Ward v. State, No. A-6842.

CourtCourt of Appeals of Alaska
Writing for the CourtSTEWART.
Citation997 P.2d 528
PartiesThomas WARD, Appellant, v. STATE of Alaska, Appellee.
Decision Date25 February 2000
Docket NumberNo. A-6842.

997 P.2d 528

Thomas WARD, Appellant,
v.
STATE of Alaska, Appellee

No. A-6842.

Court of Appeals of Alaska.

February 25, 2000.


Susan Downie, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

STEWART, Judge.

Thomas Ward appeals his conviction for third-degree assault.1 He claims that the superior court erred by selecting a jury in Fairbanks rather than renewing its unsuccessful efforts to select a jury in Fort Yukon. Ward also claims that he acted in self-defense and that the court erred by not instructing the jury on that defense. We reject both of Ward's claims and affirm.

Facts and proceedings

On October 2, 1996, in Fort Yukon, Thomas Ward went to James Ward's house. James Ward is Ward's father. Ward's former girlfriend, Lori James, was there. All three had been drinking. Within a short time, Ward and his father started arguing. James Ward told his son to leave. Ward did not leave. James Ward picked up a rifle. Ward took the rifle away and threw it down. Ward started backing out of the house. James Ward picked up an axe. As they moved outside, Ward struggled with his father

997 P.2d 529
to get control of the axe. Lori James tried to intervene. Ward hit her in the head with the axe and caused a cut that required five to six stitches. For this conduct, the grand jury indicted Ward for one count of first-degree assault for "recklessly caus[ing] serious physical injury to Lori James."2

Jury selection for Ward's trial began in Fort Yukon. Following normal procedures, the court summoned one hundred sixty-seven people to report for jury selection. During the first day of jury selection, seventy-three prospective jurors were excused for cause. The parties exercised eight peremptory challenges, one from Ward, and the rest from the State. Some prospective jurors were excused without voir dire because they were relatives of the defendant or the victim, had medical excuses, or were not qualified. Ward did not object to the court excusing these jurors. Eleven jurors had been excused for cause by the end of the first day. There were no other prospective jurors in court.

At this point, the court and the parties examined the list of prospective jurors. Of the one hundred sixty-seven prospective jurors summoned for jury selection, the court could find only sixteen people on the list who had not been excused during voir dire or otherwise accounted for. After a discussion with the parties, the court decided to broadcast a message on the local radio station the next morning asking those sixteen prospective jurors, who had not reported on the first day, to report for jury selection the next morning.

Out of the sixteen, five reported. One other prospective juror who was thought to be out of town also appeared. The court continued voir dire. The court excused five of those six jurors for cause. The State exercised a peremptory challenge to excuse the sixth. Again, there were no other prospective jurors in the court.

The State suggested that the court return to Fairbanks and select a jury there. Ward recommended further attempts to contact the eleven prospective jurors unaccounted for, who did not respond to their summons or to the radio messages. Neither Ward nor the State suggested supplementing the Fort Yukon jurors already passed for cause with jurors from the Fairbanks area. Nor did either party suggest obtaining another list of potential jurors from court administration to contact for potential service on this case.

Judge Beistline decided not to telephone or otherwise attempt to contact the potential jurors that did not respond to the summons or the radio messages. Judge Beistline elected to release the Fort Yukon jurors and return the case to Fairbanks for jury selection.

The Court: I think that we have seen a cross section of the community and there is a significant concern even with regard to members—other people that we would get. It appears that there are concerns about knowledge about the incident as well as relations to the various parties. So at this point I think we've gone as far as we're required to go and even farther in attempting to obtain a jury and I frankly think that we're at the point now where any jury that [we] even obtained would be affected by the word of mouth in the community[.] ... And so I'm going to conclude that we can't get a fair trial at this time in Fort Yukon, and we'll remand the matter back to Fairbanks[.]

In Fairbanks, the case was reassigned to Superior Court Judge Niesje J. Steinkruger for trial. The parties selected a jury and began trial. However, a mistrial was declared at Ward's request because of a discovery violation. The case was then reassigned to Superior Court Judge Charles R. Pengilly. A jury was selected and the case was tried.

At trial, testimony was given by Lori James, James Ward, a Fort Yukon police officer, a physician's assistant who treated Lori James, and Ward. The jury acquitted Ward of first-degree assault, but convicted him of the lesser-included offense of third-degree assault (recklessly causing physical injury to Lori James by means of a dangerous instrument).

997 P.2d 530
Discussion

Change of venue to Fairbanks for jury selection

Ward argues that Judge Beistline committed reversible error by ending jury selection in Fort Yukon. He bases his argument on Alvarado v. State.3 In Alvarado, the supreme court held that Alvarado was not afforded an impartial jury because the jury selection practices in his trial did not provide a pool that reflected a fair cross-section of his community. Alvarado had significant ties to the community of Chignik. His case was tried in Anchorage where jurors were summoned from an area within fifteen miles of Anchorage. Alvarado showed that this practice had the effect of virtually excluding all residents of Native villages. The supreme court held that the practice ensured that the prospective panel would not adequately represent a fair cross section of the community where Alvarado committed the offense and, thus, was a violation of Alvarado's constitutional right to an impartial jury under Article 1, Section 11 of the Alaska Constitution.4

Under Erick v. State,5 if the State seeks a change of venue, the State has the burden to show that it was not reasonable to obtain a jury from the trial site where the offense allegedly occurred, as required by Alvarado.6 Like Ward's case, jury selection for Erick's case began in Fort Yukon. When Erick's jury selection started, forty-nine potential jurors showed up. When it became apparent that there would not be enough jurors to select an entire jury, the superior court elected to supplement the panel by recessing the trial for a week and notifying other jurors, who were scheduled to appear the next day for other trials, to appear the following week for Erick's jury. No more than eight villagers showed up on the following day. Those that did appear were personally summoned for the continuation of Erick's jury selection. The remaining twelve from that second group that did not show up were mailed notices to appear the following week for Erick's continued jury selection.7

When Erick's trial resumed, only five or six villagers showed up. Thus, there was a potential maximum of only fifty-five jurors from which to select a jury in Erick's case. Significant in this court's analysis of Erick's case was the trial court's ignorance of the potential availability of more names from which to call potential jurors. Although the trial judge in Erick's case recognized the need to call additional jurors, apparently there was a mistaken belief that the only potential jurors available were the ones that appeared the first day of jury selection and those villagers scheduled to appear the day after Erick's jury selection began. In fact, substantial additional names could have been obtained with little effort or delay.8

Here, the court did not consider calling additional jurors from another list, nor did Ward ask the court to take that action. Fort Yukon is a small community where, as the record of this jury selection shows, personal and family relationships and local knowledge of an alleged crime can overshadow jury selection. Apparently, the court anticipated this potential difficulty in Ward's case because a panel substantially larger than that summoned in Erick's case was called for Ward's trial. In fact, more people were excused for cause during Ward's jury selection than ever appeared for selection in Erick's case.

Over one hundred sixty potential jurors were summoned for Ward's case. Of those called, only eleven were not accounted for by the time the court had exhausted all the potential jurors. A review of the voir dire in Ward's case during the court's two-day attempt to seat a jury indicates the problems that existed for this jury selection in Fort Yukon. The most common disqualifying reason for the overwhelming majority of those excused from jury service was that the potential juror was related to Ward, or to

997 P.2d 531
James, or to both. Generally, Ward's relatives expressed a bias in favor of Ward often stating that they could not convict Ward no matter what the evidence showed. James's relatives tended to favor conviction. The prospective jurors who were related to both, and who were excused because they said they could not be fair, split both ways. As one potential juror testified about Fort Yukon during voir dire, "[i]t's one big family."

Many who were excused were close and life-long friends with Ward or his father and expressed an unwillingness to consider the evidence. Some expressed bias because Ward's case alleged violence against a woman. Others had decided what position they would...

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5 practice notes
  • LESTENKOF v. State, No. A-10007.
    • United States
    • Court of Appeals of Alaska
    • April 23, 2010
    ...28 Harmon v. State, 193 P.3d 1184, 1200 (Alaska App.2008). 29 Id. 30 708 P.2d 1292 (Alaska App.1985). 31 Id. at 1293. 32 Id. 33 Id. 34 997 P.2d 528 (Alaska 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. St......
  • Lestenkof v. State, No. 2258 (Alaska App. 4/23/2010), No. 2258.
    • United States
    • Court of Appeals of Alaska
    • April 23, 2010
    ...v. State, 193 P.3d 1184, 1200 (Alaska App. 2008). 29. Id. 30. 708 P.2d 1292 (Alaska App. 1985). 31. Id. at 1293. 32. Id. 33. Id. 34. 997 P.2d 528 (Alaska App. 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. Tug......
  • Ramsey v. State, No. A-7295.
    • United States
    • Court of Appeals of Alaska
    • October 11, 2002
    ...Criminal Law § 3.12(d), 399-402 (1986). 11. See LaFave & Scott, Substantive Criminal Law § 3.12(d), at 399-401; see also Ward v. State, 997 P.2d 528, 533 (Alaska App.2000) (Mannheimer, J. concurring) (citing Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 921-23 (3d ed.1982)) (noting tha......
  • Barber v. State, Court of Appeals No. A-11401
    • United States
    • Court of Appeals of Alaska
    • December 16, 2016
    ...Forster v. State , 236 P.3d 1157, 1161-62 (Alaska App. 2010).3 O'Brannon v. State , 812 P.2d 222, 229 (Alaska App. 1991).4 Ward v. State , 997 P.2d 528, 533 (Alaska App. 2000) (Judge Mannheimer, concurring).5 See Roark v. State , 758 P.2d 644, 647 (Alaska App. 1988).6 See, e.g., Phillips v.......
  • Request a trial to view additional results
5 cases
  • LESTENKOF v. State, No. A-10007.
    • United States
    • Court of Appeals of Alaska
    • April 23, 2010
    ...28 Harmon v. State, 193 P.3d 1184, 1200 (Alaska App.2008). 29 Id. 30 708 P.2d 1292 (Alaska App.1985). 31 Id. at 1293. 32 Id. 33 Id. 34 997 P.2d 528 (Alaska 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. St......
  • Lestenkof v. State, No. 2258 (Alaska App. 4/23/2010), No. 2258.
    • United States
    • Court of Appeals of Alaska
    • April 23, 2010
    ...v. State, 193 P.3d 1184, 1200 (Alaska App. 2008). 29. Id. 30. 708 P.2d 1292 (Alaska App. 1985). 31. Id. at 1293. 32. Id. 33. Id. 34. 997 P.2d 528 (Alaska App. 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. Tug......
  • Ramsey v. State, No. A-7295.
    • United States
    • Court of Appeals of Alaska
    • October 11, 2002
    ...Criminal Law § 3.12(d), 399-402 (1986). 11. See LaFave & Scott, Substantive Criminal Law § 3.12(d), at 399-401; see also Ward v. State, 997 P.2d 528, 533 (Alaska App.2000) (Mannheimer, J. concurring) (citing Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 921-23 (3d ed.1982)) (noting tha......
  • Barber v. State, Court of Appeals No. A-11401
    • United States
    • Court of Appeals of Alaska
    • December 16, 2016
    ...Forster v. State , 236 P.3d 1157, 1161-62 (Alaska App. 2010).3 O'Brannon v. State , 812 P.2d 222, 229 (Alaska App. 1991).4 Ward v. State , 997 P.2d 528, 533 (Alaska App. 2000) (Judge Mannheimer, concurring).5 See Roark v. State , 758 P.2d 644, 647 (Alaska App. 1988).6 See, e.g., Phillips v.......
  • Request a trial to view additional results

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