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Saofaga Jr. v. State (10/19/2018) ap-2620

Saofaga Jr. v. State (10/19/2018) ap-2620


            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 Courts:  

                                               303 K Street, Anchorage, Alaska  99501

                                                              Fax:  (907) 264-0878

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                                                                                             Court of Appeals No. A-13191  

                                                 Appellant,                               Trial Court No. 3AN-17-4444 CR  


                                                                                                           O P I N I O N  


                                                 Appellee.                                   No. 2620 - October 19, 2018  

                        Appeal   from  the  Superior  Court,  Third  Judicial  District,  


                        Anchorage, 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,  



                        Judge ALLARD.  

                        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             

----------------------- Page 2-----------------------

motion, ruling that Saofaga had forfeited his right to file the peremptory challenge when                                                           


he litigated the various pretrial issues before the judge.                                             



                         Saofaga now appeals the denial of his peremptory challenge.                                                           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  



                       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.  


                        Weaccordingly affirmthesuperior court's denial of Saofaga's peremptory  


      1     See Alaska R. Crim. P. 25(d)(5).  

      2     See  Alaska Appellate Rule 216(a) (authorizing an immediate interlocutory appeal   

when a peremptory challenge is denied).  



            Trudeau v. State, 714 P.2d 362, 366 (Alaska App. 1986) (citing Main v. State , 668  

P.2d 868, 871-72 (Alaska App. 1983)).  

                                                                           - 2 -                                                                   2620

----------------------- Page 3-----------------------

            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.                                                                                   

                                                                                                         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. 


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  




                       Superior Court JudgeGregoryMiller was appointedunderAS22.20.020(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."  

      4     The prior criminal case occurred in 2015 and was resolved through a plea agreement.  

See State v. Saofaga, 3AN-15-10892 CR.  

      5     See AS 22.20.020.  

                                                                       -  3 -                                                                2620

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                                 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.                                                                                                                

                                                                                                                                                                                                  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 acknowledge that this suppression motion was  


untimely, nor did the attorney provide any explanation for the delay.)  


                                 In the second motion in limine, Saofaga's attorney argued that the State  


 should be precluded from introducing evidence of certain prior bad acts of Saofaga -  


 including any details regarding the underlying criminal case in which Saofaga was  


 alleged to have committed perjury.  In the third motion, Saofaga's attorney argued that  


 Saofaga's trial should be continued because of some discovery issues.  


                                 The State opposed all three of these defense motions.  The State argued, in  


particular, that the first "in limine" motion - i.e., the suppression motion - should be  


 summarily denied because it was untimely.  


                                 On the morning of May 9, while the potential jurors were filling out their  


juror questionnaires and waiting for jury selection to begin, Judge Smith addressed the  


 three defense motions on their merits.  

         6       See Alaska R. Crim. P. 12(b)-(c).  

                                                                                                    - 4 -                                                                                            2620

----------------------- Page 5-----------------------

                    Judge Smith expressed concern about the untimeliness of the suppression  


motion, and he noted that he had the authority to summarily deny that motion based on  


its untimeliness.  But Judge Smith ultimately decided to continue Saofaga's trial so that  


the due process issues raised by the motion could be more fully litigated. The judge then  


noted that his decision to continue Saofaga's trial rendered Saofaga's third motion moot  


(the motion to continue the trial, based on discovery issues).  


                    JudgeSmith then set various deadlinesforfurtherbriefing on Saofaga's two  


remaining motions, and he scheduled an evidentiary hearing on the suppression motion.  


Judge Smith also ordered the defense attorney to explain the reasons for the delay in  


filing the suppression motion and ordered her to show cause why monetary sanctions  


should not be imposed against her based on that delay.  


                    The next day, a different defense attorney from the same public agency  


entered  an  appearance on  Saofaga's behalf.                           This new attorney filed  a peremptory  


challenge  of  Judge  Smith  under  Criminal  Rule  25(d).                                   Judge  Smith  denied  the  


peremptory challenge in a written order.   In that order, Judge Smith concluded that  


Saofagahad forfeited therightto peremptorily challengehimbecauseSaofaga's attorney  


had already litigated substantive matters before the judge.  


                     Saofaga's new attorney filed a "Notice of Objection" in which she argued  


that Judge Smith had no authority to decide the peremptory  challenge because the  


challenge was against Judge Smith.  Superior Court Judge Michael L. Wolverton was  


assigned to review Judge Smith's denial of the peremptory challenge. Judge Wolverton  


subsequently issued his own written ruling, affirming Judge Smith's forfeiture analysis.  


                    This appeal followed.  


                                                              -  5 -                                                        2620

----------------------- Page 6-----------------------

              Saofaga's claims on appeal                                

                           Alaska Statute 22.20.022 provides for peremptory challenges to judges.                                                                

Alaska Criminal Rule 25(d) implements this right in criminal cases.                                                                      7  


                           Under  Criminal  Rule  25(d),  the  prosecution  and  the  defense  are  each  


entitled  to  one  judicial  peremptory  challenge  of  right,  subject  to  two  procedural  


requirements:  First, under the provisions of Criminal Rule 25(d)(2), the party must file  


the peremptory challenge within five days after receiving notice that the judge has been  


assigned to try the case.  (The filing of a motion to disqualify a judge for cause tolls this  



time, and the time starts anew if the motion is denied. ) Second, under the provisions of  


Criminal Rule 25(d)(5), a party cannot exercise a peremptory challenge to a judge if the  


party  has  already  agreed  to  the  assignment  of  that  judge,  or  if  the  parties  already  


participated in certain proceedings before the judge, knowing that the judge has been  


permanently assigned to the case.  


                           Here,  the  parties  agree  that  Saofaga's  peremptory  challenge  was  filed  


within five days of Judge Miller's order affirming Judge Smith's denial of the motion to  



disqualify for cause.                                                                                                                                                       

                                              However, they disagree as to whether, under the provisions of  


Rule 25(d)(5), Saofaga forfeited his right to peremptorily challenge Judge Smith.  They  


also disagree as to whether Judge Smith had the authority to rule on the validity of  


Saofaga's peremptory challenge.  

       7      See Main v. State, 668 P.2d 868, 871-72 (Alaska App. 1983).  

       8      Alaska R. Crim. P. 25(d)(2) ("If a party has moved to disqualify a judge for cause                                                                     

within the time permitted for filing a notice of change of judge, such time is tolled for all                                                           

parties and, if the motion to disqualify for cause is denied, a new five-day period runs from                                                   

notice of the denial of the motion.").  

       9      See Alaska R. Crim. P. 25(d)(2).  

                                                                                   -  6 -                                                                           2620

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                          Saofaga's claim that Judge Smith lacked the authority to issue any ruling                                                                                                                                                                                                

                           on the peremptory challenge                                               

                                                     Saofaga contends that if a peremptory challenge is filed within the time                                                                                                                                                                                                      

period permitted by Rule 25(d)(2), then the judge who has been challenged has no                                                                                                                                                                                                                                                          

authority to rule on (or take any other action on) the peremptory challenge.                                                                                                                                                                                                                                       Instead,  

according to Saofaga, the case must be immediately transferred to a different judge. This                                                                                                                                                                                                                                           

different   judge   would   then   rule   on   whether   the   party   has  forfeited   their   right   of  

peremptory challenge under Rule 25(d)(5).                                                                                                                                   

                                                     Saofaga bases this argument on Criminal Rule 25(d)(3), which states in                                                                                                                                                                                                                  

pertinent part:   

                                                                               (3)   Re-Assignment.   When   a   request   for   change   of  

                                                    judge is timely filed under this rule, the judge shall proceed   

                                                     no   further   in   the   action,  except   to   make   such   temporary  

                                                     orders as may be absolutely necessary to prevent immediate                                                                                                                                        

                                                     and irreparable injury before the action can be transferred to                                                                                                                                                                      

                                                     another judge.   

According to Saofaga, this provision required Judge Smith to immediately transfer                                                                                                                                                                                                                                     

 Saofaga's case to another judge prior to ruling on the forfeiture question under Criminal                                                                                                                                                                                                                         

Rule 25(d)(5).                                               

                                                     We disagree with Saofaga's interpretation of this provision. As the title of                                                                                                                                                                                                             

the provision indicates, Criminal Rule 25(d)(3) governs the procedures under which a   

case is permanently reassigned to another judge when the initial judge has been validly                                                                                                                                                                                                                                   



                                                           It  does  not  govern  the  procedures  for  determining  whether  a  valid  


peremptory challenge has been filed in the first instance.   There is nothing in Rule  


25(d)(3) to suggest that a judge who is the subject of a peremptory challenge cannot rule  

              10          See  2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory  

Construction     47:14,  at  344  (7th  ed.  2007)  (stating  that  section  headings  may   "help  

illuminate legislative intent").  

                                                                                                                                                                  -  7 -                                                                                                                                                       2620

----------------------- Page 8-----------------------

 on the validity of that challenge.                                                                            Indeed, the provision contemplates that the judge who                                                                                                                   

 is the subject of the peremptory challenge will rule on whether it is "timely."  There is                                                                                                                                            

 no reason to believe that this same judge does not also have the authority to decide                                                                                                                                                                                         

 whether the challenge is invalid because the party's right of peremptory challenge has                                                                                           

 been forfeited under Criminal Rule 25(d)(5).                                                                                                             

                                              Saofaga nevertheless contends that rulings under Rule 25(d)(5) should be                                                                                                                                                                       

 made by another judge so as to avoid the "perception of unfairness."                                                                                                                                                                    We find no merit                          

 to this contention.                                           We note that when a judge is the subject of a motion to disqualify for                                                                                                                                                      

 cause under AS 22.20.020, the judge must still rule on the motion, even though the                                                                                                                                                                                                       


 "perception of unfairness" would seemingly be greater in those circumstances.                                                                                                                                                                                                        We  


 perceive no reason why peremptory challenges should be treated differently.  


                                              We therefore reject Saofaga's claim that Judge Smith had no authority to  


 rule on the validity of the peremptory challenge.  


                        Whether Saofaga forfeited his peremptory challenge under Criminal Rule  




                                              Saofaga asserts that he had not forfeited his peremptory challenge because  


 (according to Saofaga) Judge Smith had not yet issued any "substantive" rulings in his  


 case when the peremptory challenge was filed. This is untrue. The record demonstrates  


 that Judge Smith had already made multiple substantive rulings in this case -including,  


 but not limited to, Judge Smith's ruling (in Saofaga's favor) that Saofaga should be  

            11         When a judge is directly challenged for cause under AS 22.20.020, the judge who has     

 been challenged is required to decide whether to grant or deny the disqualification.                                                                                                                                                                                                    See  

 AS 22.20.020(c).  If the judge grants the disqualification, the presiding judge of the district                                                                                                                                                                   

 is required to "immediately transfer the action to another judge of that district."                                                                                                                                                                                  Id.   If the   

judge  denies  the  disqualification,  the  question  of   disqualification  "shall  be  heard  and  

 determined by another judge assigned for [that] purpose."  Id.  

                                                                                                                                           -  8 -                                                                                                                                 2620

----------------------- Page 9-----------------------

allowed to pursue his suppression motion, even though the motion could be summarily                                                                                                

denied as untimely.                             

                               In any event, the test for forfeiture is not whether the judge has made                                                                                        

"substantive" rulings in a case. Instead, the test is whether the party (1) has agreed to the                                                                                                        

assignment of the judge, after reasonable opportunity to consult with counsel; or (2) has                                                                                                           

participated before the judge in an omnibus hearing, any subsequent pretrial hearing, a                                                                                                                  

hearing under Rule 11, or the commencement of trial, knowing that the judge has been                                                                                                             


permanently assigned to the case.                                                    


                               Here, the record indicates that both acts of forfeiture occurred.   At the  


May 7 pretrial hearing, six days after Judge Smith was assigned to the case, Saofaga's  


attorney agreed that Saofaga's trial would start on May 9 in front of Judge Smith.  The  


attorney also participated in the discussion of various pretrial matters at that May 7  


hearing, and she then filed substantive motions before Judge Smith the following day.  


The defense attorney took these actions after having received multiple reminders that  


Saofaga still had a peremptory challenge that could be exercised against Judge Smith if  


Saofaga did not want to proceed to trial before Judge Smith.  


                                Onappeal, Saofaga argues that hisattorney's actions shouldnotbeimputed  


to him, and he contends that there is nothing in the record to show that he (Saofaga)  


personally waived his right to peremptorily challenge Judge Smith.  But as this Court  


has previously explained, Criminal Rule 25(d)(5) is "aforfeiturerulerather than awaiver  




                               The right to peremptorily challenge a judge without a showing of bias is an  


"unusual right" that is purely statutory in nature; it did not exist at common law and it  

        12      Alaska R. Crim. P. 25(d)(5).  

        13      Trudeau v. State                      , 714 P.2d 362, 366 (Alaska App. 1986) (citing Main v. State , 668  

P.2d 868, 871-72 (Alaska App. 1983)).  

                                                                                                -  9 -                                                                                        2620

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does not exist in the federal courts or in most state courts.                                                                            Thus, when a defendant who                                

is represented by counsel fails to validly exercise a peremptory challenge, reasonable                                                                                             

access   to   counsel   is   presumed   and   "no   inquiry   need   be   made   into   the   defendant's  

understanding   of   his   rights,   or   the extent                                                   to   which   he   and   counsel  have   discussed  



them."                      Saofaga's   personal   waiver   was   therefore   not   required   under   these  




                               WeAFFIRMthedenialofSaofaga's peremptory challengeofJudgeSmith.  


        14      Wamser v. State, 587 P.2d 232, 234-35 (Alaska 1978).  

        15      Trudeau, 714 P.2d at 366 (citing Main , 668 P.2d at 871-72).                                                                               We note that Saofaga  

has not claimed that his attorney's actions constituted ineffective assistance of counsel; nor   

has he claimed that he is actually prejudiced by having Judge Smith as his trial judge.                                                                                                             See  

Trudeau, 714 P.2d at 366-67.  

                                                                                               -  10 -                                                                                         2620  

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