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Saofaga v. State

Court of Appeals of Alaska

October 19, 2018

MICHAEL SAOFAGA JR., Appellant,
v.
STATE OF ALASKA, Appellee.

          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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