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State v. Galbraith (1/16/2009) ap-2208

State v. Galbraith (1/16/2009) ap-2208

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-10241
Petitioner, ) Trial Court No. 4FA-08-1898 CR
v. )
) O P I N I O N
Respondent. ) No. 2208 January 16, 2009
Petition for Review
          from the Superior Court, Fourth Judicial
          District, Fairbanks, Douglas Blankenship,

          Appearances:   Corinne  Vorenkamp,  Assistant
          District  Attorney, Fairbanks, and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Petitioner.    Renee   McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for Respondent.

          Before:  Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.
          Superior  Court  Judge Robert B.  Downes  dismissed  an
indictment  against Brian Galbraith because the judge found  that
Galbraith  was incompetent to stand trial and that he  would  not
recover his competency within a reasonable time.  The State  then
secured a second indictment with identical charges, filed it as a
new  case,  and  then filed a peremptory challenge against  Judge
          Presiding  Judge  Douglas Blankenship  then  issued  an
order  denying  the  peremptory  challenge  that  the  State  now
appeals.  We conclude that the parties should not receive another
opportunity to challenge the assigned trial judge when, following
a  defendants declaration of incompetency, the State subsequently
files an identical indictment.

          Facts and proceedings

          A  Fairbanks  grand  jury indicted Brian  Galbraith  on
charges  of murder in the first degree1 and assault in the  first
degree2  on  March  16,  2007.  The case was  assigned  to  Judge
Downes.   Over  the next several months, the judge presided  over
several   pretrial  hearings  concerning  Galbraiths  competence.
Judge  Downes eventually concluded that Galbraith was  unable  to
understand  the proceedings against him or to assist in  his  own
          The  judge accordingly committed the defendant  to  the
Alaska Psychiatric Institute for additional evaluation and  later
scheduled  a  hearing  to  assess  the  necessity  for   extended
commitment.   After the hearing, Judge Downes was  not  convinced
that  there  was  a substantial probability that Galbraith  would
regain his competency within a reasonable period of time.   Based
on  these findings, on April 17, 2008, the judge entered an order
dismissing  the  charges  without prejudice  as  required  by  AS

          After  the dismissal, Galbraith remained at the  Alaska
Psychiatric Institute on a voluntary commitment status.   On  May
1,  the  State  filed a motion for reconsideration, supported  in
part  with  an  affidavit  stating that Galbraith  had  requested
release.    After   Judge   Downes   denied   the   motion    for
reconsideration,  the  State secured an indictment  on  identical
charges  of murder in the first degree and assault in  the  first
          The  new indictment received a new case number, and the
case  was  assigned to Judge Downes at arraignment  on  June  13,
2008.   The  State  then filed a peremptory  challenge  of  Judge
Downes  on  June 18.  At a continued arraignment, however,  Judge
Blankenship ruled that the State could not peremptorily challenge
Judge Downes because the new indictment was a continuation of the
case  that had been assigned to Judge Downes in 2007.  The  State
now  appeals to this court from Judge Blankenships order  denying
the peremptory challenge.

          Why the State may not challenge Judge Downes

          This appeal was originally filed as an expedited appeal
under  Appellate  Rule  216.  Peremptory  challenge  appeals  are
included in this rule, but only when they are filed by a criminal
defendant.3   Thus,  the State is apparently  not  authorized  to
bring an expedited peremptory challenge appeal under Rule 216.
          But the issue raised in this case involves an important
          question of law on which there is substantial ground for
difference  of opinion, and an immediate review of the  order  or
decision may materially advance the ultimate termination  of  the
litigation, or may advance an important public interest . . .  .4
We  have therefore elected to accept the States expedited  appeal
as a petition for review.5
          This  case involves the interpretation of Criminal Rule
25(d),  particularly  the general entitlement  expressed  in  the
first  sentence of Criminal Rule 25(d)(1):  In any criminal  case
in  superior  or district court, the prosecution and the  defense
shall  each  be  entitled as a matter of right to one  change  of
judge.6   The  proper  interpretation of this  rule  is  a  legal
question that we review de novo.7
          So  the  issue  here  is whether  a  second,  identical
indictment filed as a separate case constitutes a new case within
the  meaning  of  this rule.  In other words, does  a  party  who
forfeits  the peremptory challenge against a judge in  the  prior
proceeding  where  the  original indictment  was  dismissed  also
forfeit  the challenge against that judge in a second  proceeding
based on an identical indictment?
          In   Gieffels  v.  State,8  the  Alaska  Supreme  Court
addressed  a  similar issue.  Gieffels peremptorily  disqualified
the judge assigned to the original case.  The indictment was then
dismissed by another judge because of insufficient evidence and

prosecutorial  error.9   When the State  then  secured  a  second
indictment on an identical charge, the case was assigned  to  the
original judge for arraignment.
          The  supreme  court held that the original judge  erred
when he refused to honor the previous peremptory challenge at the
arraignment on the second indictment:

               In  McKinnon  v. State, we  stated  that
          where   two  proceedings  involve  the   same
          defendant  and the necessity of  proving  the
          same  facts  and  issues,  a  judge  who  was
          preempted   in   the  prior   proceeding   is
          automatically disqualified from presiding  at
          any proceeding against the defendant in which
          those    same   charges   [are]   at   issue.
          Therefore, Judge Moody was automatically pre-
          empted in the second proceeding.[10]
Similarly, this court and the Alaska Supreme Court have held that
probation   revocation   proceedings11  and   criminal   contempt
proceedings12 are continuations of the same case for the  purpose
of peremptory challenges.
          In  Staso  v.  State,  Department of  Transportation,13
however, the Alaska Supreme Court decided that each side  gets  a
new  peremptory challenge under Civil Rule 42 in a refiled  civil
suit,  even when the second complaint is identical to a complaint
previously  dismissed.14   There  the  supreme  court  noted  the
uncertainty  that could be caused if the continuing  validity  of
the  challenge  hinged  on  whether  the  new  complaint  alleged
significantly  different counts or theories.15   The  court  also
          relied on the need to give civil litigants notice of their rights
and the desire to avoid difficult questions about whether a newly
filed  case  is related to the original case.16  The court  noted
that  there were civil penalties available to address the  States
concerns about judge shopping.17
          The  Staso court recognized that Gieffels held  that  a
judge, who has been peremptorily disqualified under Criminal Rule
25(d)  in  an  earlier proceeding under an indictment  which  was
later dismissed, cannot conduct the later proceedings which arise
from a second identical indictment.18
          In  Plyer  v. State, this court limited the application
of Staso in criminal proceedings:
               We do not interpret Staso as creating  a
          hard-and-fast  rule  for  all  situations  in
          which  related proceedings are given separate
          court  numbers.  Rather, we read Staso  in  a
          more   limited  fashion:  the  supreme  court
          decided  that, in the particular  context  of
          refiled  civil  actions,  the  public  policy
          favoring  continuity  in  judicial  decision-
          making was outweighed by the policy of giving
          litigants clear advance
          notice of their rights.[19]
Accordingly,  we held that the parties to post-conviction  relief
proceedings  (which  are civil in nature)  are  not  entitled  to
challenge  the  judge  who presided over  the  original  criminal
action.  In reaching that conclusion we relied on the significant
burden  a  contrary holding would place on the judicial system.20
The  supreme  court has also limited the Staso rule,  recognizing
that  guardianship proceedings involving the same parties  should
be treated as part of any ongoing child-in-need-of-aid case.21
          We  conclude  that we should follow this same  line  of
reasoning  in  the  case  before us  a case  where  the  original
indictment  was dismissed because of the defendants  incompetence
to stand trial, and then an identical indictment was subsequently
filed.  In accordance with Gieffels, we hold that a judge who was
preempted  in the proceedings on the original indictment  remains
disqualified  in  the later proceedings on the  second  identical
indictment.   Likewise,  if  the  parties  did  not  exercise   a
peremptory  challenge  to  a  judge in  the  proceedings  on  the
original  indictment, the parties have no new right to  challenge
the judge in the proceedings on the later identical indictment.
          This  Court therefore AFFIRMS Judge Blankenships  order
denying the States peremptory challenge of Judge Downes.

     1 AS 11.41.100(a)(1)(A).

     2 AS 11.41.200(a)(2).

     3  See Appellate Rule 216(b)(2).

     4 Appellate Rule 402(b)(2).

     5  See  Plyler  v.  State, 10 P.3d 1173, 1174  (Alaska  App.
2000); Moore v. State, 895 P.2d 507, 509 n.2 (Alaska App. 1995).

     6 Criminal Rule 25(d)(1) (emphasis added).

     7  See Terry S. v. State, Dept. of Health & Soc. Servs., 168
P.3d 489, 493 (Alaska 2007).

     8 552 P.2d 661(Alaska 1976), disapproved of on other grounds
by Miller v. State, 617 P.2d 516 (Alaska 1980).

     9 Id. at 663.

     10  Id. at 665 (internal citation omitted) (quoting McKinnon
v. State, 526 P.2d 18, 25 (Alaska 1974)).

     11 See McKinnon, 526 P.2d at 25.

     12  See Webber v. Webber, 706 P.2d 329, 329-30 (Alaska  App.

     13 895 P.2d 988 (Alaska 1995).

     14 Id.

     15 Id.

     16 Id. at 990.

     17 Id. at 992.

     18 Id. at 991 (citing Gieffels, 552 P.2d 661).

     19 Plyler, 10 P.3d at 1176.

     20 Id.

     21 Terry S., 168 P.3d at 494-95.

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