Opinion
Court of Appeals No. A-10180.
September 3, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3CO-06-0093 CR.
Paul A. Maslakowski, Assistant Public Advocate, Palmer, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Rachel K. Gernat, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In 2006, the State charged Michael Phillips with sexual assault in the first degree, assault in the first degree, and assault in the second degree. Superior Court Judge Eric A. Aarseth was assigned to the case. Approximately eighteen months later, Phillips's trial began and the parties selected a jury. Before the jury was sworn, Judge Aarseth recognized a woman in the courtroom as a neighbor. It turned out that this woman was the sister of the alleged sexual assault victim. Not only did this woman live in Judge Aarseth's neighborhood, but she was a friend of Judge Aarseth's wife and one of her children had babysat for Judge Aarseth's children on occasion.
Judge Aarseth immediately disclosed this information to the parties. Based on this disclosure, Phillips's attorney challenged Judge Aarseth for cause. Judge Aarseth denied the challenge for cause. H is decision w as affirmed by another superior court judge assigned to review the decision under AS 22.20.020(c).
As an alternative, Phillips requested that, if his challenge for cause was denied, he should be allowed to file a late peremptory challenge of Judge Aarseth under Alaska Criminal Rule 25(d). Judge Aarseth denied that motion. Phillips appeals Judge Aarseth's denial of his motion to file a late peremptory challenge.
Criminal Rule 25(d)(2) requires a party to file a peremptory challenge "within five days after notice that the case has been assigned to a specific judge." Obviously the time for Phillips to challenge Judge Aarseth had long since elapsed. Phillips contends, however, that Judge Aarseth should have allowed him to file a late peremptory challenge under Criminal Rule 53. That rule allows the court to relax or dispense with the criminal rules "in any case where it shall be manifest to the court that a strict adherence to [the rules] will work [an] injustice."
Phillips points out that he did not know of Judge Aarseth's relationship with the sister of the alleged victim until Judge Aarseth disclosed it. Phillips argues that Judge Aarseth abused his discretion in refusing to allow Phillips to exercise a late peremptory challenge after he acquired this new information.
We conclude that Judge Aarseth did not abuse his discretion. Judge Aarseth had been assigned to the case for approximately eighteen months. He made several substantive rulings in the case and presided over jury selection. Phillips's trial had therefore begun, although the jury had not yet been sworn.
Under Alaska law, a challenge for cause against a judge should be granted when either (1) the challenged judge is not capable of being fair, or (2) reasonable people, apprised of the facts, would doubt the judge's ability to be fair.
Amidon v. State, 604 P.2d 575, 578 (Alaska 1979) (holding that judges must disqualify themselves "in [any] proceeding in which [their] impartiality might reasonably be questioned" (quoting former Alaska Code of Judicial Conduct Canon 3 (c)(1))); Keller v. State, 84 P.3d 1010, 1011-12 (Alaska App. 2004) (citing Amidon for the proposition that judges must disqualify themselves when "the judge's participation would lead reasonable people to question the fairness of the proceedings").
As we explained above, Phillips challenged Judge Aarseth for cause based on this new information, and that challenge was denied (both by Judge Aarseth and by a reviewing judge). Although the denial of the challenge for cause is a potential claim of error that Phillips might raise on appeal if final judgment is entered against him, we must assume at this point that Phillips's challenge for cause against Judge Aarseth was properly denied. Consequently, we must assume (1) that Judge Aarseth can, in fact, be fair and (2) that reasonable people, apprised of the facts, would not doubt his ability to be fair.
Thus, the question facing Judge Aarseth was whether Phillips should be given an extraordinary opportunity to file a late peremptory challenge even though reasonable people, apprised of the facts, would not doubt Judge Aarseth's ability to preside fairly over Phillips's trial. Phrased another way, the question is whether Phillips should be allowed an extraordinary peremptory challenge because Phillips subjectively but unreasonably believes that Judge Aarseth may not be fair.
Under the circumstances of this case, where Judge Aarseth had been the assigned judge for a substantial period of time, had made substantive rulings in the case, and the trial in the case had begun, we conclude that Judge Aarseth did not abuse his discretion in refusing to relax the rules under Criminal Rule 53 to allow Phillips to file a late peremptory challenge.
The judgment of the superior court is AFFIRMED.