cognizable group.46
          We  also  note  that  the  Alvarado
court  recognized that feasible  alternatives
may  be  employed for jury selection  in  the
rural  and predominately Native areas of  the
state.47  One acceptable alternative  is  the
selection  of  jurors from the  state  senate
election  district  in  which  the  crime  is
alleged  to  have occurred.48  In this  case,
Judge  Torrisi  elected  to  hold  Lestenkofs
trial  in Dillingham.  Dillingham is not  one
of  the urban centers referenced in Alvarado.
Dillingham   is  a  rural  and  predominately
Native  community in the same senate election
district as Saint Paul.49  Lestenkof has  not
established  that  any cognizable  group  was
systematically   excluded   from   the   jury
selection process conducted in Dillingham.

     The   Jury  Selection  Process  Did  Not
Violate Equal Protection
          Lestenkof also argues that the jury
selection process disqualified all Saint Paul
residents  in  violation of  their  right  to
equal protection of the laws.  This issue  is
similar to the issue resolved in the previous
section   of   this  opinion  regarding   the
requirement  that the jury must  represent  a
fair   cross   section  of   the   community.
Ordinarily,  the fair-cross-section  analysis
also applies to claims raised under the equal
protection     clause    of    the     Alaska
Constitution.50   However,  we  will  analyze
this  claim  separately to address Lestenkofs
          The    Equal   Protection    Clause
guarantees the defendant that the State  will
not exclude members of his race from the jury
venire on account of race ... or on the false
assumption  that members of  his  race  as  a
group are not qualified to serve as jurors.51
Lestenkofs argument that a particular  racial
group was excluded by the change of venue  to
Dillingham  can be analyzed in two  different
          On   the   one  hand,   a
          defendant may allege that
          the  State  or the  trial
          court        deliberately
          selected   a   particular
          venue  with the objective
          of   excluding  a  racial
          group;   the  venue   was
          chosen               with
          discriminatory intent. On
          the  other hand,  because
          the  move to a particular
          venue has resulted in the
          reduction or exclusion of
          a   racial   group,   the
          defendant may claim he or
          she  will  not receive  a
          fair   trial;  the  venue
          change    has    had    a
Lestenkof  has  argued both  of  these  equal
protection  claims at different times  during
this litigation.
          In   the   trial  court,  Lestenkof
argued    that    the   State    deliberately
discriminated against Alaska Natives by using
its  peremptory challenges and challenges for
cause,  and  by  opposing the  drawing  of  a
special  venire.  Judge Morse concluded  that
the  States actions were not motivated  by  a
desire  to  obtain  a jury with  a  different
racial  or  socioeconomic  makeup  than   the
population of Saint Paul.  This claim has not
been  reasserted in this appeal, so there  is
no   reason   to   reexamine   Judge   Morses
          After   Judge  Morse   declared   a
mistrial  in  Saint Paul, both he  and  Judge
Torrisi  attempted to choose trial  locations
with  a racial composition representative  of
Saint Paul.  But Lestenkof complains that the
resulting  venire did not include  any  Saint
Paul   residents.   This   is   a   type   of
discriminatory   impact   claim    that    we
          previously considered in Brower v. State.53
          In Brower, the defendant claimed an
equal   protection  violation   because   the
population of Fairbanks, where his grand jury
convened,  had  a much smaller percentage  of
Alaska Natives than Barrow, where the offense
occurred.54   This  court concluded  that  in
order to establish underrepresentation  of  a
cognizable   group,   the   defendant    must
establish  a disparity between the proportion
of  the  group that exists in the  population
from  which the grand jury is chosen and  the
proportion of that group among those selected
to  serve on grand juries.55  We noted  that,
[a]s  long  as the area from which the  grand
jury  is  chosen  does not  underrepresent  a
cognizable group when compared to  the  state
as  a whole, we will find no equal protection
          Lestenkof  did  not  litigate  this
claim  in  the trial court.  So there  is  no
record  indicating that any cognizable group,
such  as Alaska Natives, was underrepresented
in  the Dillingham venire or the master  list
for  the state as a whole.  Lestenkof  simply
argues that the residents of Saint Paul  were
excluded  from the jury selection area  after
the  court  changed the venue to  Dillingham.
As we noted above, this argument was resolved
long   ago   by  an  express  limitation   in
Alvarado:  The area surrounding the  location
of  the crime may be excluded from the source
for  jury  selection when  an  unbiased  jury
cannot be drawn from that area.57

          [E]ach  step  the  state  makes  in
including  a defendants community in  his  or
her trial  and thus achieving greater general
impartiality   increases  the  difficulty  of
obtaining  jurors who are not biased  in  the
narrow  sense.58   In the  current  case,  we
conclude  that  the superior  court  properly
balanced  these competing values by making  a
reasonable, diligent attempt to obtain a jury
in  Saint  Paul.   We  therefore  AFFIRM  the
superior courts judgment.

COATS, Chief Judge, dissenting.
          Lestenkof was entitled to have  his
case  tried, if possible, on St. Paul Island,
the place where his crime allegedly occurred.
The  record in this case shows that Lestenkof
made extensive efforts to have his case tried
in   Saint  Paul.   The  State  made  similar
efforts  to  avoid trying the case  in  Saint
Paul.   The State ultimately prevailed.   The
State  succeeded  in having Lestenkofs  trial
moved from Saint Paul to Dillingham, where he
was convicted.  In my view, the State has not
met  its  burden of proving the necessity  of
depriving Lestenkof of his right to have  his
case   tried   in   Saint  Paul.    I   would
accordingly reverse Lestenkofs conviction.
          I base my conclusion on Alvarado v.
State,59 a case decided by the Alaska Supreme
Court  nearly forty years ago.  In  Alvarado,
the  supreme court condemned the practice  of
taking   a  defendant  from  a  small   rural
community,   where   his   crime    allegedly
occurred,  and  moving him to a  large  city,
where the jury did not represent a fair cross-
section  of the rural community in which  the
crime allegedly occurred.  The Alaska Supreme
Court held that the defendant had a right  to
be tried by a jury that was representative of
the place where the alleged crime occurred.60
The  Alvarado  decision  is  based  upon  the
defendants constitutional rights to be  tried
by  an  impartial jury and his right  to  due
process of law.61
          The  supreme court recognized  that
it   would  be  difficult  and  expensive  to
conduct trials in some of the remote areas of
the  state.  But the supreme court  concluded
that    the   United   States   and    Alaska
Constitutions required this result:
          It    is   of   paramount
          importance    that    the
          benefits conferred by the
          Constitutions   of    the
          United  States and Alaska
          be  extended with an even
          hand to the people of our
          state.    When  a   large
          segment of the population
          lives   in   towns    and
          villages        scattered
          throughout the regions of
          the   state,  we   cannot
          afford to succumb to  the
          temptation of convenience
          by allowing the machinery
          of   justice  to   become
          inflexibly     entrenched
          within  the  enclaves  of
          our     major     cities.
          Instead  we  must  tailor
          our system of justice  to
          meet  the  needs  of  the
          people.    It   is    our
          judicial   system   which
          must  take the initiative
          to assure compliance with
          the   mandates   of   the
          Constitution;  we  cannot
          simply  neglect or ignore
          communities            of
          individuals  located   in
          remote   areas   of   the
          state.   Justice must  be
          made available to all  of
          the people of Alaska.[62]
          In  its  holding in  Alvarado,  the
supreme  court  emphasized the  necessity  of
selecting   juries   that   represented   the
community.   The  court emphasized  that  the
jury  is  a safeguard against the possibility
of  governmental tyranny and oppression . ...
As   an  institution,  the  jury  offers  our
citizens  the  opportunity to participate  in
the workings of our government, and serves to
legitimize our system of justice in the  eyes
of  both  the public and the accused.63   The
court  pointed  out that one of  the  factors
precipitating the American revolution was the
fact  that  the King of England  had  made  a
practice of transporting colonists to England
for trial.64
          St.  Paul  Island  is  the  largest
Aleut   community  in  the  United  States.65
Approximately 500 people live on the  island,
          and approximately 86% are Alaska natives.66
The   people  of  St.  Paul  Island  have   a
distinctive culture and history.67  Lestenkof
and  his  wife were long-term residents,  who
were well known by and related to many people
on   the   island.   It  is  not,  therefore,
surprising   that   there   would   be   some
difficulty in selecting a jury in Saint Paul.
If  a  defendant has a good reputation,  that
will  tend to be reflected in the jury  pool.
If the community has an interest in the case,
that will also be reflected in the jury pool.
In    addition,   there   may   be   cultural
differences in how members of the jury regard
different  offenses.  Although these  factors
make  it  difficult to select a  jury,  those
same factors are strong reasons for holding a
trial in a place such as Saint Paul when  the
offense occurred there.  If the defendant has
a  good reputation, he will have a home field
advantage.  If there is significant  interest
in  the  community  about  the  case,  it  is
important  that  the  community  is  able  to
participate  in  the trial and  to  see  that
justice  is  done in a way that reflects  the
values  of  the  community.   All  of   these
factors  are  undermined if the defendant  is
forced   to   stand  trial  in  a   different
          Consequently,  the burden  is  upon
the  State to show that it was not reasonable
to  obtain  a jury from the Saint  Paul  area
once  that area had been selected as the site
of  the  trial.68  In my view, the State  has
not met its burden of proof in this case.
          The  United  States  Census  Bureau
estimated  that the population of Saint  Paul
in  2006  was 449.69  The census  fact  sheet
states that in 2000, 375 of the residents  of
Saint Paul were age eighteen or older.70  And
yet  there were apparently only about  ninety
names  on the list of people called for  jury
duty.   Apparently only sixty-eight of  these
jurors appeared in court.
          Judge Morse expressed concern about
whether   there   were   sufficient   jurors.
Lestenkofs attorney suggested that the  court
issue  a public service announcement  on  the
radio  to ask more people to appear for  jury
service.  Judge Morse agreed to do this,  but
questioned  whether they  would  be  able  to
obtain  a full jury.  Later, Judge Morse  had
the  court  clerk  make telephone  calls  and
other  efforts to contact the jurors who  had
not appeared.
          In  a  felony case, each  party  is
entitled to ten peremptory challenges.71  But
in  this  case,  because the  court  and  the
parties  anticipated having alternate jurors,
each  party was entitled to eleven peremptory
challenges.  Although it must have been clear
that  the  court was going to have difficulty
obtaining twelve jurors and that there  would
be  no  possibility of alternate jurors,  the
State   exercised  its  eleventh   peremptory
challenge on the twelfth juror, leaving  only
eleven jurors to try the case.
          Judge  Morse stated that  he  could
not  force  the State to go to trial  with  a
jury   of   less  than  twelve  unless   they
consented.   Lestenkofs  attorney  asked  the
court  to bring in potential jurors from  St.
George, a nearby island.  The State objected.
Judge   Morse  concluded  that  it  was   not
possible  to bring in additional jurors  from
St.  George.  He concluded that he was  going
to have to declare a mistrial unless he could
come up with some additional jurors.
          When  court  reconvened, Lestenkofs
attorney pointed out that the State had  used
eleven  peremptory challenges  and  that  the
State  had  been awarded the extra peremptory
challenge  on the basis that there  would  be
alternate  jurors.  The attorney asked  Judge
Morse   to   revoke  the  States   peremptory
challenge and reinstate the challenged juror.
Judge  Morse  indicated  that  he  would  not
revoke   a  peremptory  challenge  that   had
already been used.  Next, Lestenkofs attorney
asked  to  be  able  to  revoke  one  of  the
peremptory   challenges  she  had  previously
exercised.   Judge Morse denied this  motion.
The  defense  made several other suggestions,
including re-contacting jurors who  had  been
excused   on   the  basis  of   hardship   or
contacting  people from the  telephone  book.
The  State  opposed  every  suggestion.   The
State  indicated that, in its view, the court
had made considerable effort to obtain a jury
in   Saint   Paul   and  that   under   these
circumstances, the defendant was not entitled
to  have  his case tried in Saint Paul.   The
State indicated that, in a prior murder  case
in  Saint Paul, the court had obtained a jury
pool  of 230 people.  But this had been  done
by  a  different  procedure  which  had  been
agreed  to by the public defender agency  and
the  district  attorneys office.   Lestenkofs
attorney  pointed  out  that  the   pool   of
eligible  jurors  was obviously  much  larger
          than the number of jurors who had been
summoned,  so it would be possible to  obtain
more  jurors.  Judge Morse indicated that  he
was  not  going to take any further steps  to
obtain a jury.  Lestenkofs attorney suggested
that  the  State could stipulate to have  the
case tried by eleven jurors.  But Judge Morse
indicated that he would not require the State
to   stipulate.   Judge  Morse   declared   a
          The  next  day, Lestenkofs attorney
again  asked Judge Morse to expand  the  jury
pool.   She pointed out that apparently  only
one-third  of  the people eligible  for  jury
duty  had  been summoned and that  the  court
could   easily   obtain   additional   people
available  for jury service.  She  asked  the
court  to supplement the jury panel and bring
back  the eleven members of the jury who  had
previously been selected.  Judge Morse  again
denied  the  motion.  He stated that  he  was
unable to obtain a jury in Saint Paul.
          The  case was later transferred for
trial  from  Judge  Morse to  Superior  Court
Judge   Fred   Torrisi,   who   resides    in
Dillingham.  Lestenkof again argued that  the
case  should  be  tried in  Saint  Paul.   He
pointed out that he was entitled to be  tried
in   Saint  Paul  if  possible,  there   were
approximately 300 potential jurors  in  Saint
Paul,  and therefore it would be possible  to
obtain  a jury in Saint Paul.  Judge  Torrisi
declined  to reconsider Judge Morses decision
to  move the case from Saint Paul.  Lestenkof
was tried in Dillingham.  The State chartered
a  plane  to  transport all of the  witnesses
from  Saint Paul to Dillingham for the trial.
Lestenkof was convicted.
          Under    the   Alvarado   decision,
Lestenkof had the right to be tried in  Saint
Paul,  the  place  where  his  alleged  crime
occurred.72   In Alvarado, the supreme  court
recognized  that  it would be  difficult  and
expensive  to conduct trials in some  of  the
remote  areas  of the state.  It  is  obvious
from the record that Lestenkof concluded that
his  best chance at trial was to be tried  in
Saint   Paul.   Consequently  he  made  every
effort  to  obtain  a trial  in  Saint  Paul.
Conversely, the record shows that  the  State
concluded  that the jury pool in  Saint  Paul
would  not be favorable to it.  Consequently,
the   State   used  all  of  its   peremptory
challenges   and  consistently  opposed   any
proposals which Lestenkof made to expand  the
          jury pool or try the case in Saint Paul.
          The  State has the burden  to  show
that  it was not reasonable to obtain a  jury
from  the Saint Paul area once that area  had
been  selected  as the site of  the  trial.73
The State has not met this burden.
          First,  it  appears that the  court
started  out with an insufficient  number  of
potential jurors to be able to seat a twelve-
person  jury.  According to the  census,  375
residents  of  Saint Paul  were  eighteen  or
older.   It is reasonable to assume that  300
people  were  eligible for  jury  duty.   Yet
apparently only ninety potential jurors  were
asked  to  report for jury duty.   When  only
sixty-eight  jurors  reported,  Judge   Morse
immediately    recognized   that    it    was
questionable  whether there  were  sufficient
potential  jurors to select a jury.   It  was
foreseeable  that it would  be  difficult  to
select  a  jury in Saint Paul.  It  is  clear
that the court started out with an inadequate
list  of jurors.  It appears from the  record
that,  in  an  earlier case,  the  court  had
anticipated this problem and had  obtained  a
jury  pool of 230 people.  That was not  done
in this case.
          Second,   although   Judge    Morse
certainly made significant efforts to  obtain
a jury based upon the limited list with which
he  started, in my view he should  have  been
willing to take additional measures to secure
Lestenkofs  right to have his case  tried  in
Saint  Paul.   The  case law  supports  this.
Calantas  v.  State74  involved  a  trial  in
Kodiak.  In order to obtain a sufficient jury
pool  on  short  notice, the clerk  of  court
obtained fourteen additional potential jurors
from  a list of 300 people.  In order  to  do
this,  in violation of state statutes  and  a
court  rule, the clerk excluded approximately
100  people who did not live in Kodiak.  From
the remaining 200 names, she identified those
whose  names appeared in the Kodiak telephone
directory.   This  left eighty  names.   From
these  people,  the clerk was able  to  reach
fourteen.   Those  fourteen,  together   with
twenty-one  from the original list,  made  up
the  panel of prospective jurors provided for
Calantass trial.75
          Calantas objected to the method the
court  used  to  obtain the  jury  pool.   He
pointed  out  that  the  clerks  decision  to
disqualify  all of the potential  jurors  who
lived  outside of Kodiak and to  only  summon
          the residents of Kodiak that she could reach
by telephone was in clear violation of Alaska
statutes  and the court rules.76  The  Alaska
Supreme Court stated:
          Selection  of  jurors  by
          any method which fails to
          substantially comply with
          the             statutory
          requirements           is
          reversible error  if  the
          failure  prejudices   the
          rights of a party.   Here
          there  is  no doubt  that
          there    were   technical
          violations     of     the
          statutory       selection
          methods;  like the  Fifth
          Circuit,   however,    we
          believe     that     such
          violations     constitute
          substantial  failure   to
          comply  [only] when  they
          affect  the random nature
          or   objectivity  of  the
          selection process.[77]
The  Supreme  Court upheld the  trial  courts
finding that the situation was the result  of
extraordinary circumstances calling  for  him
to  exercise  his discretion and  upheld  his
finding that the selection procedures had not
prejudiced the defendant.78
          In addition, in Erick, we concluded
that the trial court had not made an adequate
effort  to  secure  a  jury  trial  for   the
defendant in Fort Yukon.79  But we went on to
say   that,  if  the  trial  court  had  used
reasonable efforts to obtain a jury  in  Fort
Yukon  but had been unable to do so, we would
be   inclined  to  uphold  the  trial  courts
decision  to give Erick a choice to have  his
case  tried  before a jury of seven  selected
from the Fort Yukon area, or before a jury of
twelve with the jury panel supplemented  from
the Fairbanks area.80
          Reading    Calantas    and    Erick
together,  it is clear that Judge  Morse  had
numerous  options to secure Lestenkofs  right
to  have  his case tried in Saint  Paul.   He
could  have started out with a more extensive
list  of jurors, or he could have taken other
actions,  many  of  which were  suggested  by
Lestenkofs  attorney.   He  also  could  have
given  Lestenkof the opportunity to be  tried
by  a  jury of eleven.  It is clear from  the
          record that Lestenkof would have availed
himself of this opportunity.
          It is therefore clear from the case
law  that  Judge  Morse had numerous  options
available  to him to obtain a jury  in  Saint
Paul.   In Calantas, the Alaska Supreme Court
approved departing from the normal procedures
for  selecting  a  jury over  the  defendants
objection in order to hold a trial in Kodiak.
And  this  court  approved  even  more  of  a
departure   in   Erick,  had  the   defendant
consented  to  such  a departure.   Yet  even
though  it  is  obvious that Lestenkof  would
have agreed to almost any procedure to obtain
a trial in Saint Paul, Judge Morse refused to
consider these options.
          From  the  record, it  seems  clear
that  Judge  Morse was unaware  of  the  full
extent  of his authority.  We have previously
held that when a court does not consider  the
various alternatives available as a matter of
discretion  ...  the court  [has  failed]  to
exercise any discretion at all.81
          There  is  no question that  it  is
extremely  difficult  to  conduct  trials  in
relatively  isolated areas such as  St.  Paul
Island.   But in Alvarado, the Alaska Supreme
Court  made the decision, as a constitutional
matter,  to  bring  justice  to  all  of  the
citizens   of  Alaska.   For  an   individual
defendant,   such   as  Lestenkof,   it   was
obviously critical for him to be tried in the
area where he was known and where he was part
of  the culture.  Also, for the residents  of
Saint Paul, it was important for them to  see
that  justice was done and to participate  in
the  justice system.  Instead, Lestenkof  and
all  of  the  witnesses were  hauled  off  to
Dillingham  for  trial.   Lestenkof   had   a
constitutional  right to be  tried  in  Saint
Paul  if at all possible.  And it seems clear
to me, from this record, that it was possible
for him to be tried in Saint Paul.
          In  my view, unless we have a  high
standard for requiring defendants to be tried
in  places such as Saint Paul, defendants  in
those  areas  will frequently be deprived  of
their  right to be tried in those  areas  and
the  promise of Alvarado to bring justice  to
all   of   the  areas  of  Alaska   will   be
compromised   unnecessarily.    I   therefore
dissent from the decision of the court.

     1 U.S. Const. amend. VI; Alaska Const. art. 1,  11.

     2 Alvarado v. State, 486 P.2d 891, 902-03 (Alaska 1971).

     3 Oxereok v. State, 611 P.2d 913, 918-19 (Alaska 1980).

     4 AS 11.41.210(a)(2).

5  476  U.S.  79,  98, 106 S. Ct. 1712, 1724, 90  L.  Ed.  2d  69
(1986)  (requiring  the State to provide a clear  and  reasonably
specific  racially neutral explanation for a peremptory challenge
once  the  defendant  makes  a  prima  facie  showing  of  racial

     6 See Erick v. State, 642 P.2d 821, 825 (Alaska App. 1982).

     7    Id.

     8 Alaska R. Crim. P. 24(d).

9  See  Zartman  v.  State, 667 P.2d 1256, 1257-58  (Alaska  App.
1983) (holding that the trial court committed reversible error by
failing  to excuse jurors who sat on a similar case the preceding
week and heard similar witnesses).

     10    See United States v. Anderson, 562 F.2d 394, 397  (6th
Cir. 1977); Davis v. State, 922 So. 2d 454, 455 (Fla. App. 2006);
Biddle v. State, 10 A. 794 (Md. 1887).

     11   834 N.Y.S.2d 99, 101-02 (N.Y. App. Div. 2007).

12642 P.2d 821.

13Id. at 823.

14Id. at 824-25.

15Id. at 825.

16Id. at 824.

17Id.  at  826 (citing Calantas v. State, 599 P.2d  147
(Alaska 1979)).

18  Singer v. United States, 380 U.S. 24, 36, 85 S. Ct.
783,  790-91, 13 L. Ed. 2d 630 (1965); Horton v. State,
758 P.2d 628, 629-30 (Alaska App. 1988).

19   State v. Gorwell, 661 A.2d 718, 723-26 (Md. 1995);
State  v. Romeo, 203 A.2d 23, 29 (N.J. 1964); State  v.
McFerron, 628 P.2d 440, 443 (Or. App. 1981).

20  Erick, 642 P.2d at 823.

21  See Buckwalter v. State, 23 P.3d 81, 88 (Alaska App.
2001)  (where  a claim is inadequately  briefed  it  is
considered waived on appeal).

22Alvarado, 486 P.2d at 902-03 (The necessity for selection
of  juries from a source which truly represents a  fair
cross    section   of   the   community    cannot    be

23AS 22.10.040(1); see also Mallott v. State, 608 P.2d 737,
746  (Alaska 1980) (explaining that trial court  should
not fail to exercise the discretion conferred on it  by
AS 22.10.040(1) to change venue when there is reason to
believe  that  an  impartial  trial  cannot  be   had);
Oxereok,  611 P.2d at 919 (finding the superior  courts
refusal to change venue after voir dire revealed that a
large   number  of  venirepersons  were  not  impartial
amounted to an abuse of discretion).

24Wylie v. State, 797 P.2d 651, 656 (Alaska App. 1990).

25See Alvarado, 486 P.2d at 896 (citing U.S. Const. amend.
VI; Alaska Const. art. I,  11).

26See  Titus v. State, 963 P.2d 258, 262 (Alaska  1998)
(explaining that pre-existing knowledge about a case or
a   defendant  can  constitute  extraneous  prejudicial

27Stavenjord v. State, 66 P.3d 762, 770 (Alaska App. 2003).

28Harmon v. State, 193 P.3d 1184, 1200 (Alaska App. 2008).


30708 P.2d 1292 (Alaska App. 1985).

31Id. at 1293.



34997 P.2d 528 (Alaska App. 2000).

35Id. at 529.

36Id. at 536 (Coats, J., dissenting).

37Id. at 530-31.

38Id. at 532.

39486 P.2d 891.

40Id. at 903.

41Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981) (quoting
Duren  v.  Missouri, 439 U.S. 357, 364, 99 S. Ct.  664,
668,  58 L. Ed. 2d 579 (1979)); see Berghuis v.  Smith,
559 U.S. ---- (2010), 2010 WL 1189555 at *4.

42Alvarado, 486 P.2d at 904; see also Wyatt v. State, 778
P.2d 1169, 1171 (Alaska App. 1989)  (affirming an order
excluding residents of Metlakatla from the jury  pool);
Kelly  v.  State, 652 P.2d 112, 112 (Alaska App.  1983)
(affirming an order excluding residents of Ninilchik).

43Alvarado, 486 P.2d at 904 n.38 ([I]t is well established
that the area surrounding the location of the crime may
be  excluded  from  the  source of  selection  when  it
appears  that  an  unbiased jury  could  not  be  drawn

44See Wyatt, 778 P.2d at 1170-71 (declining to identify
residents  of  Metlakatla as a cognizable  group  where
defendant  failed to sustain his burden of proof  under
Tugatuk);  Kelly,  652 P.2d at 113 ( finding  offer  of
proof  was  insufficient to show residents of Ninilchik
were  a  cognizable  group where defendant  offered  no
evidence  regarding the attitudes, ideas,  experiences,
or beliefs of the members of the group in question).

45See Wyatt, 778 P.2d at 1171; Kelly, 652 P.2d at 113.

46See Fawcett v. State, Alaska App. Memorandum Opinion and
Judgment  No. 2007 (May 23, 1990), 1990 WL 10511504  at
*2  (explaining  that  defendant waived  his  claim  by
declining  to  argue that the residents  of  Metlakatla
were a cognizable group).

47Alvarado, 486 P.2d at 905.

48Id.  A second alternative is that jurors may be selected
from the entire judicial district in which the crime is
alleged to have occurred.  Id.

49Dillingham is also in the same house election district as
Saint  Paul.  See the description of House District  37
in  the  Revised  Final  Plan House  Districts  (Alaska
Redistricting         Board         May          2002),      and
df.    House  districts  are  required  by  the  Alaska
Constitution  to  be formed of contiguous  and  compact
territory   containing  as  nearly  as  practicable   a
relatively  integrated  socio-economic  area.    Alaska
Const. art. 6,  6.

50See Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 580 n.7
(Alaska 1973).

51Batson,  476 U.S. at 86, 106 S. Ct. at 1717 (internal
citations omitted).

52State v. House,  978 P.2d 967, 993 (N.M. 1999).

53683 P.2d 290 (Alaska App. 1984).

54Id. at 291.

55Id. at 292.


57Alvarado, 486 P.2d at 904 n.38.

58Devon Knowles, From Chicken to Chignik: The Search for
Jury  Impartiality in Rural Alaska Native  Communities,
37 Colum. Hum. Rts. L. Rev. 235, 251 (2005).

59486 P.2d 891 (Alaska 1971).

60Id. at 904.

61Id. at 896-97, 903.

62Id. at 905-06.

63Id. at 903-04.

64Id. at 902 n.28.


66U.S.  Census  Bureau, 2000 Census of  Population  and
Housing,     Summary     Population     and     Housing
Characteristics, PHC-1-3 Alaska 37 (2002), available at


68Erick v. State, 642 P.2d 821, 824 (Alaska App. 1982).


70U.S.  Census  Bureau, 2000 Census of  Population  and
Housing,     Summary     Population     and     Housing
Characteristics, PHC-1-3 Alaska 15 (2002), available at

71Alaska R. Crim. P. 24(d).

72Alvarado, 486 P.2d at 904.

73Erick, 642 P.2d at 824.

74599 P.2d 147 (Alaska 1979).

75Id. at 149.


77Id. (citations and footnote omitted).

78Id. at 150.

79Erick, 642 P.2d at 826-27.

80Id. (footnote omitted).

81Cano v. Anchorage, 627 P.2d 660, 664 (Alaska App. 1981).

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