Alvarez-Perdomo v. State

Page 999

          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. Court of Appeals No. A-12060, Superior Court No. 3AN-12-08080 CR

          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.

          OPINION

         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, 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.

Page 1000

          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 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 concealable firearm.^[1] 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 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 Alvarez-Perdomo that he intended to waive his right to testify.^[2] 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

Page 1001

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?

...

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? Síor 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, sí, 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?

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 ...