### FILED 

# COURTOFAPPEA1 S DIVISION 20 14 

### JUN - 3 

### AN 8;_ 

### W IN THE COURT OF APPEALS OF THE STATE OF ASHINGTON i E t. O 

### WASHINGTON

CITY OF CAMAS, Respondent,. DIVISION II' i °-

v. VLADIMIR V. GRUNTKOVSKIY, Appellant. No. 44184 - 5

UNPUBLISHED OPINION

MAxA, J. —

### Vladimir Gruntkovskiy appeals his criminal conviction because the Camas 

## Municipal Courtjurythat found him guiltywas drawn from all ofClark County and did not 

## include anyresidents ofthe City ofCamas. Gruntkovskiy argues that RCW 2.36.050 requires courts of limitedjurisdiction to draw theirjury panels only from the area the court serves and 

## thatthe municipal court' sjury composition violated his constitutional rightto an impartialjury because it did not represent a fair cross section ofthe community. But Gruntkovskiy did not 

## raise thejury composition issue below. Because we holdthatthe alleged error in selectingthe jurypool is not amanifest error affecting aconstitutional right,wewill not reviewthe alleged error. Accordingly, we affirm. FACTS 

## Gruntkovskiy was charged with driving underthe influence (DUI) and hit and run in violation ofCamas municipal ordinances. He was found guilty as charged by a Camas Municipal Courtjury.No. 44184 - 5 -II 

### Under an interlocal agreement between Clark County and the City of Camas, Clark County provides alljudicial and court support services necessary to adjudicate all matters arising . 

### underthe ordinances of Camas, including administeringjury panels. Jury panels for cases 

### involving Camas Municipal Court are summoned from a list ofeligiblejurors covering all of 

### Clark County. Consistent with the court administration' s practice,thejury panel in Gruntkovskiy' s case was summoned from the county - wide list. None ofthe panel members assigned to Gruntkovskiy' s case lived in Camas or in the postal zip code area designated as Camas. Gruntkovskiy did not object to thejury 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 hisjury and the related issue whether he can challenge thejury' s composition for the firsttime 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 thejury 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 ofan 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

2No. 44184 - 5 -II 

### a claim ifit amounts to a "manifest error affecting aconstitutional 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, iftrue, implicates a constitutional interest. State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2010). 

### Ifso, the next step is to determine whetherthe error is " manifest." O' Hara, 167 Wn.2d at 99. An error is manifest only ifthe 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 drawjury 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 thejury 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).
3No. 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 forthe 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 thatviolation 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 thejury lists is to provide a fair and impartialjury. See City ofTukwila 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 thejurytrial right so that violation of it constitutes a constitutional error. Accordingly, because Gruntkovskiy' s argument that the 

### jury panel selection procedures belowviolated RCW 2.36.050 does not involve a constitutional right, we will not consider it. B. CONSTITUTIONAL RIGHT TO IMPARTIAL JURY

As noted above, Gruntkovskiy argues thatthe Cityviolated his constitutional right to an 

### impartialjury because the use ofa county - widejury panel ratherthan ajury panel drawn from the area the municipal court serves excludes a fair cross section ofthe community in which the trial is held. Both article I, section 22 ofthe 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 ifthe 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 ajury ofone' s peers drawn from a source fairly representative ofthe community. State

v. Rupe, 108 Wn.2d 734, 746, 743 P.2d 210 ( 1987). To establish a violation ofthe fair-crosssection 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 ofthe group in thejury-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 hisjury was not selected from a fair cross section of 

### the community in violation ofhis 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 thirdjudicial district ofAlaska of 

### selecting all prospectivejurors from the area within a radius of 15 miles ofAnchorage deprived the defendant ofhis constitutional right to an impartial jury because it precluded residents ofthe 

### Native village wherethecrime . occurred and residents ofvirtually allNative villages from 

### representation onjury 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 ofAnchorage. 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 ofthe alleged crime, there will always be a danger that 

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

### representation on thejury panel, and thatthe 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 theNo. 44184 - 5 -II

source from which [the] jury was drawn ... excluded virtually all residents ofNative villages in the third judicial district, we are constrained to find that thejury empanelled in this case could 

### not have adequately represented a fair cross section ofthe 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 thejury

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 ofCamas were excluded from the county - wide pool from which prospectivejurors 

### 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 allegedlytoo large an area does not implicate issues of impartiality in the same way exclusion ofa group ofcitizens does. This case is similar to Rupe, where the defendant argued that he was denied his right to 

### trial by ajurycomposed ofafair cross section ofthecommunity because no one on thejury panel was under 35 years old and onlythree 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 

### thejury 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' sjury panel is not enough to show a violation of his constitutional right to trial by ajury composed of a fair crossNo. 44184 - 5 -II 

### section ofthe community. Accordingly, we hold that the alleged error ofusing a county - wide panel in Gruntkovskiy' s case was not an error of constitutional magnitude. Moreover, even ifthe alleged error was constitutional in nature, that error is not manifest 

### because Gruntkovskiy cannot show actual prejudice. There is no indication thatthe use ofa 

### county - widejury panel had any practical and identifiable consequences in the trial ofhis case. We hold that Gruntkovskiy cannot show that the City' s alleged error in using a county

### widejury 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 thejury 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:

7