Where hearsay is improperly presented to the grand jury, the reviewing court determines whether sufficient admissible evidence was presented to justify the indictment and, if so, whether the improper evidence appreciably affected the outcome of the proceedings. Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980); Newman v. State, 655 P.2d 1302, 1306 (Alaska App. 1982). In the present case, six witnesses testified before the grand jury concerning numerous statements Stumpf made prior to and after the homicide.

Frink v. State, 597 P.2d 154, 161 (Alaska 1979). See also Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980); Metler v. State, 581 P.2d 669, 674 (Alaska 1978). If a misrepresentation of fact is presented to the grand jury, the indictment will be dismissed if the misstatement would substantially affect the grand jury's conclusion.

We first address Grant's contention that the indictment should have been dismissed because the prosecuting attorney failed to explain to the grand jury the law concerning the defense of force used while effecting an arrest. In the recent case of Oxereok v. State, 611 P.2d 913 (Alaska 1980), a contention was raised that the prosecutor should have instructed the grand jury on the defense of diminished capacity as well as the implications of the possibility that the defendant may have acted in the heat of passion. We rejected this argument and did not express any view as to whether the prosecutor ever had a duty to instruct on affirmative defenses: "While [the prosecutor] probably anticipated the fact that at trial the defendant might rely on the defense of diminished capacity, or claim that he acted in the heat of passion, we see no reason for the prosecutor, at the indictment stage, to urge consideration of those possible defenses on the grand jury in this case."

Alvarado v. State, 486 P.2d 891, 902-03 (Alaska 1971).Oxereok v. State, 611 P.2d 913, 918-19 (Alaska 1980). Factual And Procedural Background

The process also showed that the jury pool had extensive knowledge of the incident itself. See Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980); Mallott v. State, 608 P.2d 737, 746-48 (Alaska 1980). Judge Beistline expressed his concern that other potential jurors from the area would possess the same characteristics already revealed during jury selection — knowledge about the incident, and personal or family relationships with Ward or James.

In deciding whether to change venue under AS 22.15.080(1), the trial court exercises broad discretion and is empowered, in almost all instances, to reserve decision until completion of jury voir dire. See, e.g., Mallott v. State, 608 P.2d 737, 746-47 (Alaska 1980); Brown v. State, 601 P.2d 221, 229-30 (Alaska 1979). Although this court, in reviewing the denial of a motion to change venue, has a "duty to make an independent evaluation of the circumstances," Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), we owe considerable deference to the trial court and may reverse only for abuse of discretion. Oxereok v. State, 611 P.2d 913 (Alaska 1980); Brown, 601 P.2d at 229-30; Arnold v. State, 751 P.2d 494, 500 (Alaska App. 1988). A defendant who seeks to change venue ordinarily bears the burden "to demonstrate that pretrial publicity actually resulted in `a partiality that could not be laid aside' in those jurors finally seated to adjudicate guilt or innocence."

In considering pretrial publicity, the supreme court and this court have focused on the exposure of jurors to highly prejudicial information. Mallott, 608 P.2d at 749; Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980); Jerrel v. State, 756 P.2d 301, 304 (Alaska App. 1988); Chase v. State, 678 P.2d 1347, 1351 (Alaska App. 1984). The article in the Phoenix Log contained material which was highly prejudicial to Nelson.

In the present case Judge Carlson stated that "the jurors who have not been excused for cause seem to be uniformly of the type of person who can judge a case based upon what they hear from the witness stand and not something that they have heard over the radio, read in the Bristol Bay Times and so forth." Despite Judge Carlson's statement, we think that this case is controlled by Oxereok v. State, 611 P.2d 913, 918-19 (Alaska 1980), where the supreme court reversed on the issue of venue even though voir dire did not reveal that "any of the impaneled jurors were predisposed to convict [the defendant]." Id. at 919.

The standard which we apply to review a trial judge's denial of a change of venue motion is whether the denial amounted to an abuse of discretion. Oxereok v. State, 611 P.2d 913, 919 (Alaska 1980). This case did receive considerable publicity.

And it found that, in the absence of such instructions, "the grand jury was not misled into believing it was required to return an indictment for murder." Id., 13 Cal.Rptr.2d 551, 839 P.2d at 1070 ; see also Oxereok v. State, 611 P.2d 913, 917 (Alaska 1980) (finding "no abuse of discretion in the prosecutor's failure to instruct the jury on the fact that it could return an indictment for some lesser included offense"). Courts have been less reticent to require lesser-included offense instructions when grand jurors explicitly request that information.