Gregory T. LESTENKOF, Appellant,
STATE of Alaska, Appellee.
[Copyrighted Material Omitted]
Brian T. Duffy, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
This case involves the competing values protected by the constitutional guarantee that a criminal defendant must have an " impartial jury."  The jury venire must include a " fair cross section" of the community in which the alleged offense occurred. In addition, the individual jurors may not be biased by their relationships to the parties or their knowledge of the dispute. 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 Melovidov and her boyfriend, Gregory T. Lestenkof, engaged in heavy drinking, ending up at the home they shared. When Melovidov'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.
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 excused for cause due to knowledge of the facts of the case, relationships to Lestenkof or Melovidov 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 " [i]n 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, " [t]he 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. Kentucky : 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. Lestenkof 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 Lestenkof's 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. 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." 
In Lestenkof's 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-eight 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.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. Lestenkof agreed to this procedure. But Lestenkof now argues that the State's eleventh peremptory challenge violated Rule 24(b)(2)(A), which provides that " [t]he additional peremptory challenges allowed by section (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.
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.  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.
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] ...