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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Paino Manuel Alvarez-Perdomo v. State of Alaska (12/27/2019) sp-7424
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
PAINO MANUEL ALVAREZ- )
PERDOMO, ) Supreme Court No. S-17170
)
Petitioner, ) Court of Appeals No. A-12060
)
v. ) Superior Court No. 3AN-12-08080 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 7424 - December 27, 2019
)
Petition for Hearing from the Court of Appeals, on appeal
from the Superior Court of the State of Alaska, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Margi A. Mock, Anchorage, for Petitioner.
Donald Soderstrom, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for Respondent.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
The court of appeals determined that Paino Manuel Alvarez-Perdomo was
coerced to take the stand at his criminal trial. The court concluded that being coerced to
take the stand violated Alvarez-Perdomo's privilege against self-incrimination,
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guaranteed by the state and federal constitutions. But the court of appeals held that this
error was not a structural error requiring reversal, and that this error was harmless
beyond a reasonable doubt.
We granted this petition for hearing to decide an issue of first impression:
whether the violation of a criminal defendant's right not to take the stand is a structural
error. We conclude that compelling a criminal defendant to take the stand is a structural
error because it implicates personal interests more fundamental than the ordinary risk of
a wrongful conviction. We therefore reverse the court of appeals' decision regarding
harmless error, reverse the judgment of conviction, and remand to the superior court for
a new trial.
II. FACTS AND PROCEEDINGS
A. Facts
In August 2012 Alvarez-Perdomo called his mother, Altagracia Guillen,
and asked her to come to his apartment. When Alvarez-Perdomo opened the door to his
apartment, Guillen noticed that he had his right hand behind his back and that his "eyes
looked sad." Concerned by this, she decided not to enter the apartment. She heard a
loud noise, which she thought was the firing of either a gun or a BB gun. She began
running and heard a second shot. Guillen ran to the parking lot of a nearby restaurant
and called her daughter to tell her that she was wounded.
Guillen's daughter called the police, who arrived quickly with an
ambulance. At the hospital an emergency-room doctor determined that Guillen had a
gunshot wound in the abdomen, but that the bullet had not damaged any organs, arteries,
or veins.
Meanwhile, police officers went to Alvarez-Perdomo's apartment and took
him into custody. When officers searched his apartment, they smelled the odor of a
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discharged firearm and eventually found a revolver, from which two shots had been
fired. The officers also found a bullet hole in a nearby building facing his apartment.
B. Proceedings
1. The superior court
A grand jury indicted Alvarez-Perdomo on one count of first-degree assault
and one count of third-degree weapons misconduct for being a felon in possession of a
1
concealable firearm. Because the State needed to present Alvarez-Perdomo's prior
felony conviction as evidence to prove the weapons misconduct charge, the superior
court bifurcated the trial to avoid prejudicing the first-degree assault deliberations. Thus
the trial on the assault charge was completed before the jury was presented with the
weapons misconduct charge. An interpreter was provided for Alvarez-Perdomo, who
speaks Spanish.
At trial on the assault charge, the State presented testimony of Guillen,
police officers who responded to the incident, the investigating detective, the doctor who
treated Guillen at the hospital, and one of Alvarez-Perdomo's neighbors, who recalled
hearing an argument coming from his apartment immediately before the shooting.
According to the first police detective to arrive at the restaurant and speak with Guillen,
she told the detective that her son had shot her. At trial, however, Guillen testified that
1 See AS 11.41.200(a)(1) (recklessly causing serious physical injury to
another with dangerous instrument); AS 11.61.200(a)(1) (knowingly possessing
concealable firearm as a felon). Alvarez-Perdomo was also indicted for first-degree
attempted murder, but the prosecutor dismissed that charge. See AS 11.31.100 (engaging
in conduct constituting substantial step toward commission of crime, with intent to
commit crime); AS 11.41.100 (intentionally causing death of another).
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she did not recall making any such statement to the police, and in fact was still uncertain
about "whether it was with a BB gun or . . . with a handgun."
After the presentation of the State's case, Alvarez-Perdomo's attorney told
the court that he would not be calling any witnesses. In an attempt to apply the rule we
established in LaVigne v. State, the court then sought to personally confirm with
2
Alvarez-Perdomo that he intended to waive his right to testify. Alvarez-Perdomo's
answers to the court's questions were equivocal:
The Court: And your attorney, . . . has advised me that you
have chosen not to testify. Is that correct?
Alvarez-Perdomo : I think so.
The Court: Do you know so?
Alvarez-Perdomo : I don't know.
After these equivocal answers, the court recessed so Alvarez-Perdomo could consult with
his attorney. Upon returning from the recess, Alvarez-Perdomo's attorney explained that
Alvarez-Perdomo had acknowledged and agreed with the decision not to take the stand,
but he resented that he had to discuss the decision with the court when he considered
communications with the court to be the responsibility of his attorney.
The court then returned to questioning Alvarez-Perdomo, whose response
was agitated and confused:
The Court: Mr. Alvarez, do you think you've had enough
time to talk to your attorney about this decision?
2 Defendant LaVigne wanted to testify, but his attorney advised against it.
LaVigne v. State, 812 P.2d 217, 218 (Alaska 1991). Without informing LaVigne that he
had the right to testify regardless of his legal advice, LaVigne's attorney unilaterally
decided that he would not testify. Id. To avoid future cases of an attorney usurping the
defendant's r ight to testify, we instructed "that trial judges should take steps to insure
that a criminal defendant's failure to take the stand in his or her own defense was the
result of a knowing and voluntary decision made by the defendant." Id. at 222.
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. . .
Alvarez-Perdomo : I don't know, no, because the paperwork
- they have been giving me the documents; I do not
understand them. They are - they just say I am guilty, I am
guilty, and I don't know why they want to - they want to
make me guilty about strange things.
At this point the court received the permission of the prosecutor to continue the LaVigne
inquiry in a private session with just Alvarez-Perdomo, his attorney, and his interpreter.
Alvarez-Perdomo continued to give equivocal answers, and he often provided responses
that were unrelated to the questions asked. Finally, the court gave Alvarez-Perdomo
another opportunity to speak with his attorney before making a final decision whether
he would testify.
After the second recess, Alvarez-Perdomo's attorney reiterated his client's
frustration at being "put[] . . . on the spot" in court and his acceptance of the legal advice
not to take the stand. The attorney suggested that Alvarez-Perdomo should not be further
questioned about his decision not to testify "unless he indicates right now that he wants
to testify or that I'm misrepresenting him." The court sought to confirm that Alvarez-
Perdomo understood, but his responses were increasingly confused:
The Court: Do you understand? SÃ or no. Do you
understand at this moment [your attorney's] advice is that he
does not think you should testify?
Alvarez-Perdomo : And so how is that? If I said yes, sÃ, so
that means that I will testify. And if I say no, that -
The Court: No, no, that's not my question. Listen. Do you
understand that his advice is he does not think you should
testify? I'm not asking you to decide. Do you understand
that's what his advice is?
Alvarez-Perdomo : No.
The Court: What don't you understand?
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Alvarez-Perdomo : The word no.
The Court: He has told you he does not think you should
testify, correct?
Alvarez-Perdomo : Yes, that is what he was - he has been
telling me.
The Court: All right. Do you want to accept his advice?
Alvarez-Perdomo : No.
The Court: All right. So do you want to testify?
Alvarez-Perdomo : It seems so. I don't know.
The Court: You - excuse me?
Alvarez-Perdomo : I am not a lawyer.
At the end of this exchange the court directed a judicial services officer to escort
Alvarez-Perdomo to the stand.
The prosecution was invited back into the courtroom, and before calling in
the jury, the court once again questioned Alvarez-Perdomo:
The Court: Mr. Alvarez-Perdomo, are you ready to testify to
the jury?
Alvarez-Perdomo : Is the court asking me?
The Court: Yes.
Alvarez-Perdomo : No.
The Court: Are you ready to testify to the jury?
Alvarez-Perdomo : Are we ready?
The Court: When the jury comes in. Okay.
Alvarez-Perdomo : Let's go. Let's go.
The Court: We'll bring the jury panel in.
Alvarez-Perdomo : I don't know have your time [sic].
The Court: I'm sorry?
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Alvarez-Perdomo : I don't know have your time [sic].
The Court: I don't understand.
Alvarez-Perdomo : I do not speak English. Let's keep going
because I'm getting cold.
The Court: All right.
Alvarez-Perdomo's attorney interjected, noting that Alvarez-Perdomo had stated that he
did not wish to testify. The judge responded: "I didn't sense that." The jury was called
back into the courtroom.
On direct examination Alvarez-Perdomo claimed that he did not know basic
information, such as his address or his mother's name:
Defense Counsel: Okay. Paino, where'd you live on
August 8th, 2012?
Alvarez-Perdomo : In Alaska.
Defense Counsel: Okay. Did you live at 615 West 45th?
Alvarez-Perdomo : Anchorage.
Defense Counsel: Okay. So 615 West 45th in Anchorage.
Is that fair to say?
Alvarez-Perdomo : I don't know.
Defense Counsel: Okay. Is your mother Altagracia Guillen?
Alvarez-Perdomo : I don't know.
Defense Counsel: Did you see Ms. Guillen - well, do you
know who Ms. Guillen is?
Alvarez-Perdomo : No.
Defense Counsel: Okay. Well, then I think this is probably
pretty easy. Did you shoot Altagracia Guillen on August 8th,
2012?
Alvarez-Perdomo : I am not - the thing is I am not an
assassin. I am not an assassin. I am not, you know, this kind
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of guy. I don't know how to say it in Spanish.
Defense Counsel: Do you want to try saying it in English?
Alvarez-Perdomo : I do not speak English.
Defense Counsel: Okay.
Alvarez-Perdomo : I am Dominican.
During a brief cross-examination, Alvarez-Perdomo again indicated that he neither knew
his mother's name nor recognized her. Alvarez-Perdomo's attorney did not present any
further witnesses or evidence.
During closing arguments on the assault charge, Alvarez-Perdomo's
attorney asked the jury to conclude that Alvarez-Perdomo had not acted recklessly when
he shot his mother. His attorney argued instead that Alvarez-Perdomo had been
criminally negligent and asked the jury to return a verdict on the lesser-included offense
of fourth-degree assault.3 Thejury found Alvarez-Perdomo guilty of first-degree assault.
The jury was then presented with the weapons misconduct charge and found him guilty
of third-degree weapons misconduct.
2. The court of appeals
Alvarez-Perdomo appealed his convictions to the court of appeals.4
He
argued "that the trial judge forced him to testify at his trial, thus violating his
5
constitutional right not to be compelled to incriminate himself." The court of appeals
3 See AS 11.41.230.
4 Alvarez-Perdomo v. State, 425 P.3d 221, 222 (Alaska App. 2018).
5 Id.
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concluded that the superior court committed constitutional error by compelling Alvarez-
6
Perdomo to take the stand.
The court of appeals began by explaining that during the superior court's
LaVigne inquiry it inappropriately pressured Alvarez-Perdomo to explicitly waive his
right to testify, rather than ensuring that he understood (1) that he had the right to testify,
and (2) that he could make the decision to testify, regardless of the advice or wishes of
his attorney.7
The court of appeals stated that the superior court misunderstood LaVigne
to require a definitive statement from Alvarez-Perdomo that he did not want to exercise
8
his right to testify. This misunderstanding resulted in the superior court "badger[ing]"
9
him to take the stand.
The court of appeals determined that although a few isolated comments by
Alvarez-Perdomo indicated that he wanted to take the stand, the entirety of his equivocal
responses to the LaVigne inquiry placed "the notion that Alvarez-Perdomo wanted to
10 And case law from the court of appeals firmly establishes that
testify . . . in doubt."
when a defendant is "unwilling or unable to make an unequivocal decision to testify, the
trial should go forward without the defendant's testimony."11 Thus, the superior court
committed constitutional error "when [it] directed the judicial services officer to escort
6 Id. at 226.
7 Id.
8 Id. at 226-29.
9 Id. at 228-29.
10 Id. at 226.
11 Id. at 229 (citing Wyatt v. State, 393 P.3d 442, 446 (Alaska App. 2017);
Tall v. State, 25 P.3d 704, 709 (Alaska App. 2001); Mute v. State, 954 P.2d 1384, 1388
(Alaska App. 1998); Knix v. State, 922 P.2d 913, 918-19 (Alaska App. 1996)).
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Alvarez-Perdomo to the stand, and when [it] then summoned the jury to hear
12
Alvarez-Perdomo's testimony" despite his equivocal answers. The court of appeals
13
concluded that the trial court erred "by coercing Alvarez-Perdomo to take the stand."
The court of appeals ultimately reasoned, however, that the error was
harmless beyond a reasonable doubt because, given the overwhelming evidence against
Alvarez-Perdomo, there was no "reasonable possibility that the jury might have returned
a different verdict . . . if Alvarez-Perdomo had not given his testimony."14
3. Petition for hearing
Alvarez-Perdomo filed a petition for hearing with this court. He argued that
the court of appeals erred when it determined that the violation of his privilege against
self-incrimination was a trial error, rather than a structural error. In the alternative, he
argued that the court of appeals erred when it held that the error was harmless beyond
a reasonable doubt. We granted Alvarez-Perdomo's petition for hearing on both
questions.
The State cross-petitioned for hearing, arguing that the court of appeals
used the incorrect standard of review to determine if a constitutional error occurred. The
State argued that whether Alvarez-Perdomo wanted to testify was a question of fact that
should be reviewed for clear error. We denied the State's cross-petition, leaving the
court of appeals decision on this issue as it stands.
12 Id. at 226.
13 Id. at 229.
14 Id. at 227-28 (citing Anderson v. State, 337 P.3d 534, 540 (Alaska App.
2014)).
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III. STANDARD OF REVIEW
"Determining the appropriate standard of review is . . . a question of law
15
that we review de novo."
Under this standard of review, we adopt "the rule of law that
16
is the most persuasive in light of precedent, reason, and policy."
IV. DISCUSSION
The United States Supreme Court has established two categories of
constitutional errors: structural errors and trial errors. The Court has held that many
constitutional errors are trial errors, which are subject to harmless-error analysis.17
These
constitutional errors require a new trial unless the errors are "harmless beyond a
18
reasonable doubt." Although "most constitutional errors can be harmless," the Court
has recognized a special structural constitutional error category for "structural defects in
the constitution of the trial mechanism, which defy analysis by 'harmless-error'
standards."19 Structural errors are "intrinsically harmful . . . without regard to their effect
on the outcome."20
In other words, a structural error "affects the entire framework of the
15 Jordan v. State, 420 P.3d 1143, 1148 (Alaska 2018) (quoting Hutton v.
State, 350 P.3d 793, 795 (Alaska 2015)).
16 Id. at 1148 (quoting Khan v. State, 278 P.3d 893, 896 (Alaska 2012)).
17 The Court provides a long list of constitutional errors subject to harmless-
error analysis in Arizona v. Fulminante, 499 U.S. 279, 306-07 (1991).
18 Chapman v. California, 386 U.S. 18, 24 (1967).
19 Fulminante, 499 U.S. at 309.
20 Neder v. United States, 527 U.S. 1, 7 (1999).
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21 22
case." These structural errors require automatic reversal and a new trial. We apply
23
the general framework established by the Supreme Court, although Alaska's
constitutional protections are not limited by the reach of their federal counterparts.24
The Fifth Amendment of the United States Constitution provides that no
25
person "shall be compelled in any criminal case to be a witness against himself." And
article I, section 9 of the Alaska Constitution provides that "[n]o person shall be
compelled in any criminal proceeding to be a witness against himself."26 We have not
yet decided whether compelling a criminal defendant to testify at trial is a structural
error.
Alvarez-Perdomo argues that it is. In the alternative, he argues that the
court of appeals erred when it determined that the error in his case was harmless beyond
a reasonable doubt.
A. The Superior Court Committed Structural Error When It Compelled
Alvarez-Perdomo To Take The Stand.
The Supreme Court recently clarified its structural error doctrine in Weaver
v. Massachusetts, explaining that although "at least three broad rationales" animate the
structural error case law, the underlying "purpose of the structural error doctrine is t o
ensure insistence on certain basic, constitutional guarantees that should define the
21 Jordan, 420 P.3d at 1153.
22 Id. at 1148.
23 Id.
24 Id. at 1153.
25 U.S. Const. amend. V.
26 Alaska Const. art. 1, § 9.
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27
framework of any criminal trial." Reviewing its precedents, the Court determined that
an error has been deemed structural when: (1) "the right at issue is not designed to
protect the defendant from erroneous conviction but instead protects some other
interest"; (2) the effects "are simply too hard to measure"; and (3) it "always results in
28
fundamental unfairness." The Court further explained:
These categories are not rigid. In a particular case, more than
one of these rationales may be part of the explanation for why
an error is deemed to be structural. For these purposes,
however, one point is critical: An error can count as
structural even if the error does not lead to fundamental
unfairness in every case.[29]
In contrast, constitutional violations found subject to harmless-error
analysis have "each involved 'trialerror' - error which occurred during the presentation
of the case to the jury, and which may therefore be quantitatively assessed in the context
of other evidence presented in order to determine whether its admission was harmless
beyond a reasonable doubt."30
Alvarez-Perdomo argues that each of the three rationales identified in
Weaver is applicable to his case, and that it was therefore error for the court of appeals
to hold that the violation of his right against self-incrimination was "amenable to a
harmless error analysis."31 We conclude that the error was structural based on the first
rationale.
27 137 S. Ct. 1899, 1907-08 (2017).
28 Id. at 1908.
29 Id. (internal citations omitted).
30 Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
31 Alvarez-Perdomo v. State, 425 P.3d 221, 226 (Alaska App. 2018).
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In Weaver the Supreme Court explained that "an error has been deemed
structural in some instances if the right at issue is not designed to protect the defendant
32
from erroneous conviction but instead protects some other interest." As an example the
Court discussed the right to conduct one's own defense, "which, when exercised,
33
'usually increases the likelihood of a trial outcome unfavorable to the defendant.' "
The Court explained that this right "is based on the fundamental legal p rinciple that a
defendant must be allowed to make his own choices about the proper way to protect his
own liberty" and that its violation is a structural error because "harm is irrelevant to the
basis underlying the right."34
The Fifth Amendment provides that no person "shall be compelled in any
criminal case to be a witness against himself."35 This portion of the Fifth Amendment
36 "[S]ince the
has traditionally been described as the privilege against self-incrimination.
most fundamental part of that protection is the right of an accused in a criminal trial not
to be compelled to be a witness for the prosecution, it is appropriate to continue to regard
32 Weaver, 137 S. Ct. at 1908.
33 Id. (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).
34 Id. (first citing Faretta v. California, 422 U.S. 806, 834 (1975); then citing
United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006)).
35 U.S. Const. amend. V.
36 As the Supreme Court has observed, "[t]he term 'privilege against self-
incrimination' is not an entirely accurate description of a person's [Fifth Amendment]
constitutional protection against being 'compelled in any criminal case to be a witness
against himself.' " United States v. Hubbell, 530 U.S. 27, 34 (2000). The word
"witness" limits the application of the privilege to testimonial communications. See id. at
34-35.
-14- 7424
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the right as a privilege albeit with implications beyond those of other evidentiary
37
privileges."
Concerns about the use of compelled self-incriminatory testimony span
centuries of legal history. Although the exact origins of the privilege against self-
incrimination are debated, legal scholarship suggests that "its development was
intimately intertwined with the political and religious disputes of early England."38 In
many common law criminal trials prior to the seventeenth century, the accused "was
expected to take an active part in the proceedings, often to his own detriment."39
Before
trial, and often prior to the presentment of charges, the accused was examined by justices
of the peace, "and the results of this examination were preserved for use by the judge at
trial."40 Puritans protested the use of coercive oaths and compelled self-incrimination as
41 After 1641 the common law courts began to apply restrictions to the use
early as 1604.
37 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 114, at 686 (7th
ed. 2013).
38 Id. at 687. In the early thirteenth century, "[u]nder the 'inquisitorial oath,'
there was active interrogation of the accused by the judge" after the accused had been
forced to take a religious oath to answer truthfully. Id. Two controversial courts later
adopted the inquisitorial oath procedure and used it for political and religious purposes:
the Star Chamber and Court of the High Commission in Causes Ecclesiastical. Id.
39 Id. (citing E. M. Morgan, The Privilege Against Self-Incrimination, 34
MINN. L. REV. 1, 12-23 (1949); 8 WIGMORE, EVIDENCE § 2250, at 285-86 (McNaughton
rev. 1961)).
40 Id. (citing WIGMORE, supra note 39, at 285).
41 R. Carter Pittman, The Colonial and Constitutional History of the Privilege
Against Self-Incrimination in America , 21 VA. L. REV. 763, at 770 (1934-35). As noted
by Pittman's historical analysis, the abusive practices of these courts drove many to leave
for New England. Id. at 770-71.
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42
of the inquisitorial oath.
There is no single scholarly consensus on the historical narrative of the
43
privilege against self-incrimination in America. Historical evidence from early colonial
America suggests that the judicial process, especially in New England, was inquisitorial
44
and heavily influenced by the clergy. However, the privilege was included in the
45
constitutions or bills of rights of seven states before 1789, and the privilege has been
included in the constitutions of all but two states.46
Although different conclusions may reasonably be drawn about the
motivations for including the privilege against self-incrimination in the Bills of Rights,47
42 BROUN ET AL., supra note 37, § 114, at 688.
43 Id. at 688-89; see also Pittman, supra note 41, at 764-65 (presenting
historical analysis contradicting Wigmore's analysis).
44 Pittman, supra note 41, at 767-68. The colonists insisted on protection
from abusive practices such as protection against compulsion to confess one's own
delinquency as evidenced by the 1641 Body of Liberties. Id. at 775-76. The Puritan
opposition to testamentary compulsion made it "apparent that the Puritan mind placed
the ecclesiastical oath in the category of 'tortures' just as it did the rack, the boot and the
thumbscrew." Id. at 778-79.
45 These states were Maryland, Massachusetts, New Hampshire, North
Carolina, Pennsylvania, Vermont, and Virginia. Id. at 765.
46 New Jersey and Iowa did not include the privilege in their constitutions, but
rather their courts have held it part of the existing state law. See id. at 763 n.1 (citing
State v. Height, 91 N.W. 935 (Iowa 1902) (concluding state constitutional guarantee of
due process includes protection from compelled self-incrimination); State v. White, 142
A.2d 65 (N.J. 1958) (determining there is no state constitutional prohibition against
compelled self-incrimination, but statutory provisions are "no less urgent and
protective")).
47 BROUN ET AL., supra note 37, § 114, at 688 (describing Bentham as
(continued...)
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one of the underlying rationales is animated by concerns about protecting the defendant's
personal dignity:
[T]his policy suggests at least limited objection to the use of
information extracted from the mouth of the accused as the
basis for a criminal prosecution. This early suspicion of
compulsory self-incrimination . . . seems to be based upon a
perception that compelling an individual to provide the basis
for his own penal liability should be limited because of the
position in which it places the individual, making a choice
between violating a solemn oath and incurring penal liability,
weighs against important policies of individual freedom and
[48]
dignity.
Alvarez-Perdomo argues that the state and federal rights against self-
incrimination protect "the underlying values of dignity, integrity, and privacy of an
individual." Alaska and federal precedents support his argument that the criminal
defendant's right not to take the stand protects personal dignity.
The Alaska Court of Appeals has explained that "[t]he privilege . . . ha[s]
special meaning in a criminal trial as it relates to the defendant" because, in contrast to
an ordinary witness, "[t]he 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."49 Thus, "there is a
47 (...continued)
suggesting privilege was overreaction to historical use of oath procedure without proper
presentment of charges) (citing WIGMORE, supra note 39, at 292); see also Pittman,
supra note 41, at 763 (discussing difficulty of ascertaining insistence on including
privilege against self-incrimination with certainty).
48 BROUN ET AL., supra note 37, § 114, at 688.
49 Diggs v. State, 274 P.3d 504, 506 (Alaska App. 2012) (quoting 6 WAYNE
R. LAFAVE ET AL., CRIMINAL PROCEDURE § 24.5(a), at 424 (3rd ed. 2007)).
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----------------------- Page 18-----------------------
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."50 This implicates
defendants' dignity; the right does not simply govern the admission of evidence, but
rather gives defendants control over whether to present themselves as witnesses at trial.51
In response the State argues that the privilege against self-incrimination is
fundamentally a procedural trial right; that it "is specifically linked to the admission of
evidence against the defendant to show his guilt in a criminal case." But the fact that a
violation can occur only during criminal proceedings does not necessarily mean that the
sole purpose of a defendant's right not to take the stand is to protect against erroneous
conviction. There are structural errors that are tied to the trial process. For example, the
right to conduct one's own defense is tied to the trial process and is a structural error
52
when violated.
There are few cases addressing the issue of a criminal defendant being
compelled to take the stand. The State cites several cases to support its argument that
this error is amenable to harmless error analysis. The facts of most of those cases,
however, do not involve a defendant being compelled to take the stand.53
50 Id.
51 In Murphy v. Waterfront Commission of New York Harbor, the Supreme
Court described compelling a defendant to choose among "self-accusation, perjury, or
contempt" as a "cruel trilemma." 378 U.S. 52, 55 (1964), abrogated by United States v.
Balsys, 524 U.S. 666 (1998).
52 See Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (citing
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).
53 For example, in discussing UnitedStates v. Goodwin,the State explains that
"the judge caused the defendant to testify by telling her that she had little chance of
success unless she testified." 770 F.2d 631, 636-38 (7th Cir. 1985). In dicta, the court
(continued...)
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Alvarez-Perdomo's primary support is State v. Sierra, a case directly on
54
point from the Connecticut Supreme Court. In Sierra a trial court compelled a criminal
defendant to take the stand when called by his co-defendant by threatening him with
55
contempt if he refused. The State unsuccessfully attempts to distinguish the facts of
Sierra, arguing that the defendant in Sierra testified under the threat of contempt, while
Alvarez-Perdomo "wanted to testify, and that finding has not been overruled." This
assertion by the State is a misstatement, as the court of appeals held that "the trial judge
56
committed constitutional error by coercing Alvarez-Perdomo to take the stand."
We also reject the notion that the only way to compel a defendant to be a
witness at trial is to threaten him with contempt: The Fifth Amendment of the United
States Constitution and article 1, section 9 of the Alaska Constitution both protect a
53 (...continued)
added, though, that even if a constitutional violation had occurred, it would have been
harmless because the defendant had been prepared to testify and because her testimony
was "not garbled or confused - she seemed to know exactly what she was talking
about." Id. It is noteworthy that in Goodwin the Seventh Circuit held that the trial court
had improperly influenced the defendant's decision to testify but that this did not rise to
the level of a Fifth Amendment violation. Id. at 637.
54 568 A.2d 448 (Conn. 1990).
55 Id . at 456.
56 Alvarez-Perdomo v. State, 425 P.3d 221, 229 (Alaska App. 2018). The
court of appeals also stated that "a judge must not badger or coerce a defendant to take
the stand. That is what happened in this case." Id. In addition to concluding that
Alvarez-Perdomo was compelled to take the stand, the court also described the superior
court's actions as forcing him to take the stand: "This is not to say that we condone what
happened here. Having a trial judge force a reluctant or indecisive defendant to take the
stand is inconsistent with the Fifth Amendment and the basic principles of our adversary
system of justice." Id. at 228.
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57
defendant from being "compelled" to be a witness at trial, and it would be unduly
narrow to read "compelled" as only encompassing situations in which a defendant is
threatened with contempt. As the Connecticut Supreme Court noted in its Sierra
analysis, through the language of the Fifth Amendment
a criminal defendant is afforded "the right not only to avoid
giving incriminating responses to inquiries put to him but
also to be free from the inquiries themselves. Thus the
privilege of an accused allows him not only to refuse to
respond to questions directed at his alleged participation in
the offense but also entitles him not even to be called as a
[58]
witness at his own trial."
The Sierra court reasoned that "the violation of a defendant's absolute right
not to testify at [his] own trial" is a fundamental constitutional error.59
The court
concluded that this violation of a defendant's absolute right was incompatible with
60
harmless error analysis because this error implicated the integrity of the judicial system
as well as individual dignity:
[W]e find that to compel a criminal defendant to testify at his
own trial in violation of his fifth amendment right not to take
the stand derogates from the integrity of the constitution and
57 U.S. Const. amend. V.; Alaska Const. art. 1, § 9.
58 Sierra, 568 A.2d at 456 (quoting C. MCCORMICK, EVIDENCE § 130 (4th ed.
1984)).
59 Id. at 456-57.
60 Id. ("[H]armless error analysis has not been applied to rights that . . .
promote systematic integrity and individual dignity." (quoting Johnstone v. Kelly, 808
F.2d 214, 218 (2d Cir.1986), cert. denied, 482 U.S. 928 (1987))).
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the judicial system and affects an individual's dignity in such
a way that cannot be tolerated.[61]
The court concluded that "compelling a criminal defendant to take the stand and to testify
in a criminal prosecution against him is so fundamental an error that automatic reversal
62
is required and may not be disregarded."
The State counters that certain limits of the privilege against self-
incrimination demonstrate that it is not designed to protect individual dignity, namely
that defendants may be compelled to provide blood samples63 and that individuals may
be compelled to testify if granted immunity from future prosecution.64 We disagree: the
State's examples are not analogous to a criminal defendant being compelled to testify at
trial.65
61 Id. at 457.
62 Id. at 456.
63 See Schmerber v. California, 384 U.S. 757, 760-65 (1966).
64 See Kastigar v. United States, 406 U.S. 441, 448 (1972).
65 The Supreme Court has held that t he privilege against self-incrimination
applies to testimonial communications, but not evidence of physical characteristics such
as blood samples or handwriting samples. United States v. Hubbell, 530 U.S. 27, 34-35
(2000) (discussing limited applicability of privilege to testimonial communications); see
also DAVID S. RUDSTEIN ET AL., 2 CRIMINAL CONSTITUTIONAL LAW § 6.02(1)(b) (2019)
(citing Schmerber v. California, 348 U.S. 757 (1966) (addressing blood samples); United
States v. Mara, 410 U.S. 19 (1973) (addressing handwriting samples)). Thus, the fact
that the privilege against self-incrimination fails to reach involuntary blood samples does
not mean that it does not protect a defendant's dignity. Nor does the fact that the
privilege against self-incrimination does not reach a witness who does not face a risk of
self-incrimination because the witness has been granted immunity from future
prosecution. Kastigar, 406 U.S. 441; State v. Gonzalez, 853 P.2d 526 (Alaska 1983).
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We agree with the Sierra court: Compelling a criminal defendant to testify
at trial derogates from the integrity of the judicial system and unacceptably encroaches
on individual dignity. A criminal defendant's right not to take the stand is a core
protection of the Fifth Amendment of the United States Constitution and article 1,
section 9 of the Alaska Constitution.66 "The freedom of a defendant in a criminal trial
to remain silent 'unless he chooses to speak in the unfettered exercise of his own will'
is guaranteed by the Fifth Amendment."67
We conclude that compelling Alvarez-Perdomo to take the stand to testify
in the case against him was a structural error requiring automatic reversal. A criminal
defendant's right not to take the stand does not simply protect against the risk of
erroneous conviction: It protects the criminal defendant from suffering the indignity of
being compelled to take the stand to provide information that is against their own
interest.68
66 See, e.g., United States v. Patane, 542 U.S. 630, 637 (2004) (plurality
opinion) ("[T]he core protection afforded by the Self-Incrimination Clause is a
prohibition on compelling a criminal defendant to testify against himself at trial." (citing
Chavez v. Martinez, 538 U.S. 760, 764-68 (2003) (plurality opinion))); Munson v. State,
123 P.3d 1042, 1047 (Alaska 2005) ("[T]he core protection is a prohibition on
compelling a defendant to testify against himself at trial").
67 Carter v. Kentucky, 450 U.S. 288, 305 (1981) (quoting Malloy v. Hogan,
378 U.S. 1, 8 (1964)).
68 As Justice Stevens observed, a defendant's decision to testify implicates
interests outside of preventing erroneous conviction:
The Constitution wisely commits the critical decision of
whether the defendant shall take the stand to the defendant
and his lawyer, rather than the judge, for at least two reasons.
First, they have greater access to information bearing on the
decision than the judge can normally have. Second, they are
(continued...)
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B. Trial Courts Must Take Care When Conducting The LaVigne Inquiry.
The purpose of the LaVigne inquiry is to ensure that defendants are
informed of their right to testify and that the decision whether to testify is ultimately
69
theirs. Although some defendants will clearly express their desire not to testify, other
defendants, like Alvarez-Perdomo, will struggle with this decision. When defendants are
unwilling or unable to clearly assert that they want to waive the right to testify, judges
are not required to continue questioning defendants until they provide a definite answer.
Importantly, as emphasized by the court of appeals, judges must not compel defendants
to take the stand if they provide equivocal responses to the LaVigne inquiry:
[T]he LaVigne rule does not require a trial judge to obtain the
defendant's affirmative waiver of the right to testify. Rather,
the crucial aspect of the LaVigne inquiry is simply to make
sure that the defendant understands that they have a legal
right to testify and that they can assert this right regardless of
what their attorney wants them to do.
As subsequent cases have shown, there are occasionally times
when a defendant will refuse to give a direct or unequivocal
answer when the judge asks the defendant whether they wish
to testify. In such circumstances, the LaVigne rule requires
only that the judge fully inform the defendant of their right to
testify. If the defendant then refuses to explicitly waive their
right to testify, the trial judge cannot order the defendant to
68 (...continued)
motivated solely by concern for the defendant's interests; the
judge inevitably is concerned with society's interest in
convicting the guilty as well as protecting the innocent.
Lakeside v. Oregon, 435 U.S. 333, 344 (1978) (Stevens, J., dissenting); see also Carter,
450 U.S. at 299-300, 300 n.15 (1981) (discussing reasons unrelated to guilt or innocence
defendant might refuse to take stand such as rough questioning, personal embarrassment,
and potential incrimination of others).
69 LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991).
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take the stand. Rather, the judge should order the trial to
proceed without the defendant's testimony.[70]
During the LaVigne inquiry the court should confirm that the defendant is
informed that "[t]he ultimate decision whether to exercise the right [to testify] . . . rests
71
with the defendant, not with defendant's counsel." When safeguarding a defendant's
right to testify through the LaVigne inquiry, we caution trial courts against going to the
opposite extreme of compelling defendants to take the stand. The decision whether to
testify belongs to the defendant, not the trial court.
V. CONCLUSION
We REVERSE the court of appeals' decision regarding harmless error. We
REVERSE the judgment of conviction and REMAND to the superior court f or a new
trial.
70 Alvarez-Perdomo v. State , 425 P.3d 221, 226 (Alaska App. 2018)
(emphasis in original) (internal citations omitted).
71 LaVigne, 812 P.2d at 219 (citing Hughes v. State, 513 P.2d 1115, 1119
(Alaska 1973)).
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