Erick v. State, 5253
| Decision Date | 25 March 1982 |
| Docket Number | No. 5253,5253 |
| Citation | 642 P.2d 821 |
| Parties | Earl W. ERICK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
G. Blair McCune, Cowper & Madson, Fairbanks, for appellant.
Paul E. Olson, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BRYNER, C. J., and COATS and SINGLETON, JJ.
Earl Erick appeals his conviction for assault with intent to kill, wound, or maim. 1 The single issue in this appeal concerns whether or not the jury selection methods used deprived the defendant of his right to an impartial jury of twelve in the district where the crime occurred. We reverse Erick's conviction.
Earl Erick was accused of shooting Patrick Kelly with intent to kill, wound, or maim him on July 21, 1979, in Fort Yukon. Kelly resided in Fort Yukon, while Erick is from the outlying village of Venetie, although he lived and worked in Fort Yukon at various times.
Approximately two weeks before Erick's trial, scheduled for November 19, 1979, the Fort Yukon magistrate sent a summons to each of the sixty-nine Fort Yukon residents on her list of eligible jurors. 2 Because the trial was expected to last longer than one day and Fort Yukon lacked adequate accommodations for villagers forced to stay overnight, 3 the magistrate did not summon any of the twenty listed potential jurors from the surrounding villages. 4 Villagers were summoned for possible jury service in three misdemeanor trials scheduled to start the day after Erick's trial began.
On the morning of the trial, forty-nine potential jurors showed up at the courthouse. After approximately thirty-eight potential jurors had been examined, only fourteen had been passed for cause. Court and counsel realized it was doubtful that a jury of twelve would remain after voir dire was completed and all peremptory challenges had been exercised. The trial judge, Judge Taylor, proposed continuing the trial for one week to permit the villagers summoned for the misdemeanor trials to be summoned for this case as a supplemental venire. This plan was adopted. 5
On November 20, the Fort Yukon magistrate personally served all of the villagers (seven or eight) who were present at the courthouse for possible jury duty in the misdemeanor cases, instructing them to return on Monday, November 26. On Friday, November 23, summonses were mailed to the other villagers on the jury list, and the magistrate made some additional effort to contact these people and to arrange for transportation for all summoned villagers into Fort Yukon for November 26. On November 26, five or six potential jurors from the villages reported to court. Voir dire was completed on the villagers and on the Fort Yukon residents who returned from a week earlier, and the panel was soon reduced to eleven jurors with peremptory challenges still to be exercised.
Judge Taylor then proposed three alternative courses of action: 1) to hold the trial in Fort Yukon with however many jurors remained after the final peremptory challenges; 2) to move the jurors selected after peremptory challenges to Fairbanks and to supplement the venire with Fairbanks jurors to obtain a jury of twelve; or 3) to continue the case for thirty days to permit the court system to obtain additional jurors. Through counsel, Erick stated a preference for the third alternative. The state's attorney preferred the first or second, partly because he was not sure he would be available to try the case in thirty days. The court ruled that it would adopt the second alternative. The final peremptory challenges were then exercised on the prospective jurors who had not been excused for cause. Seven jurors remained. After a brief recess, the defendant stipulated to trial in Fort Yukon by the seven impaneled jurors, reserving his right to appeal the jury issues.
Following trial, Erick was convicted. He gave notice of his appeal and in December, 1980, this court ordered the case remanded for further fact finding concerning what efforts were made to provide Erick with a jury of twelve from the Fort Yukon area and whether those efforts were reasonable. The trial court held an evidentiary hearing and concluded, in a memorandum decision, that reasonable efforts had been made to provide the defendant with a jury of twelve from the Fort Yukon area and that it was not reasonable, in light of all the circumstances, to continue the case or take other steps to provide the defendant with such a jury.
A discussion of a defendant's right to an impartial jury from the area where the crime occurred must start with Alvarado v. State, 486 P.2d 891 (Alaska 1971). In Alvarado, a native defendant who was a resident of Chignik was charged with a rape allegedly committed in Chignik. He was tried over his objections in Anchorage by a jury which was selected from within fifteen miles of Anchorage. In reversing Alvarado's conviction, the court emphasized the difference between Chignik, a remote native village approximately 450 miles from Anchorage, and the city of Anchorage. The court held that Alvarado was not provided with an impartial jury. 6 The court said, "(W)e ... hold ... that an individual should not be forced, against his will, to stand trial before a jury which has been selected in such a manner as to exclude a significant element of the population of the community in which the crime was allegedly committed." Alvarado v. State, 486 P.2d at 905. AS 22.10.030 7 and Criminal Rule 18.1 8 govern motions to change venue. These provisions are aimed at avoiding the problems which gave rise to Alvarado. Dana v. State, 623 P.2d 348, 351 (Alaska App. 1981). A major reason for these provisions is to guarantee that a defendant will be tried by a jury which is representative of the area in which the crime allegedly occurred. The parties to this case agree that Erick's jury should have been selected from the area of Fort Yukon, if possible. Under Criminal Rule 18.1, Erick had a right to expect his jury to be drawn from the Fort Yukon area unless the court was unable to provide him with a jury from that area with reasonable effort.
In deciding whether the efforts of the trial court were reasonable in this case, we are influenced by the fact that Erick's case presents the classic Alvarado situation of an Alaskan native from a small native town requesting his right to be tried by a jury which is representative of the area where he is from and where the crime allegedly occurred. As such, this is a particularly compelling case to require the trial court to use diligent efforts to obtain a jury of twelve which is representative of the area. We appreciate the difficulties of obtaining a jury in communities such as Fort Yukon, where the record indicates that potential jurors are frequently related to or friends of parties, and where many of the potential jurors will have information about a case which disqualifies them as jurors. We also appreciate that there are frequently severe problems of communication, transportation, and availability of suitable facilities which make it difficult to hold a jury trial in such an area. The record shows that all of these problems were present in Erick's case. However, these problems are typical of the problems which result from the attempts of the court system to comply with the mandate of Alvarado that "(j)ustice must be made available to all the people of Alaska." Alvarado v. State, 486 P.2d at 906. We believe that the policies of Alvarado dictate that we place the burden upon the state to show that it was not reasonable to obtain a jury of twelve from the Fort Yukon area once that area had been selected as the site of the trial.
We do not believe that this record demonstrates that the state has met this burden. The greatest defect which we see in reviewing the record is that the magistrate and court clerk, who had only recently assumed their duties and had not been trained in jury selection procedures, believed that the list of eighty-nine potential jurors from the Fort Yukon area was the only list of available jurors. However, this was not the only available list of jurors. After a remand of this case, Merle Martin, Manager of Technical Operations for the Alaska Court System testified at the evidentiary hearing that the master jury list for the Fort Yukon area, with 842 names, had not been used at all. He said that he could conservatively estimate that 437 of the people on this list were eligible for jury selection in November 1979, including 234 from the town of Fort Yukon. Martin also testified that he could have a list of any number of these names and addresses, up to the maximum, available within approximately two hours after he received a phone call. 9
The trial court and the parties likewise were apparently unaware that the names of many more potential jurors were available on short notice through the availability of the master jury list. When Erick's counsel inquired about the possibility of the availability of more jurors during jury selection on November 26, the magistrate indicated the only possible jurors who could be selected for the entire year were the ones on the jury list that she had. Neither the court nor either of the parties challenged this assertion, although Erick's counsel obviously suspected that more jurors should be available in an area the size of the Fort Yukon area.
We believe that the trial court must have a great deal of discretion in determining what efforts are reasonable under different circumstances to attempt to obtain a jury in an outlying area. There are too many factors involved for us to set a definite rule as to what effort is sufficient. However, where the record is clear that the trial court has weighed the different possibilities for supplementing a jury and made a reasonable, diligent attempt to obtain a jury, we will uphold the efforts of the trial court. Once Fort Yukon was selected as the site...
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