Alvarado v. State

• Citation: 486 P.2d 891
• Decision Date: 06 July 1971
• Docket Number: No. 1230,1230
• Parties: Cloyd ALVARADO, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 891

486 P.2d 891

Cloyd ALVARADO, Appellant, v. STATE of Alaska, Appellee.

No. 1230.

Supreme Court of Alaska.

July 6, 1971.

John S. Hedland and Christopher R. Cooke, Alaska Legal Services, Anchorage, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Keith E. Brown and Robert L. Eastaugh, Asst. Dist. Attys., Anchorage, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

OPINION

BONEY, Chief Justice.

Appellant, Cloyd Alvarado, seeks reversal of his conviction below, contending that the jury which found him guilty was improperly constituted. Challenged as unconstitutional is the long-standing practice in the third judicial district of selecting all prospective jurors from the area within a radius of 15 miles of Anchorage. Though this court has previously upheld the use of juries drawn exclusively from the Anchorage area, ¹ the factual circumstances of Alvarado's case, as well as the detailed presentation made in the record on appeal, compel a reexamination of existing jury selection practices.

The procedural setting from which Alvarado's claim arises is not complicated. On August 19, 1969, an indictment was issued charging Alvarado with the commission of a rape at or near Chignik, Alaska. Alvarado was arrested in Chignik and transported to Anchorage; a plea of not guilty was subsequently entered at arraignment, and trial was set for October 15, 1969, in the superior court, third judicial district, Anchorage. Immediately prior to commencement of trial, defense counsel challenged the entire array of petit jurors selected to hear Alvarado's case. ² Objection to the panel was directed at the use of the 15-mile limit in the selection of prospective jurors, and at the court's failure to revise jury rolls in accordance with recent amendments to AS 09.20.050. ³ The court denied this challenge, and trial proceeded.

Review of the course of events at trial need not be extensive for the purposes of this appeal. The prosecution sought to establish that on August 16, 1969, Alvarado forcibly raped his 14-year-old sister-in-law after having induced the girl to accompany him to a remote spot near the village of Chignik. In his own defense, Alvarado testified that at the time of the alleged incident the village was in the midst of celebrating the completion of the fishing season. He stated that there had been prolonged and heavy drinking; he claimed that at the time he was extremely intoxicated, and that he remembered nothing. They jury returned a verdict of guilty against Alvarado, and judgment of conviction was duly entered on December 31, 1969.

Early in January 1970 Alvarado filed notice of appeal, raising as his sole issue the propriety of the manner in which jurors were selected for his trial. Joined by the state, Alvarado filed a motion and stipulation to remand the case to the superior court in order to permit supplementation of the record. This motion was granted, and on April 16-17, 1970, a hearing was conducted at which documentary evidence was admitted and testimony of witnesses taken. The evidence and testimony adduced focused upon Alvarado's life history and upon the cultural and social conditions prevailing in Chignik, the scene of the crime. A synopsis of the information and data which emerged from this supplementary hearing will be apposite at this point.

Born in San Francisco on February 1, 1948, Cloyd Alvarado is the son of a Spanish father and a mother who is half Aleut; he is one-quarter Aleut by blood. Alvarado's mother is originally from Chignik, Alaska. One or two years after Alvarado's birth, his parents returned to the village of Chignik, where his father pursued a livelihood as a fisherman. Alvarado's childhood and youth were marked by intervals of varying length spent living in Chignik, interspersed with journeys of considerable duration to Seattle, Kodiak, and California. The life cycle of the Alvarado family revolved around the Chignik fishing season; even when the family lived away from Chignik, they returned almost every summer to fish. By 1968, when Alvarado was twenty years of age, he had lived in Chignik a total of about ten or eleven years, slightly more than half his life. Thus, throughout his life, Alvarado retained strong ties with the village of Chignik, and with his mother's family, which resided there.

Only a limited education was afforded to Alvarado. He attended school in Chignik through the sixth or seventh grade; his last year of schooling, spent in the seventh grade, was at Kodiak. Although he went to school through the seventh grade, Alvarado's education was repeatedly disrupted, both by the considerable periods of time his family spent living away from Chignik and by the frequent necessity to work in order to help support the family. In consequence, the actual time he spent in school amounted to no more than about three or four years. Probably as a result of these constant interruptions, Alvarado was still functionally illiterate at the time of his trial. Alvarado's knowledge of the Aleut langauge is limited. He speaks little Aleut, although he is able to understand much of what is said. Aleut is spoken at home with his wife, however.

Residence in Chignik of a permanent nature was established by Alvarado some time during 1966 or 1967, when he married Katherine Anderson, a full-blooded Aleut, born and reared in Chignik. After the marriage, he and his wife lived with his wife's family, some twelve or thirteen people, in a small house in the village. During the summer, Alvarado occupied himself with commercial fishing, and winters were spent hunting, smoking fish, packing water, and otherwise generally subsisting. Alvarado considers himself to be an experienced and able fisherman, and testified that he enjoyed life in the village of Chignik. In June of 1969 a child was born to Alvarado and his wife.

Three separate evaluations of Alvarado's personal history were proffered in the course of the proceedings below and are preserved in the record on appeal. Robert Spinde, the probation officer charged with preparation of Alvarado's presentence report, James R. Jeffers, a psychologist who conducted a psychological evaluation of Alvarado, and William Babcock, a professor of sociology at Anchorage Community College who testified after listening to Alvarado in court, all concurred in the view that Alvarado was more closely allied to the life style of Chignik and to the Alaska Native culture than he was to the urban life style prevalent in Anchorage.

Essential information pertaining to the village of Chignik, and to Alaska villages in general, is also contained in the record. Chignik is a Native village ⁴ located on the Alaska Peninsual about 450 air miles southwest of Anchorage. Of a population of approximately one hundred inhabitants, about 95 are Alaska Natives. Apparently nearly everyone in the village is related. There are only about fourteen houses in the entire village.

None of the usual conveniences available in cities such as Anchorage are known to Chignik. For example, there is not television or running water; there are no roads or cars. Principal means of access to the village is by a weekly plane. Chignik's only industry is a single cannery, which operates during the summer. Employment in the village consists primarily of commercial fishing during the season and is sporadic the rest of the year. There is some trapping and subsistence hunting and fishing. During the winter, when there is no cash income, residents of the village knit sweaters and make mukluks, clothes, and various artifacts. Home brew liquor is consumed in the village, and extended drinking parties involving most of the village are not uncommon.

Extensive attention was also devoted in the proceedings below to the salient characteristics of Alaska Native cultures. Dr. Frederick Hadleigh-West, an anthropologist specializing in the study of Northern peoples, filed an affidavit which sets out factors distinguishing Native cultures from those prevailing in the urban centers of Alaska. ⁵ He states that Native cultures persist in Alaska, and that their distinguishing characteristics

include economies which rely on hunting, fishing, and gathering activities, strong kinship bonds, isolation from those parts of Alaska that approximate mainstream America, different seasonal activity patterns, concepts of time and scheduling, which in accordance with other cultural divergences, may be quite different from those of mainstream America, and finally, very limited participation in the cash economy.

The conclusion drawn by Dr. Hadleigh-West is '(t)hat very profound cultural differences exist between the Native villages and urban areas of Alaska.'

Knowledgeable evidence of cultural distinctions between Native villages and urban centers of Alaska was further provided in the form of an affidavit submitted by Willard Bowman, former Executive Director of the Alaska Human Rights Commission. Bowman states that in the course of his duties he became 'actely aware of the discriminations, class distinctions, and cultural differences which set the Alaska Native apart from the rest of Alaskan society.' According to Bowman, instances of discrimination against Native Alaskans are frequent; Alaska Natives, especially village Natives, are generally regarded as a distinct subculture. Significantly, Bowman notes that

(m)ost urban Alaskans are generally unaware and ignorant of the way of life in Alaska's Native towns and villages. They are not sensitive to the vast cultural differences which exist between their own way of life and that of the villages.

The testimony of William Babcock, a professor of sociology with a background of experience working in Native villages, indicates that although most Native villages are exposed to some extent to the effects of the dominant culture of the cities, the gap separating Native villages from the mainstream of urban society is...