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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DEREK RADI DIGGS, )
) Court of Appeals No. A-10744
Petitioner, ) Trial Court No. 3AN-09-9514 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Respondent. ) No. 2352 - April 13, 2012
)
Petition for Review from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Petitioner. James Fayette, Assistant District Attorney, District
Attorney's Office, Anchorage, and John J. Burns, Attorney
General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
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Derek Radi Diggs has been charged with two counts of assault in the
second degree.1 Because Diggs had a history of mental illness, his attorney expressed
concerns about Diggs's competency and requested a competency evaluation. District
Court Judge John R. Lohff ordered the evaluation. Diggs was evaluated several times
by a psychiatrist, Dr. Lois Michaud, who submitted reports consistently concluding that
Diggs was not competent to stand trial.
The State requested a hearing to contest Dr. Michaud's opinion that Diggs
was not competent to stand trial. Judge Lohff granted the motion. Dr. Michaud testified
at the hearing. At the hearing, the State announced that it intended to call Diggs as a
witness. After receiving briefing and argument on the issue, Judge Lohff granted the
State's motion to call Diggs as a witness. Judge Lohff concluded that it would not
violate Diggs's rights against self-incrimination if Diggs was called to the stand, so long
as his statements at the competency hearing were used only for the purpose of
determining his competency and were not admissible at trial. Diggs then petitioned this
court to review this decision.
We conclude that requiring Diggs to testify at his competency hearing
would violate his right under the Fifth Amendment to the United States Constitution and
article I, section 9 of the Alaska Constitution not to take the stand against his will. We
accordingly reverse Judge Lohff's decision.
1 AS 11.41.210(a)(1).
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A brief background of the Alaska statutes governing a defendant's
competency to stand trial
It is a violation of due process to try or convict a defendant who is legally
incompetent.2 This constitutional principle is codified in Alaska Statute 12.47.100(a):
A defendant who is incompetent, because he cannot understand the proceedings against
him or assist in his own defense, "may not be tried, convicted, or sentenced for the
commission of a crime so long as the incompetency exists."
The remainder of this statute governs the procedures used when a defendant
is suspected to be incompetent. If either attorney has reasonable cause to believe that the
defendant is sufficiently incompetent to be unable to understand the proceedings or to
assist in his defense, "the attorney may file a motion for a judicial determination of the
competency of the defendant."3 Either upon such a motion, or acting sua sponte, the
court "shall have the defendant examined by at least one qualified psychiatrist or
psychologist, who shall report to the court concerning the competency of the
defendant."4 The court may order the defendant committed for purposes of this
examination.5
2 U.S. Const. amend. V, XIV; Alaska Const. art. I, § 7; Medina v. California , 505
U.S. 437, 448-49 (1992); Pate v. Robinson , 383 U.S. 375, 378 (1966); Fajeriak v. State , 520
P.2d 795, 801 (Alaska 1974).
3 AS 12.47.100(b).
4 Id.
5 Id.
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If the examiner's report indicates that the defendant is incompetent, the
court shall hold a hearing.6 At this hearing, the statute provides, "evidence as to the
competency of the defendant may be submitted, including that of the reporting
psychiatrist or psychologist."7 Prior to this hearing, the State may request that the
defendant undergo an additional evaluation by a psychiatrist or psychologist designated
by the State.8 At the hearing, the court shall enter findings as to the defendant's
9
competence.
Alaska Statute 12.47.100(d) provides that "[a] statement made by the
defendant in the course of an examination into the person's competency ... may not be
admitted in evidence against the defendant on the issue of guilt in a criminal proceeding
unless the defendant later relies [on a defense of insanity or mental disease or defect]."
Why we conclude that requiring Diggs to take the stand against his
will at the competency hearing would violate the Fifth Amendment
to the United States Constitution and article I, section 9 of the
Alaska Constitution
The Fifth Amendment provides, "No person ... shall be compelled in any
criminal case to be a witness against himself." Article I, section 9 of the Alaska
Constitution contains this same protection, except that the Alaska Constitution substitutes
"criminal proceeding" for "criminal case."
6 Id.
7 Id.
8
Id. The State does not appear to have requested this additional evaluation in
Diggs's case.
9 Id.
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There are two aspects to this constitutional protection. The first is a right
against self-incrimination: not to be forced to answer inquiries under oath when the
answers will be self-incriminating. This right against self-incrimination applies not just
to the defendant in a criminal case, but to all witnesses who are compelled to testify in
any proceeding. But there is a second aspect of the constitutional protection that applies
only to defendants in criminal proceedings: they may not be called to the stand against
their will.
As Professors LaFave, Israel, King, and Kerr have explained in their
treatise on criminal procedure:
[T]he constitutional privilege against self-incrimination has
been interpreted by the [Supreme] Court to be much broader
than [the] words [of the Fifth Amendment] would suggest. ...
[The] assertion of the privilege is not limited to defendants,
nor is it limited to criminal trials. However, the Court has
interpreted the privilege to have special meaning in a criminal
trial as it relates to the defendant. The privilege entitles a
witness not to answer specific questions posed ... in any ...
proceeding where he is under compulsion to answer, if his
answers would furnish a "link in the chain of evidence"
needed to prosecute him for a criminal offense. The privilege
entitles the criminal defendant, in contrast, to even avoid
appearing as a witness. The right of the defendant is not only
to avoid being compelled to give incriminating responses to
particular inquiries, but to resist being placed in a position
where inquiries can be put to him while he is under oath.10
A defendant's protection against being called to the stand against his will
applies not just to the trial, but to other stages of a "criminal case" (in the words of the
10 6 Wayne R. LaFave et al., Criminal Procedure § 24.5(a), at 424 (3rd ed. 2007)
(citation omitted).
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Fifth Amendment), and to other stages of a "criminal proceeding" (in the words of article
I, section 9 of the Alaska Constitution).11
The United States Supreme Court long ago explained the reason for a broad
reading of this aspect of the Fifth Amendment:
It is not every one who can safely venture on the witness
stand, though entirely innocent of the charge against him.
Excessive timidity, nervousness when facing others and
attempting to explain transactions of a suspicious character,
and offences charged against him, will often confuse and
embarrass him to such a degree as to increase rather than
remove prejudices against him.12
In the present case, there is no question that the State seeks to compel Diggs
to take the stand against his will. The remaining issue, under the Fifth Amendment, is
whether a competency hearing is part of a "criminal case" for Fifth Amendment
purposes.
McCormick on Evidence cites only one federal case that has attempted to
define the scope of "criminal case" for this purpose.13 That case is Chavez v. Martinez.14
In Chavez, the United States Supreme Court stated that there is no "criminal case" until
"at the very least[,] ... the initiation of legal proceedings."15 Under this definition, a
11 Estelle v. Smith , 451 U.S. 454, 463 (1981) (noting that "[a]ny effort by the State
to compel [the defendant] to testify against his will at the sentencing hearing clearly would
contravene the Fifth Amendment").
12 Wilson v. United States, 149 U.S. 60, 66 (1893).
13 1 McCormick on Evidence § 117, at 520 (Kenneth S. Broun ed., 6th ed. 2006).
14 538 U.S. 760 (2003).
15 Id. at 766-67 (plurality opinion) (citing Black's Law Dictionary 215 (6th ed. 1990),
(continued...)
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----------------------- Page 7-----------------------
competency proceeding following the initiation of criminal proceedings would qualify
as part of a "criminal case."
Moreover, article I, section 9 of the Alaska Constitution uses slightly
different wording: the protection afforded by this section applies to any "criminal
proceeding." The minutes of the Alaska Constitutional Convention suggest that the
delegates used this wording because they wanted this clause to be interpreted more
expansively than its federal counterpart.16 In particular, the committee drafting this
section of our Constitution intended for this phrase to cover even "hearings before any
administrative bodies if they were criminal in nature."17
In Scott v. State,18 the Alaska Supreme Court relied on this wording to
interpret article I, section 9 more broadly than its analogue in the federal Constitution.
The issue was the scope of a criminal defendant's protection from compelled pre-trial
disclosure of the defense case.19 The court considered - and rejected - federal
precedent on this issue, ultimately holding that the Alaska privilege against self
15 (...continued)
for definition of "case" as "an action, cause, suit, or controversy at law").
16 See 2 Proceedings of the Alaska Constitutional Convention at 1282-85 (1956),
where Delegate Robert McNealy at the Committee on Preamble and Bill of Rights states that
this language "expands the latitude" compared to the language of the federal constitution.
17 Id . at 1283.
18 519 P.2d 774 (Alaska 1974).
19 Id. at 776-77.
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incrimination prohibits the State from requiring the defense to engage in extensive pre
trial discovery in criminal proceedings.20 The court stated:
[T]he stage of the proceedings is irrelevant to the analysis of
this constitutional privilege. The fundamental right not to
incriminate one's self should apply at every stage of criminal
inquiry or proceedings regardless of judge-made exclusionary
or evidentiary rules.21
Based on this authority, we hold that a competency hearing is part of a
"criminal case" under the Fifth Amendment, and also that a competency hearing is a part
of a "criminal proceeding" under article I, section 9 of our state Constitution.
Accordingly, these constitutional provisions protect Diggs from being called to the stand
against his will at his competency hearing.
The State argues that Diggs waived this protection when he placed his
competency in issue. The State's argument is based primarily on cases holding that,
when the defendant places his mental health at issue, the State may have the right to an
independent mental health examination or the right to use any statements the defendant
makes during the course of such an examination.22 These cases do not involve a waiver
of the defendant's right to refuse to take the witness stand.
The State cites a single case holding that there was no Fifth Amendment
violation when a trial judge questioned a defendant during a competency hearing.23 But
this case does not discuss any of the authorities protecting the defendant's right not to
20 Id . at 785.
21 Id. at 786.
22 See, e.g., Estelle , 451 U.S. at 465-66; Lewis v. State , 195 P.3d 622, 633-37 (Alaska
App. 2008).
23 Holmes v. King , 709 F.2d 965, 968 (5th Cir. 1983).
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be called as a witness against himself.24 We are simply unpersuaded that this case
establishes that a defendant who raises a competency issue thereby waives his right to
refuse to take the stand.
In Alaska, the prosecution has a statutory right to request an additional
examination before the competency hearing.25 This statute provides a fair procedure for
the litigation of this issue. But the Constitution does not allow the prosecution to call the
defendant to the stand against his will. We therefore conclude that the order allowing the
prosecution to call Diggs to the stand violated his fundamental right not to be compelled
to be a witness against himself.
Conclusion
Because Judge Lohff's order requiring Diggs to testify at his competency
hearing violates Diggs's rights under the Fifth Amendment to the United States
Constitution and article I, section 9 of the Alaska Constitution, that order is REVERSED.
24 Id . at 968.
25 See AS 12.47.100(b).
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