Petition for Hearing from the Court of Appeals No. A-12060,
on appeal from the Superior Court No. 3 AN-12-08080 CR of the
State of Alaska, Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
A. Mock, Anchorage, for Petitioner. Donald Soderstrom,
Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
BOLGER, Chief Justice.
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.
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.
FACTS AND PROCEEDINGS
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.
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
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
The superior court
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. 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.
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."
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.
Alvarez-Perdomo's answers to the court's questions
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.
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.
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.
point the court received the permission of the prosecutor to
continue the La Vigne 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.
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? Si 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,
si, 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?
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 telling me.
The Court: All right. Do you want to accept his
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.
end of this exchange the court directed a judicial services
officer to escort Alvarez-Perdomo to the stand.
prosecution was invited back into the courtroom, and before
calling in the jury, the court once again questioned
The Court: Mr. Alvarez-Perdomo, are you ready to
testify to the jury?
Alvarez-Perdomo: Is the court asking me?
The Court: Yes.
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
The Court: I'm sorry?
Alvarez-Perdomo: I don't know have your time
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.
attorney interjected, noting that Alvarez-Perdomo had stated
that he did not wish to testify. The judge responded: "I
didn't sense that." The ...