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Teddy Kyle Smith v. State of Alaska (4/2/2021) ap-2697

Teddy Kyle Smith v. State of Alaska (4/2/2021) ap-2697

                                                     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 KYLE SMITH,  

                                                                    Court of Appeals No. A-12309  

                                    Appellant,                   Trial Court Nos. 2KB-12-00603 CR  

                                                                          & 2KB-12-00625 CR  

                           v.  

                                                                             O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                          No. 2697 - April 2, 2021  



                  Appeal  from  the  Superior  Court,  Second  Judicial  District,
  

                                     

                  Kotzebue, Paul Roetman, Judge.
  



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

                                              

                  Samantha       Cherot,     Public   Defender,         Anchorage,       for   the
  

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

                                                                             

                  Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney
  

                  General, Juneau, for the Appellee. 
 



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

                                                                                   

                                    *
  

                  Senior Judge.   



                  Judge MANNHEIMER, writing for the Court and concurring
  

                                                                        

                  separately. 
 

                  Judge   ALLARD,   with   whom   Judge   HARBISON   joins,
  

                                                                        

                  concurring.
  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                     Teddy Kyle Smith stands convicted of several felonies: attempted murder,  

                                                                                                                         



first-degree robbery, first-degree assault, and third-degree assault.  Smith committed  

                                                                                                                     



these offenses near the village of Kiana, but Smith's trial took place in Kotzebue. Smith  

                                                                                                                             



has appealed his convictions, arguing that the superior court used an improper method  

                                                                                                                          



for selecting the "jury venire" in his case - i.e., selecting the pool of people who were  

                                                                                                                              



summoned to court as prospective jurors.  

                                                                 



                     We resolved several of Smith's arguments in our first decision in this case,  

                                                                                                                              



Smith v. State, 440 P.3d 355 (Alaska App. 2019).  In particular, we rejected Smith's  

                                                                                                                         



claim that the selection of his jury venire violated the rule established by the Alaska  

                                                                                                                          



 Supreme Court in Alvarado v. State , 486 P.2d 891 (Alaska 1971) - the constitutional  

                                                                                                                



requirement that the group of people summoned for prospective jury service in acriminal  

                                                                                                                         



case must reflect the community where the crime is alleged to have occurred.  

                                                                                                                         



                     However, we left one issue unresolved:  

                                                                                    



                     Under Alaska Administrative Rule 15, the jury venire for criminal cases is  

                                                                                                                                   



normally drawn from all eligible people living within a 50-mile radius of the trial site.  

                                                                                                                                      



For cases tried in Kotzebue, this 50-mile radius would include not only the residents of  

                                                                                                                                  



Kotzebue but also the people residing in the villages of Noorvik and Noatak.  

                                                                                                                         



                     But Administrative Rule 15 gives presiding judges the authority to specify  

                                                                                                                          



a  different  jury  venire  area.               And  over  the  past  35  years  (beginning  in  1986),  the  

                                                                                                                                



presiding judges of the Second Judicial District - the judicial district that includes  

                                                                                                                        



Kotzebue - have issued a series of orders declaring that, because of the expense of  

                                                                                                                                  



transporting and housing prospective jurors who live in the two outlying villages, the  

                                                                                                                                



jury venire for criminal cases tried in Kotzebue is limited to the people living within a  

                                                                                                    



5-mile radius of Kotzebue.  Thus, under the presiding judge's order that was in effect at  

                                                                                                                                   



the time of Smith's trial, the pool of people summoned for jury service at Smith's trial  

                                                                                      



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

                                                                                                                



                                                               - 2 -                                                          2697
  


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

                             Smith's attorney told the trial judge that he wished to challenge the factual                                                                 



basis for the presiding judge's conclusion that it would be inordinately expensive if                                                                                                



prospective   jurors   were   summoned   from   the   normal   50-mile   radius   specified   in  



Administrative Rule 15.                                 However, the trial judge did not give Smith's attorney an                                                                  



opportunity to litigate this issue at an evidentiary hearing.                                                                       We therefore remanded          



Smith's case to the superior court so that the court could examine and rule on this                                                                                              



             1  

issue.        



                                                                                                                                                                                  

                             The proceedings on remand have taken place, and the superior court has  



                                                                                                                                                              

upheld  the  presiding  judge's  decision  to  employ  a  5-mile  radius  for  summoning  



                                                                                                                                                                        

prospective  jurors  in  Kotzebue  cases.                                               Smith  now  appeals  again.                                   For  the  reasons  



                                                                                                                                                                         

explained in this opinion, we agree with the superior court that the presiding judge's  



                                                                                                                                                                               

order should be upheld - and we therefore affirm Smith's criminal convictions.  



                                                                                           

              A more detailed explanation of this issue  



                                                                                                                                                                                  

                             Smith  was  indicted  for  committing  felonies  at  a  hunting  cabin  in  the  



                                                                                                                                                                            

wilderness outside the village of Kiana. Because Kiana is located in the Kotzebue venue  



                                                                                                                                                                                

district, the presumptive site for Smith's felony trial was the city of Kotzebue.   See  



                                                                                                                                                                                    

Alaska Criminal Rule 18 and the accompanying map of venue districts promulgated by  



                                                             

the Alaska Supreme Court.  



                                                                                                                                                                          

                            When the Alaska Court System prepares the lists of people who can be  



                                                                                                                                                        

summoned to serve on juries at the various court locations around the state, these lists  



                                                                                                                                                                                  

of  prospective  jurors  generally  do  not  include  the  entire  eligible  population  of  the  



                                                                                                                                                                                     

corresponding venue districts.  Rather, under Alaska Administrative Rule 15, the list of  



       1      Smith, 440 P.3d at 364.  



                                                                                       -  3 -                                                                                  2697
  


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

prospective jurors for any particular court site normally includes only the people living  

                                                                                                                             



within a 50-mile radius of that court site.  

                                                                 



                     The Alaska Supreme Court re-wrote Administrative Rule 15 in 2015, after  

                                                                                                                               



 Smith's trial - so the selection of Smith's jury venire was governed by the pre-2015  

                                                                                                                        



version of Rule 15 rather than the current version.  But even though the wording of the  

                                                                                                                                 



pre-2015 version differs in significant ways from the wording of the current version,  

                                                                                                                          



both versions of Rule 15 declare that the default geographic area for a jury venire is the  

                                                                                                                                 



50-mile radius surrounding that particular court site.  See former Administrative Rule  

                                                                                                                               



 15(b)(2)(i) (2014) and current Administrative Rule 15(c)(2).  

                                                                                 



                     However, Administrative Rule 15 also gives the presiding judge of each  

                                                                                                                               



judicial district the authority to alter this 50-mile jury venire radius.  This authority was  

                                                                                                                                



spelled out with some specificity in the pre-2015 version of Rule 15.  

                                                                                                             



                     Subsection (c)(1) of the pre-2015 rule declared that a court could alter the  

                                                                                                                                  



default jury venire area (i.e., the 50-mile radius) in either of two circumstances:  (1) if  

                                                                                          



the  default  jury  venire  area  "[would]  not  provide  a  petit  jury  which  [was]  a  truly  

                                                                                                                              



representative cross-section of the appropriate community" (in which case, the venire  

                                                                                                                            



area would be enlarged), or (2) if the default jury venire area "would cause unreasonable  

                                                                                                                  



transportation expenses" (in which case, the venire area would be restricted).  

                                                                                                                          



                     Rather than requiring individual trial judges to make these determinations  

                                                                                                               



on a case-by-case basis, subsection (c)(2) of the pre-2015 rule gave the presiding judge  

                                                                                                                              



of each judicial district the authority to issue blanket orders altering the jury venire area  

                                                                                                                                



for trials held at a particular court location.  

                                                                     



                     In 1986, acting pursuant to the authority granted by subsection (c)(2) of the  

                                                                                                                                  



pre-2015 version of Administrative Rule 15, the presiding judge of the Second Judicial  

                                                                                                                          



District issued an order declaring that the jury venire for cases tried in Kotzebue would  

                                                                                                                            



be summoned from the persons living within a 5-mile radius of Kotzebue.  

                                                                                                                    



                                                               - 4 -                                                          2697
  


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

                       In his order, the presiding judge acknowledged that "the normal                                                venire  



           2  

facias                                                                                                                                     

              [for trials in Kotzebue] would be a fifty[-]mile radius from Kotzebue", and that  



                                                                                                                                           

 this 50-mile radius "would include the [villages] of Noorvik and Noatak".   But the  



                                                                                                                                       

 presiding judge found that "the air fares, housing, and feeding of prospective jurors  



                                                                                            

 [from these villages] would be extremely expensive".  



                                                                                                                                       

                       From the text of the presiding judge's order, it appears that the judge  



                                                                                                                                 

 considered the option of simply restricting the jury venire to persons living in Kotzebue  



                                                                                                                           

 itself. However, "balancingthe expense ... and [the court system's] budget [con]straints"  



                                                                                                                                          

 with the goal of summoning jury pools that reflect "a fair representation of the area  



                                                                                                                                            

 [where the crime was allegedly committed]", the presiding judge decided to define the  



                                                                                                                                             

 Kotzebue jury pool as "those persons living within a five[-]mile radius of the City of  



                       

 Kotzebue".  



                                                                                                                                    

                       In the years since 1986, the various presiding judges of the Second Judicial  



                                                                                                                                             

 District have issued  yearly orders re-affirming  this 5-mile radius for  cases  tried  in  



                  3  

 Kotzebue.                                                                                                                                  

                      Thus, when Smith's case went to trial, his jury venire was drawn from the  



                                                                                     

 people living within a 5-mile radius of Kotzebue.  



                                                                                          

            The historical roots of Administrative Rule 15  



                                                                                                                                             

                       As we have just explained, the pre-2015 version of Administrative Rule 15  



                                    

 (the version at issue in Smith's appeal) authorized the presiding judge of each judicial  



      2     " Venire facias" is the Law Latin name for the court order that authorized a sheriff to   



 command citizens to report for jury duty.                         (The Latin words literally mean, "You shall make   

 [them] come.") See the entry for "venire" in Bryan A. Garner,                                   A Dictionary of Modern Legal  

 Usage (2nd edition, 1995).  



      3     These orders are on file with the Administrative Director of the Court System.  



                                                                     -  5 -                                                              2697
  


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

district to restrict the jury venire area for a particular court site if summoning jurors from  

                                                                                                                              



the default 50-mile radius posed an inordinate expense, and the rule also allowed the  

                                                                                                                                



presiding judge to expand the jury venire area for groups of cases if the normal 50-mile  

                                                                                                                         



radius would fail to provide a pool of prospective jurors representing a fair cross-section  

                                                                                                                 



of the communities where the crimes allegedly occurred.  These provisions of the rule  

                                                                                                                     



were derived from the provisions of AS 09.20.070 as interpreted by the Alaska Supreme  

                                                                                                                        



Court in Crawford v. State, 408 P.2d 1002 (Alaska 1965), and from the Alaska Supreme  

                                                                                                                        



Court's later decision in Alvarado v. State , 486 P.2d 891 (Alaska 1971).  

                                                                                                                



                    We turn first to the provision of pre-2015 Administrative Rule 15 that  

                                                                                                                               



authorized courts to restrict a jury venire area because of the inordinate expense of  

                                                                                                                                  



summoning jurors from a larger area. This portion of Rule 15 was the descendant of pre- 

                                                                                                                               



statehood law that authorized trial courts to limit the group of people who would be  

                                                                                                                                 



summoned for jury duty, based on the expense of summoning these jurors.  

                                                                                                                     



                    Before  1935,  Alaska  law  specified  that  the jury  venire  for  each  court  

                                                                                                                             



location would normally consist of "at least four-fifths  ...  of  all ... residents of the  

                                                                                                                                



[judicial] division in which [that] court is held, who voted at the last preceding general  

                                                                                                                          



Territorial election ... and who, so far as known to the clerk and jury commissioner, are  

                                                                                                                                 



still residents of [that] division and still qualified by law for such jury service".   In  

                                                                                                                                 



addition, the clerk and the jury commissioner were authorized to supplement the jury list  

                                                                                                                                 



with the names of other residents who were known to be legally qualified for jury  

                                                                                                                              



service, even though these residents did not vote in the last general election.  See CLA  

                                                                                                                             



1933,  1900.  

                       



                    But in 1935, in the middle of the Great Depression, the Alaska Territorial  

                                                                                                                      



Legislature amended this statute by adding a concluding sentence that authorized courts  

                                                                                                                            



to  refuse  to  summon  eligible  prospective  jurors  if  the  attendance  of  those  jurors  

                                                                                                                           



"[might] involve a large and unnecessary expense":  

                                                                                   



                                                               -  6 -                                                         2697
  


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

                                                                              At any drawing of jurors[,] the court or judge may, by an                                                                                                                                                                                                                                                                                 

                                                                              order made at the time of such drawing[,] reject the names of                                                                                                                                                                                                                                                                                 

                                                                             persons drawn whose attendance, in the opinion of the court                                                                                                                                                                                                                                                                  

                                                                              or judge, cannot be obtained within a reasonable time, or                                                                                                                                                                                                                                                                                   

                                                                              whose   attendance   may   involve   a   large   and   unnecessary  

                                                                              expense.   



 See Alaska Laws 1935, chapter 21.                                                                                                                                                                             



                                                                              This rule for summoning prospective jurors - including the provision that                                                                                                                                                                                                                                                                                                                                         



 authorized judges to exclude prospective jurors because of the expense - was carried                                                                                                                                                                                                                                                                                                                                                                                       



 forward in the 1949 compilation of Alaska law:                                                                                                                                                                                                                                        ACLA 1949,  55-7-36.                                                                                                                                



                                                                              Four years later, in 1953, thefederalNinth Circuitaddressed                                                                                                                                                                                                                                                                                         acriminal                                                  case  



 from Fairbanks where the judge exercised the authority granted by  55-7-36: the judge                                                                                                                                                                                                                                                                                                                                                                                               



limited the jury selection pool to those eligible jurors who had telephones or who lived                                                                                                                                                                                                                                                                                                                                                                                                



within a 15-mile radius of Fairbanks. The Ninth Circuit ruled that the judge's action was                                                                                                                                                                                                                                                                                                                                                                                                      



proper since it "was authorized by [ 55-7-36], and since no prejudice was shown to                                                                                                                                                                                                                                                                                                                                                                                                                      



have been suffered by the appellant".                                                                                                                                                                                         Yoho v. United States                                                                                                               , 14 Alaska 174, 176-77;                                                                          



202 F.2d 241, 242 (9th Cir. 1953).                                                                                                                                                                         



                                                                              Several years later, after Alaska became a state, the legislature re-enacted                                                                                                                                                                                                                                                                                              



the provision of law that authorized judges to limit the scope of a jury venire based on                                                                                                                                                                                                                                                                                                                                                                                                              



the difficulty or the cost of obtaining a juror's presence.                                                                                                                                                                                                                                                                                             AS 09.20.070 (originally                                                                     



 enacted by SLA 1962, ch. 101,  2.07) authorizes a court to reject an otherwise eligible                                                                                                                                                                                                                                                                                                                                                                                 



prospective juror if "the person's attendance cannot be obtained within a reasonable                                                                                                                                                                                                                                                                                                                                                         



time or may involve a large and unnecessary expense".                                                                                                                                                                                                                                                                               



                                                                              Initially, the Alaska Court Rules dealing with jury selection addressed this                                                                                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                                                                                                                                   4  

issue by simply incorporating the provisions of AS 09.20.070.                                                                                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                                                                                                 However, the Court  



                    4                  See Supreme Court Order No. 5 (1959), page 134.  



                                                                                                                                                                                                                                              -  7 -                                                                                                                                                                                                                                          2697
  


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

Rules were later amended to reflect the decisions reached by the Alaska Supreme Court                                                                                                        



in  Crawford v. State                          , 408 P.2d 1002 (Alaska 1965), and in                                                     Alvarado v. State                        , 486 P.2d     



891 (Alaska 1971).                             



                               Crawford  involved a criminal case from Anchorage.                                                                         The presiding judge                



of the Third Judicial District had issued a blanket order restricting the jury venire in                                                                                                             



Anchorage cases to the area within a 15-mile radius of the city, based on the judge's                                                                                                   



conclusion that summoning prospective jurors from a larger area entailed a large and                                                                                                             



                                                   5  

unnecessary expense.                                                                                                                                                                       

                                                       The defendant in Crawford was indicted by a grand jury whose  



                                                                                                                                                                                    

members were summoned fromthis 15-mile radius. Following his indictment, Crawford  



                                                                                                                              

attacked the presiding judge's order on two grounds.  



                                                                                                                                                                                             

                               First,Crawford argued that therelevant statute, AS09.20.070,didnotallow  



                                                                                                                                                                                                            

presiding judges to issue blanket orders that restricted the jury venire area in advance.  



                                                                                                                                                                                           6  

                                                                                                                                                                                                

Instead, Crawford argued, the statute required a juror-by-juror cost evaluation.                                                                                                                The  



                                                                                                                                                                                         

supreme court rejected this narrow reading of the statute and upheld a presiding judge's  



                                                                                                                                                                                

authority to issue blanket orders for particular court locations, if the judge reasonably  



                                                                                                                                                                                          

concluded that summoning prospective jurors from the entire relevant district would  



                                                                                                                                                                    7  

                                                                                                                                            

entail (in the words of the statute) "a large and unnecessary expense".  



                                                                                                                                                                                                 

                               The supreme court then found that the Anchorage presiding judge had had  



                                                                                                                                                                                                

a  reasonable  basis  for  concluding  that  the  Court  System  would  incur  a  large  and  



                                                                                                                                                                                         

unnecessary expense if prospective Anchorage jurors were summoned from farther  



                 

away.  



        5       Crawford, 408 P.2d at 1004.  



        6      Ibid.    



        7      Id. at 1004-05.  



                                                                                               - 8 -                                                                                           2697
  


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

                         The supreme court noted that an expanded jury venire area would entail                                                           



greater transportation costs, and the court also noted that the Court System would be                                                                           



required to pay per diem to those jurors for whom it was impracticable to return home                                                   



                            8  

                                                                                                                                                      

each evening.                    For these reasons, the  supreme court upheld the presiding judge's  



                                                                                                                                                                  

conclusion that adopting the 15-mile radius would allow the Court System to avoid a  



                             

large expense.  



                                                                                                                                                      

                         Thesupremecourt then turned to the question of whether this largeexpense  



                                                                                                                                                     

was unnecessary.  Indeed, most of the supreme court's opinion in Crawford is devoted  



                                

to this question.  



                                                                                                                                              

                         Thepresiding judgeconcludedthattheadditional expensewasunnecessary  



                                                                                                                                                            

because  almost  three-quarters  of  the  population  of  the  Third  Judicial  District  was  



                                                                                                                                                

concentrated in the Anchorage area, and because this three-quarters of the population  



                                                                                                                                                       

"included most, if not all, of the racial, economic, occupational, and religious groups  



                                            9  

                                                                                                                                      

                                                But Crawford disputed the presiding judge's characterization  

found in [the district]."  



                                                                                                                                                              

of the people residing within the restricted venire area.   According to Crawford, the  



                                                                                                                                               

presiding judge's decision to limit the jury venire to a 15-mile radius of Anchorage  



                                                                                                                                                  

resulted in a systematic and arbitrary exclusion of several economic, social, and racial  



               10  

groups.      



                                                                                                                                                           

                         As can be seen from the supreme court's opinion in Crawford, this issue  



                                                                                                                                                   

was hotly contested in the trial court. The Crawford opinion describes several affidavits  



                                                                                                                                                   

submitted by the defense - affidavits from individuals who attested that the restricted  



      8     Id. at 1005.  



      9     Ibid.   



       10   Id. at 1005-06.  



                                                                             -  9 -                                                                         2697
  


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

                                                                                                                                                                        11  

jury venire area resulted in the exclusion of important segments of the community.                                                                                          On  



the other hand, the                     Crawford  opinion describes several counter-affidavits submitted by                                                                   



the State -affidavits fromcourt personnel and other government officials attesting that,                                                                                  



 even with the 15-mile radius, Anchorage juries and grand juries contained individuals  

 from all walks of life, and from all racial and occupational backgrounds.                                                                             12  



                                                                                                                                                                            

                            During a lengthy discussion of the law pertaining to jury selection, the  



                                                                                                                                                                               

 supreme court endorsed the principle that "[t]he American tradition of trial by jury ...  



                                                                                                                                                                           

necessarily  contemplates  an  impartial  jury  drawn  from  a  cross-section  of  the  



                             13  

 community".                                                                                                                                                      

                                  (This is essentially the same principle that, six years later, the supreme  



                                                                                                                                                                          

 court elaborated and adopted as a rule of Alaska constitutional law in Alvarado .)  And  



                                                                                                                                                           

the supreme court declared that it would have been prepared to reverse Crawford's  



                                                                                                                                                             

 indictment if the record had clearly shown that trial juries and grand juries in Anchorage  



                                                                                                                                     14  

                                                                                                                                         

were being selected in a manner that did not meet this standard.  



                                                                                                                                                                        

                            But the evidence on this issue was conflicting, and the supreme court  



                                                                                                                                                                   

 concluded that the record did not clearly show that the Anchorage jury venire violated  



                                                    15  

                              

 constitutional standards.      



        11    Id. at 1006.  



        12    Id. at 1006-07.  



        13    Id.  at 1008, quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 220-25; 66 S.Ct.   



 984, 985-88; 90 L.Ed. 1181 (1946).  



        14    Id. at 1009.  



        15  

                                                                                                                                                                 

              The Crawford opinion is written as if the supreme court were independently resolving  

the conflicts in the factual assertions contained in the various affidavits, but we assume that  

this is simply a stylistic flaw in the opinion - since appellate courts cannot independently  

                                                                                                                                                       

resolve issues of fact raised by conflicting testimony, much less issues of fact raised by  

                                                                                                                                                                                

 conflicting affidavits.  See Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006); Schmitz v.  

                                                                                                                                                        (continued...)  



                                                                                    -  10 -                                                                               2697
  


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

                                                              Although  Crawford  remains good law, the supreme court's later decision                                                                                                                                                                                                                                 



 in  Alvarado  established a constitutional limitation on how far presiding judges could go                                                                                                                                                                                                                                                                                                       



 in restricting jury venires based on expense.                                                                                                                                                                



                                                              In  Alvarado v. State                                                                        , 486 P.2d at 900-04, the Alaska Supreme Court held                                                                                                                                                                            



 the   Alaska   Constitution   requires  the   Court   System   to   adhere   to   the   jury-selection  



 principle that the supreme court discussed in                                                                                                                                                               Crawford  - the principle that the pool of                                                                                                                                             



 prospective jurors in criminal cases must represent a fair cross-section of the community                                                                                                                                                                                                                                                                



 where the crimes are alleged to have occurred.                                                                                                                                                                        Because of                                            Alvarado , a presiding judge                                                                           



 cannot limit the geographic reach of a jury venire to reduce the Court System's expenses                                                                                                                                                                                                                                                                            



 if the resulting smaller geographic area would fail to provide a pool of prospective jurors                                                                                                                                                                                                                                                                                       



 that represent a fair cross-section of the community where the defendant's crimes are                                                                                                                                                                                                                                                                                                         



 alleged to have occurred.                                                                                              



                                                              Nevertheless,inits                                                                   Alvarado  decision,thesupremecourt                                                                                                                                     explicitly declared  



 that it was not overruling                                                                                      Crawford, that it was not invalidating the 15-mile jury selection                                                                                                                                                                                    



 radius used by the Anchorage courts, and that it was not holding that a jury venire area                                                                                                                                                                                                                                                                                                 



 must always include the community where the crime was allegedly committed -so long                                                                                                                                                                                                                                                                                                       



 as   the   pool  of   prospective   jurors   reflects   a   fair   cross-section   of   that   community.   



Alvarado , 486 P.2d at 904-05.                                                                                                                If this                        Alvarado  requirement is satisfied, then                                                                                                                                           Crawford  



 and AS 09.20.070 and Administrative Rule 15 still allow presiding judges to limit the                                                                                                                                                                                                                                                                                                         



 geographic reach of a jury venire if the judge concludes that summoning prospective                                                                                                                                                                                                                                                                   



jurors from a wider area would entail inordinate expense.                                                                                                                                                                                                                  



                 15             (...continued)  



 Schmitz, 88 P.3d 1116, 1136 n. 28 (Alaska 2004); Deweese v. State, 215 P.3d 1087, 1089  

 (Alaska App. 2009). We read the Crawford opinion as saying that the record failed to clearly  

                                                                                                                                                                                               

 demonstrate that the superior court was wrong to uphold Crawford's indictment.  



                                                                                                                                                                                          -  11 -                                                                                                                                                                                         2697
  


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

                     In   1973,   following   the   supreme   court's   decisions   in   Crawford   and  



Alvarado , the supreme court enacted Criminal Rule 24.1 - a rule which incorporated                    



                                                          16  

the  Crawford  and  Alvarado  holdings.      



                                                                                                                                 

                     Under subsection (b) of this rule, a court was given the authority to alter the  



                                                                                                                                

jury venire area if the court concluded (1) that the default 50-mile radius would not  



                                                                                                                            

satisfy Alvarado ("[would] not provide a petit jury which is a truly representative cross- 



                                                                                                                                  

section of the appropriate community"), or if the court concluded (2) that selection of  



                                                                                                                                    

jurors using the 50-mile radius "would cause unreasonable transportation expenses".  



                                                                                                                                      

                     These two provisions were carried forward verbatim when, in 1982, the  



                                                                                                                       

supreme  court  rescinded  Criminal  Rule  24.1  and  moved  that  rule's  jury  selection  



                                                                                                         17  

                                                                                                                      

provisions  into  the  pre-2015  version  of  Administrative  Rule  15.                                        See  pre-2015  



                                          

Administrative Rule15(c).  



                                              

          Smith's arguments on appeal  



                                                                                                                         

                     As we explained at the beginning of this opinion, we remanded Smith's  



                                                                                                                            

case to the superior court so that Smith could pursue one remaining aspect of his attack  



                                                                                                                                

on the presiding judge's order which limited the jury venire in Kotzebue cases to the  



                                                                               

people living within a 5-mile radius of Kotzebue.  



                                                                                                                                

                     In our first decision in Smith's case, we rejected Smith's argument that this  



                                                                                                                                 

smaller jury venire area resulted in a jury pool that violated Alvarado .  However, we  



                                                                                                                       

directed the superior court to re-consider Smith's alternative argument that the presiding  



                                                                                                                                

judge's order was not justified under the terms of Administrative Rule 15 itself - i.e.,  



      16  See Supreme Court Order No. 157 (effective February 15, 1973). 
 



      17  See Supreme Court Order No. 531 (effective October 1, 1982). 
 



                                                              -  12 -                                                         2697
  


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

Smith's assertion that there was insufficient factual support for the presiding judge's                                                               



conclusion that summoning jurors from the normal 50-mile radius specified in Rule 15                                                                            



                                                                        18  

would involve unreasonable expense.                                           



                                                                                                                                                          

                         After holding an evidentiary hearing on this matter, the superior court  



                                                                                                                                         

upheld the presiding judge's order, and Smith now appeals that ruling.  



                                                                                                                                                                

                          Smith first argues that the superior court erred by placing the burden of  



                                                                                                                                                               

proof on Smith - i.e., by ruling that it was Smith's burden to show that the evidence did  



                                                                                                                                                         

not support the presiding judge's conclusion about the expense of summoning jurors  



from a larger geographic area, rather than putting the burden on the State to show that  



                                                                                                              

the evidence supported the presiding judge's conclusion.  



                                                                                                                                                           

                         Under the legal doctrine known as the "presumption of regularity", once  



                                                                                                                                                              

it is established that a court validly has jurisdiction over a matter, "every act [of the  



                                                                                                                                                     19  

                                                                                                                                                           

court]  is  presumed  to  have  been  rightly  done  until  the  contrary  appears".                                                                       This  



                                                                                                                                                        

presumption of regularity likewise applies when, in cases like Smith's, a judicial officer  



                                                                                                                                                    

acts in an administrative capacity rather than an adjudicatory one:  "Where no evidence  



                                                                                                                                                             

indicating otherwise is produced, the presumption of regularity supports the official acts  



                                                                                                                       

of public officers, and courts presume that they have properly discharged their official  



                                                                                                                      

duties."  Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972).  



                                                                                                                                                               

                         Because Smith was challenging an official act of the presiding judge of the  



                                                                                                                                                      

Second Judicial District, Smith bore the burden of showing that the presiding judge's  



                                               

decision was improper.  



       18    Smith v. State, 440 P.3d 355, 364 (Alaska App. 2019).  



       19    Jerrel v. State , 851 P.2d 1365, 1372 (Alaska App. 1993), quoting                                                         United States v.  



Manthei's Bondsmen , 2 Alaska 459, 466 (D. Alaska 1905), and citing                                                             Wright v. State, 501  

P.2d 1360, 1372 (Alaska 1972), and Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska   

App. 1992).  



                                                                            -  13 -                                                                         2697
  


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

                    Moreover, we need to point out that the precise question to be litigated was  

                                                                                                                               



not whether some reasonable people might differ with the presiding judge's decision.  

                                                                                                                                      



Under Administrative Rule 15(c), the decision to restrict the jury venire area on account  

                                                                                                                         



of expense is entrusted to the presiding judge of the relevant judicial district.  Thus, the  

                                                                                                                                 



question to be litigated was whether, given the evidence, the presiding judge of the  

                                                                                                                                



Second  Judicial  District  could  reasonably  conclude  that  the  added  expense  of  

                                                                                                                                 



summoning jurors from a larger area was unreasonable.  

                                                                                        



                     Smith  next  argues  that  the  superior  court  wrongly  prevented  Smith's  

                                                                                                                                      



attorney  from  presenting  relevant  evidence,  and  from  making  relevant  arguments,  

                                                                                                                   



pertaining to the presiding judge's conclusion that summoning prospective jurors from  

                                                                                                                              



the default 50-mile radius would pose an unreasonable expense.  

                                                                                                    



                     Specifically, Smith argues that when, under Administrative Rule 15, a  

                                                                                                                                   



presiding judge evaluates whether the expense of a larger jury venire is reasonable, the  

                                                                                                                                



rule requires the presiding judge to consider and weigh the possibility that the proposed  

                                                                                                                       



smaller jury pool would result in juries that had a different mix of cultural outlooks,  

                                                                                                                       



social perspectives, economic characteristics, and "shared local knowledge and beliefs".  

                                                                                                                                      



                    In other words, Smith contends that a presiding judge violates Rule 15 if  

                                                                                                                      



the judge considers only the monetary expense of summoning prospective jurors from  

                                                                                                                              



the larger geographic area.  According to Smith, Rule 15 requires a presiding judge to  

                                                                 



consider not only the monetary expense, but also the same social and cultural factors that  

                                                                                                                                



a judge is obliged to consider when making a ruling under Alvarado (i.e., a ruling as to  

                                                                                                                                  



whether a particular jury venire would provide a pool of prospective jurors that truly  

                                                                                                                              



reflects  a  cross-section  of the community where the crime is alleged  to  have been  

                                                                                                                             



committed).           For  the  reasons  we  are  about  to  explain,  we  conclude  that  Smith's  

                                                                                                                        



interpretation of Administrative Rule 15(c) is incorrect.  

                                                                                        



                                                              -  14 -                                                         2697
  


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

                                                    As we mentioned in the preceding section of this opinion, the relevant                                                                                                                                                                                  



 version of Administrative Rule 15(c) - the pre-2015 version of the rule - contained                                                                                                                                                                       



 one   provision   that  incorporated   the   supreme   court's   decision   in   Alvarado   (i.e.,  a  



provision authorizing the court to adopt an expanded jury venire area to achieve a jury                                                                                                                                                                                                                                  



pool   that   represents   a   fair   cross-section   of   the   relevant   community),   and   a   second  



provision that incorporated the supreme court's decision in                                                                                                                                                                         Crawford  (i.e., a provision      



 authorizing the court to adopt a smaller jury venire area if summoning prospective jurors                                                                                                                                                                                                                            



 from the larger area would pose an unreasonable expense).                                                                                                                                                                            



                                                    The original source of this "unreasonable expense" provision                                                                                                                                                                                            was the   



 Territorial Legislature's Depression-era enactment of Alaska Laws 1935, chapter 21 -                                                                                                                                                                                                                                              



 a statute which, for the first time, expressly authorized a court to refuse to summon                                                                                                                                                                                                                    



prospective   jurors  if   the   attendance   of   those   jurors   "[might]   involve   a   large   and  



unnecessary expense".    This statutory provision appears to have been a cost-saving                                                                                                                                                                                                           



 measure, to be decided purely on financial considerations.                                                                                                                                                                        



                                                    Likewise, the text of the                                                                  Crawford  opinion shows that the Alaska Supreme                                                                                                            



 Court   viewed   the   expense   issue   and   the   Alvarado   issue   as   turning   on  separate  



 considerations.   Once a court is assured that the proposed smaller jury venire area will                                                                                                                                                                                                                



 still produce a pool                                                            of   prospective jurors who represent a fair                                                                                                                                cross-section   of the   



 relevant   community,   the   remaining   issue   -   the   question   of   whether  summoning  



prospective jurors from a larger area would entail an inordinate expense - is a purely                                                                                                                                                                                                             



 monetary issue.                                               See the discussion in                                                               Crawford, 408 P.2d at 1005-10.                                                                                                   



                                                    And,   as   we   have   already   explained,   when   the   supreme   court   decided  



                                                                                                                                                                                                                                                                                                          20  

Alvarado , the court explicitly declared that it was not overruling                                                                                                                                                                                             Crawford.      Thus,  



                                                                                                                                                                                                                                 

 Crawford's analysis of these questions remains good law.  



             20           Alvarado , 486 P.2d at 904-05.  



                                                                                                                                                           -  15 -                                                                                                                                                          2697
  


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

                     Based on all this, we interpret the "unreasonable expense" provision of  

                                                                                                                                  



Administrative Rule 15(c) to mean that, so long as the requirements of Alvarado are met,  

                                                                                                                               



a  presiding  judge  can  restrict  the  jury  venire  area  based  on  purely  monetary  

                                                                                                                     



considerations.  

                         



                     In our first decision in Smith's case, this Court addressed and rejected  

                                                                                                                         



 Smith's contention that a jury venire drawn from a 5-mile radius around Kotzebue  

                                                                                                                      



violated his rights under Alvarado .  Because this Alvarado issue was already resolved,  

                                                                                                                       



the superior court correctly ruled that the remaining issue on remand was a monetary  

                                                                                                                       



one. More specifically, the issue was whether, given the facts, the presiding judge of the  

                                                                                                                                 



 Second Judicial District could reasonably conclude that summoning prospective jurors  

                                                                                                                            



from a larger geographic area would pose an unreasonable monetary expense.  

                                                                                                                         



                     We now turn to Smith's contention that the evidence presented to the  

                                                                                                                                



superior court on remand showed that there was not a sufficient factual basis to support  

                                                                                                                          



the presiding judge's decision to adopt a 5-mile jury venire radius for Kotzebue cases.  

                                                                                                                                      



                     At the evidentiary hearing on remand, the superior court heard testimony  

                                                                                                                      



from Court System officials regarding the costs associated with bringing prospective  

                                                                                                                   



jurors to  Kotzebue from the villages of Noorvik  and  Noatak.                                       These  officials also  

                                                                                                                              



testified regarding the Court System's jury venire practices in two other "hub" cities in  

                                                                                                                                  



western Alaska - Bethel and Dillingham - and the costs associated with bringing  

                                                                                                                        



prospective jurors to these two hub cities from the outlying towns and villages in their  

                                                                                                             



venue districts.  The court also heard from other witnesses regarding the comparative  

                                                                                                                  



costs  of  air  travel  to  and  from  Kotzebue,  Bethel,  and  Dillingham,  as  well  as  the  

                                                                                                                                



comparative availability and cost of lodging in these three cities.  

                                                                                                      



                     After hearing this evidence, the superior court upheld the presiding judge's  

                                                                                                                          



order - i.e., the 5-mile jury venire radius for cases tried in Kotzebue.  

                                                                                                              



                                                              -  16 -                                                         2697
  


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

                    More specifically, the court found that expanding the jury venire radius to  

                                                                                                                                  



50 miles would be "quite expensive", and the court noted that the Court System's budget  

                                                                                                                           



had been significantly reduced in recent years.  The court also noted that, even with the  

                                                                                                                                 



smaller 5-mile radius, the Kotzebue jury pool still provided an adequate number of  

                                                                                                                                  



prospective jurors for the small number of cases that went to trial each year in Kotzebue,  

                                                                                                                      



and that this jury pool still satisfied Alvarado - i.e., it represented a fair cross-section  

                                                                                                        



of the rural communities in the Kotzebue venue district.  

                                                                                          



                    Based on all this, the superior court upheld the presiding judge's decision  

                                                                                                                         



that the expense of summoning prospective jurors from the larger 50-mile radius was  

                                                                                                                               



unreasonable.  

                       



                    On appeal, Smith argues that the evidence fails to support this conclusion.  

                                                                                                                                      



Smith points out that, according to the evidence, the cost of lodging in Kotzebue is about  

                                                                                                                             



the same as the cost of lodging in Bethel and Dillingham.  Smith acknowledges that the  

                                                                                                                                 



cost of air transportation is somewhat higher in the Kotzebue area, but he argues that this  

                                                                                                                                



higher cost is offset by the fact that, historically, there tend to be fewer jury trials in  

                                                                                                                                  



Kotzebue than in Bethel and Dillingham, and thus the Court System will not need to pay  

                                                                                                                                



for so many air fares for Kotzebue jurors.  

                                                                    



                    But the superior court explicitly found that Smith's monetary expense  

                                                                                                                        



argument was based on a false comparison.  The court concluded that the situation in  

                                                                                                                                  



Kotzebue was not equivalent to the situations in Bethel and Dillingham - because, in  

                                                                                                                                  



both Bethel and Dillingham,the courts were required to summon prospective jurors from  

                                                                                                                              



outlying towns and villages for non-economic reasons.  

                                                                                      



                    More  specifically,  the  superior  court  found  that  the  Bethel  court  was  

                                                                                                                              



required to use a larger jury venire area in order to satisfy the requirements of Alvarado ,  

                                                                                                                                      



and that the Dillingham court had to use a larger jury venire area in order to assure that  

                                                                                                                               



                                                              -  17 -                                                         2697
  


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

there  was  a  sufficient  pool  of  prospective  jurors  for  the  number  of  trials  held  in  

                                                                                                                       



Dillingham.  

                     



                    In contrast, the superior court found that Kotzebue's smaller 5-mile radius  

                                                                                                                          



did not raise a problem under Alvarado , and that this 5-mile radius provided a sufficient  

                                                                                                                     



number of prospective jurors.   Because of this, the superior court could reasonably  

                                                                                                                  



conclude that, even though the expense of summoning prospective jurors from outlying  

                                                                                                                       



towns  and  villages  might  be  approximately  the  same  for  all  three  court  locations  

                                                                                                           



(Kotzebue, Bethel, and Dillingham), the presiding judge of the Second Judicial District  

                                                                                                                        



acted reasonably when he concluded that this expense was unreasonable for trials held  

                                                                                                                             



in Kotzebue.  

                      



           Conclusion  



                    Based on the evidence presented in this case, we uphold the lower court's  

                                                                                                                         



ruling that the presiding judge of the Second Judicial District could reasonably conclude  

                                                                                                                      



that summoning prospective jurors from the entire 50-mile radius around Kotzebue  

                                                                                                                    



posed an unreasonable expense, and that the presiding judge therefore acted reasonably  

                                                                                                                   



when, under AdministrativeRule15(c), thejudgeissuedtheorder reducing theKotzebue  

                                                                                                                     



jury venire radius to 5 miles.  

                                               



                    For this reason, and for the reasons explained in our earlier decision in this  

                                                                                                                              



case (Smith v. State, 440 P.3d at 362-64), the criminal judgement entered against Teddy  

                                                                                                                          



 Smith is AFFIRMED.  

                                    



                                                             -  18 -                                                        2697
  


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

 Judge MANNHEIMER, concurring.                                                                                                       



                                                I   write   separately   to   address   the   fact   that   the   current   wording   of  



 Administrative   Rule   15   differs   in   significant   ways   from   its   two   predecessors   -  



 originally,   Criminal Rule 24.1                                                                                  and   then   later   (after   1982), the pre-2015                                                                                                          version  of  



 Administrative Rule 15.                                                                    This difference in wording potentially raises problems for                                                                                                                                                    



judges and lawyers who need to interpret the current version of Rule 15.                                                                                                                                                                                                



                                                Because Smith's trial took place in 2014 (before the Alaska Supreme Court                                                                                                                                                                         



 adopted the current version of Rule 15), this Court does not have to resolve the issues                                                                                                                                                                                                        



 that I am about to discuss.                                                                      The purpose of my concurrence is solely to identify these                                                                                                                                        



 potential problems, to explain how they arose, and to offer my tentative analysis of these                                                                                                                                                                                                        



 problems, in case these issues are presented in future cases.                                                                                                                                                         



                                                All three versions of the jury venire rule - Criminal Rule 24.1, the pre-                                                                                                                                                                              



 2015 version of Administrative Rule 15, and the current version of Rule 15 - declare                                                                                                                                                                                                       



 that, by default, all communities within a 50-mile radius of any particular court location                                                                                                                                                                                              



                                                                                                                                                                         1  

                                                                                                                                                                                                                                                                                                  

 are "assigned" to that court's jury venire area.                                                                                                                               In other words, the residents of those  



                                                                                                                                                                                                                                                                                                     

 communities can be summoned for jury duty at trials conducted at that court site.  



                                                                                                                                                                                                                                                                                 

                                                Moreover, all three versions of the rule authorize courts to order deviations  



                                                                                                                                                                                                                                                                                                    

 from this 50-mile radius. But with regard to this judicial power to order deviations from  



                                                                                                                                                                                                                                                                                           

 the 50-mile radius, the wording of former Criminal Rule 24.1 and the pre-2015 version  



                                                                                                                                                                                                                                                                                                       

 of Rule 15 differ significantly from the wording of the current version of Rule 15.  



             1           See former Criminal Rule 24.1(b) (1973), former Administrative Rule 15(b)(2)(i)   



 (2014), and current Administrative Rule 15(c)(2).  



                                                                                                                                                 -  19 -                                                                                                                                              2697
  


----------------------- Page 20-----------------------

           Former Criminal Rule 24.1             



                                                                                               2  

                      Former Criminal Rule 24.1, enacted in 1973,                                                                  

                                                                                                 was the first Alaska court  



                                                                                                                                     

rule to contain explicit directions for the summoning of prospective jurors. Up until that  



                                                                                                                                            

time, Alaska's court rules simply declared that this matter was governed by statute.  



                                                                                                                             

Indeed, there is still a group of Alaska statutes that address both the method of selection  



                                                                                                                                       

and the number of persons to be included in jury venires; see AS 09.20.040 - 080.  



                                                                                                                                    

                      Former Criminal Rule 24.1 was short, and its purpose was simply to alert  



                                                                                                                                     

judges and lawyers to the substantive law governing the designation of jury venires and  



                                              

the selection of trial jurors.  



                                                                                                                                  

                      First, Criminal Rule 24.1 declared that the statutory provisions of AS 09.20  



                                                                                                                                      

governed the qualification of jurors and the procedures of jury selection.  Second, the  



                                                                                                                                      

rule declared that the default geographic area for summoning a jury venire was the  



                                                                                                                             

 50-mile radius surrounding the appropriate court site (the site specified by Alaska's  



                                                                                                                                

venue rule, Criminal Rule 18.1). Third, Criminal Rule 24.1 authorized a court to deviate  



                                                                                                                                      

from this default 50-mile radius in either of two instances: if the court found (1) that the  



                                                                                                                    

 50-mile radius would not "provide ... a petit jury which [was] a truly representative  



                                                                                                                        

cross-section of the appropriate community", or if the court found (2) that summoning  



                                                                                                                                         3  

                                                                                                                                            

jurors using the 50-mile radius "would cause unreasonable transportation expenses".  



                                                                                                                                     

                      The provision of Criminal Rule 24.1 authorizing judges to make sure that  



                                                                                                                                    

jury  venires  that  represented  "a  cross-section  of  the  appropriate  community"  was  



                                                                                                                                        

obviously meant to incorporate the supreme court's then-recent decision in Alvarado v.  



                                                                                                                               

State,  486  P.2d  891  (Alaska  1971),  where  the  supreme  court  held  that  the  Alaska  



      2    See Supreme Court Order No. 157 (effective February 15, 1973). 
 



      3    Former Criminal Rule 24.1(b). 
 



                                                                 - 20 -                                                            2697
  


----------------------- Page 21-----------------------

constitution required that the group of people summoned for jury service in a criminal                                                               



case had to reflect a fair cross-section of the community where the crime allegedly                                                                                                        



occurred.    



                                Likewise, the provision of Criminal Rule 24.1 dealing with "unreasonable                                                                        



transportation expenses" was obviously intended to parallel the "unnecessary expense"                                                                                                       



provision of AS 09.20.070, as interpreted in                                                                Crawford v. State                           , 408 P.2d 1002 (Alaska                



 1965).   



                 The pre-2015 version of Administrative Rule 15                                                                



                                Almost   ten   years   later,   in   late   1982,   the   supreme   court   moved   these  



provisions out of Criminal Rule 24.1 and inserted them into a re-written version of                                                                                                                          



                                                                                                                   4  

Administrative Rule 15 (the pre-2015 version).                                                                                                                                                           

                                                                                                                       This pre-2015 version of Rule 15 was  



                                                                                                                                                                                                             

substantially lengthier than Criminal Rule 24.1, and most of the rule was devoted to  



                                                                                                                                                                                                            

spelling out the mechanics of jury selection - the procedural steps that needed to be  



                                                                                                                                                                                                                     

followed by judges and court staff pertaining to the summoning and selection of jurors.  



                                                                                                                                                                                                  

                                However, subsection (c)(1) of the pre-2015 Administrative Rule 15 carried  



                                                                                                                                                                                                 

forward (verbatim) the provisions of Criminal Rule 24.1 that authorized courts to deviate  



                                                                                                                                                                                                    

from the default 50-mile jury venire radius for either of two reasons:  the "fair cross- 



                                                                                                                              

section" provision and the "unreasonable expense" provision.  



                                                                                                                                                                                                                

                                 In addition, the pre-2015 version of Administrative Rule 15 contained a  



                                                                                                                                                                                                           

new provision - subsection (c)(2) - which, for the first time, incorporated one of the  



                                                                                                                                                                                            

major holdings of Crawford:  the holding that, not only does AS 09.20.070 authorize  



                                                                                                                                                                                                   

trial judges to restrict the scope of the jury venire area in individual cases, but the statute  



        4        See Supreme Court Order No. 531 (effective October 1, 1982).  



                                                                                                  - 21 -                                                                                                2697
  


----------------------- Page 22-----------------------

 also authorizes presiding judges to issue blanket orders that restrict the jury venire area                                                     



 (in   advance)   for   whole   categories   of   cases   based   on   the   inordinate   expense   of  



                                                                                            5  

 summoning jurors from the default jury venire area.                                            



                                                                                                                                                    

                        The  wording  of  former  subsection  (c)(2)  did  not  refer  explicitly  to  



                                                                                                                                             

 Crawford, nor did it refer explicitly to the unreasonable expense of summoning certain  



                                                                                                                                           

jurors.        Instead,  subsection  (c)(2)  simply  spoke  generically  of  a  presiding  judge's  



                                                                                                                                         

 authority to order "alternative assignments" - that is, the presiding judge's authority  



                                                                                                                                             

 either to add a community to the jury venire area (i.e., a community outside the default  



                                                                                                                                     

 50-mile radius), or to remove a community from the jury venire area (i.e., a community  



                                                

inside the 50-mile radius):  



                                    (2)  Selection of prospective petit jurors will be from  



                                                                                                                     

                        all locations assigned [to a court location using the default  

                                                                                                                            

                        50-mile          radius]         unless         an      alternative           assignment              is  

                                                                                                                 

                        specifically authorized by the presiding judge. The presiding  

                                                                                                        

                       judge will forward this authorization to the administrative  

                                                                                                                         

                        director by February 1 of each year so that the area of [jury  

                                                                                     

                        venire] selection can be changed.  



                                                                                                                                                     

                        This language might be read as authorizing presiding judges to include or  



                                                                                                                           

 exclude communities from the jury venire area for any reason at all.  But even though  



                                                                                                                                                  

this language might appear to give presiding judges unlimited authority to add and  



                                                                                                                                      

remove communities from the jury venire area, former Rule 15(c)(2) must be interpreted  



                                                                                                                          

in light of the supreme court's decisions in Crawford and Alvarado .  



                                                                                                                                      

                        The Crawford decision was the first time that the supreme court recognized  



                                                                                                                                                    

the authority of presiding judges to issue blanket orders amending the selection area for  



                                                                                                                                              

jury venires in whole categories of cases (as opposed to the authority of individual judges  



      5     Crawford, 408 P.2d at 1004-05.  



                                                                       - 22 -                                                                   2697
  


----------------------- Page 23-----------------------

to amend the jury venire area for individual cases). And although much of the Crawford  

                                                                                                                       



decision was addressed to the "fair cross-section" concerns that later formed the basis for  

                                                                                                                                 



the  supreme  court's  decision  in  Alvarado ,  the  Crawford  case  did  not  turn  on  the  

                                                                                                                                



composition of the jury pool - because the supreme court ultimately concluded that  

                                                                                                                               



Crawford's jury pool adequately represented a cross-section of the community. Rather,  

                                                                                                                          



in Crawford, the supreme court held that apresiding judge could lawfully restrict the jury  

                                                                                                                               



venire area based on the inordinate expense of summoning prospective jurors from the  

                                                                                                                                



more distant locations within the default 50-mile radius.  

                                                                                         



                     Six years later,  in Alvarado ,  the supreme court formally  recognized  a  

                                                                                                                                   



second  basis  for  amending  the  jury  venire  area:                          the  constitutional  requirement  of  

                                                                                                                                 



summoning  a  pool  of  prospective  jurors  that  truly  reflects  a  cross-section  of  the  

                                                                                                                                



community where the crime is alleged to have been committed.  

                                                                                                    



                    I  acknowledge  that,  at  least  conceivably,  when  the  supreme  court  

                                                                                                                            



promulgated the pre-2015 version of Administrative Rule 15(c)(2), the supreme court  

                                                                                                                             



purposely chose to omit any explicit reference to the "unreasonable expense" rationale  

                                                                                                                        



of  Crawford or the "fair cross-section" rationale of Alvarado  - choosing instead to  

                                                                                                                                  



word the rule so generically that it might authorize presiding judges to amend jury venire  

                                                                                                                            



areas for other reasons.  

                                      



                    Given the context in which the pre-2015 version of Administrative Rule 15  

                                                                                                                                  



was promulgated, I doubt that this was the supreme court's intention.  But in any event,  

                                                                                                                            



it is clear that the generic "alternative assignment" language of former Rule 15(c)(2) was  

                                                                                                                                



intended, at the very least, to codify the authority of presiding judges to alter jury venire  

                                                                                                                            



areas under either an Alvarado  rationale or a  Crawford rationale:   that is, either to  

                                                                                                                                  



enlarge the venire area to ensure that jury pools represent a fair-cross section of the  

                                                                                                                                



community, or to reduce the venire area to avoid unreasonable expense.  

                                                                                                                 



                                                              - 23 -                                                          2697
  


----------------------- Page 24-----------------------

                                        To sum up this discussion:                                                           subsection (c)(1) of the pre-2015 version of                                                                                      



Administrative Rule 15 gave individual judges the authority to amend the jury venire                                                                                                                                                              



area in individual cases, either to achieve a fair cross-section or to avoid unreasonable                                                                                                                 



expense. Subsection (c)(2) of the pre-2015 rule then gave presiding judges the authority                                                                                                                                                  



to issue blanket changes to the jury venire area for these same two reasons.                                                                                                                                                         



                     The current version of Administrative Rule 15                                                                                      



                                        In 2015, the supreme court adopted the current wording of Administrative                                                                                                        



                                                                                                                                                                                                                        6  

Rule 15 (through the process of "rescinding and re-adopting" the rule).                                                                                                                                                      



                                                                                                                                                                                                                                                          

                                        The current version of Administrative Rule 15 retains the same default rule  



                                                                                                                                                                                                                                 

for defining the geographic scope of a jury venire - i.e., the 50-mile radius surrounding  



                                          7 

the court site.    And the current version of Rule 15 still authorizes presiding judges to  



                                                                                                                                                                                                                                                              

make "alternative assignments" - i.e., to issue blanket orders that either include or  



                                                                                                                                                                          8  

                                                                                                                                                                                                                                               

exclude particular communities fromthe jury venire area.   However, the current version  



                                                                                                                                                                                                                                                          

of Rule 15 no longer contains a subsection authorizing individual judges to alter the jury  



                                                                                                

venire area in individual cases.  



                                                                                                                                                                                                      

                                        As I have just explained, subsection (c)(1) of the pre-2015  version of  



                                                                                                                                                                                                                                                      

Rule 15 expressly authorized trial judges to alter the jury venire area in individual cases  



                                                                                                                                                                                                                             

to satisfy the "fair cross-section" requirement of Alvarado , or to avoid unreasonable  



                                                                                                                                                                                                                                                           

expense (the authority granted to judges by AS 09.20.070 and  Crawford).   But the  



                                                                                                                                                     

current version of Rule 15 omits this subsection.  



          6         See Supreme Court Order No. 1860 (effective October 15, 2015).  



          7         See Administrative Rule 15(c)(2).  



          8         See Administrative Rule 15(c)(3).  



                                                                                                                          - 24 -                                                                                                                        2697
  


----------------------- Page 25-----------------------

                     The legislative history of Administrative Rule 15 gives no indication as to  

                                                                                                                                  



why the supreme court dropped the provisions that authorized trial judges to amend the  

                                                                                                                                 



jury venire area in individual cases.  Indeed, the legislative history of Rule 15 indicates  

                                                                                                                        



that no one thought that the new version of Rule 15 represented  any  change to the  

                                                                                                                                



substantive law of Alaska.  

                                            



                     During   the   supreme  court's   consideration   of   the   new   version   of  

                                                                                                                                



Administrative Rule 15, the only draft materials and memorandums presented to the  

                                                                                                                                



supreme court came from Court Administration.  The supreme court apparently never  

                                                                                                                            



asked its standing committee on the Rules of Criminal Procedure to review the proposed  

                                                                                                                       



changes.  The fact that the supreme court did not perceive a need to have the new rule  

                                                                                              



examined and assessed by practicing judges and lawyers indicates that the supreme court  

                                                                                                                              



did not view the new version of Rule 15 as effecting any change in the substantive law  

                                                                                                                                



governing criminal proceedings.  

                                                    



                     This  conclusion  is  bolstered  by  the  contents  of  one  of  the  primary  

                                                                                                                        



documents contained in the Court System's Rules Attorney's legislative file:  a chart  

                                                                                                                             



dated February 20, 2014 which compared the then-current language of Administrative  

                                                                                                              



Rule 15 with the proposed new language of the rule -along with annotations describing  

                                                                                                                      



the Court Administration's reasons for the proposed changes.  

                                                                                                 



                     (This chart is unsigned, but it is organized and formatted in a fashion  

                                                                                                                         



similar   to   other   legislative   materials   that   have   been   generated   by   the   Court  

                                                                                                                           



Administration regarding other proposed rule changes.)  

                                                                                        



                     None of the explanations in this chart address the substantive content of the  

                                                                                                                                 



new proposed rule.  In particular, the chart contains no discussion of the substantive  

                                                                                                                   



content of subsection (c) of the new rule. Rather, it appears from the drafters' comments  

                                                                                                                      



that their consistent and limited purpose was to make Administrative Rule 15 easier for  

                                                                                                                                 



                                                              - 25 -                                                          2697
  


----------------------- Page 26-----------------------

court staff to read and apply, by re-organizing the various provisions of the rule and  

                                                                                                                               



editing them for stylistic reasons.  

                                        



                     This legislative history suggests that, even though the current version of  

                                                                                                                                  



Rule 15(c) is worded significantly differently from the earlier version, and even though  

                                                                                                                           



the current version of Rule 15(c) completely omits mentioning a trial judge's authority  

                                                                                                                       



to alter the jury venire area in individual cases, the Alaska Supreme Court did not intend  

                                                                                                                            



to alter the substantive law codified in the pre-2015 version of the rule - in particular,  

                                                                                                                      



the provisions of the pre-2015 rule that described a court's authority to alter the jury  

                                                                                                                               



venire area.  

                    



                     This interpretation is further corroborated by the contents of an e-mail  

                                                                                                                           



circulated by the Court Rules Attorney on June 14, 2015, shortly after the supreme court  

                                                                                                                             



adopted the current version of Administrative Rule 15.  In this e-mail (which was sent  

                    



to all the judges and primary court administrators around the state), the Rules Attorney  

                                                                                                                        



explained the effect of the supreme court's changes to Administrative Rule 15.  With  

                                                                                                                             



regard to the newly-rewritten subsections (b) and (c), the Rules Attorney said only that  

                                                                                                                                



these subsections were part of the supreme court's effort to organize the provisions of  

                                     



the rule "in a more logical and functional way", and to "describe[]" the "various phases  

                                                                                                                           



of jury selection ... more clearly."  

                                                      



                     Based on this legislative record, I conclude that even though the current  

                                                                                                                          



version of Administrative Rule 15(c) is worded significantly differently from the pre- 

                                                                                                                               



2015 version of the rule, the current version of the rule was not intended to change the  

                                                                                                                                



pre-existing  law  pertaining  to  either  an  individual  judge's  or  a  presiding  judge's  

                                                                                                                         



authority to alter the geographic area of a jury venire under AS 09.20.070 as interpreted  

                                                                                                                     



in Crawford (i.e., to avoid unreasonable expense), or under Alvarado (i.e., to achieve a  

                                                                                                                                   



jury pool that reflects a fair cross-section of the community).  

                                                                                               



                                                              - 26 -                                                          2697
  


----------------------- Page 27-----------------------

                    Moreover, even though a trial judge's authority to alter the jury venire area  

                                                                                                                               



in individual cases is no longer expressly recognized in the current version of Admini- 

                                                                                                                        



strative Rule 15, it appears that trial judges still have this authority regardless of the  

                                                                                                                                



wording of the rule.  

                                



                    Even though a presiding judge may have issued a blanket order that alters  

                                                                                                                             



the jury venire area for a particular court location, Alvarado still requires trial judges to  

                                                                                                                                  



make sure that the pool of prospective jurors in any particular case represents a fair  

                                                                                                                                



cross-section  of  the  community  where  the  crime  allegedly  occurred.                                         And  under  

                                                                                                                           



AS 09.20.070, as interpreted in Crawford, both presiding judges and trial judges have  

                                                                                                     



the authority to restrict the normal jury venire area to avoid unnecessary expense.  

                                                                                                                               



                                                              - 27 -                                                          2697
  


----------------------- Page 28-----------------------

Judge ALLARD, with whom Judge HARBISON joins, concurring.  

                                                                                                        



                    Although I join the Court's opinion, I write separately to emphasize what  

                                                                                                                             



I view as the narrowness of our holding in this case.  

                                                                                  



                    In our first decision in this case, Smith v. State, 440 P.3d 355 (Alaska App.  

                                                                                                                             



2019), we rejected Smith's claim that the jury pool in his case violated Alvarado v. State ,  

                                                                                                                            



486 P.2d 891 (Alaska 1971).  We did so because Smith's defense attorney had failed to  

                                                                                                                                 



show that the prospective jurors who were drawn from the Kotzebue area were not  

                                                                                                                               



representative of the rural community where the crimes took place.  Smith I, 440 P.3d at  

                                                                                                                                  



363-64.  

              



                    On  remand,  Smith's  new  defense  attorney  attempted  to  remedy  this  

                                                                                                                              



deficiency in the record by offering the testimony of two experts who asserted that there  

                                                                                                                             



were significant cultural differences between the residents of the outlying villages and  

                                                                                                                               



the residents of Kotzebue (including the five-mile radius surrounding Kotzebue).  The  

                                                                                        



superior court declined to hear this testimony, concluding that it was not relevant to the  

                                                                                                                                



limited issue to be decided on remand.  We now affirm that ruling on appeal.  However,  

                                                                                                                     



in my view, our ruling is based primarily on procedural grounds, and I therefore do not  

                                                                                                                               



view our decision as necessarily foreclosing any future Alvarado challenge.  

                                                                                                                     



                                                             - 28 -                                                          2697
  

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