from the Superior Court No. 3AN-12-8080 CR, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Marjorie A Mock, Anchorage, under contract with the Public
Defender Agency, and Quinlan Steiner, Public Defender,
Anchorage, for the Appellant.
Soderstrom, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
Manuel Alvarez-Perdomo was convicted of first-degree assault
for shooting his mother in the side, and also third-degree
weapons misconduct for being a felon in possession of a
appeals his convictions, arguing that the trial judge forced
him to testify at his trial, thus violating his
constitutional right not to be compelled to incriminate
himself. We agree that the trial judge committed error by
forcing Alvarez-Perdomo to take the stand when he never
clearly stated that he wished to testify. However, we
conclude that, given the facts of Alvarez-Perdomo's case,
this error was harmless beyond a reasonable doubt, and we
therefore affirm Alvarez-Perdomo's convictions.
afternoon of August 8, 2012, Alvarez-Perdomo called his
mother, Altagracia Guillen, and asked if she would come over
to his apartment. When Guillen arrived, Alvarez-Perdomo
answered the door, but he remained inside the apartment and
Guillen remained outside the door. According to Guillen's
later testimony, Alvarez-Perdomo was holding his right hand
behind his back, and "his eyes looked sad". Guillen
thought that something was not quite right, and she decided
not to enter the apartment.
then heard a loud noise, as if a weapon of some kind had been
fired. She later told the police and medical personnel that
she felt something hit her in the abdomen, although she did
not immediately feel any pain. Guillen then started running
away from her son's apartment, through a parking lot. As
Guillen was running through the parking lot, she heard
another gunshot. She finally reached a nearby restaurant,
where she stopped to seek help and to call her daughter. By
this time, Guillen was bleeding profusely, and an ambulance
police soon responded to the scene, and they could see that
Guillen was wounded and bleeding. When Guillen was asked what
happened, she replied that her son had just shot her.
medical examination revealed that Guillen had suffered a
through-and-through gunshot wound to her lower abdomen. She
was lucky: somehow the bullet had passed through her body
without hitting any major organs.
police went to Alvarez-Perdomo's apartment, and
Alvarez-Perdomo surrendered to the police without incident.
As soon as the police entered the apartment, they could smell
the odor of a recently fired gun, and they found a revolver
in Alvarez-Perdomo's bedroom. This revolver contained
five cartridges - two of which had been fired.
on this evidence, Alvarez-Perdomo was convicted of
first-degree assault (for shooting his mother) and
third-degree weapons misconduct (for being a felon in
possession of a concealable firearm).
issue presented in this appeal arose toward the end of
Alvarez-Perdomo's trial, when his attorney announced that
he did not intend to present a defense case. Under the rule
established in LaVigne v. State,  the defense
attorney's announcement triggered the trial judge's
obligation to question Alvarez-Perdomo personally - to make
sure that Alvarez-Perdomo understood that he had the right to
testify at his trial, and that the decision whether to
testify lay solely with him, regardless of his defense
LaVigne inquiry began with the trial judge
explaining (actually, re-explaining) that Alvarez-Perdomo had
the right to testify or the right to remain silent, and that
this was Alvarez-Perdomo's personal decision. But when
the judge asked Alvarez-Perdomo whether he had decided to
remain silent, Alvarez-Perdomo did not offer a definite
The Court: Mr. Alvarez-Perdomo, you might remember
that, at the beginning of the trial, I talked to you about
the issue of whether you would or would not testify. And ...
I want to emphasize again that, by talking to you about your
decision, I don't mean to suggest that I think you should
do one thing or another. I just need to make sure, once
again, that you understand what your rights are in this area.
As I told you before, this jury has been instructed that ...
you have an absolute right to remain silent. And if you
choose to remain silent, the jury may not discuss that
matter. They can't hold it against you or consider it in
any way. And your attorney ... has advised me that you have
chosen to not testify. Is that correct?
Alvarez-Perdomo: I think so.
The Court: All right. Do you know so?
Alvarez-Perdomo: I don't know.
The Court: All right. [To the defense attorney] You
need some more time to talk to him?
Defense Attorney: Apparently, Your Honor. If I could
have a few moments.
court reconvened, Alvarez-Perdomo's defense attorney
informed the judge that he had counseled Alvarez-Perdomo to
refrain from testifying, since it appeared that there was
nothing to be gained through his testimony. However, the
defense attorney also informed the judge that Alvarez-Perdomo
"resent[ed] the fact" that the defense attorney
kept telling him that this decision was up to him
(i.e., up to Alvarez-Perdomo). Apparently,
Alvarez-Perdomo believed that it was part of the defense
attorney's duty (as his legal representative) to make
this decision for him.
the judge asked Alvarez-Perdomo whether he needed still more
time to discuss this matter with his attorney,
Alvarez-Perdomo gave a rambling, non-responsive answer:
Alvarez-Perdomo: I don't know. No, because the
paperwork-they have been giving me the documents, [and] 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.
point, the judge called another recess so that
Alvarez-Perdomo could again confer with his attorney.
court reconvened, the defense attorney apprised the judge of
his renewed conversation with his client:
Defense Attorney: Your Honor, I've spoken with
Mr. Alvarez-Perdomo, and ... I indicated my advice was not to
testify. He indicated he agreed with that advice. [But] I
think I understand his position: he's frustrated that I
keep asking him the same question, and that I'm not
protecting him in [the] courtroom, and just [keep] putting
him on the spot with the judge. I don't know if the
Court's obligation [under LaVigne] can be
satisfied on my representation, but he has indicated to me
that he accepts my advice not to testify. And I think,
because he has an absolute right not to testify, even though
we can't stop him from testifying if he'd like to,
[that] unless he [affirmatively] indicates right now that he
wants to testify, or that I'm misrepresenting [his
position], I think that we're legally sound to proceed
without his testimony.
hearing the defense attorney's explanation, the judge
repeatedly asked Alvarez-Perdomo if it was correct (1) that
he had spoken with his attorney, and (2) that his attorney
had advised him not to testify. Alvarez-Perdomo would not
answer the judge's questions.
the judge pressed Alvarez-Perdomo for an answer,
Alvarez-Perdomo eventually said that he remembered speaking
to his attorney, but that he did not remember what they had
talked about. Alvarez-Perdomo then commenced a long monologue
about the conditions at the jail.
Alvarez-Perdomo finished, the judge again directed his
attention to the matter of whether he would testify at his
The Court: [Your attorney] has told you he does not
think you should testify, correct?
Alvarez-Perdomo: Yes, that is what he has been
The Court: Do you want to accept this advice?
The Court: So do you want to testify?
Alvarez-Perdomo: It seems so. I don't know. I am
not a lawyer.
point, the judge said, "All right," and he then
directed a judicial services officer to escort
Alvarez-Perdomo to the witness stand.
Alvarez-Perdomo was seated in the witness stand, the judge
and Alvarez-Perdomo had the following conversation:
The Court: Mr. Alvarez-Perdomo, are you ready to
testify to the ...