Crawford v. State

• Decision Date: 20 December 1965
• Docket Number: No. 637,637
• Citation: 408 P.2d 1002
• Parties: William Howard CRAWFORD, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 1002

408 P.2d 1002

William Howard CRAWFORD, Petitioner, v. STATE of Alaska, Respondent.

No. 637.

Supreme Court of Alaska.

Dec. 20, 1965.

Peter J. Kalamarides and Edward J. Reasor, Anchorage, for petitioner.

Warren C. Colver, Atty. Gen. of Alaska, Juneau, John K. Brubaker, Dist. Atty., Anchorage, and John L. Devney, Asst. Atty. Gen., for respondent.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

The grand jury that indicted petitioner for first degree murder was made up of persons residing within a fifteen mile radius of the City of Anchorage. The question to be decided is whether such a geographical limitation on the selection of jurors is lawful. The court below held that it was and denied petitioner's motion to dismiss the indictment. We have granted review of such interlocutory order because it affects a substantial right of petitioner and involves a question of general importance in the administration of justice throughout the entire court system. ¹

The presiding superior court judge of each fo Alaska's four judicial districts has the responsibility under law of selecting persons to serve on petit and grand juries. The selection is made from a list of names of persons residing in the district who are qualified by law for jury service and who voted in the state general election immediately preceding the preparation of the list of prospective jurors. ² The names of those eligible for jury service, or numbers corresponding with the names, are placed in a box, and a public drawing of jurors then takes place.

Shortly after the establishment of the state court system in 1960, the presiding judge for the Third Judicial District adopted a policy of summoning for jury duty in the City of Anchorage only those persons whose presence could be obtained without undue hardship or expense. Under this policy, jurors were selected, not from the entire district, but only from those areas within the district that were served by highway or by reasonably regular and frequent air service.

After about two years of experience, the presiding judge found that the cost of utilizing jurors from outside the Anchorage area was very large and, in his opinion, quite unnecessary. He thereupon abandoned the original policy of selecting jurors, and adopted the existing policy of calling as jurors for jury functions to be performed in the City of Anchorage only those residents of the Third Judicial District who resided within a fifteen mile radius of the city.

Petitioner claims that such a geographical limitation on the selection of jurors is in violation of AS 09.20.070. ³ This statute permits the court to reject the name of any person drawn for jury duty if it appears to the satisfaction of the court that such 'persons's attendance * * * may involve a large and unnecessary expense.' ⁴ Petitioner contends that under such provision in the law the court is required to make an independent appraisal of what may amount to a 'large and unnecessary expense' in each separate situation on a name to name basis, and that the statute does not empower the court to make a blanket rule based on a fixed geographical limitation of the area from which jurors should be drawn.

We disagree with petitioner. The legislature has given to the superior court the power to determine whether jurors should be commoned from less than the entire judicial district. ⁵ The standard which guides the court in making such determination is whether a large and unnecessary expense is involved in obtaining jurors from all parts of the district. The legislature has not specified how the court should make that determination, whether on a name to name basis, as petitioner suggests, or by way of a general rule, as the court has done in this case. This is a question for the court to determine in its discretion. The only question that we must be concerned with is whether in exercising its discretionary authority the court had a rational, factual and legal basis for what it did.

We find that the presiding judge had a reasonable basis for concluding that a large expense would be involved in summoning jurors from outside the Anchorage area. In opposition to petitioner's motion to dismiss the indictment, the state filed the affidavit of Judge Davis, who was presiding judge of the superior court at the time the policy mentioned was adopted. According to Judge Davis, the expense in summoning jurors outside the Anchorage area would be large because of transportation costs that the state would be required to pay if a juror were summoned from a place more than fifteen miles distant from the City of Anchorage. ⁶ In addition, Judge Davis stated that population beyond the fifteen mile radius was very scattered, and in order to bring in an additional large population group it would be necessary to extend the radius out to fifty or sixty miles. This would be expensive to the state, not only because of transportation costs, but also because of the per diem that the state would be obliged to pay if it was impracticable for jurors to return to their homes each evening. ⁷

The judge was also satisfied that such a large expense was unnecessary. He stated in his affidavit that approximately 70% of the population of the Third District is concentrated in the Anchorage area, ⁸ and that that area constituted a very cosmopolitan community which included most, if not all, of the racial, economic, occupational and religious groups found in the Third District.

It is on the question of necessity or lack of it in limiting the selection of juors to the geographical area established by the court, that petitioner takes issue with the state. It is petitioner's contention that it is necessary to incur the expense of summoning jurors from most, if not all of the whole judicial district in order to protect petitioner's constitutional rights. Petitioner argues that the present geographical limitation constitutes a systematic and arbitrary exclusion from the panel of grand jurors of certain economical, social, racial and geographical groups. The result of such exclusion, petitioner contends, is to deprive him of equal protection of the laws as guaranteed by the fourteenth amendment to the federal constitution.

In support of this argument, petitioner filed affidavits which show substantially the following:

(1) John M. Savage, a practicing attorney in Anchorage, stated that he had tried a minimum of 125 jury cases in Anchorage since 1959, and that at no time had he had on a jury panel either a commercial fisherman, an Eskimo, or an Alaskan farmer. ⁹

(2) T. O. Schmidtke, the Mayor of Palmer, Alaska, ¹⁰ stated that in the Palmer area about 500 persons are dependent upon farming for their livelihood, and about 430 upon the coal mining industry. He also stated that there were hundreds of homesteaders and land owners throughout the area who lived on their property but who produced no farm products for sale.

(3) Frank Theodore, a resident of Cordova, Alaska, ¹¹ stated that the main industry and economical backbone of the City of Cordova is commercial fishing, that commercial fishermen are definitely a separate economic group of the Third Judicial District, and that the majority of the population of the City of Cordova are commercial fishermen.

(4) Stanley J. McCutcheon, a practicing attorney in the City of Anchorage, stated that he was counsel for the native village of Tyonek, Inc., Alaska, ¹² and that there are residing in the village of Tyonek certain Indians who voted in the last general election and who seemingly would qualify to sit as grand and petit jurors under appropriate Alaska law.

(5) John Shaffer, a resident of the central Kenai Peninsula in the Third Judicial District, estimated that within a fifty mile radius of Soldotna, Alaska ¹³ the population in August 1964 was approximately 3600 people, and that approximately 50% of those people were occupied either as homesteaders or fishermen or a combination of both.

(6) Henry L. Taylor, Jr., a private investigtor in the City of Anchorage, stated that of his own knowledge a vast majority of various economic groups reside in the Third District and live outside the fifteen mile radius of the City of Anchorage. Some of these groups, according to Taylor, are farmers, coal miners, homesteaders, oil field workers, ranchers and commercial fishermen. In addition, Taylor stated that more persons of Alaska native extraction, indigenous to and residing in the Third District, live outside a fifteen mile radius of Anchorage than live inside such radius.

In an effort to controvert petitioner's contentions and to show that there was in fact no unconstitutional exclusion from jury service of any particular social, racial, religious, economical or geographical group resident in the Third District, the state filed affidavits which show substantially the following:

(1) Judge Davis stated that in his experience as superior court judge from the date the court system was established in 1960, and as presiding judge from that date until November 1964, that the system of limiting jurors to a fifteen mile radius of the City of Anchorage placed in the jury box people of all races, including the native people of Alaska, all occupations, including fishermen and farmers, and all other stratifications of our society. He also stated that when the court sits in other communities of the district, such as Kodiak, Cordova and Deward, any required jurors are chosen from the area of the community in which the court is sitting at that time.

(2) Anna Mae Vokacek, clerk of the superior court for the Third District, stated that in her experience she had seen people of all races, including the native people of Alaska, and of all walks of life, summoned for jury duty in Anchorage.

(3) Agnes Jackson, a clerk in the Anchorage office of the Alaska Department of Fish and Game, stated that she found from a search of the records of the Alaska Department of Fish and...