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Alvarez-Perdomo v. State (6/22/2018) ap-2604

Alvarez-Perdomo v. State (6/22/2018) ap-2604

                                                                               NOTICE
  

              The text         of   this opinion can be corrected before the opinion is published in the                           

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                               

             errors to the attention of the Clerk of the Appellate Courts:    



                                                   303 K Street, Anchorage, Alaska  99501  

                                                                    Fax:  (907) 264-0878  

                                                        E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     



PAINO   MANUEL   ALVAREZ-PERDOMO,  

                                                                                                      Court of Appeals No. A-12060  

                                                                                                                                                

                                                      Appellant,                                   Trial Court No. 3AN-12-8080 CR  

                                                                                                                                                              



                                        v.  

                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                 

STATE OF ALASKA,  

                      



                                                      Appellee.                                           No. 2604 - June 22, 2018  

                                                                                                                                                     



                           Appeal          from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                  

                           Anchorage, Michael L. Wolverton, Judge.  

                                                                                              



                           Appearances:                 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.*  

                                                                        



                                                                         

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                             


----------------------- Page 2-----------------------

                                                                                                                               

                    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.  



                                                              - 2 -                                                          2604
  


----------------------- Page 3-----------------------

                                                   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                                                                                                                                                                                                                  

                                                                                                                                                                                                                                          1      the  defense  attorney's  

case.     Under   the   rule   established   in   LaVigne   v.   State,                                                                                                                                                                                                                          



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- 

                                                                                                                                                                                                                                                                                                          



             1            812 P.2d 217 (Alaska 1991).                                                                                



                                                                                                                                                              - 3 -                                                                                                                                                         2604
  


----------------------- Page 4-----------------------

                                                                                                                                   

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  



                                                               - 4 -                                                          2604
  


----------------------- Page 5-----------------------

                                                                                                                                

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 givingme 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],  



                                                               - 5 -                                                          2604
  


----------------------- Page 6-----------------------

                                                                                                            

                     I  think  that  we're  legally  sound  to  proceed  without  his  

                                       

                     testimony.  



                                                                                                                            

                     After hearingthe 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.  



                                                               - 6 -                                                          2604
  


----------------------- Page 7-----------------------

                                                                                                                             

                    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 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?  



                                                                                                        

                              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.  



                                                              - 7 -                                                         2604
  


----------------------- Page 8-----------------------

                                                                                                                           

                    At this point, the defense attorney interjected that he was worried about  



                                                                                                                     

what the judge was doing, because Alvarez-Perdomo's initial answer to the question,  



                                                                                                                       

"Are you ready to testify?" was "No".  Based on that initial answer, the defense attorney  



                                                                                                                           

expressed concern that Alvarez-Perdomo was, in fact, not willing to testify.  The judge  



                                                   

responded, "I didn't sense that."  



                                                                                                                               

                    The judge then addressed Alvarez-Perdomo, explainingthe procedures that  



                                                                                                                           

would be followed when the jury was summoned back to the courtroom:  "You're going  



                                                                                                                         

to stand, raise your right hand, and be sworn by Madam Clerk.   ...   And then you're  



                                                                                                                           

going to have a seat, [and your attorney] will ask you questions."  When the judge asked  



                                                                                                                                   

Alvarez-Perdomo if he understood, Alvarez-Perdomo answered, "Okay, that's fine."  



                                                                                                         

                    The jury was then brought back to the courtroom, and Alvarez-Perdomo  



                                                                                                        

gave his testimony.  His direct examination was fairly brief, and his cross-examination  



                                                                                                 

was even briefer.  Here are the relevant questions and answers:  



                      

                                                                                                            

                              Defense Attorney : [Mr. Alvarez], where'd you live on  

                                                  

                    August 8th, 2012?  



                                                                 

                              Alvarez-Perdomo :  In Alaska.  



                                                                                                        

                              Defense Attorney :  Okay. Did you  live  at 615 West  

                               

                    45th?  



                                                             

                              Alvarez-Perdomo :  Anchorage.  



                                                                                                            

                              Defense  Attorney :             Okay.        So  615  West  45th  in  

                                                                     

                    Anchorage.  Is that fair to say?  



                                                                                   

                              Alvarez-Perdomo :  I don't know.  



                                                                                                 

                              Defense Attorney :  Okay.   Is your mother Altagracia  

                                   

                    Guillen?  



                                                              - 8 -                                                          2604
  


----------------------- Page 9-----------------------

                                                             

          Alvarez-Perdomo :  I don't know.  



                                                                                   

          Defense Attorney :  Did you see Ms. Guillen - well,  

                                               

do you know who Ms. Guillen is?  



                                               

          Alvarez-Perdomo :  No.  



                                                                             

          Defense Attorney :  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 of guy.   I don't know how to say it in  Spanish.   [sic:  

                 

"English"]  



                                                                                       

          Defense  Attorney :   Do you want to try saying it in  

              

English?  



                                                                           

          Alvarez-Perdomo :  I do not speak English.  



                                                  

          Defense Attorney :  Okay.  



                                                

          Alvarez-Perdomo :  I am Dominican.  



                                                                                    

          Defense Attorney :  Okay; all right.   Thank you,  Mr.  

              

Alvarez.  

  

                                                          

          The Court:  [to the prosecutor] Cross-examination.  



                                                                                  

          Prosecutor :  Good morning, sir.   Why did you shoot  

                   

your mom?  



                                                                        

          [Defense attorney's objection overruled]  



                                         - 9 -                                                         2604
  


----------------------- Page 10-----------------------

                                               Alvarez-Perdomo : I    don't know what is it that you are  

                                asking me.                  I don't know.                        He's saying Altagracia Guillen,                           

                                and what is it that you want to ask me?                                                       



                                               Prosecutor : Okay. You see your mother here in court,                                                            

                                right?   Why did you shoot her?                                            



                                                [Defense attorney's objection overruled]                                                         



                                               Alvarez-Perdomo :    I do not know that lady.                                                            



                                               Prosecutor :     Okay.   Thank   you.   I   have   no   further  

                                questions.   



                                Following deliberations,                                  the jury found Alvarez-Perdomo guilty of both                                                           



first-degree   assault   (recklessly   causing serious                                                           physical injury                        to   another   person   by  



means   of   a   dangerous   instrument)   and   third-degree   weapons   misconduct   (felon   in  



                                                                                        2  

possession of a concealable firearm).                                                        



                The trial judge committed error when he had Alvarez-Perdomo take the  

                                                                                                                                                                                     

                stand and testify  

                                         



                                                                               3 the Alaska Supreme Court established the procedural  

                                In LaVigne v. State,  

                                                                                                                                                                                    



rule that, whenever the attorney representing a criminal defendant announces that the  

                                                                                                                                                                                                     



defense intends to rest without presenting the defendant's testimony, the trial judge must  

                                                                                                                                                                                                 



personally address the defendant to make sure the defendant understands (1) that they  

                                                                                                                                                                                                  



have the right to testify, and (2) that the decision whether to testify rests solely with the  

                                                                                                                                                                                                     



defendant, regardless of their defense attorney's advice or wishes.  

                                                                                                                                                               



        2       AS 11.41.200(a)(1) and AS 11.61.200(a)(1), respectively.                                                                            



        3  

                                                                                                          

                812 P.2d 217, 219, 222 (Alaska 1991).  



                                                                                                -  10 -                                                                                            2604
  


----------------------- Page 11-----------------------

                           LaVigne  was a case where the defendant told his attorney that he wanted                                                                



to testify on his own behalf, but the defense attorney unilaterally decided that LaVigne                                                                        



should not testify, without informing LaVigne that he had a right to insist on testifying                                                                     



                                                           4  

despite his counsel's advice.                                                                                                                                   

                                                                The LaVigne  rule is designed to ensure that a defense  



                                                                                                                                                          

attorney does not "effectively waive a defendant's right to testify against the defendant's  



                                                          

will."  Id. , 812 P.2d at 219.  



                                                                                                                                                          

                           But the 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  



             5  

                 

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  

                                                                                                                                                                           

                                                         6   Rather, the judge should order the trial to proceed without  

defendant to take the stand.  

                                                                                                                                                                  

the defendant's testimony. 7  

                                 



       4     LaVigne , 812 P.2d at 218.                            



       5  

                                                                                                                                                                      

              Tall v. State, 25 P.3d704, 708-09 (Alaska App. 2001); Mute v. State , 954 P.2d 1384,  

                                                    

 1386 (Alaska App. 1998).  



       6  

                                                                                                                              

              Knix v. State , 922 P.2d 913, 918-19 (Alaska App. 1996).  



       7      Wyatt v. State, 393 P.3d 442, 446 (Alaska App. 2017); Zemljich v. Anchorage, 151  

                                                                                                                                                                          

P.3d 471, 478 (Alaska App. 2006); Knix v. State , 922 P.2d at 919.  

                                                                                                                                   



                                                                                   -  11 -                                                                               2604
  


----------------------- Page 12-----------------------

                                                     In the present case, the record shows that Alvarez-Perdomo was having                                                                                                                                                                                                  



obvious cognitive difficulties - both in understanding the law that the judge                                                                                                                                                                                                                                          and his   



defense attorney were trying to explain to him, and in deciding whether to testify.                                                                                                                                                                                                                                                 



                                                      Some   of   Alvarez-Perdomo's   statements,   taken   in   isolation,   appear   to  



support   the trial judge's conclusion that Alvarez-Perdomo wanted to testify.                                                                                                                                                                                                                                        But we   



cannot take Alvarez-Perdomo's statements in isolation.                                                                                                                                                                      Every one of those statements                                                   



was accompanied by other statements that either directly contradicted the notion that                                                                                                                                                                                                                                                 



Alvarez-Perdomo wanted to testify, or at least placed that notion in doubt.                                                                                                                                                                                                                             



                                                     The State argues that even if Alvarez-Perdomo's statements are ambiguous                                                                                                                                                                                



or equivocal, the question of whether Alvarez-Perdomo subjectively wanted to testify is                                                                                                                                                                                                                                                          



a question of fact - and that, when we review the judge's finding on this issue of fact,                                                                                                                                                                                                                                            



we must construe the record in the light most favorable to the judge's finding, and we                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                    8  

must affirm that finding unless it is clearly erroneous.                                                                                                                                                                 



                                                     But the rule to be drawn from our prior cases interpreting LaVigne is that,  

                                                                                                                                                                                                                                                                                                                                     



when a judge asks a defendant whether they wish to testify and the defendant offers only  

                                                                                                                                                                                                                                                                                                                                     



equivocal responses, a judge must  order  the trial to proceed without the defendant's  

                                                                                                                                                                                                                                                                                                       

testimony, rather than risking the prospect of forcing a defendant to testify. 9                                                                                                                                                                                                                                       In other  

                                                                                                                                                                                                                                                                                                                                 



words, a defendant must clearly state their desire to testify before a judge directs them  

                                                                                                                                                                                                                                                                                                                                  



to take the stand.  

                                                                       



                                                     Thus, the question here is not whether the trialjudge was potentially correct  

                                                                                                                                                                                                                                                                                                                            



when he concluded that Alvarez-Perdomo wanted to testify.   Rather, the question is  

                                                                                                                                                                                                                                                                                                                                               



whether the trialjudge was correct when he concluded that Alvarez-Perdomo had clearly  

                                                                                                                                                                                                                                                                                                                           



              8            See Booth v. State                                                     , 251 P.3d 369, 373 (Alaska App. 2011) (explaining that                                                                                                                                                                    a trial   



court's findings of historical fact are reviewed under the "clearly erroneous" standard of                                                                                                                                                                                                                                                    

review).   



             9  

                                                                                                                                                                                                                                                                  

                           See Knix v. State, 922 P.2d 913, 918-19 (Alaska App. 1996).  



                                                                                                                                                                 -  12 -                                                                                                                                                               2604
  


----------------------- Page 13-----------------------

expressed his desire to testify, by retracting or otherwise clarifying his earlier equivocal                                                                                                                                                       



statements regarding this matter.                                                                       And the answer to that question is "no".                                                                                           



                                          We therefore conclude that the trial judge committed constitutional error                                                                                                                                              



when he directed the judicial services officer to escort Alvarez-Perdomo to the stand, and                                                                                                                                                                            



when he then summoned the jury to hear Alvarez-Perdomo's testimony.                                                                                                                                



                                          The remaining question is whether this error requires reversal of Alvarez-                                                                                                                                  



Perdomo's convictions.                                                       



                                          For the reasons we are about to explain, we conclude that this constitutional                                                                                                                 



error is amenable to a harmless error analysis, using the "harmless beyond a reasonable                                                                                                                                                      



                                                                                                                                                   10                                                               11  

                                                                                                                                                         and Love v. State.  

doubt" test adopted in                                                Chapman v. California                                                                                                                               



                      This error is amenable to a harmless error analysis  

                                                                                                                                                                



                                          In his brief, Alvarez-Perdomo argues that if he was improperly brought to  

                                                                                                                                                                                                                                                                           



the stand and asked to testify, this error should be deemed  "structural" - that is, it  

                                                                                                                                                                                                                                                                            



should  automatically require reversal of his convictions, without any consideration of  

                                                                                                                                                                                                                                                                          



whether the error might be harmless beyond a reasonable doubt.  

                                                                                                                                                                                                             



                                          There are few cases that address this issue directly, because the error itself  

                                                                                                                                                                                                                                                                   



is so infrequent.  But there are at least three published cases which deal with instances  

                                                                                                                                                                                                                                                    



where a judge coerced or improperly influenced a defendant to testify.  In these cases,  

                                                                                                                                                                                                                                                             



the appellate courts held that the error was not structural; rather, it was a constitutional  

                                                                                                                                                                                                                                     



error that required reversal of the lower court's judgement unless the error was shown  

                                                                                                                                                                                                                                                            



to be harmless beyond a reasonable doubt.  See United States v. Goodwin, 770 F.2d 631,  

                                                                                                                                                                                                                                                                   



           10        386 U.S. 18, 23-24; 87 S.Ct. 824, 827-28; 17 L.Ed.2d 705 (1967).
                                                                                                                                        



           11  

                                                                                                                              

                     457 P.2d 622, 631 (Alaska 1969).
  



                                                                                                                                -  13 -                                                                                                                             2604
  


----------------------- Page 14-----------------------

 636-38 (7th Cir. 1985);                                                                       People v. Cuccia                                                         , 118 Cal.Rptr.2d 668, 673 (Cal. App. 2002);                                                                                                                



People v. Watkins                                                          , 634 N.W.2d 370, 378-79 (Mich. App. 2001).                                                                                                                                                     



                                                       (For   unpublished   decisions   reaching this                                                                                                                             same   conclusion,   see   City   of  



Shawnee v. Valle                                                      , 2012 WL 2620549 at *5 (Kan. App. 2012);                                                                                                                                         State v. Carter                                             , 2004 WL                  



 5582079 at *2 (Vt. 2004);                                                                              State v. Spooner                                                   , 1997 WL 344834 at *5 (Wash. App. 1997).)                                                                                                             



                                                       We conclude that this "harmless beyond a reasonable doubt" analysis is the                                                                                                                                                                                                                   



proper approach to Alvarez-Perdomo's case.                                                                                                                                              



                                                        The classification of an error as "structural" is designed for instances where                                                                                                                                                                                                 



 a constitutional error affects the criminal adjudication process at such a fundamental                                                                                                                                                                                                                



 level that it is essentially impossible for an appellate court to assess the ways in which                                                                                                                                                                                                                                           



the error might have affected the outcome - circumstances where an appellate court                                                                                                                                                                                                                                                       



 cannot meaningfully apply the "harmless beyond a reasonable doubt" rule that normally                                                                                                                                                                                                                                      



 attaches to constitutional error.                                                                                             



                                                       But in Alvarez-Perdomo's case, we know what the State's evidence was,                                                                                                                                                                                                                 



 and   we   know   what   Alvarez-Perdomo's   testimony   was.     Because   of   this,   Alvarez- 



 Perdomo's case is analogous to cases where the government                                                                                                                                                                                                   improperly introduces a                                                                      



 defendant's involuntary confession or a defendant's statements taken in violation of                                                                                                                                                                                                                                                                

                                                                                             12           In such cases,  appellate courts will reverse the defendant's  

Miranda v.                                        Arizona .                                                                                                                                                                                                                                                    

 conviction unless the error is shown to be harmless beyond a reasonable doubt. 13  

                                                                                                                                                                                                                                                                                                                                           



                                                       We apply the same harmless error analysis to Alvarez-Perdomo's case. The  

                                                                                                                                                                                                                                                                                                                                                



 question is whether the admission of Alvarez-Perdomo's testimony was harmless beyond  

                                                                                                                                                                                                                                                                                                                                  



               12           384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).                                                                                                                                                            



               13  

                                                                                                                                                                                                                                                                                                                                               

                            See Kalmakoffv.State,257 P.3d 108, 130 (Alaska 2011), and Motta v. State ,911 P.2d  

                                                                                                                                                                                                                                                                                                                                                     

 34, 39-40 (Alaska App. 1996) (statements taken in violation of Miranda); Jones v. State , 65  

                                                                                                                                                                                                                                                                                                                                             

P.3d 903, 909 (Alaska App. 2003), and Cole v. State, 923 P.2d 820, 832 n. 20 (Alaska App.  

                                                                                                                                                                                                                                                                                     

 1996) (involuntary confession or involuntary incriminating statements).  



                                                                                                                                                                     -  14 -                                                                                                                                                                   2604
  


----------------------- Page 15-----------------------

 a reasonable doubt - or, phrased another way, we ask whether there is a reasonable                                                                   



possibility that the jury might have returned a different verdict on the charges of first-                                                                         



 degree   assault   and   third-degree   weapons   misconduct   (i.e.,   felon   in   possession   of   a  



                                                                                                                                           14  

 concealable firearm) if Alvarez-Perdomo had not given his testimony.                                                                            



              Why we conclude that the error in Alvarez-Perdomo's case is harmless  

                                                                                                                                             

              beyond a reasonable doubt  

                                                                      



                           In both the defense opening statement and the defense summation to the  

                                                                                                                                                                       



jury, Alvarez-Perdomo's attorney conceded that Alvarez-Perdomo shot his mother.  But  

                                                                                                                                                                      



the defense attorney argued that the shooting was accidental, and that Alvarez-Perdomo  

                                                                                                                                          



was not guilty of first-degree assault because he acted only negligently, not "recklessly"  

                                                                                                                                                     



 (or intentionally) as required by the first-degree assault statute, and because the resulting  

                                                                                                                                                            



 injury to Alvarez-Perdomo's mother was not sufficiently serious to qualify as a "serious  

                                                                                                                                                             



physical injury".  

                                     



                           On the other hand, the defense attorney offered no defense to the weapons  

                                                                                                                                                           



misconduct charge (felon in possession of a handgun).  The defense attorney conceded  

                                                                                                                                                          



that Alvarez-Perdomo shot his mother with the revolver that the police found in his  

                                                                                                                                                                       



residence, and the attorney did not dispute that Alvarez-Perdomo was a convicted felon.  

                                                                                                                                                                 



                           Thus,  with regard to the  weapons misconduct conviction,  we have no  

                                                                                                                                                                       



 difficulty in concluding that the trial judge's error in forcing Alvarez-Perdomo to take  

                                                                                                                                                                    



the stand was harmless beyond a reasonable doubt.  

                                                                                                         



                           We also agree with the State that the error in having Alvarez-Perdomo  

                                                                                                                                         



testify was harmless beyond a reasonable doubt with respect to the question of whether  

                                                                                                                                                             



 Guillen's wound constituted a "serious physical injury".  

                                                                                                                 



       14    Anderson v. State                  , 337 P.3d 534, 540 (Alaska App. 2014).                                       



                                                                                 -  15 -                                                                            2604
  


----------------------- Page 16-----------------------

                           The   issue is closer with respect to the jury's conclusion that Alvarez-                                                          



Perdomo   acted   with   the   recklessness   required   for   first-degree   assault.     As   we   just  



explained, the defense theory                              of the case was that                     the shootingwas                  purely accidental, and  



that Alvarez-Perdomo acted only negligently -                                                    i.e., that he did not subjectively perceive                     



                                                                                                   15  

and consciously disregard the risk to his mother.                                                         



                           We  acknowledge  that  Alvarez-Perdomo's  testimony  could  conceivably  

                                                                                                                                                         



have made a difference to the jury's assessment of Alvarez-Perdomo's mentalstate when  

                                                                                                                                                                       



he shot his mother.  Although Alvarez-Perdomo declared on the stand that he was no  

                                                                                                                                                                            



"assassin", he did not offer the jury an exculpatory explanation of the events that led to  

                                                                                                                                                                             



the wounding of his mother.  Instead, Alvarez-Perdomo declared that he did not know  

                                                                                                                                                                      



his mother, and he stated that he did not recognize Guillen as she sat in the courtroom.  

                                                                                                                                                                                   



                           Based on this testimony, the jurors might reasonably have concluded either  

                                                                                                                                                                      



that Alvarez-Perdomo was lying or that he was seriously mentally ill.  Either conclusion  

                                                                                                                                                            



might conceivably have affected the jurors' discussion of the defense claim that the  

                                                                                                                                                                           



shooting was purely an accident.  

                                                                    



                           But the question is not whether the content of the jurors' deliberations  

                                                                                                                                                       



might have been different if Alvarez-Perdomo had not given this testimony.  Rather, the  

                                                                                                                                                                           



question  is  whether  there  is  a  reasonable  possibility  that  the  outcome  of  the  jury's  

                                                                                                                                                                    

deliberations would have been different. 16  

                                                                                        



                           On this  question,  we agree with the State that,  even without Alvarez- 

                                                                                                                                                                



Perdomo's testimony, the evidence was overwhelming that Alvarez-Perdomo acted at  

                                                                                                                                                                             



least recklessly when he shot his mother.   When Guillen arrived at the apartment and  

                                                                                                                                                                          



       15     See the definition of "recklessly", AS 11.81.900(a)(3).                                                     



       16  

                                                                                                                                                                      

              Cunningham v. State, 408 P.3d 1238, 1246 (Alaska App. 2017); Anderson v. State ,  

                                                                                        

337 P.3d 534, 538, 540 (Alaska App. 2014).  



                                                                                   -  16 -                                                                               2604
  


----------------------- Page 17-----------------------

  looked at her son through the open door, she saw that he was concealing his right hand                                                                                                                                                                                                                                                                                                                                                                                               



 behind his back.                                                                                 Because Guillen felt that something was wrong, she decided                                                                                                                                                                                                                                                                                                                not to   



  enter her son's apartment.                                                                                                                              As soon as she started to leave, she felt the bullet strike her                                                                                                                                                                                                                                                                       



  in the abdomen.                                                                               



                                                                               Although Guillen did not actually see her son bring his hand around to the                                                                                                                                                                                                                                                                                                                                         



  front of his body, the only reasonable explanation is that Alvarez-Perdomo was holding                                                                                                                                                                                                                                                                                                                                                                                 



  a gun behind his back, and that he brought his hand forward and shot his mother.                                                                                                                                                                                                                                                                                                                                                                                                     And  



  after Alvarez-Perdomo wounded his                                                                                                                                                                                       mother,   he did not try to help her.                                                                                                                                                                                 Instead, as   



  Guillen ran away across the parking lot, Alvarez-Perdomo fired another shot.                                                                                                                                                                                                                                                                                                                                                                                 



                                                                               Given these facts, we conclude that even if the trial judge had not called                                                                                                                                                                                                                                                                                                                         



 Alvarez-Perdomo to the witness stand, there is no reasonable possibility that the jury                                                                                                                                                                                                                                                                                                                                                                                                    



 would have reached a different verdict on the first-degree assault charge.                                                                                                                                                                                                                                                                                                                                                           



                                                                               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.                                                                                                                                                                                                                                                                                                                                                                                   



                                                                               As we have repeatedly explained, when a trial judge conducts a                                                                                                                                                                                                                                                                                                            LaVigne   



  inquiry, the judge's duty is to make sure that the defendant is                                                                                                                                                                                                                                                                                        apprised  that he or she has                                                                                                           



 the ultimate authority to decide whether to take the stand, regardless of what the defense                                                                                                                                                                                                                                                                                                                                                                            



  attorney may desire or advise. Once this information has been imparted to the defendant,                                                                                                                                                                                                                                                                                                                                                             



 the judge's duty is fulfilled.                                                                                                                                    If the defendant is then                                                                                                                              unwilling or unable to make an                                                                                                                                             



 unequivocal decision to testify,                                                                                                                                                            the   trial should go forward without the defendant's                                                                                                                                                                                            

 testimony. 17  

                                                                           



                     17                  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).                                                                                                                                                                                                   



                                                                                                                                                                                                                                            -  17 -                                                                                                                                                                                                                                           2604
  


----------------------- Page 18-----------------------

                                              In such circumstances, a judge must not badger or coerce a defendant to                                                                                                                                                                            



take the stand.                                     That is what happened in this case, and it was constitutional error.                                                                                                                                                                         



                       Conclusion  



                                              Although   the   trial   judge   committed   constitutional   error   by   coercing  



Alvarez-Perdomo to take the stand, we conclude that this error was harmless beyond a  

                                                                                                                                                                                                                                                                                                   



reasonable doubt, given the other evidence in this case.                                                                                                                                     That is, we conclude that there                                                          



is no reasonable possibility that this error altered the jury's verdict.                                                                                                                                                               The judgement of                                        



the superior court is therefore AFFIRMED.  

                                                                                                                                                       



                                                                                                                                          -  18 -                                                                                                                                        2604
  

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