Appeal
from the Superior Court, Third Judicial District, Anchorage
Trial Court No. 3AN-17-4444 CR, Jack W. Smith and Michael L.
Wolverton, Judges.
Appearances: Shana Bachman, 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.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
Judges.
OPINION
ALLARD
JUDGE
After
agreeing to go to trial before a superior court judge and
litigating various motions before that judge, Michael Saofaga
Jr. filed a motion under Alaska Criminal Rule 25(d) seeking
to peremptorily challenge the judge. The judge denied the
motion, ruling that Saofaga had forfeited his right to file
the peremptory challenge when he litigated the various
pretrial issues before the judge.[1]
Saofaga
now appeals the denial of his peremptory
challenge.[2] Saofaga raises three claims on appeal.
First,
Saofaga argues that the judge lacked the authority to rule on
the validity of the peremptory challenge because he was the
subject of the challenge. We conclude that this argument is
based on a misreading of Criminal Rule 25(d) and is without
merit.
Second,
Saofaga argues that he did not forfeit his right to
peremptorily challenge the judge because (according to
Saofaga) the peremptory challenge occurred before the judge
had issued any substantive rulings on the matters litigated
in front of him. This argument is also without merit, and it
is directly contradicted by the record of the superior court
proceedings.
Lastly,
Saofaga argues that he did not forfeit his right to
peremptorily challenge the judge because he did not
personally waive this right. We have previously rejected the
argument that a litigant must affirmatively waive the right
of peremptory challenge.[3] Even though Criminal Rule 25(d)(5)
refers to a "waiver" of the right of peremptory
challenge, Rule (d)(5) is in fact a rule of forfeiture, and
no personal waiver from the defendant is required.
We
accordingly affirm the superior court's denial of
Saofaga's peremptory challenge.
Background
facts and prior proceedings
Michael
Saofaga Jr. is currently charged with committing perjury
based on statements he made at sentencing in an earlier
criminal case.[4] Superior Court Judge Jack W. Smith was the
sentencing judge in that earlier case.
Judge
Smith was also later assigned to be the trial judge in
Saofaga's perjury case. This assignment occurred on May
1, 2018, after Saofaga's attorney announced that the
defense was ready for trial.
On May
4, Saofaga's attorney moved to disqualify Judge Smith for
cause.[5]The defense attorney stated that she was
bringing this motion "out of an abundance of
caution," because she was concerned that Judge Smith
could potentially be called as a witness at the perjury
trial. The prosecutor responded that he could not see how
Judge Smith could be a material witness in the perjury trial:
the sentencing hearing in the earlier case had been recorded,
and Judge Smith had never expressed an opinion on the
veracity of Saofaga's statements at that sentencing
hearing. Judge Smith agreed with the prosecutor that he was
not a material witness, and he therefore denied the defense
attorney's motion to disqualify him for cause. However,
after issuing this ruling, Judge Smith noted that Saofaga
could still use his peremptory challenge under Criminal Rule
25(d).
Superior
Court Judge Gregory Miller was appointed under AS
22.20.020(c) to review Judge Smith's ruling on the motion
to disqualify for cause. In his written order, Judge Miller
affirmed Judge Smith's ruling on this motion - but Judge
Miller, too, noted that "[Saofaga] may still exercise a
peremptory challenge of Judge Smith."
The
next hearing in Saofaga's case was held on May 7.
Saofaga's attorney received a copy of Judge Miller's
order prior to that May 7 hearing. However, the defense
attorney did not file a peremptory challenge of Judge Smith
at that hearing. Instead, the attorney agreed that trial
could begin in front of Judge Smith in two days (May 9). The
defense attorney also participated in the discussion of
various preliminary pretrial matters, which Judge Smith
addressed during that May 7 hearing.
The
next day, Saofaga's attorney filed three motions in
limine. One of these "motions in limine" was
actually an untimely suppression motion.[6] In this
suppression motion, Saofaga's attorney argued that the
State's photographic lineup was so suggestive that it
violated due process, and she asked the court to suppress the
results ofthat lineup. (Saofaga's attorney did not
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