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Diggs v. State (4/13/2012) ap-2352

Diggs v. State (4/13/2012) ap-2352


         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

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DEREK RADI DIGGS,                                  ) 

                                                   )         Court of Appeals No. A-10744 

                             Petitioner,           )        Trial Court No. 3AN-09-9514 CR 


              v.                                   )                   O P I N I O N 


STATE OF ALASKA,                                   ) 


                             Respondent.           )            No. 2352 - April 13, 2012 


                 Petition    for  Review     from   the  District   Court,   Third   Judicial 

                 District, Anchorage, John R. Lohff, Judge. 

                 Appearances:       Renee   McFarland,   Assistant   Public   Defender, 

                 and    Quinlan    Steiner,    Public   Defender,     Anchorage,      for  the 

                 Petitioner.   James Fayette, Assistant District Attorney, District 

                 Attorney's     Office,   Anchorage,   and      John   J.   Burns,   Attorney 

                 General, Juneau, for the Respondent. 

                 Before:     Coats,    Chief   Judge,    and  Mannheimer       and   Bolger, 


                 COATS,      Chief Judge. 

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

                Derek   Radi   Diggs   has   been   charged   with   two   counts   of   assault   in   the 

second degree.1      Because Diggs had a history of mental illness, his attorney expressed 

concerns about Diggs's competency and requested a competency evaluation.                         District 

Court Judge John R. Lohff ordered the evaluation.                Diggs was evaluated several times 

by a psychiatrist, Dr. Lois Michaud, who submitted reports consistently concluding that 

Diggs was not competent to stand trial. 

                The State requested a hearing to contest Dr. Michaud's opinion that Diggs 

was not competent to stand trial.  Judge Lohff granted the motion.  Dr. Michaud testified 

at the hearing.     At the hearing, the State announced that it intended to call Diggs as a 

witness.    After receiving briefing and argument on the issue, Judge Lohff granted the 

State's motion to call Diggs as a witness.             Judge Lohff concluded that it would not 

violate Diggs's rights against self-incrimination if Diggs was called to the stand, so long 

as   his  statements     at  the  competency      hearing    were    used   only   for  the  purpose    of 

determining his competency and were not admissible at trial.   Diggs then petitioned this 

court to review this decision. 

                We   conclude   that   requiring   Diggs   to   testify   at   his   competency   hearing 

would violate his right under the Fifth Amendment to the United States Constitution and 

article I, section 9 of the Alaska Constitution not to take the stand against his will.  We 

accordingly reverse Judge Lohff's decision. 

        1   AS 11.41.210(a)(1). 

                                                  - 2 -                                               2352 

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

                 A brief background of the Alaska statutes governing a defendant's 

                 competency to stand trial 

                 It is a violation of due process to try or convict a defendant who is legally 

incompetent.2      This constitutional principle is codified in Alaska Statute 12.47.100(a): 

A defendant who is incompetent, because he cannot understand the proceedings against 

him or assist in his own defense, "may not be tried, convicted, or sentenced for the 

commission of a crime so long as the incompetency exists." 

                 The remainder of this statute governs the procedures used when a defendant 

is suspected to be incompetent. If either attorney has reasonable cause to believe that the 

defendant is sufficiently incompetent to be unable to understand the proceedings or to 

assist in his defense, "the attorney may file a motion for a judicial determination of the 

competency of the defendant."3            Either upon such a motion, or acting sua sponte, the 

court   "shall   have   the   defendant   examined   by   at   least   one   qualified   psychiatrist   or 

psychologist,       who    shall   report   to  the   court   concerning      the   competency       of  the 

defendant."4      The     court   may    order   the  defendant     committed      for  purposes     of  this 


        2    U.S. Const. amend. V, XIV; Alaska Const. art. I, § 7; Medina v. California , 505 

U.S. 437, 448-49 (1992); Pate v. Robinson , 383 U.S. 375, 378 (1966); Fajeriak v. State , 520 

P.2d 795, 801 (Alaska 1974). 

        3    AS 12.47.100(b). 

        4   Id. 

        5   Id. 

                                                   - 3 -                                               2352

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

                  If the examiner's report indicates that the defendant is incompetent, the 

court shall hold a hearing.6           At this hearing, the statute provides, "evidence as to the 

competency         of  the   defendant      may     be  submitted,      including     that   of  the   reporting 

psychiatrist   or   psychologist."7        Prior   to   this   hearing,   the   State   may   request   that   the 

defendant undergo an additional evaluation by a psychiatrist or psychologist designated 

by   the   State.8   At   the   hearing,   the   court   shall   enter   findings   as   to   the   defendant's 



                  Alaska   Statute   12.47.100(d)   provides   that   "[a]   statement   made   by   the 

defendant in the course of an examination into the person's competency ... may not be 

admitted in evidence against the defendant on the issue of guilt in a criminal proceeding 

unless the defendant later relies [on a defense of insanity or mental disease or defect]." 

                  Why we conclude that requiring Diggs to take the stand against his 

                  will at the competency hearing would violate the Fifth Amendment 

                  to   the   United   States   Constitution   and   article   I,   section   9   of   the 

                 Alaska Constitution 

                  The Fifth Amendment provides, "No person ... shall be compelled in any 

criminal   case   to   be   a   witness   against   himself."       Article   I,   section   9   of   the   Alaska 

Constitution contains this same protection, except that the Alaska Constitution substitutes 

"criminal proceeding" for "criminal case." 

         6   Id.

         7   Id.

  Id.   The   State   does   not appear to   have   requested   this additional evaluation   in 

Diggs's case. 

         9   Id. 

                                                      - 4 -                                                 2352

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

                 There are two aspects to this constitutional protection.             The first is a right 

against self-incrimination:        not to be forced to answer inquiries under oath when the 

answers will be self-incriminating.   This right against self-incrimination applies not just 

to the defendant in a criminal case, but to all witnesses who are compelled to testify in 

any proceeding.   But there is a second aspect of the constitutional protection that applies 

only to defendants in criminal proceedings:   they may not be called to the stand against 

their will. 

                 As   Professors   LaFave,   Israel,   King,   and   Kerr   have   explained   in   their 

treatise on criminal procedure: 

                 [T]he constitutional privilege against self-incrimination has 

                 been interpreted by the [Supreme] Court to be much broader 

                 than [the] words [of the Fifth Amendment] would suggest.  ... 

                 [The] assertion of the privilege is not limited to defendants, 

                 nor is it limited to criminal trials.       However, the Court has 

                 interpreted the privilege to have special meaning in a criminal 

                 trial as it relates to the defendant.         The privilege entitles a 

                 witness not to answer specific questions posed ... in any ... 

                 proceeding where he is under compulsion to answer, if his 

                 answers   would   furnish   a   "link   in   the   chain   of   evidence" 

                 needed to prosecute him for a criminal offense. The privilege 

                 entitles   the   criminal   defendant,   in   contrast,   to   even   avoid 

                 appearing as a witness.  The right of the defendant is not only 

                 to avoid being compelled to give incriminating responses to 

                 particular inquiries, but to resist being placed in a position 

                 where inquiries can be put to him while he is under oath.10 

                 A defendant's protection against being called to the stand against his will 

applies not just to the trial, but to other stages of a "criminal case" (in the words of the 

        10   6 Wayne R. LaFave et al., Criminal Procedure § 24.5(a), at 424 (3rd ed. 2007) 

(citation omitted). 

                                                   - 5 -                                                2352 

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

Fifth Amendment), and to other stages of a "criminal proceeding" (in the words of article 

I, section 9 of the Alaska Constitution).11 

                The United States Supreme Court long ago explained the reason for a broad 

reading of this aspect of the Fifth Amendment: 

                It is not every one who can safely venture on the witness 

                stand, though entirely innocent of the   charge against him. 

                Excessive     timidity,   nervousness     when    facing   others   and 

                attempting to explain transactions of a suspicious character, 

                and   offences   charged   against   him,   will   often   confuse   and 

                embarrass him to such a degree as to increase   rather than 

                remove prejudices against him.12 

                In the present case, there is no question that the State seeks to compel Diggs 

to take the stand against his will.       The remaining issue, under the Fifth Amendment, is 

whether     a  competency      hearing   is  part   of   a  "criminal   case"  for  Fifth  Amendment 


                McCormick on Evidence cites only one federal case that has attempted to 

define the scope of "criminal case" for this purpose.13          That case is Chavez v. Martinez.14 

In Chavez, the United States Supreme Court stated that there is no "criminal case" until 

"at the very least[,] ... the initiation of legal proceedings."15          Under this definition, a 

        11  Estelle v. Smith , 451 U.S. 454, 463 (1981) (noting that "[a]ny effort by the State 

to compel [the defendant] to testify against his will at the sentencing hearing clearly would 

contravene the Fifth Amendment"). 

        12  Wilson v. United States, 149 U.S. 60, 66 (1893).

        13  1 McCormick on Evidence § 117, at 520 (Kenneth S. Broun ed., 6th ed. 2006).

        14  538 U.S. 760 (2003).

        15  Id. at 766-67 (plurality opinion) (citing Black's Law Dictionary 215 (6th ed. 1990),


                                                 - 6 -                                            2352

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

competency proceeding following the initiation of criminal proceedings would qualify 

as part of a "criminal case." 

                 Moreover,   article   I,   section   9   of   the   Alaska   Constitution   uses   slightly 

different   wording:      the   protection   afforded   by   this   section   applies   to   any   "criminal 

proceeding."      The minutes of the Alaska Constitutional Convention suggest that the 

delegates used this wording because they   wanted   this clause to be interpreted more 

expansively than its   federal counterpart.16          In particular, the committee drafting this 

section of our Constitution intended for this phrase to cover even "hearings before any 

administrative bodies if they were criminal in nature."17 

                 In Scott v. State,18 the Alaska Supreme   Court relied on this wording to 

interpret article I, section 9 more broadly than its analogue in the federal Constitution. 

The issue was the scope of a criminal defendant's protection from compelled pre-trial 

disclosure   of   the   defense   case.19   The   court   considered   -   and   rejected   -   federal 

precedent      on  this  issue,   ultimately    holding    that  the  Alaska    privilege   against    self­ 

        15  (...continued) 

for definition of "case" as "an action, cause, suit, or controversy at law"). 

        16  See 2  Proceedings of the Alaska Constitutional Convention at 1282-85 (1956), 

where Delegate Robert McNealy at the Committee on Preamble and Bill of Rights states that 

this language "expands the latitude" compared to the language of the federal constitution. 

        17  Id . at 1283.

        18   519 P.2d 774 (Alaska 1974).

        19  Id. at 776-77.

                                                   - 7 -                                              2352

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

incrimination prohibits the State from requiring the defense to engage in extensive pre­ 

trial discovery in criminal proceedings.20          The court stated: 

                 [T]he stage of the proceedings is irrelevant to the analysis of 

                 this constitutional privilege.       The fundamental right not to 

                 incriminate one's self should apply at every stage of criminal 

                 inquiry or proceedings regardless of judge-made exclusionary 

                 or evidentiary rules.21 

                 Based on this authority, we hold that a competency hearing is part of a 

"criminal case" under the Fifth Amendment, and also that a competency hearing is a part 

of   a  "criminal     proceeding"      under    article  I,  section   9  of   our   state  Constitution. 

Accordingly, these constitutional provisions protect Diggs from being called to the stand 

against his will at his competency hearing. 

                 The State argues that Diggs waived   this protection when he placed his 

competency in issue.        The State's argument is based primarily on cases holding that, 

when the defendant places his mental health at issue, the State may have the right to an 

independent mental health examination or the right to use any statements the defendant 

makes during the course of such an examination.22              These cases do not involve a waiver 

of the defendant's right to refuse to take the witness stand. 

                 The State cites a single case holding that there was no Fifth Amendment 

violation when a trial judge questioned a defendant during a competency hearing.23                     But 

this case does not discuss any of the authorities protecting the defendant's right not to 

        20  Id . at 785.

        21  Id. at 786.

        22  See, e.g., Estelle , 451 U.S. at 465-66; Lewis v. State , 195 P.3d 622, 633-37 (Alaska

App. 2008). 

        23  Holmes v. King , 709 F.2d 965, 968 (5th Cir. 1983). 

                                                   - 8 -                                              2352

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

be   called   as   a   witness   against   himself.24 We   are   simply   unpersuaded   that   this   case 

establishes that a defendant who raises a competency issue thereby waives his right to 

refuse to take the stand. 

                 In Alaska, the prosecution has a statutory right to request an additional 

examination before the competency hearing.25              This statute provides a fair procedure for 

the litigation of this issue. But the Constitution does not allow the prosecution to call the 

defendant to the stand against his will. We therefore conclude that the order allowing the 

prosecution to call Diggs to the stand violated his fundamental right not to be compelled 

to be a witness against himself. 


                 Because Judge Lohff's order requiring Diggs to testify at his competency 

hearing     violates   Diggs's     rights  under    the  Fifth   Amendment        to  the  United    States 

Constitution and article I, section 9 of the Alaska Constitution, that order is REVERSED. 

        24  Id . at 968.

        25  See AS 12.47.100(b).

                                                   - 9 -                                                2352 

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