Opinion
Court of Appeals No. A-8635.
January 31, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Ralph R. Beistline and Jane F. Kauvar, Judges, Trial Court No. 4FA-01-03111 CR.
David D. Reineke, Assistant Public Defender, Barbara K. Brink, Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Daniel C. Lewis of several charges arising from an incident where he intentionally shot a hole through the Trans-Alaska Pipeline. On appeal, Lewis contends that the superior court erred in denying his pretrial motion to suppress certain statements which he made to the Alaska State Troopers. Lewis contends that the troopers violated his constitutional rights by failing to honor his right to remain silent. We conclude that, to the extent the superior court erred in allowing some of Lewis's statements to be admitted, the error was harmless. Lewis also contends that the superior court erred in denying his motion to change venue, which was based on Lewis's contention that extensive and prejudicial pretrial publicity made it impossible to select an impartial jury in Fairbanks. We conclude that Lewis did not preserve this issue for appeal because he failed to renew his motion following jury voir dire. The superior court judge did not commit plain error by failing to sua sponte order a change of venue at that time.
Factual and procedural background
Joseph Nosko, a security officer for Doyon Universal Services, was aboard a helicopter flying a routine security patrol of the Trans-Alaska Pipeline on October 4, 2001. While flying above the Livengood area, Nosko and the pilot observed two individuals, one riding a three-wheeler and one riding a four-wheeler, traveling together on the right-of-way running parallel to the pipeline. The driver of the four-wheeler immediately sped up and drove away from the helicopter at a high rate of speed. The driver of the three-wheeler slowed down and motioned for the helicopter to land. The helicopter landed in response.
The operator of the three-wheeler, Randy Lewis, told Nosko that his brother, Daniel Lewis, had shot the pipeline with a rifle. Randy Lewis also told Nosko that Daniel Lewis had threatened to kill him. Nosko then returned to the helicopter and followed Randy Lewis along the pipeline to the scene of the reported shooting. Nosko and the pilot reached a point where they saw that the pipeline had indeed been punctured. The pipeline was spraying oil through the puncture. Nosko radioed security requesting a spill response team.
After seeing the punctured pipeline and radioing in for a spill response team, Nosko returned to the air and began searching for Daniel Lewis. The helicopter was unable to locate Daniel Lewis and, after making a few more radio calls in response to the incident, landed again near the punctured pipeline and Randy Lewis.
After about thirty-five or forty minutes, FBI Agents Bruce Milne and Mark Terra arrived on the scene. Randy Lewis informed Agent Terra that Daniel Lewis had shot the pipeline with a .338 Winchester Magnum rifle.
Doyon Security Officer David Forsman, who had also responded to the call, subsequently detained Daniel Lewis at a separate location. Another security officer then arrived on the scene and proceeded to handcuff and conduct a pat-down search on Lewis. About ten minutes after the Doyon security officers took custody of Daniel Lewis, FBI Agents Milne and Terra arrived on the scene and spoke with him. Alaska State Trooper Lee Baker then arrived on the scene, followed by Alaska State Trooper Sergeant Scott Grasle and Trooper Mark Eldridge.
Immediately prior to the troopers' arrival, Agent Terra read Lewis his Miranda warnings After Agent Terra gave Lewis the Miranda warnings, Lewis agreed to speak with him. Lewis told Agent Terra that he had been asleep at his nearby home that he shared with Randy Lewis, that he had woken up about ten minutes before Forsman detained him, and that he had been in the process of looking for his brother at the Livengood store when he was detained.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Agent Terra ended his interview with Lewis within ten minutes, after concluding that continuing with the interview was relatively fruitless in light of Lewis's insistence that he had nothing to do with the pipeline shooting. Agent Terra shared the limited information Lewis had provided with Agent Milne and Sergeant Grasle. Agent Terra shared his belief with Sergeant Grasle that Lewis was "holding back" information. Agent Terra also informed Sergeant Grasle that he had given Lewis his Miranda warnings.
The Alaska State Troopers then took over the investigation. Sergeant Grasle placed Lewis in a patrol car and advised him of his Miranda rights prior to interviewing him. After being advised of his Miranda rights, Lewis told Sergeant Grasle unequivocally that he did not want to speak with him.
Grasle: Now, do you understand those rights as I explained them to you?
Lewis: Yes.
Grasle: Okay. Having those rights in mind, do you wish to talk to me?
Lewis: No.
Grasle: Okay. That's up to you.
Lewis: I . . .
Grasle: You're looking at serious charges, okay? You — aside from the driving while intoxicated, and pointing the rifle at your brother, it's for shooting the Pipeline, also. Okay?
Lewis: I don't know what you're talkin' about. I never had no rifle.
Grasle: Well, we have been told differently, and we have witnesses that saw you running on the four-wheeler from there.
Lewis: Not — no. Not — no. Seriously.
Grasle: Okay. Well, I'm just telling you that. Okay. Why don't you step out'a there [the patrol car]. Go ahead and step out.
Lewis: They ain't seen me on no four-wheeler.
Grasle: Okay.
Following this exchange, Sergeant Grasle transferred custody of Lewis to Trooper Eldridge so that he could conduct field sobriety tests on Lewis. After conducting the field sobriety tests, Trooper Eldridge placed Lewis in the back of Trooper Baker's patrol car. Trooper Baker then transported Lewis to Fairbanks. It took Trooper Baker approximately two hours to reach Fairbanks. Trooper Baker did not discuss the day's events with Lewis en route to Fairbanks, limiting any conversation with him to ensuring that he was comfortable and offering him a cigarette.
Upon arriving at Alaska State Trooper headquarters in Fairbanks, Sergeant Ronald Wall took custody of Lewis. Sergeant Wall then began interviewing Lewis in the station interview room. Sergeant Wall advised Lewis of his Miranda rights. (Sergeant Wall testified he had not been informed that Lewis previously had invoked his right to remain silent. He assumed that Lewis had been previously read his rights.) Lewis acknowledged that he fully understood his constitutional rights, affirmatively waived his rights, and agreed to speak with Sergeant Wall.
Lewis proceeded to tell Sergeant Wall his version of the day's events. Lewis said that he had gotten in a fight with his brother Randy and that Randy had broken his nose. An acquaintance of Randy's then arrived at the Lewis' house. After Randy and his friend left the house to go to the store, he fell asleep. He woke up around 5:00 p.m. He got on a four-wheeler and went looking for Randy and his friend. He was stopped by Forsman while seeking out Randy.
At this point, Sergeant Wall asked Lewis to "tell [him] the rest of the story[.]" He told Lewis to "tell [him] about the pipeline[.]" Lewis repeatedly denied any knowledge of the pipeline shooting or any involvement in it. Sergeant Wall then asked Lewis if he would submit to a polygraph test.
Wall: Okay. Are you willing to take a polygraph to that?
Lewis: I ain't taking nothing.
Wall: And why is that?
Lewis: As far as I'm concerned, you know . . .
Wall: Why is that?
Lewis: . . . there's nothing more I have to say, period.
Wall: So you don't want to tell me anything about this? Don't want to tell me your side of this?
Lewis: Period. Man, I already told you.
Wall: Okay.
Lewis: I told you everything that I done, so . . .
Wall: Okay. So let me see if I get this straight then. This morning — what did you do this morning?
The interview continued uninterrupted while Lewis reiterated his earlier story to Sergeant Wall. Lewis again told Sergeant Wall that he and his brother, Randy, had started the day drinking about a half a gallon of whiskey and vodka. Lewis reiterated that he had gotten in a fight with Randy and that Randy broke his nose in the melee. He stated that an acquaintance of Randy's arrived at the Lewis' house and, after Randy and his friend left the house to get "some more booze," he fell asleep. He said that he woke up around 5:00 p.m., got on a four-wheeler, and went looking for Randy and his friend. While seeking out Randy, he was stopped by Forsman.
Later, Captain Michael Stickler arrived in the interview room. The interview continued with Captain Stickler and Sergeant Wall pointing out apparent contradictions in Lewis's statements and attempting to elicit a confession out of Lewis. The interview finally ended after Lewis stated: "As far as I'm concerned, this interview is over. I have nothing more to say . . . without an attorney." Neither Sergeant Wall nor Captain Stickler asked any further questions of Lewis, and the interview ended.
A week later, a grand jury indicted Lewis on one count of criminal mischief in the first degree, one count of assault in the third degree for threatening to shoot Randy Lewis, and one count of felony driving while intoxicated. The district attorney added by information one count of oil pollution, and one count of misconduct involving weapons in the fourth degree. Prior to his jury trial, Lewis filed a motion to suppress the statements he made to Sergeant Grasle and Sergeant Wall. Lewis argued he had made these statements after he had asserted his Miranda right to decline to talk to the officers. Superior Court Judge Ralph R. Beistline held an evidentiary hearing on the motion. Judge Beistline denied in part and granted in part Lewis's motion to suppress. Judge Beistline found that both Sergeant Grasle and Sergeant Wall had "scrupulously honored" Lewis's desire to remain silent. Judge Beistline found that Lewis's statements were voluntarily made and that there was no evidence of police misconduct, that Sergeant Grasle ceased questioning Lewis upon Lewis's request, that questioning did not resume until several hours later, that Sergeant Wall had provided Lewis with a full set of Miranda warnings, and that Lewis had been repeatedly reminded of his rights. He found that there were no attempts to pressure Lewis to answer questions and that Lewis was aware of his rights but chose to waive those rights and talk with Sergeant Wall. Judge Beistline accordingly denied Lewis's motion to suppress the statements that Lewis made to Sergeant Wall during the custodial interrogation at trooper headquarters in Fairbanks. Judge Beistline nonetheless suppressed Lewis's earlier statements to Sergeant Grasle which Lewis made after he had invoked his right to silence.
AS 11.46.480(a).
AS 11.41.220(a).
AS 28.35.030(a) and (n).
AS 46.03.740.
AS 11.61.210(a).
Lewis's assertion that the superior court erred in denying his motion to suppress his statements
Lewis argues that Judge Beistline erred in finding that the Alaska State Troopers "scrupulously honored" his right to remain silent. Lewis points out that, after Sergeant Grasle advised him of his Miranda rights, Lewis unequivocally stated that he did not want to talk to the troopers. He also points out that, after he invoked his rights, Sergeant Grasle continued to talk to him. Lewis argues that Judge Beistline's suppression of these later statements that he made to Sergeant Grasle was not enough.
Lewis also points out that, after he was transported to Fairbanks, Sergeant Wall again interviewed him. Lewis concedes that Sergeant Wall advised him of his Miranda rights and that he agreed to talk to Sergeant Wall. But Lewis contends that, since he had earlier invoked his rights, Sergeant Wall could not reinitiate questioning with him. Lewis also points to the fact that midway through Sergeant Wall's interrogation, Lewis stated that "he had nothing more to say." Lewis contends that he therefore invoked his Miranda rights at that time — yet Sergeant Wall continued the interrogation. Lewis contends that this pattern of interrogation indicates that the police did not honor his Miranda rights. He argues that all of his statements should have been suppressed.
Lewis relies on the United States Supreme Court's decision in Michigan v. Mosley — where the Court held that any clear attempt to cut off police questioning must be scrupulously honored — in arguing that Judge Beistline was in error. Mosley was arrested in connection with a series of robberies. After he was advised of his Miranda rights, Mosley invoked his rights, indicating that he did not want to answer any questions. The officer promptly ceased the interrogation.
423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).
Id., 423 U.S. at 104, 96 S. Ct. at 326.
Id., 423 U.S. at 97, 96 S. Ct. at 323.
Later that evening, a different police officer questioned Mosley about a homicide which was unrelated to the robberies for which he had been arrested. Mosley was read his rights and waived them. He then confessed to the homicide. Mosley moved to suppress his confession. The Court concluded that the admissibility of Mosley's confession turned on whether his "right to cut off questioning" had been "scrupulously honored." Under this standard, Mosley's confession was admissible. In so holding, the Court pointed out that the police had fully honored Mosley's initial request to cut off questioning. There was no indication that the police had engaged in repeated efforts to wear down Mosley's resistance. Questioning only resumed more than two hours later, and the police only questioned Mosley about a crime that had not been subject of the earlier interrogation.
Id., 423 U.S. at 98, 96 S. Ct. at 323.
Id., 423 U.S. at 104, 96 S. Ct. at 326 (footnote omitted).
We applied Mosley in Nashoalook v. State where we held that the defendant's Miranda right to remain silent had been "scrupulously honored." Nashoalook was accused of sexual assault in the village of Wainwright. The Wainwright public safety officer took Nashoalook into custody and transported him to the public safety building. The public safety officer advised Nashoalook of his rights. But Nashoalook was concerned because the public safety officer wanted to record the interview. Nashoalook thought that his statements on the tape might be circulated in Wainwright. The Wainwright public officer terminated the interview on the grounds that Nashoalook refused to give a statement.
663 P.2d 975 (Alaska App. 1983).
Id. at 978.
Id. at 977.
Id.
Another officer arrived in Wainwright and flew Nashoalook to Barrow. Several hours later, the officer warned Nashoalook of his rights, and Nashoalook waived them. Nashoalook then confessed to the sexual assault.
Id.
Nashoalook was subsequently convicted of sexual assault in the first degree. He appealed, contending that the trial court erred in denying his motion to suppress his confession. Relying on Mosley, Nashoalook argued that, since he had initially refused to waive his Miranda rights in Wainwright, it was improper for the police to reinterrogate him in Barrow.
Id.
We first stated that it was questionable whether Nashoalook had indicated an unambiguous intent to cut off questioning entirely in Wainwright. But we held that even if Nashoalook's refusal to speak with the safety officer in Wainwright was an unequivocal assertion of the right to remain silent, the police re-interview of Nashoalook in Barrow "did not violate the requirement that Nashoalook's constitutional right to silence be scrupulously honored." We concluded that the fact that both the Wainwright and Barrow interviews were directed at investigating the same crime did not mean that the police violated Nashoalook's rights by conducting the second interview. We pointed out that a substantial time had elapsed between the first and second interviews, and that, during that time, Nashoalook had been transported from Wainwright to Barrow. We also concluded that there was no indication that the pattern of police interviews was designed to wear down Nashoalook's resistance.
Id. at 978 (citation omitted).
Id.
Id.
Lewis argues that Nashoalook is distinguishable. He argues that in his case, the pattern of the police interrogation was designed to break down his resistance to answering questions. He argues that Sergeant Grasle baited him to get him to make additional statements after Lewis had exercised his right to refuse to talk to Sergeant Grasle. He argues that, in spite of the fact that he had earlier exercised his rights, Sergeant Wall reinitiated the interrogation. And he argues that, after he said "there is nothing more I have to say," Sergeant Wall continued the interrogation. Thus, he argues, the police did not "scrupulously honor" his Miranda rights.
We agree with Judge Beistline that, under Nashoalook, Sergeant Wall could reinitiate Lewis's interrogation. We do not believe that the exchange between Sergeant Grasle and Lewis after Lewis invoked his rights demonstrates that the police did not "scrupulously honor" Lewis's Miranda rights. And, as in Nashoalook, the reinterrogation of Lewis by Sergeant Wall did not take place until several hours later and after Lewis had been transported to Fairbanks. Sergeant Wall thoroughly warned Lewis of his rights, and Lewis waived those rights. We agree with Judge Beistline that Sergeant Wall's reinterrogation of Lewis was lawful under Mosley and Nashoalook.
This takes us to Lewis's response to Sergeant Wall's question about whether he would be willing to take a polygraph. Lewis responded, "there is nothing more I have to say, period." Lewis contends that he was unequivocally invoking his Miranda rights. But the State argues that Lewis did not clearly express a desire to terminate the interview; i.e., he was merely indicating that he had told Sergeant Wall everything he had to say and therefore saw no need to take a polygraph.
In Munson v. State, the Alaska Supreme Court held that the defendant's statement "well, I'm done talkin' then" was adequate to invoke the defendant's right to silence. The supreme court agreed that, in context, the reason Munson wanted to terminate the interrogation was because he was afraid that a co-defendant would retaliate against him for talking to the police — rather than because he did not want to make incriminating statements. But the supreme court held that, regardless of Munson's motivation for stating that he did not want to talk, Munson's statement required the police to stop the interrogation. On the other hand, the Munson court, relying on Professor LaFave, recognized that where, in context, a suspect makes a statement which is ambiguous about whether the suspect wants to exercise his right to silence, the police may continue the interrogation. And many courts have found that statements similar to Lewis's during custodial interrogations are not a clear indication that the suspect has invoked his right to remain silent. However, we conclude that we do not need to resolve whether Lewis's statement, "there is nothing more I have to say, period," was an unequivocal invocation of his right to remain silent. We conclude that, even if the superior court erred in admitting Lewis's ensuing statements, the admission of these statements was harmless beyond a reasonable doubt.
123 P.3d 1042 (Alaska 2005).
Id. at 1046.
Id.
Id. at 1052-53 n. 7 (quoting 2 W.R. LaFave, et al., Criminal Procedure § 6.9(g) at 606 (2d ed. 1999)).
See, e.g., State v. Thomas, 673 N.W.2d 897, 908 (Neb. 2004) (defendant's statement to police, "I'm done talkin' man, I know what I did, how can ya'll keep sayin' I did it," was not an unambiguous invocation of Miranda right to conclude questioning, as statement "could be interpreted as a response in frustration to the investigators' unwillingness to believe that he was not involved in the crime instead of a clear invocation of his right to remain silent"); State v. McCorkendale, 979 P.2d 1239, 1247-48 (Kan. 1999) (defendant's statement, "so that's all I [got] to say," following recitation of his alibi to police was "not an unequivocal invocation of his right to remain silent" as "[i]t could just as easily have been interpreted as a statement that he had finished his explanation of the matter"); State v. Chapman, 605 A.2d 1055, 1059 (N.H. 1992) (context of defendant's statement, "there is nothing else to tell you," indicated that defendant was "professing his innocence by emphasizing his earlier statements, rather than attempting to terminate the interview"; defendant's statement was an attempt to persuade police "to believe his version of the events that occurred earlier that day. The defendant was not invoking his right to remain silent, but was making an argument of innocence.").
See Love v. State, 457 P.2d 622, 631 (Alaska 1969); Jones v. State, 65 P.3d 903, 909 (Alaska App. 2003) (explaining that when statements are admitted in violation of defendant's Miranda rights, "the test is whether the State has proved beyond a reasonable doubt that the error did not contribute to the verdict.") (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)).
Assuming that Lewis invoked his right to remain silent when he told Sergeant Wall, "there is nothing more I have to say, period," Lewis's earlier statements to FBI Agent Mark Terra and his earlier statements to Sergeant Wall were essentially the same story that he continued to tell after he invoked his rights. Lewis consistently gave the same explanation: he began the day drinking, got into a fight with his brother Randy, he fell asleep following the fight, he awakened just prior to being detained, and he was in search of his brother when he was apprehended on the Elliott Highway. Lewis denied that he had contact with any guns. It is true that Lewis went into greater detail about this story after he indicated to Sergeant Wall that he had nothing more to say. But this later explanation, although more detailed, was entirely consistent with what Lewis said earlier.
In response to the State's harmless error argument, Lewis points out that the State referred to Lewis's statements in its closing argument. Lewis argues that the State, in closing, specifically noted discrepancies of Lewis's statements to Wall and his earlier statements to other law enforcement officers. But Lewis does not point out what these inconsistencies were or how Lewis's case was harmed. To the extent that there were inconsistencies between the statements which Lewis made to FBI Agent Terra and Sergeant Wall, these inconsistencies were also present in Lewis's statements to Agent Terra and to Sergeant Wall before Lewis indicated that he had nothing more to say. We accordingly conclude that, if the statements which Lewis made to Sergeant Wall after Lewis stated that he had nothing more to say should have been suppressed, the admission of the statements was harmless beyond a reasonable doubt.
See Campaneria v. Reid, 891 F.2d 1014, 1022 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S. Ct. 1419, 113 L. Ed. 2d 471 (1991) (holding that although it was error to admit the defendant's videotaped statement because the police had not "scrupulously honored" the defendant's right to remain silent, admission of the tape was harmless beyond a reasonable doubt because the recorded statement was cumulative to statements which the defendant had earlier made); c f. McMahan v. State, 617 P.2d 494, 497 (Alaska 1980), cert. denied, 454 U.S. 839, 102 S. Ct. 146, 70 L. Ed. 2d 121 (1981) (erroneous admission of the defendant's statements made after receiving inadequate Miranda warnings was harmless beyond a reasonable doubt in light of the defendant's other inculpatory statements made spontaneously prior to issuance of the warnings).
The superior court did not commit plain error in failing to move Lewis's trial from Fairbanks
Lewis next argues that the trial court erred in not granting his pre-jury selection motion to change venue due to the deluge of media reports focusing on Daniel Lewis following the pipeline shooting. We conclude that Lewis waived this claim by failing to renew his motion following voir dire.
Lewis's act of shooting the Trans-Alaska Pipeline generated a significant amount of media coverage. The Fairbanks Daily News-Miner published numerous stories about the shooting, spill cleanup efforts, and Lewis's personal and criminal history prior to his state jury trial. The Anchorage Daily News published several similar stories on the shooting. Several news broadcasts about the pipeline shooting were aired on the Fairbanks National Public Radio affiliate KUAC. FOX 7 television news in Fairbanks also covered the story extensively, airing at least fourteen news stories about the pipeline shooting and its aftermath. In Anchorage, 153 news reports aired on local television stations that mentioned either Daniel Lewis or the pipeline shooting.
In light of this pre-trial publicity, Lewis filed a motion to change venue with Superior Court Judge Pro Tempore Jane F. Kauvar. Lewis argued that a fair trial could not be conducted in Fairbanks or Anchorage as a result of the media coverage.
Judge Kauvar denied Lewis's motion to change venue prior to conducting jury voir dire. Lewis later renewed his motion to change venue due to a front-page newspaper article which reported on Lewis's sentencing on a federal conviction, arising from the pipeline shooting incident, for being a felon-in-possession of a firearm. The article quoted U.S. District Court Judge John Sedwick, who had sentenced Lewis, as saying "[Lewis] was the one who shot the pipeline." Judge Kauvar expressed concern about the possible prejudicial implications of the article. But rather than granting the motion to change venue, she again decided to conduct jury voir dire before deciding what, if any, level of jury prejudice actually existed.
The night before voir dire began, a Fairbanks television station re-broadcast an interview with Daniel Lewis, in which Lewis proclaimed his innocence and blamed the shooting on his brother Randy Lewis, but also admitted to having been near the pipeline on the day the incident took place. Lewis sought a trial continuance in part due to the broadcast. Rather than grant or deny the continuance, Judge Kauvar instead decided to begin seating a jury. She left open the possibility of granting a continuance if the court could not obtain an impartial jury.
In all, 106 jurors were called for trial and sent to the courtroom. Out of this pool, sixty-two jurors were excused for cause. Twenty-seven jurors were excused as a direct result of exposure to pre-trial publicity or prejudicial information about the case told to them by others. The thirty-five other jurors were excused for other reasons, such as scheduling issues, conflicts, or problems with being impartial based on the nature of some of the charges against Lewis.
After twenty-one peremptory challenges were exercised, fourteen jurors were selected for the trial jury. The jury consisted of twelve jurors and two alternates. Two of the jurors had no knowledge about the pipeline shooting prior to jury selection. Three jurors knew only that someone had shot the pipeline and that it had spilled oil. Seven jurors knew only the bare facts of the incident and the case. Two jurors admitted having seen media coverage following the incident and stated that they thought Lewis was probably guilty based on the media coverage, but both of these jurors stated that they understood their role as jurors to base their verdict only on the evidence presented at trial. Lewis did not renew his motion to change venue at the end of jury selection.
A trial judge has almost absolute discretion to conduct jury voir dire before deciding whether it is necessary to change venue. In Mallott v. State, the Alaska Supreme Court stated:
608 P.2d 737 (Alaska 1980).
Whether pretrial publicity is so prejudicial and so pervasive that no [impartial] jury could be selected to try a particular case in a particular locale is a determination that is exceedingly difficult to make prior to the questioning of potential jurors. Therefore almost without exception trial courts have been permitted the discretion to rely on voir dire rather than their own speculation as to the impact of the pretrial publicity.
Id. at 746 (footnote omitted); see also Chase v. State, 678 P.2d 1347, 1350 (Alaska App. 1984) (explaining that under Mallott and its progeny, "a trial judge will seldom be found to have abused his discretion in denying a motion for change of venue prior to jury voir dire.") (citations omitted).
When, following jury voir dire, the defendant does not renew his motion for a change of venue, the defendant makes an "apparently deliberate waiver" of his motion to change venue. Because Lewis did not renew his motion to change venue, we must presume that Lewis had a tactical reason for not renewing the motion. Lewis could well have concluded that the jury which he had selected was as favorable a jury as he was likely to get. We have no basis to conclude that Judge Kauvar should have, sua sponte, ordered a change of venue.
Mallott, 608 P.2d at 748; West v. State, 923 P.2d 110, 114 (Alaska App. 1996); 33 Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992); Wylie v. State, 797 P.2d 651, 656 (Alaska App. 1990).
Conclusion
The judgment of the superior court is AFFIRMED.