LESTENKOF v. State

229 P.3d 182, 2010 Alas. App. LEXIS 44, 2010 WL 1633042

• Court: Court of Appeals of Alaska
• Decided: April 23, 2010
• Docket: A-10007
• Status: Published

Opinions

OPINION

BOLGER, Judge.

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

Factual And Procedural Background

Saint Paul is a small community located on St. Paul Island in the Bering Sea. During the early morning hours of June 3, 2006, Carol Melovidovy and her boyfriend, Gregory T. Lestenkof, engaged in heavy drinking, ending up at the home they shared. When Melovidoy's son returned from Anchorage on June 4, Lestenkof physically prevented him from seeing his mother. This made him suspicious, so he waited in the hallway until his mother emerged late that night to use the bathroom. When the son saw his mother, he noticed that her face was "all swollen purple" and that she had two black eyes.

Melovidov was eventually taken to the village clinic and then transported to Anchorage, where doctors at the Alaska Native Medical Center discovered that she had life-threatening bleeding in her brain. On June 19, 2006, Lestenkof was indicted on one count of second-degree assault for recklessly causing serious physical injury to Melovidov.⁴

Superior Court Judge William F. Morse traveled to Saint Paul for jury selection. Judge Morse faced numerous problems in his attempts to obtain a jury, however, and most potential jurors were exeused for cause due to knowledge of the facts of the case, relationships to Lestenkof or Melovidoy through blood or marriage, work commitments, or a professed inability to be impartial in the case. On the fourth day of jury selection, only eleven unexcused jurors remained in the trial panel; all of the other prospective jurors had been excused.

Lestenkof requested a special venire, and suggested that additional prospective jurors could be flown in from Saint George, a village on another island. Judge Morse determined that the only way to bring jurors from Saint George would be to "commandeer the PenAir flight," which did not arrive until the next day, and that this was not "a viable option." Judge Morse stated that "[iJn terms of locating additional ... jurors who are not on the original list, I'm not sure if that's possible." Later that day, Judge Morse stated that he had "obtained from Anchorage a list of the . 2005 jury list" and that "there were three or so new names on it." The court contacted two of the three potential jurors, and noted that the third juror had a prior criminal conviction that disqualified him from serving.

Judge Morse ultimately decided that he would not "deviate from the [selection] procedure that resulted in the master jury list." He stated "I don't know why it was ninety [names]-whatever our list was, and some other number at some other time.... I'm not going to canvass the community seeking additional jurors." Based on the apparent impossibility of seating a jury in Saint Paul, Judge Morse determined that "the [only] alternative [was] to change venue." According to Judge Morse, "[the likely [alternative venue] would be Unalaska rather than any other community, since [it] is closest and it's sort of [the same] socioeconomic makeup [as] Saint Paul."

At a status hearing after the jury had been released, Lestenkof raised an argument based on Batson v. Kentucky⁵: He argued that the State had used its peremptory strikes for the purpose of ensuring that a jury would not be seated in Saint Paul, and that the trial would be moved to a demographically different location. Les-tenkof requested that the State provide race- and gender-neutral reasons for its peremptory strikes. After the parties provided briefing on the issue, Judge Morse denied Lestenkofs Batson claim. Judge Morse determined that the State had not used the peremptory challenges intending to "deny Lestenkof a trial by a jury of the [same] racial or socio-economic makeup as that of the ... jurors that were selected or of the jury venire or of the population of Saint Paul." Judge Morse set a tentative trial date for Unalaska, and transferred the case to Superior Court Judge Fred Torrisi.

At a status hearing before Judge Torrisi, Lestenkof argued that Unalaska was an improper venue. Lestenkof argued that if the court would not return venue to Saint Paul, then it should be moved from Unalaska, because it was "not a similar community to Saint Paul." Judge Torrisi suggested that Dillingham would have more Alaska Native representation than Unalaska. Lestenkof's trial was transferred to Dillingham, where a jury convicted him of assault in the second degree. He now appeals.

Judge Morse Undertook Reasonable Efforts to Empanel a Jury in Saint Paul

A trial judge has a great deal of discretion in determining what efforts should be undertaken to obtain a jury in a rural area.⁶ We will, therefore, uphold a trial court's decision where it is clear that the court "has weighed the different possibilities for supplementing a jury and made a reasonable, diligent attempt to obtain a jury."⁷

In Lestenkofs case, the record reveals that the trial court. made considerable efforts to empanel a jury in Saint Paul. For four days, Judge Morse and the parties attempted to select a jury from the names contained on the 2006 St. Paul Island "Master List." This master list contained 100 printed names and two names added in handwriting.

When a large number of the people on the list failed to respond to a summons, Judge Morse took steps to have a public service announcement read on the local radio station, encouraging the other prospective jurors to come to court. Judge Morse had the court clerk call the prospective jurors (those with telephones), and the clerk even enlisted neighbors to visit the homes of the prospective jurors to learn why the jurors were not reporting to court.

According to the handwritten record kept by the clerk, the result of all of these efforts was that about seventy percent of the prospective jurors appeared in court-sixty-eight of the 102 people listed on the St. Paul Island master list. However, because of challenges for cause, peremptory challenges, and court-granted excuses, these sixty-cight prospective jurors yielded only eleven qualified jurors.

At this point, Lestenkof made several suggestions to Judge Morse to try to complete the jury selection. Lestenkof first suggested that Judge Morse should revoke the State's eleventh peremptory challenge-the challenge that reduced the jury panel to eleven. He argued that the State was entitled to use only ten peremptory challenges for the regular jury panel and that the eleventh challenge could be used only for an alternate juror. Lestenkof renews this argument on appeal, contending that the State violated the procedures required by Alaska Criminal Rule 24(b).

Peremptory Challenge Rulings

Ordinarily, each party is entitled to ten peremptory challenges in a felony case.⁸ Criminal Rule 24(b)(1)(B) provides that each side is entitled to one additional peremptory challenge if one or two alternate jurors are to be empaneled. Before jury selection, Judge Morse relied on this rule when he decided that the jury panel would include two alternate jurors and that each side would have a total of eleven peremptory challenges. Les-tenkof agreed to this procedure. But Les-tenkof now argues that the State's eleventh peremptory challenge violated Rule 24(b)(2)(A), which provides that "[the additional peremptory challenges allowed by seetion (b)(1)(B) may be used against an alternate juror only."

Lestenkof's argument is based on one of the alternative procedures for jury selection authorized by Criminal Rule 24(b). He is referring to the procedure described in Rule 24(b)(2)(A), where the court separately empanels designated alternate jurors in addition to the twelve-person panel. When a court uses this procedure, the additional peremptory challenges for alternate jurors may only be used to challenge alternate jurors.

But Judge Morse used a different procedure for Lestenkof's jury selection-an alternative procedure authorized by Rule 24(b)(2)(B). When the court employs this procedure, the court calls additional jurors to be added to the panel during jury selection without designating which jurors are alternate jurors. The alternate jurors are excused by random selection at the conclusion of the trial before the jury retires for deliberations. When the court uses this procedure, there is no limitation that the additional challenges be used for alternate jurors because the alternate jurors are not designated until the end of the trial. Lestenkof's objection to the State's eleventh peremptory challenge fails because his argument is based on a jury selection procedure that was not used in this case.

Lestenkof also asked Judge Morse to allow him to withdraw one of the peremptory challenges he had previously exercised. But, under Alaska law it is not clear whether a previously challenged juror who has been formally excused remains available for jury service.

We note that Criminal Rule 24(c)(8) declares that potential jurors are disqualified for cause if they were "excused ... peremptorily on a previous trial of the same action." Although we are not dealing with a retrial in Lestenkof's case, the underlying rationale of Rule 24(c)(8) would seemingly suggest that, once a juror is excused due to a party's peremptory challenge, the juror becomes legally ineligible for any future service in that case.⁹

We further note that courts from other jurisdictions have recognized that trial judges have the discretion to deny parties' requests to withdraw peremptory challenges after those challenges have been effectively exercised.¹⁰ Indeed, in People v. McNeil, the court held that the trial judge committed reversible error by allowing the prosecutor to withdraw two previously exercised peremptory challenges in order to complete jury selection from a venire that had been nearly exhausted.¹¹

We do not intend to formally declare Alaska law on this issue. However, based on the foregoing authorities, we conclude that Judge Morse did not abuse his discretion when he rejected Lestenkof's request to rescind one of his previously exercised peremptory challenges.

Reliance on the "Master Jury List"

Lestenkof also suggested that Judge Morse should summon a "special venire." In particular, he asked the judge to charter a flight to neighboring St. George Island to bring additional prospective jurors or to round up extra people from Saint Paul. Judge Morse declined to seek additional jurors that were not on the court's jury list.

Judge Morse's response was based on Alaska Administrative Rule 15, which defines the procedures for compiling the lists of prospective jurors for the various court locations around the state. Administrative Rule 15(b)(1) directs the administrative director of the court system to annually prepare a statewide "master jury list"-that is, a list of all prospective jurors in the State of Alaska. Rule 15(b)(2) then directs the administrative director to "divide the statewide master list into local master jury lists for each court location." According to Rule 15(b)(2), each local master list is to "include the names of all prospective jurors who live in [that] community and [the] other areas assigned to that court for jury selection purposes"-basically, all the smaller communities within a fifty-mile radius of the court location.

This understanding of Rule 15 clarifies Judge Morse's response when Lestenkof requested a special venire.

The Court If there were more jurors 'available in the pool that we could identify, I would bring them in here. But we have contacted everyone on those lists, and they're either off-island or not responding to phone calls and radio messages, public radio messages....

[With respect to your request that we simply call up another twenty or so people], I'm not sure that that's an appropriate thing to do.... I don't see anything in Administrative Rule 15 that permits me to do that. ... [There is a provision [in that rule] that lays out how the master jury list is to be crafted; that procedure has presumably-I can only assume it's been followed ....

I don't know why the list has the specific number [of names] that it has on it.... All I know is that the master list that was crafted annually pursuant to the rule. And ... it produced the [group] of prospective jurors that are out there. I know that the rule includes a provision for ... exclusion of people who request a change in the timing [of their jury service and] some other medical or other reasons. And I can only assume that [the rule] was followed. I don't see any authority that ... I have to [go outside the master list].

Then, after more argument from the parties, Judge Morse concluded:

I'm not going to deviate from the procedure [specified in Administrative Rule 15] that resulted in the master jury list. While I don't know the specifics, certainly the intent of [Administrative Rule] [15](b)(2) is that the master list is to include the names of all prospective jurors. ... [It] would be pure speculation on my part-I don't know why [our master list contained only] ninety [names] ... and [had] some other number [of names] at some other time. I just don't know. I'm not going to canvass the community seeking additional jurors.

In other words, Judge Morse relied on the procedures specified in Rule 15 for compiling the master list, and on the presumption of regularity-that is, the presumption that the master list did contain the names of all eligible prospective jurors residing in Saint Paul and the other communities within a fifty-mile radius.

The dissenting opinion suggests that there was a more extensive list of jurors available. But although Lestenkof's attorneys contended that more jurors were available, they did not present any evidence to support their claim. We therefore conclude that the ree-ord supports Judge Morse's finding that the master list contained all of the jurors who were available to serve in Lestenkof's trial.

Judge Morse's findings distinguish this case from the inadequate jury selection efforts that this court reviewed in Erick v. State.¹² In Erick, after the parties had exercised their peremptory challenges on the prospective jurors who had not been excused for cause, only seven jurors remained on the trial panel in Fort Yukon.¹³ But the court system did not provide the trial judge or the local court clerk with the master list for the Fort Yukon area.¹⁴ If the judge had used the master list, he could have summoned at least 487 additional jurors from the surrounding area.¹⁵ Under these cireumstances, the State had failed to meet its burden to show that it was not reasonable to obtain a jury of twelve from the Fort Yukon area.¹⁶ This court noted that in Calantas v. State, the Alaska Supreme Court approved an emergency supplementation of the jury veni-re with additional names available from the master jury list when it became apparent that too few jurors would be available for a trial in Kodiak.¹⁷

In Lestenkofs case, however, the court exhausted all of the potential jurors available on the master list for the Saint Paul area. There were no additional jurors remaining on the master list who could be summoned. We accordingly conclude that the judge did not abuse his discretion when he declined to summon a special venire.

Twelve-person Jury Requirement

Lestenkof also suggested that the State could stipulate to an eleven-person jury. In response, Judge Morse noted that the State had not agreed to such a stipulation. The dissenting opinion suggests that the court should have proceeded with an eleven-person jury, even without the State's consent.

However, Criminal Rule 23(b) requires the jury to consist of twelve persons, unless the parties stipulate in writing that the jury may consist of a number less than twelve. This rule requires the court to obtain the State's consent before reducing the jury to a number less than twelve. Both this court and the United States Supreme Court have held that the corresponding requirement in Criminal Rule 28(a)-the requirement that the State must consent to any waiver of jury trial-does not violate the defendant's right to due process.¹⁸ Other courts have held that the prosecution must agree before a case may be tried to an eleven-person jury.¹⁹

The dissenting opinion suggests that Erick holds that the trial court may require the prosecution to proceed with a jury of less than twelve. But Hrick does not address this issue because the State in that case agreed to proceed with a seven-person jury.²⁰

Lestenkof did not ask Judge Morse to proceed with the trial before an eleven-person jury without the State's consent. In view of the foregoing authority, we cannot conclude that the judge committed plain error when he declared a mistrial without requiring the State to proceed to trial with an eleven-person jury. Lestenkof not only failed to object when the judge noted that the State had not stipulated to trial before an eleven-person jury, he also waived this issue by his failure to raise it in this appeal.²¹

In summary, Judge Morse undertook considerable efforts to empanel a jury in Saint Paul. The additional steps that Lestenkof proposed were either legally questionable or factually unreasonable. We therefore conclude that Judge Morse did not abuse his discretion when he declared a mistrial.

The Trial Court Had the Discretion to Order the Change of Venue

A jury should be representative of a fair cross section of the community where the alleged offense occurred.²² But a superi- or court may change the venue for trial "when there is reason to believe that an impartial trial cannot be had."²³ Jury selection should generally be commenced in the venue location specified by Criminal Rule 18, and then moved only if voir dire reveals that an impartial jury cannot be obtained.²⁴

The dissenting opinion suggests that a defendant has the right to a "home field advantage" if he has a good reputation in the community where the prosecution arises. But the fair-cross-section requirement derives from a defendant's constitutional right to "an impartial jury,"²⁵ not a right to an unfair advantage. By contrast, it would be particularly unfair to allow a jury in a small community to convict a defendant based on community knowledge about the defendant or the crime.²⁶ It would likewise be contrary to our system of justice to require the trial to be held in a venue where the jury cannot be fair to both parties.

The trial judge is in the best position to evaluate the jury selection he or she has conducted.²⁷ And because the judge must balance both tangible and intangible factors to decide whether to change the venue, "reasonable judges might come to differing conclusions based on the same underlying facts."²⁸ We therefore employ the abuse of discretion standard when we review a trial court's decision to grant a change of venue.²⁹

In the present case, Judge Morse entered specific findings supporting his decision to change the venue based on what he had observed during the jury selection in Saint Paul:

The Court can perceive little likelihood that a jury can be seated on Saint Paul. The alleged event that underlies the criminal charge was the topic of much discussion on the island. Both Lestenkof and the alleged victim are well-known on the island. Many residents are related by birth and/or marriage to either or both of them. The attempt to seat a jury caused additional discussion on the island and reduced the chance of selecting a jury.

These findings are supported by the record of the jury selection.

These circumstances are similar to the challenges the Dillingham court faced in Nickolai v. State.³⁰ In Nickolai, ninety-one potential jurors were examined before the jury could be seated; thirty-three of those examined were excused because they were related to either the defendant or the vice-tim.³¹ In addition, all of the jurors who were seated expressed some knowledge about the facts of the case.³² This court held that it was an abuse of discretion not to grant Nick-olai's motion for a change of venue.³³

Likewise, in Ward v. State,³⁴ the trial court encountered difficulty when selecting a jury in the village of Fort Yukon. The court summoned 167 people to report for jury selection, but seventy-three of those summoned were excused for cause during the first day.³⁵ Approximately ten jurors remained after the parties had exercised all of their challenges for cause and peremptory challenges.³⁶ Many of those excused were related to the victim, the defendant, or both."³⁷ This court concluded that the judge did not abuse his discretion when he stopped jury selection and moved the trial to Fairbanks.³⁸

Judge Morse faced difficulties similar to those in Nickolai and Ward. Many of the potential jurors in Saint Paul were familiar with the victim, the defendant, or both. Many of the potential jurors were also familiar with the facts of the case. The judge could reasonably conclude that the process of jury selection, which involved a large portion of the population, would naturally increase the discussion of the case in such a small community. This discussion would make a second attempt to select a jury even more difficult. We therefore conclude that the trial court's decision to move the trial from Saint Paul was not an abuse of discretion.

Lestenkof's Jury Represented a Fair Cross Section of the Community

Lestenkof argues that the jury eventually empaneled in Dillingham excluded a fair cross section of the community where the alleged offense occurred. His argument is primarily based on the Alaska Supreme Court's decision in Alvarado.³⁹ Alvarado challenged the long-standing court practice of selecting jurors from the population living within a fifteen-mile radius of Anchorage. The court held that the Anchorage jury pool did not represent a fair cross section of Chignik, the community in which the crime occurred, because the jury selection area excluded almost all residents of Alaska Native villages.⁴⁰

Lestenkof must satisfy the following elements to establish that the jury selection process violated the fair-cross-section requirement:

(1) that the group alleged to be excluded is a "distinetive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (8) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.[⁴¹]

On appeal, Lestenkof argues that the residents of Saint Paul comprise a distinctive group, different from other Alaska Natives, that is systematically excluded in the jury-selection process.

Lestenkof did not raise this argument in the trial court. In his arguments against a trial in Anchorage or Unalaska, Lestenkof submitted only that he was an Alaska Native of Aleut heritage. He argued that 85% of the residents of Saint Paul were Alaska Native or American Indian, compared to only 7.3% of the residents of Anchorage and only 7.7% of the residents of Unalaska. In response, the State submitted that Dillingham had a similar racial composition to Saint Paul, with 52.6% of the residents identifying as Alaska Native or American Indian. The superior court eventually selected Dillingham as the site for Lestenkof's trial.

On appeal, Lestenkof does not contend that Alaska Natives or residents of rural villages have been systematically excluded from the Dillingham jury pool. Lestenkof instead relies on historical sources suggesting that the residents of Saint Paul are a distinctive group for jury selection purposes. Lestenkof's claim fails for two reasons.

First, we note that there is a limitation on the Alvarado holding, which applies to this case. Alvarado did not hold that the citizens from the community where the crime occurred may never be excluded from the jury panel.⁴² In particular, the area surrounding the location of the crime may be excluded from the source for jury selection when an unbiased jury cannot be drawn from that area.⁴³ The superior court was not required to include Saint Paul in the venire for jury selection because Judge Morse's ruling changing venue determined that a fair jury could not be drawn from that community.

Second, Lestenkof failed to argue and prove this point in the trial court. There are no prior Alaska cases recognizing that a single community can constitute a cognizable group for jury selection purposes.⁴⁴ Lesten-kof bore the burden of proving to the trial court that there were significant differences between the residents of Dillingham and the residents of Saint Paul that would prevent the Dillingham residents from adequately representing a fair cross section of the community.⁴⁵ Lestenkof waived this claim by his failure to argue and prove to the trial court that the residents of Saint Paul are a cognizable group.⁴⁶

We also note that the Alvarado court recognized that feasible alternatives may be employed for jury selection in the rural and predominately Native areas of the state.⁴⁷ One acceptable alternative is the selection of jurors from the state senate election district in which the crime is alleged to have occurred.⁴⁸ In this case, Judge Torrisi elected to hold Lestenkof's trial in Dillingham. Dill-ingham is not one of the urban centers referenced in Alvarado. Dillingham is a rural and predominately Native community in the same senate election district as Saint Paul.⁴⁹ Lestenkof has not established that any cognizable group was systematically excluded from the jury selection process conducted in Dillingham.

The Jury Selection Process Did Not Violate Equal Protection

Lestenkof also argues that the jury selection process disqualified all Saint Paul residents in violation of their right to equal protection of the laws. This issue is similar to the issue resolved in the previous section of this opinion regarding the requirement that the jury must represent a fair cross section of the community. Ordinarily, the fair-cross-section analysis also applies to claims raised under the equal protection clause of the Alaska Constitution.⁵⁰ However, we will analyze this claim separately to address Lestenkof's argument.

"The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race ... or on the false assumption that members of his race as a group are not qualified to serve as jurors." ⁵¹ Lestenkof's argument that a particular racial group was excluded by the change of venue to Dillingham can be analyzed in two different ways:

On the one hand, a defendant may allege that the State or the trial court deliberately selected a particular venue with the objective of excluding a racial group; the venue was chosen with discriminatory intent. On the other hand, because the move to a particular venue has resulted in the reduction or exclusion of a racial group, the defendant may claim he or she will not receive a fair trial; the venue change has had a discriminatory impact. [⁵²]

Lestenkof has argued both of these equal protection claims at different times during this litigation.

In the trial court, Lestenkof argued that the State deliberately discriminated against Alaska Natives by using its peremptory challenges and challenges for cause, and by opposing the drawing of a special venire. Judge Morse concluded that the State's actions were not motivated by a desire to obtain a jury with a different racial or socioeconomic makeup than the population of Saint Paul. This claim has not been reasserted in this appeal, so there is no reason to reexamine Judge Morse's conclusion.

After Judge Morse declared a mistrial in Saint Paul, both he and Judge Torrisi attempted to choose trial locations with a racial composition representative of Saint Paul. But Lestenkof complains that the resulting venire did not include any Saint Paul residents. This is a type of discriminatory impact claim that we previously considered in Brower v. State.⁵³

In Brower, the defendant claimed an equal protection violation because the population of Fairbanks, where his grand jury convened, had a much smaller percentage of Alaska Natives than Barrow, where the offense occurred.⁵⁴ This court concluded that in order to establish underrepresentation of a cognizable group, the defendant must establish a disparity between the proportion of the group that exists in the population from which the grand jury is chosen and the proportion of that group among those selected to serve on grand juries.⁵⁵ We noted that, "(als long as the area from which the grand jury is chosen does not underrepresent a cognizable group when compared to the state as a whole, we will find no equal protection violation." ⁵⁶

Lestenkof did not litigate this claim in the trial court. So there is no record indicating that any cognizable group, such as Alaska Natives, was underrepresented in the Dill-ingham venire or the master list for the state as a whole. Lestenkof simply argues that the residents of Saint Paul were excluded from the jury selection area after the court changed the venue to Dillingham. As we noted above, this argument was resolved long ago by an express limitation in Alvarado: The area surrounding the location of the crime may be excluded from the source for jury selection when an unbiased jury cannot be drawn from that area.⁵⁷

Conclusion

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

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

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

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

4 . AS 11.41.210(a)(2).

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

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

7 . Id.

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

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

10 . See United States v. Anderson, 562 F.2d 394, 397 (6th Cir.1977); Davis v. State, 922 So.2d 454, 455 (Fla.App.2006); Biddle v. State, 67 Md. 304, 10 A. 794 (1887).

11 . 39 A.D.3d 206, 834 N.Y.S.2d 99, 101-02 (2007).

12 . 642 P.2d 821.

13 . Id. at 823.

14 . Id. at 824-25.

15 . Id. at 825.

16 . Id. at 824.

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

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

19 . State v. Gorwell, 339 Md. 203, 661 A.2d 718, 723-26 (1995); State v. Romeo, 43 N.J. 188, 203 A.2d 23, 29 (1964); State v. McFerron, 52 Or.App. 325, 628 P.2d 440, 443 (1981).

20 . Erick, 642 P.2d at 823.

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

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

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

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

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

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

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

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

²⁹

30 . 708 P.2d 1292 (Alaska App.1985).

31 . Id. al 1293.

³²

³³

34 . 997 P.2d 528 (Alaska App.2000).

35 . Id. at 529.

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

37 . Id. at 530-31.

38 . Id. at 532.

39 . 486 P.2d 891.

40 . Id. at 903.

41 . Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); see Berghuis v. Smith, 559 U.S. -, -, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010).

42 . Alvarado, 486 P.2d at 904; see also Wyatt v. State, 778 P.2d 1169, 1171 (Alaska App.1989) (affirming an order excluding residents of Metla-katla from the jury pool); Kelly v. State, 652 P.2d 112, 112 (Alaska App.1982) (affirming an order excluding residents of Ninilchik).

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

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

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

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

47 . Alvarado, 486 P.2d at 905.

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

49 . Dillingham is also in the same house election district as Saint Paul. See the description of House District 37 in the Revised Final Plan House Districts (Alaska Redistricting Board May 2002), http://ltgov.state.ak.us/elections/distdes. php and htip://www.elections.alaska.gov/maps/ districts/dist37.pdf. House districts are required by the Alaska Constitution to be "formed of contiguous and compact territory containing as nearly as practicable a relatively integrated so-cio-economic area." Alaska Const. art. 6, § 6.

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

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

52 . State v. House, 127 N.M. 151, 978 P.2d 967, 993 (1999).

53 . 683 P.2d 290 (Alaska App.1984).

54 . Id. at 291.

55 . Id. at 292.

⁵⁶

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

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