                                                                                           FILED
                                                                            COURT OF APPEA1 S
                                                                               DIVISION
                                                                          20 14 JUN - 3
                                                                                        AN 8;_
    IN THE COURT OF APPEALS OF THE STATE OF W ASHINGTON
                                                      t.
                                                                            i      E   O
                                                                                           WASHINGTON
                                         DIVISION II'                       i °-




CITY OF CAMAS,                                                       No. 44184 -5


                      Respondent,.


       v.




VLADIMIR V. GRUNTKOVSKIY,                                    UNPUBLISHED OPINION


                               Appellant.




       MAxA, J. — Vladimir   Gruntkovskiy appeals his criminal conviction because the Camas

Municipal Court jury that found him guilty was drawn from all of Clark County and did not

include any residents of the City of Camas. Gruntkovskiy argues that RCW 2. 36.050 requires
courts of limited jurisdiction to draw their jury panels only from the area the court serves and

that the municipal court' s jury composition violated his constitutional right to an impartial jury
because it did not represent a fair cross section of the community. But Gruntkovskiy did not

raise the jury composition issue below. Because we hold that the alleged error in selecting the
jury pool is not a manifest error affecting a constitutional right, we will not review the alleged
error. Accordingly, we affirm.

                                               FACTS


        Gruntkovskiy was charged with driving under the influence ( DUI) and hit and run in
violation of Camas municipal ordinances. He was found guilty as charged by a Camas

Municipal Court   jury.
No. 44184 -5 -II



        Under an interlocal agreement between Clark County and the City of Camas, Clark

County provides all judicial and court support services necessary to adjudicate all matters arising .

under the ordinances of Camas, including administering jury panels. Jury panels for cases

involving Camas Municipal Court are summoned from a list of eligible jurors covering all of

Clark County. Consistent with the court administration' s practice, the jury panel in

Gruntkovskiy' s case was summoned from the county - ide list. None of the panel members
                                                  w

assigned to Gruntkovskiy' s case lived in Camas or in the postal zip code area designated as

Camas. Gruntkovskiy did not object to the jury panel at trial.

        Gruntkovskiy appealed to the superior court. The superior court affirmed his DUI

conviction and reversed the hit and run conviction.


        Gruntkovskiy moved this court for discretionary review. Our commissioner granted

review on Gruntkovskiy' s claim that the trial court erred in selecting his jury and the related

issue whether he can challenge the jury' s composition for the first time on appeal. We denied

Gruntkovskiy' s motion seeking to modify the commissioner' s ruling to allow review of

additional issues.


                                            ANALYSIS


        Gruntkovskiy did not object to the jury composition below. The City argues that because

he did not object, Gruntkovskiy waived his right to challenge this issue on appeal. We agree

because the claimed error is not a manifest error affecting a constitutional right.

        Under RAP 2. 5( a), we generally will not review claims raised for the first time on appeal,

unless the party claiming the error can .show the presence of an exception to that rule. State v.

Robinson, 171 Wn.2d 292, 304, 253 P. 3d 84 ( 2011).     RAP 2. 5( a)( 3) permits a party to raise such




                                                  2
No. 44184 -5 -II



a claim if it amounts to a " manifest error affecting a constitutional right. "1 To determine the

applicability    of    RAP 2. 5(   a)(   3), we first must determine whether the alleged error is constitutional


in   nature.   State   v.   Powell, 166 Wn.2d 73, 84, 206 P. 3d 321 ( 2009). We consider whether the


appellant' s claim, if true, implicates a constitutional interest. State v. O' Hara, 167 Wn.2d 91,


98, 217 P. 3d 756 ( 2010).          If so, the next step is to determine whether the error is " manifest."

O' Hara, 167 Wn.2d at 99. An error is manifest only if the appellant shows actual prejudice.

O' Hara, 167 Wn.2d at 99. The appellant must make a plausible showing that the asserted error

had practical and identifiable consequences in the trial of the appellant' s case. O' Hara, 167


Wn.2d at 99. The focus is on whether the error is " so obvious on the record that the error


warrants appellate review."              O' Hara, 167 Wn.2d at 100.


A.        ALLEGED ERROR UNDER RCW 2. 36. 050


          Gruntkovskiy' s primary argument is that RCW 2. 36. 050 requires courts of limited

jurisdiction to limit random selection ofjurors to the population of the area the court serves.


RCW 2. 36. 050 states:


          In courts of limited jurisdiction, juries shall be selected and impaneled in the same
          manner as in the superior courts, except that a court of limited jurisdiction shall
          use the master jury list developed by the superior court to select a jury panel.
          Jurors for the jury panel may be selected at random from the population of the
          area served by the court.

The parties debate whether RCW 2. 36. 050 requires courts of limited jurisdiction to draw jury

panels solely from the area the court serves or whether it merely authorizes the practice.


1
  Gruntkovskiy did not specifically argue that RAP 2. 5( a)( 3) or any other exception in RAP
2. 5( a) applies here. Accordingly, we have the discretion to refuse to consider the jury
composition issue without further discussion. However, because Gruntkovskiy did argue that the
City violated his constitutional rights, we choose to consider this issue despite his failure to cite
to RAP 2. 5( a)( 3).



                                                             3
No. 44184 -5 -II



         But RCW 2. 36.050 necessarily involves a statutory right. Accordingly, any error in

applying RCW 2. 36. 050 is not a constitutional error as required for review under RAP 2. 5( a).

We generally will not consider for the first time on appeal arguments that a statutory right has

been   violated.   State   v.   Hughes, 154 Wn.2d 118, 153, 110 P. 3d 192 ( 2005),            overruled on other




grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006).

         Gruntkovskiy asserts that violation of RCW 2. 36. 050 involves a constitutional right

because it implements the constitutional right to a fair and impartial jury. We agree that the

purpose of statutory procedures for making up the jury lists is to provide a fair and impartial jury.

See   City   of Tukwila    v.   Garrett, 165 Wn. 2d 152, 159 -60, 196 P. 3d 681 ( 2008). However, there is


no authority stating that RCW 2. 36. 050 directly implements the jury trial right so that violation

of it constitutes a constitutional error. Accordingly, because Gruntkovskiy' s argument that the

jury panel selection procedures below violated RCW 2. 36. 050 does not involve a constitutional
right, we will not consider it.


B.       CONSTITUTIONAL RIGHT TO IMPARTIAL JURY

                                                                                          constitutional




         As    noted   above,    Gruntkovskiy      argues that the    City violated his                    right to an
                                                                                                               t



impartial jury because the use of a county -wide jury panel rather than a jury panel drawn from

the area the municipal court serves excludes a fair cross section of the community in which the

trial is held. Both article I, section 22 of the Washington Constitution and the Sixth Amendment

to the United States Constitution provide a constitutional right to a trial by an impartial jury. As

a result, under RAP 2. 5( a)( 3) we must determine whether if the City erred in using a county -wide

jury panel,    that   error violates   this   constitutional right.
No. 44184 -5 -II


          Our Supreme Court has held that a criminal defendant has a Sixth Amendment right to a


trial by a jury of one' s peers drawn from a source fairly representative of the community. State

v.   Rupe, 108 Wn.2d 734, 746, 743 P. 2d 210 ( 1987). To establish a violation of the fair- cross-


section requirement, the defendant must show:


           1)   that   the   group    alleged     to   be   excluded       is   a "   distinctive"
                                                                                   group in the
          community; ( 2)     that the representation of this group in venires from which juries
          are selected is not fair and reasonable in relation to the number of such persons in
          the    community;     and (    3)   that this underrepresentation is due to systematic
          exclusion of the group in the jury- selection process.

Rupe, 108 Wn.2d at 746 ( quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed.

2d 579 ( 1979)).       Gruntkovskiy argues that his jury was not selected from a fair cross section of

the community in violation of his constitutional right to an impartial jury.

           Gruntkovskiy      relies   primarily   on   Alvarado     v.   Alaska, 486 P. 2d 891 ( 1971).        In Alvarado


the Supreme Court of Alaska held that the practice in the third judicial district of Alaska of


selecting all prospective jurors from the area within a radius of 15 miles of Anchorage deprived

the defendant of his constitutional right to an impartial jury because it precluded residents of the

Native village wherethe crime . ccurred and residents ofvirtually all Native villages from
                              o

representation on jury panels. 486 P. 2d at 898 -900, 904. The court' s decision focused on the

great difference between the remote Native villages and the metropolis of Anchorage. Alvarado,

486 P. 2d at 899 -900. The court stated that where " prospective jurors are selected from an area

which does not encompass the scene of the alleged crime, there will always be a danger that

significant elements of the community in which the crime occurred will be excluded from

representation on the jury panel, and that the panel will consequently fail to represent a fair cross

section of      the community." Alvarado, 486 P. 2d            at   902 -03. The        court   held that "[ b] ecause the
No. 44184 -5 -II


source   from   which [ the]     jury   was    drawn ...   excluded virtually all residents of Native villages in

the third judicial district, we are constrained to find that the jury empanelled in this case could

not have adequately represented a fair cross section of the community in which the crime

occurred, and     that it therefore     cannot    be deemed impartial." Alvarado, 486 P. 2d at 903.


         However, the facts here are much different than in Alvarado. Alvarado involved a

systematic exclusion of a distinctive group in the community from participation in the jury

process —    the challenged procedure resulted in the exclusion of almost all Native village

residents.     486 P. 2d   at   903.   Here, Camas is within Clark County, and there is nothing to suggest

that residents of Camas were excluded from the county -wide pool from which prospective jurors

were randomly selected. The fact that no Camas residents were ultimately summoned for

Gruntkovskiy' s case does not mean that Camas residents were systematically excluded from the

jury selection process. Drawing from allegedly too large an area does not implicate issues of

impartiality in the same way exclusion of a group of citizens does.

         This case is similar to Rupe, where the defendant argued that he was denied his right to


trial by a jury composed of a fair cross section of the community because no one on the jury

panel was under 35 years old and only three were under 40 years old. 108 Wn.2d at 746. The

court rejected this argument because the defendant failed to prove that persons aged 18 to 34 or

those aged 18 to 40 were underrepresented on the prospective juror list. Rupe, 108 Wn.2d at

747. The court emphasized that the mere fact that there were no people under a certain age on


the jury panel was not enough to show a constitutional violation. Rupe, 108 Wn.2d at 748.

Similarly, here, the mere fact that no Camas residents were on Gruntkovskiy' s jury panel is not

enough    to   show a violation of       his   constitutional right   to trial   by a jury   composed of a   fair   cross
No. 44184 -5 -II



section of the community. Accordingly, we hold that the alleged error of using a county -wide

panel in Gruntkovskiy' s case was not an error of constitutional magnitude.

        Moreover, even if the alleged error was constitutional in nature, that error is not manifest


because Gruntkovskiy cannot show actual prejudice. There is no indication that the use of a

county -wide jury panel had any practical and identifiable consequences in the trial of his case.

        We hold that Gruntkovskiy cannot show that the City' s alleged error in using a county-

wide jury pool constituted a manifest error affecting a constitutional right. Accordingly, under

RAP 2. 5(   a)(   3),   we will not consider Gruntkovskiy' s unpreserved challenge to the jury panel

selection procedures.



        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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