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Alvarez-Perdomo v. State

Court of Appeals of Alaska

June 22, 2018


          Appeal 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.

          Donald 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. [*]



         Paino 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 concealable firearm.

         Alvarez-Perdomo 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.

         Underlying facts

         On the 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.

         Guillen 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 was summoned.

         The 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.

         A later 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.

         The 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.

         Based 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).

         The 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, [1] 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 attorney's wishes.

         This 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 answer:

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.

         When 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.

         When 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.

         At this point, the judge called another recess so that Alvarez-Perdomo could again confer with his attorney.

         When 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.

         After 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.

         When 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.

         When Alvarez-Perdomo finished, the judge again directed his attention to the matter of whether he would testify at his trial:

The Court: [Your attorney] has told you he does not think you should testify, correct?
Alvarez-Perdomo: Yes, that is what he has been telling me.
The Court: Do you want to accept this advice?
Alvarez-Perdomo: No.
The Court: So do you want to testify?
Alvarez-Perdomo: It seems so. I don't know. I am not a lawyer.

         At this point, the judge said, "All right," and he then directed a judicial services officer to escort Alvarez-Perdomo to the witness stand.

         After 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 ...

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