Opinion
Court of Appeals No. A-11517 No. 6201
07-01-2015
TYRONE BILLIE GAMECHUK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David Henderson and Joel DiGangi Attorneys, Law Office of David Henderson, Bethel, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3DI-10-611 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Patricia L. Douglass and Fred Torrisi, Judges. Appearances: David Henderson and Joel DiGangi Attorneys, Law Office of David Henderson, Bethel, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Tyrone Billie Gamechuk of attempted sexual assault in the first degree. Gamechuk appeals, arguing that he is entitled to a new trial because the judge who presided over his trial was previously his public defender in the same case. The State concedes that the judge was statutorily disqualified from presiding over Gamechuk's trial for this reason, but the State argues that Gamechuk waived his objection to this statutory disqualification by failing to timely object. The State also argues that the error was harmless because the State claims that Gamechuk was not prejudiced by his former attorney sitting as the judge on his case.
AS 11.41.410(a)(1); AS 11.31.100(a).
For the reasons explained here, we conclude that a remand is needed to determine whether Gamechuk or his trial attorney knowingly waived the statutory basis for the judge's disqualification.
Gamechuk also argues that the trial judge's remarks and procedural rulings establish that the judge was actually biased against the defense. We conclude that this claim has no merit.
Lastly, Gamechuk argues that the trial judge unfairly restricted his cross-examination of the victim regarding a prior conviction for filing a false report. Because we are remanding this case for other reasons, we do not address this claim at this time.
Background facts and prior proceedings
On the evening of December 17, 2010, Tyrone Gamechuk and his cousin, V.S., were at a party in Dillingham. Both V.S. and Gamechuk were highly intoxicated. Gamechuk was too intoxicated to walk on his own, so V.S. helped Gamechuk back to his house.
V.S. testified that once they arrived, she put Gamechuk to bed and went to another bedroom to sleep. Later, she heard noises and went to Gamechuk's room to investigate. She found Gamechuk awake and tried to put him back in bed, but Gamechuk pulled her onto the bed. V.S. said that she was initially able to free herself, but Gamechuk eventually managed to remove her pants and attempted, unsuccessfully, to penetrate her with his penis. V.S. also said that, at one point during the struggle, Gamechuk put pressure on V.S.'s neck, making it hard for her to breathe.
V.S. eventually fled the house wrapped in a blanket. A neighbor heard her screaming "rape" and called the village public safety officer. V.S. ran to her aunt's house, where she called the troopers.
Gamechuk was charged with attempted sexual assault in the first degree, sexual assault in the second degree, and assault in the second degree. The Dillingham office of the Public Defender Agency (a very small office with only a few attorneys) was appointed to represent Gamechuk. Assistant Public Defender Patricia Douglass filed an entry of appearance in the case and appeared telephonically on Gamechuk's behalf at his arraignment. Douglass also met with Gamechuk in jail to discuss the charges and bail.
Gamechuk was also charged with kidnapping, but that charge was dismissed before trial.
Less than a month after Douglass filed her entry of appearance in Gamechuk's case, Gamechuk retained a private attorney, David Henderson. Henderson and Douglass both signed a joint stipulation requesting that the court substitute Henderson for Douglass as Gamechuk's counsel.
A year later, Patricia Douglass was appointed to the superior court in Dillingham. The Public Defender Agency created a list of criminal cases in which Douglass had been the appointed defense attorney, and the court system used that list to generate recusal notices. Gamechuk's name was on this list, but for unknown reasons, a recusal notice was never issued in his case. Judge Douglass was assigned to the case despite her prior representation of Gamechuk, and she did not recuse herself.
On the eve of trial, the prosecutor noticed that discovery had been sent to the Dillingham office of the Public Defender Agency during the time that Douglass was the supervising attorney in that office. The following exchange then occurred on the record:
Prosecutor: [W]hat I'm alerting the court to is, because you used to be the public defender, is that I'm seeing [that on] 12/29/2010 discovery went to the public defender, but I don't see your name in any hearings.Neither Gamechuk nor his attorney said anything during this exchange, and the case proceeded to trial in front of Judge Douglass. The jury convicted Gamechuk of attempted first-degree sexual assault and acquitted him of the other charges.
The Court: No, we've already checked for recusals and stuff like that.
After the verdict, Gamechuk's attorney, David Henderson, moved for a new trial, arguing that Judge Douglass improperly restricted his cross-examination of the victim on the prior false report of physical assault. Judge Douglass dismissed this motion for a new trial as untimely because it was filed one day late.
Henderson moved for reconsideration, explaining the circumstances of the one-day-late filing. He explained that the motion was originally filed by fax on the day it was due, but the judge's staff rejected the filing because it was one page over the page limit for fax filings. Judge Douglass denied the motion for reconsideration without explanation.
Following denial of the motion for reconsideration, Henderson filed a second motion for a new trial and a motion to recuse Judge Douglass from Gamechuk's case. In the accompanying affidavit, Henderson alleged that he had just learned from Gamechuk that Douglass had previously represented Gamechuk in the same matter. (Henderson did not explain why he was not alerted to the representation when he signed a joint stipulation asking the court to substitute Henderson for Douglass as Gamechuk's attorney.) Henderson also alleged that Judge Douglass had demonstrated personal hostility toward him and his client during the trial proceedings and that this bias was evident in her various rulings in the case.
Gamechuk also submitted an affidavit in support of the motion to recuse and the second new trial motion. In his affidavit, Gamechuk acknowledged that he was aware that Judge Douglass had been his attorney earlier in the case, but he stated that he did not understand the "legal significance" of this fact until he first mentioned the representation to Henderson after the trial was over.
After receiving the motion to recuse and the second new trial motion, Judge Douglass recused herself from any further proceedings in Gamechuk's case.
Superior Court Judge Fred T. Torrisi was then assigned to the case. Based on the pleadings submitted by Gamechuk and the State, and without holding an evidentiary hearing, Judge Torrisi denied Gamechuk's second motion for a new trial. Judge Torrisi agreed with Gamechuk that Judge Douglass was statutorily disqualified from presiding over his case based on her prior representation of Gamechuk in the same matter. But Judge Torrisi found that the error was harmless because both parties were aware of the prior representation and chose not to object, and because there was no indication that Judge Douglass remembered anything about her prior representation of Gamechuk.
See AS 22.20.020(a)(5).
Judge Torrisi also ruled on Gamechuk's separate claim that Judge Douglass's remarks and rulings during and after trial demonstrated "personal hostility" against him and his lawyer. Judge Torrisi found that the judge's negative remarks did not indicate any bias against Gamechuk nor any partiality toward the State because the remarks were non-substantive and were generally made outside the presence of the jury.
Lastly, Judge Torrisi ruled that Judge Douglass abused her discretion in dismissing Gamechuk's first motion for a new trial as untimely. But Judge Torrisi also found that the error was harmless because, after reviewing the motion on the merits, he found that the motion failed to establish that Gamechuk was entitled to a new trial.
This appeal followed.
The legal principles establishing that Judge Douglass was statutorily disqualified from presiding over Gamechuk's case
Whether a judge is disqualified from presiding over a case is governed by AS 22.20.020 and the Alaska Code of Judicial Conduct. The statute sets out a judge's legal duties and is enforced in the course of the legal proceeding. The Code, in contrast, sets out a judge's ethical duties and is enforced in separate judicial disciplinary proceedings conducted by the Judicial Conduct Commission.
See AS 22.30.011; Phillips v. State, 271 P.3d 457, 465-66 (Alaska App. 2012).
Phillips, 271 P.3d at 465.
Id.
Both the statute and the Code preclude a judge from acting in a matter in which the judge previously represented a party. Alaska Statute 22.20.020(a)(5) declares that a judicial officer "may not act in a matter in which ... a party ... has retained or been professionally counseled by the judicial officer as its attorney within two years preceding the assignment of the judicial officer to the matter[.]" Canon 3(E) of the Code of Judicial Conduct likewise requires that a judge "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," including situations where "the judge served as a lawyer in the matter in controversy[.]"
Alaska Code Jud. Conduct Canon 3E(1)(b).
Under AS 22.20.020(b), the judge must disclose the prior representation of a party "at the commencement of a matter," and the judge's disqualification "may be waived by the parties and [is] waived unless a party raises an objection." Similarly, under Judicial Canon 3(F)(1), a judge who is otherwise disqualified "may disclose on the record the basis or bases of the judge's disqualification and ask the parties to consider whether they wish to waive disqualification." However, under the Code of Judicial Conduct, the judge may not assume that the parties' silence constitutes waiver of the disqualification. Instead the judge is required either to obtain an affirmative waiver or to directly inform the parties that a failure to object will be understood as waiver.
AS 22.20.020(b).
Alaska Code Jud. Conduct Canon 3F(3).
In addition, there are some grounds for disqualification that cannot be waived. Under AS 22.20.020(a)(9), if a judicial officer "feels that, for any reason, a fair and impartial decision cannot be given[,]" a waiver by the parties is not permitted. Likewise, a judge is not permitted under the Code of Judicial Conduct to seek or accept a waiver of disqualification "when the judge has a personal bias or prejudice concerning a party or a lawyer, when, for any other reason, the judge believes that he or she cannot be fair and impartial, or when a waiver is not permitted under AS 22.20.020."
See AS 22.20.020(a)(9); AS 22.20.020(b).
Alaska Code Jud. Conduct Canon 3F(1).
Why we conclude that a remand is required to determine whether Gamechuk waived his statutory right to have Judge Douglass disqualified
On appeal, the State concedes that Judge Douglass was statutorily disqualified from presiding over Gamechuk's trial based on her prior representation of Gamechuk in the same matter. The State also concedes that Judge Douglass failed to disclose her disqualification on the record as she was required to do in order to obtain a valid waiver from the parties.
See AS 22.20.020(a)(5); AS 22.20.020(b).
The State contends, however, that there was no need for the judge to disclose the basis of her disqualification because "both sides knew of Judge Douglass's prior representation" and made the decision to waive the judge's disqualification. The State asserts that the prosecutor raised the problem of Judge Douglass's prior representation shortly before the trial was set to begin and that neither Gamechuk nor his attorney objected. The State speculates that Gamechuk likely "chose not to object because he believed that the judge's past employment with the Public Defender Agency and her direct connection to him would cause the judge to favor him at trial."
We agree with the State that a party's failure to raise a judge's disqualification can constitute a waiver of that disqualification even absent direct disclosure of the basis for the disqualification by the judge, provided that the basis for the judicial disqualification is otherwise known to the party. As the Alaska Supreme Court has cautioned, a party should not be allowed to take a "gambler's risk" by withholding an objection based on a judge's disqualification and then, if the verdict does not go the party's way, arguing that the party is entitled to a new trial.
Owens v. State, 613 P.2d 259, 261 (Alaska 1980) (quoting Mares v. United States, 383 F.2d 805 (10th Cir. 1967)); see Wasserman v. Bartholomew, 923 P.2d 806, 815 n.26 (Alaska 1996) (noting that there may be good reasons to reject a motion for judicial disqualification as untimely "where allegations of bias are not raised until after an unfavorable decision").
Our difficulty in this case, however, is that the record is not as clear as the State claims. Although the State may believe that the prosecutor brought the matter of Judge Douglass's prior representation to the court's and Gamechuk's attention, the prosecutor's actual comments on the matter were ambiguous and suggested only the possibility that Judge Douglass may have been previously involved in the case:
Prosecutor: [W]hat I'm alerting the court to is, because you used to be the public defender, is that I'm seeing [that on] 12/29/2010 discovery went to the public defender, but I don't see your name in any hearings.Moreover, the judge's response to this concern was not to acknowledge her former role as Gamechuk's attorney. Instead it was to affirmatively assert that "[n]o, we've already checked for recusals and stuff," and to reject the idea that there was any basis for recusal in this case.
Thus, given the ambiguity of the prosecutor's remarks and the judge's insistence that there was no basis for recusal, we disagree with the State's assertion that the prosecutor's statements effectively put Gamechuk's attorney on notice that the judge had previously represented Gamechuk in this matter, and that the judge was therefore statutorily disqualified from this case.
We note that, like the State, Judge Torrisi also appears to have assumed that Gamechuk's attorney was aware of the prior representation. In his order denying Gamechuk's second motion for a new trial, Judge Torrisi found that "[the basis for the disqualification] was known both to the defendant and his attorney." But the evidentiary basis for this finding is unclear.
In his affidavit, Henderson swore under oath that:
[I]t was not until I consulted with Mr. Gamechuk after trial on April 10, 2012 at the Anchorage Jail that Mr. Gamechuk informed me that Judge Douglass had had any contact with Mr. Gamechuk as a public defender/attorney on this case. I knew only that Judge Douglass had worked as a Public Defender and was in the Dillingham office before succeeding [sic] to the bench.This affidavit could be read as conceding knowledge of the fact of the prior representation and ignorance only of the extent of the representation. But this reading would be inconsistent with the other claims that Henderson has made in the pleadings below and on appeal.
Thus, because the timing and degree of Henderson's knowledge of Judge Douglass's prior representation were disputed facts, it was improper for Judge Torrisi to resolve those disputes without an evidentiary hearing.
See Boggess v. State, 783 P.2d 1173, 1180 (Alaska App. 1989) ("[I]ssues of credibility cannot normally be decided based on a review of affidavits; when conflicting facts are set forth in competing affidavits, an evidentiary hearing will ordinarily be required.").
The State contends that even if Gamechuk's attorney was unaware of the prior representation, Gamechuk himself was certainly aware of the prior representation, and his failure to inform his attorney or do anything else to address this issue should constitute knowing and intelligent waiver of the basis for the judge's disqualification. The State argues that a criminal defendant should not be allowed to avoid waiver of a judge's disqualification simply by failing to pass on the relevant information to his attorney.
We agree with the State that defendants cannot be allowed to manipulate or otherwise game the system in this way. But it is not clear that is what occurred here.
In his affidavit to the trial court, Gamechuk stated that he was aware of the judge's prior role as his lawyer in this case but that he was unaware of the "legal significance" of this fact until after his trial was over. The record therefore suggests that Gamechuk may have failed to inform his attorney of the prior representation not because he was trying to game the system, or because he affirmatively wanted his former defense attorney as his judge, but rather because he did not understand that this situation was abnormal and did not understand that he had the right to have a judge preside over his case who had not previously acted as his defense attorney in the same matter. We note in this context that Gamechuk is a young man who comes from a small community and who has limited prior experience with the criminal justice system. Given these circumstances, we conclude that additional findings are needed regarding why Gamechuk did not inform his attorney of the judge's prior role in the case and whether Gamechuk would have wanted a different judge if he had known he had that choice.
On remand, therefore, the superior court should first determine whether Henderson was aware of the factual basis for the judge's statutory disqualification. If the court determines that Henderson was unaware of the judge's prior role as Gamechuk's attorney in this case, the court should then determine whether Gamechuk's own actions nevertheless constitute a knowing waiver of his right to have a different judge — i.e., one who was not his former court-appointed defense attorney — preside over his trial.
We note that the Alaska courts have not yet decided whether automatic reversal is required in circumstances where a judge is subject to statutory disqualification from a case and there was no knowing waiver, either implicit or explicit, of the basis for the statutory disqualification. But we conclude that we need not directly resolve that question here, because even if we were to assume that this problem was susceptible of a harmless error analysis, we would nevertheless hold that the judge's error was not harmless. We note that Judge Douglass's representation of Gamechuk included substantive conversations in which confidential information may have been shared. And although this was not a bench trial, her actions as a judge directly affected what evidence the jury heard in his case and what instructions they received. Although it remains unclear whether, and to what extent, Judge Douglass actually remembered her past representation of Gamechuk in this matter, basic concerns about the public perception of fairness and the integrity of the courts still remain. As our supreme court has explained, "however upright the judge ... there is peril ... that any former opinion formed ex parte may still linger to affect unconsciously [the judge's] present judgment."
See Vent v. State, 288 P.3d 752, 757 (Alaska App. 2012).
Keel v. State, 552 P.2d 155, 156 (Alaska 1976); see also Mustafoski v. State, 867 P.2d 824, 834 (Alaska App. 1994).
We therefore conclude that if, on remand, the superior court determines that there was no knowing waiver of Judge Douglass's statutory disqualification by either Gamechuk or by his attorney, then Gamechuk is entitled to a new trial in front of a different judge.
Gamechuk's claim that Judge Douglass exhibited bias and personal hostility toward Gamechuk and his attorney
Gamechuk also argues that Judge Douglass's remarks and rulings during and after trial exhibited bias and personal hostility against Gamechuk and his attorney, and that the judge should have been disqualified on that basis as well.
AS 22.20.020(a)(9) (providing that a judicial officer is disqualified from sitting on a case if the judicial officer "feels that, for any reason, a fair and impartial decision cannot be given"); see also Alaska Code Jud. Conduct Canon 3(F)(1) (providing that a judge is not permitted to seek or accept a waiver of any other disqualification "when the judge has a personal bias or prejudice concerning a party or a lawyer, or when, for any other reason, the judge believes that he or she cannot be fair and impartial, or when a waiver is not permitted under AS 22.20.020").
In support of this claim, Gamechuk points to various places in the record where he contends that Judge Douglass "scolded" or "ridiculed" his attorney for failing to comply with various court deadlines or evidentiary rules. We acknowledge that Judge Douglass was critical of Henderson's performance throughout this case, but we note (as did Judge Torrisi) that Judge Douglass was also critical of the prosecutor's performance.
At the very beginning of trial, Judge Douglass made clear to both parties that she was under time constraints (if the trial was not completed within the week it would have to be continued to the next month) and that she would not appreciate unnecessary delay. The judge also took both the defense attorney and the district attorney to task for lateness and unpreparedness throughout the trial.
When a judge criticizes a party, this will generally not disqualify the judge for bias unless the criticism, "is so extreme as to display clear inability to render fair judgment." A judge's statements criticizing the professionalism of counsel typically do not establish bias under this standard. Instead, comments of that type are generally "expressions of impatience, dissatisfaction, annoyance and even anger, that are within the bounds of what imperfect men and women ... sometimes display." Having carefully reviewed the record in this case, we conclude (as did Judge Torrisi) that neither Judge Douglass's remarks nor her rulings demonstrate partiality in favor of the State or bias against Gamechuk or his lawyer.
Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)).
Id.
Id. at 1185-86.
Id. at 1184.
Gamechuk also contends that several of Judge Douglass's procedural rulings were unfair. In particular, he complains that the judge refused to read his attorney's mid-trial motion on a disputed evidentiary issue, instead requiring the attorney to argue the motion orally. He also complains that the judge erroneously denied his first motion for new trial (based on the same disputed evidentiary issue) because it was untimely, rather than deciding the motion on its merits.
But judicial rulings — even if incorrect or ill-advised — are typically not evidence of bias. Here, we find that the judge's decision to have Gamechuk's attorney orally present his mid-trial motion does not reflect bias against Gamechuck and did not prejudice him. In addition, although we agree with Judge Torrisi that the judge abused her discretion by failing to rule on the new trial motion on its merits, we also agree with Judge Torrisi that this error does not establish animus or bias on the part of the judge.
See, e.g., Greenway v. Heathcott, 294 P.3d 1056, 1063 (Alaska 2013); Cook v. State, 36 P.3d 710, 724 (Alaska App. 2001). --------
We accordingly reject Gamechuk's claim that Judge Douglass exhibited personal bias against Gamechuk and his attorney such that her disqualification from his case was not waivable as a matter of law under AS 22.20.020(a)(9).
Gamechuk's claim that the trial court's mid-trial evidentiary ruling unfairly limited his right to confrontation and his due process right to present a defense
Gamechuk's final claim on appeal is that his right to a fair trial was violated by the trial court's mid-trial evidentiary ruling that allowed him to cross-examine V.S. about the fact that she had a recent conviction for filing a false report but did not allow him to introduce any details about the false report. We defer our ruling on this claim until after the issue of judicial disqualification is resolved.
Conclusion
We REMAND this case to the superior court. On remand, the superior court is directed to hold an evidentiary hearing and make findings on (1) when Gamechuk's attorney became aware that Judge Douglass had previously represented Gamechuk in this case; and (2) why Gamechuk failed to inform his attorney of this fact until after the trial was over. The superior court shall report its findings to this Court within 90 days. We retain jurisdiction of the case.