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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TEDDY SMITH,
                                                      Court of Appeals No. A-12309
                            Appellant,               Trial Court Nos. 2KB-12-603 CR
                                                            & 2KB-12-625 CR
                     v.

STATE OF ALASKA,                                              O P I N I O N

                            Appellee.                   No. 2640 — March 1, 2019


              Appeal from the Superior Court, Second Judicial District,
              Kotzebue, Timothy Dooley, Judge.

              Appearances: Kelly R. Taylor, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Ann B. Black, Assistant Attorney General, Office of Criminal
              Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
              Juneau, for the Appellee. Erin Dougherty Lynch, Native
              American Rights Fund, Anchorage, for Amicus Curiae
              Association of Village Council Presidents, aligned with the
              Appellant. Susan Orlansky, Anchorage, for Amicus Curiae
              ACLU of Alaska Foundation, aligned with the Appellant.
              Thomas Amodio, Reeves Amodio, LLC, Anchorage, for Amicus
              Curiae Alaska Court System, aligned with the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Judge MANNHEIMER.


              In early September 2012, in the village of Kiana, Teddy Smith fired a
shotgun at a group of people. He then fled into the wilderness, where he spent seven to
ten days subsisting on berries and water. Smith became exhausted and delirious, and he
later reported that he had been visited by “inukins” — supernatural beings who are
reputed to live on the tundra.
              Eventually, Smith came upon a hunting cabin north of Kiana, along the
Squirrel River. There was no one in the cabin when Smith found it, but the cabin
contained food. Smith decided to stay in the cabin.
              While Smith was there, two brothers — Paul and Chuck Buckel — arrived
at the cabin. Paul had lived in Kotzebue for more than twenty years, and his brother
Chuck was visiting from out of state. The Buckels were on a bear-hunting trip, and they
had permission from the cabin owner to use the cabin.
              Smith greeted the Buckels, identifying himself by a false name. Smith
helped the brothers bring their gear into the cabin, and he conversed with them for about
an hour. All of a sudden, Smith began screaming for the Buckels to “get the fuck out”.
Smith then grabbed his pistol and shot Chuck Buckel in the chest.
              Smith forced the Buckels out of the cabin, and he ordered Paul Buckel to
bring the brothers’ boat closer to the cabin. After Paul tied off the boat, Smith shot Paul
in the arm. Fearing for his life, Paul ran into the woods. His brother Chuck also tried
to run, but because of his chest wound, he had to stop and lean against a tree to catch his
breath. Smith watched Chuck from about ten feet away, but he did not shoot Chuck
again. Eventually Chuck made his way into the woods, where the brothers were
reunited.



                                           –2–                                        2640

                In the meantime, Smith loaded most of the Buckels’ gear into their boat,
and then he took off in their boat down the river. When the Buckels discovered that
Smith had left, they returned to the cabin and used the cabin owner’s marine radio to call
for help. The following morning, the state troopers arrived, and the Buckels were
medivacked to receive care for their wounds. Both of them survived.
                The troopers found Smith down-river from the cabin, and they took him
into custody.
                Smith was brought to trial in Kotzebue on charges of attempted murder,
first-degree assault, first-degree robbery, and third-degree assault. He was convicted
following a jury trial.
                Smith now seeks reversal of his convictions. He raises a series of legal
challenges to the rules that the Alaska Court System uses for summoning prospective
jurors for criminal trials in court locations around the state — including the authority that
the rules give the presiding judges of each judicial district to restrict the geographic area
from which prospective jurors are summoned.
                For the reasons explained in this opinion, we reject most of Smith’s claims
and we affirm the rulings of the trial court. But with respect to Smith’s claim that he
should be able to challenge a ruling made by the presiding judge of his judicial district
to restrict the area from which jurors are summoned, we conclude that we must remand
this case to the superior court for further proceedings on this matter.


       The law that governs the summoning of prospective jurors for trials in the
       different court locations within Alaska


                The Alaska Supreme Court has established venue districts for every court
location in Alaska. These venue districts are defined by a venue map promulgated by


                                            –3–                                         2640

the Alaska Supreme Court. 1 See Alaska Criminal Rule 18(a). The purpose of these
venue districts is to identify the court site where a defendant’s trial will presumptively
be held if the crime is alleged to have occurred within that venue district.
              For example, as defined by the supreme court’s venue map, the Kotzebue
venue district is a sizeable region that (1) extends east from Kotzebue approximately 250
miles inland, (2) extends south from Kotzebue approximately 100 miles, and extends
more than 150 miles northwest from Kotzebue along the coast of Kotzebue Sound, past
Point Hope. When a crime is alleged to have occurred within this district, the trial will
presumptively be held in Kotzebue.
              As might be imagined, all of the venue districts in Alaska include smaller
towns and villages in addition to the court site itself. For example, the Kotzebue venue
district includes approximately a dozen smaller villages in addition to the regional hub
city of Kotzebue. But when the Alaska Court System prepares its lists of prospective
jurors within the various venue districts — i.e., the lists of people who can be summoned
to serve on juries at the various court locations around the state — these jury lists will
often exclude the people living in outlying towns and villages.
              Under Alaska Administrative Rule 15(c) — a rule that was numbered
“15(b)” at the time of the proceedings in this case — the list of prospective jurors for any
particular court site is not drawn from the population of the entire corresponding venue
district. Rather, the list of prospective jurors comprises only the people living within a
50-mile radius of that court site, unless the presiding judge of that judicial district
designates a different selection area.



   1
       This map is available at:

   https://public.courts.alaska.gov/web/rules/docs/venuemap.pdf



                                           –4–                                         2640

              In some venue districts, this 50-mile selection radius excludes a relatively
small percentage of the population of that district. But in far-flung rural venue districts,
the 50-mile radius rule can exclude the residents of many towns and villages.
              In the Kotzebue venue district, for example, only two villages (Noorvik and
Noatak) are located within a 50-mile radius of the Kotzebue court.
              Moreover, for the past thirty years, the presiding judges of the Second
Judicial District (the judicial district that includes Kotzebue) have concluded that the cost
of transporting and housing prospective jurors from even these two villages is
unreasonably high. For this reason, over the years, the various presiding judges of the
Second Judicial District have exercised their authority under Administrative Rule 15(c)
to alter the 50-mile jury selection radius. Instead of employing the normal 50-mile
radius, these presiding judges have issued orders declaring that the list of prospective
jurors for trials in Kotzebue should be confined to the people living within a 5-mile
radius of Kotzebue.
              In other words, the list of prospective jurors for trials in Kotzebue is
essentially limited to the people living in or nearby the city of Kotzebue itself.


       The constitutional limitations on the Alaska Court System’s authority to
       define jury selection areas based on cost and convenience


              On its face, Administrative Rule 15 gives the Court System, and the
presiding judges of the four judicial districts, broad authority to define jury selection
areas so as to reduce jury expenses and increase the convenience of jurors’ travel and
lodging.
              However, the working of Administrative Rule 15 hinges in large measure
on the boundaries of the various venue districts drawn in the supreme court’s venue map.


                                            –5–                                         2640

And the driving force behind the supreme court’s selection of those venue district
boundaries is the supreme court’s 1971 decision in Alvarado v. State, 486 P.2d 891
(Alaska 1971). Alvarado is the seminal Alaska case defining a criminal defendant’s right
to demand that prospective jurors summoned for jury service reflect the community
where the crime is alleged to have occurred.
              The defendant in Alvarado was an Alaska Native man who was charged
with committing a rape in the village of Chignik. 2 This village is located on the Alaska
Peninsula, approximately 450 air miles southwest of Anchorage, and the great majority
of its residents were Alaska Natives who primarily pursued a rural, subsistence
lifestyle. 3 However, the city of Anchorage was the specified court site for crimes
committed in Chignik — and, under the jury selection rules that were in force at the time,
the prospective jurors for Alvarado’s trial were drawn from the people living within
15 miles of Anchorage. 4
              This 15-mile jury selection radius effectively excluded not only the
residents of Chignik but also the residents of every other Native village. And even
though the Alaska Natives comprised nearly 30 percent of the population of the Third
Judicial District (where Anchorage is located), Alaska Natives comprised only 3.5
percent of the population of Anchorage. 5
              The supreme court held that the 15-mile jury selection radius — and its
concomitant exclusion of jurors from Chignik and every other Native village — violated
Alvarado’s right under the Alaska Constitution to have prospective jurors drawn from


   2
       Alvarado, 486 P.2d at 892-93.
   3
       Id. at 894.
   4
       Id. at 892-93.
   5
       Id. at 895.

                                            –6–                                      2640

a pool of people that represents a fair cross-section of the community where the crime
occurred. 6
              In reaching this conclusion, the supreme court relied on evidence presented
to the trial court concerning the salient characteristics of Alaska Native cultures, and the
profound differences between those Alaska Native cultures and the urban lifestyle that
typified Alaska’s larger cities, such as Anchorage. As the supreme court observed, the
distinguishing characteristics of Alaska Native cultures include:

              economies which rely on hunting, fishing, and gathering
              activities, strong kinship bonds, isolation from those parts of
              Alaska that approximate mainstream America, different
              seasonal activity patterns, concepts of time and scheduling
              which ... may be quite different from those of mainstream
              America, and finally, very limited participation in the cash
              economy.

Alvarado, 486 P.2d at 894.
              The supreme court noted that, even though most Alaska Native villages are
exposed to some extent to the Western culture of Alaska’s cities, “the gap separating
Native villages from the mainstream of urban society is vast”:

              Examples of the unique qualities of Native culture ...
              encompass such factors as ... childhood exposure to two
              languages, cultural disorientation reflecting the imposition on
              the Native villages of the dominant society’s way of life, a
              distinct social history, ... and basic differences in family
              structure.

Id. at 895.



   6
       Id. at 903-05.

                                           –7–                                         2640

               Based on all of these significant differences, the supreme court concluded
that “the remote Native villages of the third judicial district” — villages such as Chignik
— were “vastly dissimilar from the metropolis of Anchorage”:

               The gap stretching between these two distinct classes of
               community is of far greater magnitude than that which
               normally separates city from city or small town from city
               elsewhere in the United States. We are faced here with the
               order of differences which distinguishes one culture from
               another.

Id. at 900. And because of this cultural divide between life in Alaska’s large urban
centers and life in the Native villages, the supreme court held that, when a crime is
alleged to have occurred in a Native village, it is unconstitutional to select prospective
jurors in a manner that essentially excludes all residents of Native villages. 7 The
supreme court declared that, in such cases, the pool of prospective jurors must include
people who are representative of the community residing at the location of the alleged
offense. Id. at 902.
               This rule means that a jury can be validly selected even if the pool of
prospective jurors does not actually include people living at the location of the alleged
offense — what the law calls the rule of “vicinage”. 8 Instead, the supreme court
endorsed Alvarado’s suggestion that the concept of vicinage was no longer an inflexible
requirement of jury selection — “no longer a mechanical formula which requires, in all
cases, that the jury be selected from the precise locale of the crime”. 9



   7
       Id. at 895, 903.
   8
       Id. at 896.
   9
       Ibid.

                                           –8–                                        2640

                Nevertheless, the supreme court declared that the concept of vicinage
“serves primarily as a guide” to assessing whether the people who live in the jury
selection area are properly “representative” of the community that lives at the location
of the alleged offense. 10 Thus, even though the jury selection area does not include the
residents of the place where the crime occurred, the people living in that jury selection
area may “still reasonably represent a cross-section of the community [residing at] the
scene of the offense” if the population of the jury selection area does not differ
significantly from the population of the place where the crime occurred. 11
                In order to facilitate jury pools that comply with Alvarado, the supreme
court promulgated Alaska Criminal Rule 18 and an accompanying series of venue district
maps. 12 The current venue district map divides Alaska into 25 superior court venue
districts, with each venue district containing a city or town designated as a suitable site
for felony trials. As this Court explained in John v. State, “The supreme court’s goalwas
that, by using Rule 18(b) in combination with the venue map, judges would be able to
identify a presumptive trial site where the composition of the jury pool could be expected
to satisfy Alvarado.” 13
                However, if it is shown that the pool of prospective jurors prescribed by the
provisions of Criminal Rule 18 and Administrative Rule 15(c) does not satisfy Alvarado,




   10
        Ibid.
   11
        Id. at 902 n. 29.
   12
      John v. State, 35 P.3d 53, 55 (Alaska App. 2001); see also Dana v. State, 623 P.2d
348, 351 (Alaska App. 1981) (stating that a former version of Criminal Rule 18 was “directly
aimed at avoiding the type of situation which gave rise to Alvarado”).
   13
        John v. State, 35 P.3d 53, 55 (Alaska App. 2001).

                                             –9–                                        2640

then the trial court must use a different pool of prospective jurors — because the
constitutional requirements of Alvarado take precedence.


       The litigation of Smith’s jury claims in the superior court


              As we explained earlier, Administrative Rule 15(c) normally calls for the
list of prospective jurors to be drawn from the people living within a 50-mile radius of
the court location, but over the years the presiding judges of the Second Judicial District
have issued orders limiting the jury selection area for Kotzebue to a 5-mile radius. Thus,
as a practical matter, the pool of prospective jurors included only the people living in and
nearby Kotzebue itself.
              Prior to Smith’s trial, Smith’s attorney filed a motion asking the superior
court to expand the jury selection area to include everyone living in the entire Kotzebue
venue district. (As we have explained, there are about a dozen villages scattered
throughout the Kotzebue venue district.)
              Smith’s attorney argued that any smaller pool of prospective jurors would
violate Smith’s constitutional right under Alvarado to have the group of prospective
jurors drawn from a pool that included a fair cross-section of the community where
Smith’s crimes allegedly occurred — i.e., the village of Kiana and the surroundingareas.
              The defense attorney also argued that any smaller poolof prospective jurors
would violate the rights of all the village residents within the Kotzebue venue district —
specifically, the right of these village residents to serve on juries. Smith’s attorney noted
that the total population of these outlying villages was significantly greater than the
population of Kotzebue. Thus, jury pools in Kotzebue were being drawn from a
minority of the residents of the venue district.



                                           – 10 –                                       2640

              In support of Smith’s Alvarado claim (i.e., his claim that a jury pool drawn
solely from the residents of Kotzebue would not represent a fair cross-section of the
community where the crimes occurred), Smith’s attorney argued that each and every
village in the Kotzebue venue district had its own distinct characteristics, and thus it was
especially important for the jury selection area to include the village of Kiana. However,
the defense attorney’s fall-back claim was that the dozen outlying villages, considered
as a whole, constituted a distinct cultural group that was not fairly represented by the
residents of Kotzebue.
              With regard to this latter claim (that the outlying villages, taken as a whole,
constituted a distinct cultural group for purposes of an Alvarado analysis), Smith’s
attorney argued that these villagers were far more likely than the residents of Kotzebue
to practice a subsistence hunting lifestyle. According to the defense attorney, this was
important because it meant that these villagers would be more familiar with firearms, and
they would more readily understand that Smith would have been able to kill the Buckels
if he had wanted to.
              The defense attorney also argued that the villagers living in Kiana and
along the Squirrel River would be more familiar with people who believed in inukins —
and, therefore, these villagers would be more likely to credit Smith’s statements about
encountering inukins while he was wandering in the wilderness, rather than immediately
concluding that Smith was either lying or delusional.
              The superior court, in a lengthy written decision, rejected the defense
attorney’s contention that the residents of the outlying villages constituted a group whose
culture was distinct, for Alvarado purposes, from the culture of the residents of
Kotzebue.
              The superior court noted that, even though Kotzebue was a hub city, almost
75 percent of the residents of Kotzebue were Alaska Natives, with an additional

                                           – 11 –                                       2640

5 percent identifying themselves as having an Alaska Native heritage. (In Kiana, the
percentage of Alaska Natives was 90 percent.) Perhaps more importantly, the superior
court also found that the “attitudes[,] ideas, [and] experience” of Kotzebue residents
exhibited a “basic similarity” to the attitudes, ideas, and experience of the people living
in the other villages within the Kotzebue venue district.
              The superior court explained that Smith was essentially asking the court to
assume that, because Kotzebue was a city, the people living in Kotzebue must have a
materially different culture and lifestyle from the people living in the smaller villages.
But the court declined to make this assumption in the absence of evidence.
              The court noted that even though Smith’s attorney had made several
assertions about the purported culturaldifferences between the residents of Kotzebue and
the residents of the outlying villages, Smith’s attorney “present[ed] no evidence that
hunting or the subsistence lifestyle [was] any less prevalent in Kotzebue than in other
communities [within the venue district]”.     Nor did Smith present any evidence that
Kotzebue residents would not reflect “the same attitudes, ideas, and experiences as other
residents of the [venue] district.”
              Apparently on its own initiative, the superior court examined census
information comparing the residents of Kotzebue to the residents of Kiana, the residents
of House District 40, and residents of the Second Judicial District as a whole. This data
included information as to what percentage of residents identified themselves as Alaska
Natives, or as having an Alaska Native heritage. The data also included information
regarding how many people had salaried employment, how many people were
unemployed, how many people were receiving food stamps, and how many households
were multi-generational.
              The court found that this data supported the conclusion that the residents
of Kotzebue “[fell] squarely within the same culture as Kiana [and] House District 40”,

                                          – 12 –                                      2640

and that there was “no cognizable group ... present in Kiana [or] House District 40” that
was not “also present in Kotzebue”.
              And with particular respect to the belief in “inukins”, the court noted that
Smith presented no evidence regarding how many residents of Kiana believed in these
supernatural beings. Rather, Smith’s only evidence of this cultural belief was a decades-
old Kotzebue newspaper article which stated that some residents of Kotzebue believed
in inukins.
              Based on allthis, the superior court concluded that Smith had failed to show
that a jury pool drawn from the residents of Kotzebue would not adequately represent
the “attitudes, ideas[,] and experiences” of the residents of Kiana and the other villages
within the Kotzebue venue district.
              After the superior court issued this ruling, Smith’s attorney separately
challenged the presiding judge’s decision to reduce the Kotzebue jury selection area from
the normal 50-mile radius to a smaller 5-mile radius. As we have already explained, the
Administrative Rules give presiding judges the authority to reduce a jury selection radius
if the transportation and housing of prospective jurors from this normal 50-mile radius
would pose an unreasonable expense.
              Smith’s attorney noted that, in the case of the Kotzebue jury selection area,
the presiding judge’s order declared that a 50-mile jury selection radius would pose an
unreasonable expense, but the judge’s order did not provide any of the data or financial
information that the judge relied on when reaching this conclusion. The defense attorney
asked the superior court to give him an opportunity to show that the presiding judge’s
conclusion was wrong, so that the Kotzebue jury selection area could at least be
expanded to the normal 50-mile radius — a radius that would include the two villages
of Noorvik and Noatak.
              The superior court summarily denied the defense attorney’s motion.

                                          – 13 –                                      2640

       Smith’s claims on appeal


              On appeal, Smith asserts that all residents of Alaska have a right to serve
on juries. Based on this assertion, Smith suggests that Administrative Rule 15(c) is
unconstitutional, at least as it is applied in many areas of Alaska, because the 50-mile
jury selection radius prescribed by Rule 15(c) often excludes significant numbers of rural
residents, and because there are many areas of the state where these excluded rural
residents are predominantly Alaska Native.
              Smith did not raise this generalized, state-wide attack on Administrative
Rule 15(c) in the trial court. Nor is it clear that Smith has standing to attack the method
of jury selection that is employed in other areas of Alaska. We therefore will address
Smith’s contentions only as they apply to the method of jury selection in the Kotzebue
venue district.
              Smith contends that allresidents of the Kotzebue venue district have a right
to serve on juries, and that Administrative Rule 15(c) unlawfully abridges this right.
But while courts often speak of jury service as a “right”, such statements are generally
made in the context of ensuring that all adults within a legally defined vicinage have an
equal chance of being included in the lists of prospective jurors drawn from that
vicinage.
              As the Supreme Court of California has explained, citizens have no free­
standing right to serve on juries:

                      While trial by jury is constitutionally implanted in our
              system of justice, an individual’s interest in serving on a jury
              cannot be held a fundamental right. The [jury trial] guarantee
              of the Sixth Amendment is primarily for the benefit of the
              litigant — not persons seeking service on the jury; and even
              though [a citizen is] lawfully qualified, a citizen may not

                                           – 14 –                                     2640

              demand to serve on a jury. At most, the citizen is entitled to
              be considered for jury service. His interest in becoming a
              juror is clearly secondary to the interests of the litigants in
              securing an impartial jury, as shown by the traditional
              exclusion of prospective jurors for cause or upon peremptory
              challenge. Jury service is commonly viewed more as a
              combination of duty and privilege than as a right, sanctions
              being imposed for failure to appear.

Adams v. Superior Court of San Diego County, 524 P.2d 375, 379 (Cal. 1974).
              Moreover, because Smith’s argument implicitly rests on the concept of
vicinage (i.e., the assertion that all adults within a vicinage should have an equal chance
of being included in the lists of prospective jurors), his argument is fundamentally at
odds with our supreme court’s decision in Alvarado.
              As we have explained, Alvarado expressly holds that Alaska law does not
incorporate the traditional notion of vicinage — and, thus, juries need not be drawn from
the geographic locale where the crime was allegedly committed, so long as the pool of
prospective jurors includes people who are representative of the community residing at
the location of the alleged offense. Alvarado, 486 P.2d at 902. Thus, the decision in
Alvarado implicitly rejects the idea that all citizens within a venue district have an equal
right to be included in that district’s lists of prospective jurors.
              For these reasons, we reject Smith’s argument that Administrative Rule
15(c) is unconstitutional because it authorizes the Alaska Court System to compile lists
of prospective jurors that do not include all residents of the Kotzebue venue district.
              We now turn to Smith’s argument that the Alaska Court System is violating
his rights under Alvarado by limiting the pool of prospective jurors to those people living
within a 5-mile radius of the Kotzebue court.




                                            – 15 –                                     2640

               To prevail on this claim, Smith must show (1) that the residents of the
community where his crime occurred (Kiana and its environs) are members of a culture
that is materially distinct from the culture of the residents of Kotzebue under the test
announced in Alvarado, and (2) that a jury pool drawn from the residents of Kotzebue
will fail to fairly and reasonably represent the culture of the residents of Kiana (in
proportion to the number of Kiana residents within the venue district). See Tugatuk v.
State, 626 P.2d 95, 100 (Alaska 1981). See also Wyatt v. State, 778 P.2d 1169, 1170-71
n. 2 (Alaska App. 1989) (clarifying that Alvarado does not invariably require that the
jury selection pool include residents of the place where the crime occurred, so long as
the jury selection pool includes a reasonable number of people who share the culture of
that place).
               Here, it was Smith’s burden to affirmatively demonstrate to the superior
court that the residents of Kiana and its environs were members of a separate, cognizable
cultural group whose interests could not be adequately protected by a jury pool whose
members were drawn from the residents of Kotzebue. See Hampton v. State, 569 P.2d
138, 148 (Alaska 1977); Dana v. State, 623 P.2d 348, 351-52 (Alaska App. 1981).
               In Alvarado, the supreme court found that the defendant met this burden
through census and sociological data of the kind that the superior court examined in
Smith’s case, as well as through the testimony of a professor of sociology and the
affidavits submitted by a cultural anthropologist and by the former director of the Alaska
Human Rights Commission. 14
               But as we have already explained, Smith relied on arguments and
assumptions that were supported by very little evidence.




   14
        Alvarado v. State, 486 P.2d 891, 894-95 (Alaska 1971).

                                          – 16 –                                     2640

              Unlike the defendant in Alvarado, Smith did not provide the superior court
with testimony or other evidence to back up his assertion that the residents of Kotzebue
and the residents of the outlying villages constituted two distinct cultural groups. Indeed,
the only evidence pertinent to Smith’s claim was the census data that the superior court
provided sua sponte. And based on the record in front of it, the superior court concluded
that Smith had failed to meet his burden of proof.
              To the extent that the superior court’s ruling rested on questions of fact —
for example, findings regarding the general attitudes, experiences, and lifestyles of the
residents of Kiana versus the residents of Kotzebue — we conclude that the superior
court’s findings are not clearly erroneous.
              The superior court’s ruling also rested on its legal conclusion that, whatever
differences might exist between life in Kiana and life in Kotzebue, those differences did
not amount to a “cognizable” cultural difference for purposes of Alvarado, Hampton,
Tugatuk, and Wyatt. We review this aspect of the superior court’s ruling de novo.
              But given the superior court’s ultimate finding of fact — its finding that
Smith failed to establish any significant differences between the attitudes, ideas, and
experience of Kotzebue residents and the attitudes, ideas, and experience of the people
living in the other villages within the venue district — we affirm the superior court’s
legal conclusion that Smith failed to demonstrate any cognizable cultural difference for
purposes of Alvarado, Hampton, Tugatuk, and Wyatt.
              We therefore reject Smith’s claim that the Alaska Court System violated his
rights under Alvarado by limiting the jury selection area to a 5-mile radius of Kotzebue.
              Finally, Smith argues that even if the 5-mile jury selection radius did not
violate his rights under Alvarado, this jury selection area was nevertheless unlawful
because the presiding judge of the Second Judicial District lacked a sufficient factual



                                           – 17 –                                      2640

basis for reducing the Kotzebue jury selection to a radius of 5 miles, rather than using
the normal 50-mile jury selection radius prescribed by Administrative Rule 15(c).
                As we have explained, the presiding judge’s order was based on a finding
that the transportation and housing of prospective jurors from Noorvik and Noatak (the
two villages within a 50-mile radius of Kotzebue) would pose an unreasonable expense.
In the superior court, Smith argued that the facts did not support the presiding judge’s
finding, or (alternatively) that conditions had changed since the presiding judge made
this finding, and the finding was now outdated. But the superior court refused to grant
Smith an evidentiary hearing on this issue.
                We conclude that it was error for the superior court to refuse Smith a
hearing on this issue. In reaching this conclusion, we express no opinion as to whether
the facts support the presiding judge’s finding that it would be unreasonable for the Court
System to bear the cost of transporting and housing prospective jurors from the villages
of Noorvik and Noatak. Nor do we express any opinion as to what remedy Smith would
be entitled to, even if he could show that the presiding judge’s finding was not supported
by the facts.


       Conclusion


                Based on the findings of the superior court, we reject Smith’s claim that the
jury selection pool in his case failed to represent a fair cross-section of the community
living where the crime occurred. We also reject Smith’s claim that all adult citizens
living in the Kotzebue venue district have a right to serve on juries, and that Alaska
Administrative Rule 15(c) is unconstitutional because it restricts the jury selection area
to a 50-mile radius of the court location.



                                             – 18 –                                     2640

              But with respect to Smith’s claim that the facts do not support the presiding
judge’s decision to restrict the Kotzebue jury selection area to a 5-mile radius (rather
than the normal 50-mile radius prescribed by Administrative Rule 15(c)), we conclude
that it was error for the superior court to deny Smith a hearing on this issue.
              We therefore remand Smith’s case to the superior court, to give Smith the
opportunity to make his case that the costs of transportingand housingprospective jurors
from Noorvik and Noatak — the two villages within a 50-mile radius of Kotzebue —
would not be unreasonable. If Smith establishes that the cost of summoning prospective
jurors from these two villages would not be unreasonable, then the superior court should
decide the further issue of whether Smith is entitled to any relief.
              The superior court shall conduct these additional proceedings within 90
days of the issuance of this opinion. After the superior court issues its decision on these
matters, the parties (either or both of them) shall have 30 days to seek our review of the
superior court’s decision. We retain jurisdiction of this appeal for that purpose.




                                          – 19 –                                      2640

