Weist v. Municipality of Anchorage (12/20/96) ap-1508
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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL WEIST, )
) Court of Appeals No. A-6133
Appellant, ) Trial Court No. 3AN-M95-7611CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
) [No. 1508 - December 20, 1996]
Appellee. )
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, James N. Wanamaker,
Judge.
Appearances: Jason A. Steen, Gorton &
Associates, Anchorage, for Appellant. Carmen
E. ClarkWeeks, Municipal Prosecutor, and Mary
K. Hughes, Municipal Attorney, Anchorage, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
A jury convicted Michael Weist of concealment of
merchandise. Weist appeals, contending that District Court Judge
James N. Wanamaker violated his right to testify by failing to
determine, through the inquiry required under Alaska Criminal Rule
27.1(b), (EN1) whether Weist's waiver of his right to testify was
knowing and voluntary.
It is undisputed that Judge Wanamaker failed to conduct
the requisite inquiry; neither Weist nor the municipality called
this omission to the judge's attention at trial. Weist contends
that the omission amounted to plain error. See LaVigne v. State,
812 P.2d 217 (Alaska 1991); Knix v. State, 922 P.2d 913, 917-19
(Alaska App. 1996); Noah v. State, 887 P.2d 981, 983 (Alaska App.
1995); Hurn v. State, 872 P.2d 189, 198 (Alaska App. 1994). Weist
argues that, in the absence of the Rule 27.1(b) inquiry, his
conviction must be reversed.
Under the harmless error standard adopted in LaVigne, a
defendant seeking reversal of a conviction based on a denial of the
right to testify bears the threshold burden to show that the denial
was prejudicial; to meet this burden, the defendant must þshow he
would have offered relevant testimony had he been allowed to
testify at his trial.þ LaVigne, 812 P.2d at 221; accord Knix, 922
P.2d at 919 n.8. Weist has neither shown nor offered to show that
he would have had any relevant testimony to offer had the trial
court conducted a LaVigne inquiry.
Weist's failure to allege or show prejudice reflects his
assumption that the trial court's failure to conduct a Rule 27.1(b)
inquiry must result in automatic reversal. This assumption is not
necessarily inconsistent with the harmless error test adopted in
LaVigne, since that case involved a waiver occurring in the absence
of any rule requiring judicial inquiry into voluntariness. Now
that Rule 27.1(b) expressly requires the trial court to inquire
into the voluntariness of a defendant's decision not to testify,
one might argue that a violation of the rule should automatically
result in reversal.
However, we think that such an argument is untenable in
light of LaVigne itself, where the supreme court first adopted the
inquiry requirement. The LaVigne court explained that the
requirement of an on-record inquiry into the voluntariness of a
defendant's decision not to testify would þassist in any subsequent
appellate review of a defendant's claim [of an invalid waiver].þ
812 P.2d at 222. The supreme court's view that the inquiry would
þassist in any subsequent appellate reviewþ seems to contemplate
case-by-case appellate review for voluntariness and thus implicitly
recognizes that the absence of an express inquiry should not be
deemed a ground for automatic reversal.
In the present case we see no justification to depart
from the ordinary tenet that the violation of a rule should result
in reversal only if the violation is prejudicial. Given Weist's
failure to allege or show prejudice, the trial court's failure to
comply with rule 27.1(b) must be deemed harmless.
We AFFIRM the conviction.
ENDNOTES:
1. Alaska Criminal Rule 27.1(b) provides:
Inquiry of Nontestifying Defendant. Before the
defense rests, the defense shall notify the court outsi
de the presence of the jury that the defense intends to
rest. If the defendant has not testified, the court
shall ask the defendant to confirm that the decision no
t to testify is voluntary. This inquiry must be direct
ed to the defendant personally and must be made on the
record outside the presence of the jury.
