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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Paino Manuel Alvarez-Perdomo v. State of Alaska (12/27/2019) sp-7424

Paino Manuel Alvarez-Perdomo v. State of Alaska (12/27/2019) sp-7424

          Notice:    This  opinion   is  subject   to  correction  before  publication   in   the  PACIFIC  REPORTER.  

          Readers  are r   equested  to  bring  errors to the attention  of  the  Clerk  of  the  Appellate C  ourts,  

          303  K  Street, Anchorage, Alaska  99501, phone   (907)  264-0608, fax   (907)  264-0878,  email  


                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

PAINO  MANUEL  ALVAREZ-                                     )  


PERDOMO,                                                    )   Supreme Court No. S-17170  



                              Petitioner,                   )   Court of Appeals No. A-12060  



          v.                                                )   Superior Court No. 3AN-12-08080 CR  




STATE OF ALASKA,                                            )   O P I N I O N  



                              Respondent.                   )   No. 7424 - December 27, 2019  



                    Petition for Hearing from the Court of Appeals,  on appeal  


                    from the Superior Court of the State of Alaska, Third Judicial  


                    District, Anchorage, Michael L. Wolverton, Judge.  


                    Appearances:   Margi A.  Mock, Anchorage,  for Petitioner.  


                    Donald  Soderstrom, Assistant Attorney  General, Office of  


                    Criminal  Appeals,  Anchorage,  and  Kevin  G.  Clarkson,  


                    Attorney General, Juneau, for Respondent.  


                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                    and Carney, Justices.  


                    BOLGER, Chief Justice.  



                    The court of appeals determined that Paino Manuel Alvarez-Perdomo was  


coerced to take the stand at his criminal trial.  The court concluded that being coerced to  


take  the   stand  violated   Alvarez-Perdomo's  privilege   against   self-incrimination,  

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


guaranteed by the state and federal constitutions.  But the court of appeals held that this  


error was  not  a  structural  error requiring  reversal,  and that this  error was  harmless  


beyond a reasonable doubt.  


                    We granted this petition for hearing to decide an issue of first impression:  


whether the violation of a criminal defendant's right not to take the stand is a structural  


error.  We conclude that compelling a criminal defendant to take the stand is a structural  


error because it implicates personal interests more fundamental than the ordinary risk of  


a wrongful conviction.  We therefore reverse the court of appeals' decision regarding  


harmless error, reverse the judgment of conviction, and remand to the superior court for  


a new trial.  



          A.        Facts  


                    In August 2012 Alvarez-Perdomo called his mother, Altagracia Guillen,  


and asked her to come to his apartment.  When Alvarez-Perdomo opened the door to his  


apartment, Guillen noticed that he had his right hand behind his back and that his "eyes  


looked sad."  Concerned by this, she decided not to enter the apartment.  She heard a  


loud noise, which she thought was the firing of either a gun or a BB gun.  She began  


running and heard a second shot.  Guillen ran to the parking lot of a nearby restaurant  


and called her daughter to tell her that she was wounded.  


                    Guillen's  daughter  called  the  police,  who  arrived  quickly  with  an  


ambulance.  At the hospital an emergency-room doctor determined that Guillen had a  


gunshot wound in the abdomen, but that the bullet had not damaged any organs, arteries,  


or veins.  


                    Meanwhile, police officers went to Alvarez-Perdomo's apartment and took  


him into custody.  When officers searched his apartment, they  smelled the odor of a  

                                                               -2-                                                         7424

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

discharged   firearm   and   eventually   found   a  revolver,   from  which  two   shots  had  been  

fired.   The  officers  also  found  a  bullet  hole  in  a  nearby  building  facing  his  apartment.  

         B.       Proceedings   

                   1.       The  superior  court  

                  A grand jury indicted  Alvarez-Perdomo  on one count of first-degree assault  

and  one  count  of  third-degree  weapons  misconduct  for  being  a  felon  in  possession  of  a  


concealable   firearm.    Because   the   State   needed   to  present   Alvarez-Perdomo's  prior  

felony  conviction   as   evidence  to  prove  the  weapons  misconduct   charge,  the   superior  

court  bifurcated  the  trial  to  avoid  prejudicing  the  first-degree  assault  deliberations.   Thus  

the  trial   on  the   assault   charge  was   completed  before  the  jury  was  presented with the  

weapons  misconduct  charge.  An  interpreter  was  provided  for  Alvarez-Perdomo,  who  

speaks  Spanish.   

                  At  trial   on  the   assault   charge,  the   State  presented testimony   of   Guillen,  

police  officers  who  responded  to  the  incident,  the  investigating  detective,  the  doctor  who  

treated  Guillen  at  the  hospital, and one of  Alvarez-Perdomo's  neighbors,  who  recalled  

hearing  an  argument   coming   from   his   apartment   immediately   before   the   shooting.   

According  to  the  first  police  detective  to  arrive  at  the  restaurant  and  speak  with  Guillen,  

she  told  the  detective  that  her  son  had  shot  her.   At  trial,  however,  Guillen  testified  that  

         1        See   AS   11.41.200(a)(1)  (recklessly   causing   serious   physical   injury   to  

another   with   dangerous   instrument);  AS    11.61.200(a)(1)   (knowingly   possessing  

concealable   firearm   as   a   felon).   Alvarez-Perdomo  was   also   indicted   for   first-degree  

attempted  murder,  but the prosecutor  dismissed  that charge.   See  AS 11.31.100 (engaging  

in   conduct   constituting   substantial   step   toward   commission   of   crime, with intent   to  

commit  crime);  AS   11.41.100  (intentionally  causing  death  of  another).   

                                                          -3-                                                   7424

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she  did  not  recall  making  any  such  statement  to  the  police,  and  in  fact  was  still  uncertain  

about  "whether  it  was  with  a  BB  gun  or  .  .  .  with  a  handgun."   

                   After  the  presentation  of  the  State's  case,  Alvarez-Perdomo's  attorney  told  

the  court  that  he  would  not  be  calling  any  witnesses.   In  an  attempt  to  apply  the  rule  we  

established   in   LaVigne   v.   State,   the   court   then   sought   to   personally   confirm   with  


Alvarez-Perdomo  that  he   intended  to  waive  his  right  to  testify.   Alvarez-Perdomo's  

answers  to  the  court's  questions  were  equivocal:   

                   The Court:  And your attorney, . .  .  has  advised  me that you  

                   have  chosen  not  to  testify.   Is  that  correct?  

                  Alvarez-Perdomo :   I  think  so.  

                   The  Court:   Do  you  know  so?  

                  Alvarez-Perdomo :   I  don't  know.  

After  these equivocal answers, the court  recessed so  Alvarez-Perdomo could consult with  

his attorney.   Upon returning from the recess, Alvarez-Perdomo's attorney explained that  

Alvarez-Perdomo  had  acknowledged  and  agreed  with  the  decision  not  to  take  the  stand,  

but  he  resented  that  he  had  to  discuss  the  decision  with  the  court  when  he  considered  

communications  with  the  court  to  be  the  responsibility  of  his  attorney.   

                   The  court  then  returned  to  questioning  Alvarez-Perdomo,  whose  response  

was  agitated  and  confused:  

                   The   Court:   Mr.  Alvarez,  do  you  think  you've  had  enough  

                   time  to  talk  to  your  attorney  about  this  decision?  

         2         Defendant  LaVigne  wanted  to  testify,  but  his  attorney  advised  against it.   

LaVigne  v.  State,  812  P.2d  217,  218  (Alaska  1991).   Without  informing  LaVigne  that  he  

had the  right  to  testify  regardless   of  his  legal   advice,  LaVigne's   attorney  unilaterally  

decided  that  he  would  not  testify.   Id.   To  avoid  future  cases  of  an  attorney  usurping  the  

defendant's r  ight  to  testify,  we  instructed  "that  trial  judges  should  take  steps  to  insure  

that  a  criminal  defendant's  failure  to  take  the  stand  in  his  or  her  own  defense  was  the  

result  of  a  knowing  and  voluntary  decision  made  by  the  defendant."   Id.  at  222.  

                                                          -4-                                                    7424

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                     . . .


                    Alvarez-Perdomo : I don't know, no, because the paperwork


                    -  they  have  been  giving  me  the  documents;  I  do  not  


                    understand them.  They are - they just say I am guilty, I am  


                    guilty, and I don't know why they want to - they want to  


                    make me guilty about strange things.  


At this point the court received the permission of the prosecutor to continue the LaVigne  


inquiry in a private session with just Alvarez-Perdomo, his attorney, and his interpreter.  


Alvarez-Perdomo continued to give equivocal answers, and he often provided responses  


that were unrelated to the questions asked.  Finally, the court gave Alvarez-Perdomo  


another opportunity to speak with his attorney before making a final decision whether  


he would testify.  


                    After the second recess, Alvarez-Perdomo's attorney reiterated his client's  


frustration at being "put[] . . . on the spot" in court and his acceptance of the legal advice  


not to take the stand. The attorney suggested that Alvarez-Perdomo should not be further  


questioned about his decision not to testify "unless he indicates right now that he wants  

to testify or that I'm misrepresenting him."  The court sought to confirm that Alvarez- 


Perdomo understood, but his responses were increasingly confused:  


                     The  Court:          Do  you  understand?                  Sí  or  no.        Do  you  


                    understand at this moment [your attorney's] advice is that he  


                    does not think you should testify?  


                    Alvarez-Perdomo :  And so how is that?  If I said yes, sí, so  


                    that means that I will testify.  And if I say no, that -  


                     The Court:  No, no, that's not my question.  Listen.  Do you  


                    understand that his advice is he does not think you  should  


                    testify?  I'm not asking you to decide.  Do you understand  


                    that's what his advice is?  


                    Alvarez-Perdomo :  No.


                     The Court:  What don't you understand?

                                                                -5-                                                         7424

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                    Alvarez-Perdomo :  The word no.  


                     The Court:  He has told you he does not think you  should


                    testify, correct?


                    Alvarez-Perdomo :  Yes, that is what he was - he has been


                    telling me.


                     The Court:  All right.  Do you want to accept his advice?


                    Alvarez-Perdomo :  No.


                     The Court:  All right.  So do you want to testify?


                    Alvarez-Perdomo :  It seems so.  I don't know.


                     The Court: You - excuse me?


                    Alvarez-Perdomo : I am not a lawyer.


At  the  end  of  this  exchange  the  court  directed  a judicial  services  officer  to  escort  


Alvarez-Perdomo to the stand.  


                    The prosecution was invited back into the courtroom, and before calling in  


the jury, the court once again questioned Alvarez-Perdomo:  


                     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?

                                                                -6-                                                         7424

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                    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.  


Alvarez-Perdomo's attorney interjected, noting that Alvarez-Perdomo had stated that he  


did not wish to testify.  The judge responded:  "I didn't sense that."  The jury was called  


back into the courtroom.  


                    On direct examination Alvarez-Perdomo claimed that he did not know basic  


information, such as his address or his mother's name:  


                    Defense  Counsel:               Okay.        Paino,  where'd  you  live  on


                    August 8th, 2012?


                    Alvarez-Perdomo :  In Alaska.


                    Defense Counsel:  Okay.  Did you live at 615 West 45th?


                    Alvarez-Perdomo :  Anchorage.


                    Defense  Counsel:  Okay.  So 615 West 45th in Anchorage.


                    Is that fair to say?


                    Alvarez-Perdomo :  I don't know.


                    Defense Counsel: Okay.  Is your mother Altagracia Guillen?


                    Alvarez-Perdomo :  I don't know.


                    Defense Counsel:  Did you see Ms. Guillen - well, do you


                    know who Ms. Guillen is?


                    Alvarez-Perdomo :  No.


                    Defense Counsel:  Okay.  Well, then I think this is probably


                    pretty easy. Did you shoot Altagracia Guillen on August 8th,



                    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

                                                               -7-                                                         7424

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

                   of  guy.   I  don't  know  how  to  say  it  in  Spanish.  

                   Defense  Counsel:   Do  you  want  to  try  saying  it  in  English?  

                   Alvarez-Perdomo :   I  do  not  speak  English.  

                   Defense  Counsel:   Okay.  

                   Alvarez-Perdomo :   I  am  Dominican.  

During  a brief cross-examination,  Alvarez-Perdomo again  indicated that he neither  knew  

his  mother's  name  nor  recognized  her.   Alvarez-Perdomo's  attorney  did  not  present  any  

further  witnesses  or  evidence.   

                   During   closing   arguments   on   the   assault   charge,   Alvarez-Perdomo's  

attorney  asked  the  jury  to  conclude  that  Alvarez-Perdomo  had  not  acted  recklessly  when  

he   shot   his   mother.     His   attorney   argued   instead   that   Alvarez-Perdomo   had   been  

criminally  negligent  and  asked  the  jury  to  return  a  verdict  on  the  lesser-included  offense  

of fourth-degree assault.3  Thejury found Alvarez-Perdomo guilty of first-degree assault.  


The jury was then presented with the weapons misconduct charge and found him guilty  


of third-degree weapons misconduct.  


                   2.        The court of appeals  


                   Alvarez-Perdomo appealed his convictions to the court of appeals.4  


argued   "that   the   trial   judge   forced   him   to   testify   at   his  trial,   thus   violating   his  


constitutional  right not  to be  compelled  to  incriminate  himself."   The  court  of appeals  

          3        See  AS   11.41.230.  

          4        Alvarez-Perdomo  v.  State,  425  P.3d  221,  222  (Alaska  App.  2018).  

          5        Id.   

                                                            -8-                                                      7424

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concluded  that  the  superior  court  committed  constitutional  error  by  compelling  Alvarez- 


Perdomo  to  take  the  stand.   

                     The  court  of  appeals  began  by  explaining  that  during  the  superior  court's  

LaVigne  inquiry  it  inappropriately  pressured  Alvarez-Perdomo to explicitly waive  his  

right  to  testify,  rather  than  ensuring  that  he  understood  (1)  that  he  had  the  right  to  testify,  

and  (2)  that  he  could  make  the  decision  to  testify,  regardless  of  the  advice  or  wishes  of  

his  attorney.7  

                      The  court  of  appeals  stated  that  the  superior  court  misunderstood   LaVigne  

to  require  a  definitive  statement  from  Alvarez-Perdomo  that  he  did  not  want  to  exercise  


his  right  to  testify.   This  misunderstanding  resulted  in  the  superior  court  "badger[ing]"  


him  to  take  the  stand.    

                     The court of appeals determined that although a few isolated comments by  


Alvarez-Perdomo indicated that he wanted to take the stand, the entirety of his equivocal  


responses to the LaVigne inquiry placed "the notion that Alvarez-Perdomo wanted to  


                                10   And case law from the court of appeals firmly establishes that  

testify . . . in doubt."                                                                                                        


when a defendant is "unwilling or unable to make an unequivocal decision to testify, the  


trial should go forward without the defendant's testimony."11                                   Thus, the superior court  



committed constitutional error "when [it] directed the judicial  services officer to escort  


          6         Id.  at  226.   

          7         Id.    

          8         Id.  at  226-29.   

          9         Id.  at  228-29.   

          10        Id.  at  226.   

          11        Id.  at  229  (citing   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)).   

                                                                -9-                                                          7424

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

Alvarez-Perdomo   to   the   stand,   and   when   [it]   then   summoned   the   jury   to   hear  


Alvarez-Perdomo's  testimony"  despite  his  equivocal  answers.                             The  court  of  appeals  


concluded  that  the  trial  court  erred  "by  coercing  Alvarez-Perdomo  to  take  the  stand."                           

                   The   court   of   appeals   ultimately   reasoned,   however,   that   the   error   was  

harmless  beyond  a  reasonable  doubt  because,  given  the  overwhelming  evidence  against  

Alvarez-Perdomo,  there  was  no  "reasonable  possibility  that  the  jury  might  have  returned  

a  different  verdict  .  .  .  if  Alvarez-Perdomo  had  not  given  his  testimony."14  

                   3.       Petition  for  hearing  

                   Alvarez-Perdomo filed a petition for hearing with this court.   He argued that  

the  court  of  appeals  erred  when  it  determined  that  the  violation  of  his  privilege  against  

self-incrimination was a trial error,  rather  than a  structural error.  In the  alternative, he  

argued that the court of appeals erred when it  held  that  the  error was harmless beyond  

a   reasonable   doubt.     We   granted   Alvarez-Perdomo's   petition   for   hearing   on   both  


                   The   State   cross-petitioned   for  hearing,   arguing  that  the   court   of   appeals  

used  the  incorrect  standard  of  review  to  determine  if  a  constitutional  error  occurred.   The  

State  argued  that  whether  Alvarez-Perdomo  wanted  to  testify  was  a  question  of  fact  that  

should  be  reviewed   for   clear   error.   We   denied  the   State's   cross-petition,  leaving  the  

court  of  appeals  decision  on  this  issue  as  it  stands.  

          12       Id.  at  226.   

          13       Id.  at  229.   

          14       Id.  at  227-28  (citing  Anderson  v. State,  337  P.3d  534,  540  (Alaska  App.  


                                                          -10-                                                     7424

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


                   "Determining the appropriate  standard of  review  is . . . a question of law  


that  we  review  de  novo."                                                                                              

                                       Under this standard of review, we adopt "the rule of law that  



is the most persuasive in light of precedent, reason, and policy." 


                   The   United   States   Supreme   Court  has   established   two   categories   of  

constitutional errors:   structural  errors  and  trial  errors.   The  Court  has  held  that  many  

constitutional errors are trial errors,  which are subject to  harmless-error  analysis.17  


constitutional   errors   require   a   new   trial   unless   the   errors   are   "harmless   beyond   a  


reasonable  doubt."             Although  "most  constitutional  errors  can  be  harmless,"  the  Court  

has  recognized  a  special  structural  constitutional  error  category  for  "structural  defects  in  

the   constitution   of   the   trial   mechanism,   which   defy   analysis   by   'harmless-error'  

standards."19  Structural errors are "intrinsically harmful . . . without regard to their effect  


on the outcome."20  

                             In  other  words,  a  structural  error  "affects  the  entire  framework  of  the  

          15       Jordan  v.  State,  420  P.3d   1143,   1148   (Alaska  2018)   (quoting  Hutton  v.  

State,  350  P.3d  793,  795  (Alaska  2015)).  

          16       Id.  at   1148  (quoting  Khan  v.  State,  278  P.3d  893,  896  (Alaska  2012)).  

          17       The Court provides a long list of constitutional errors subject to harmless- 


error analysis in Arizona v. Fulminante, 499 U.S. 279, 306-07 (1991).  


          18        Chapman v. California, 386 U.S.  18, 24 (1967).  


          19       Fulminante, 499 U.S. at 309.  


          20       Neder v. United States, 527 U.S.  1, 7 (1999).  


                                                            -11-                                                       7424

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

         21                                                                                                  22  

case."       These  structural  errors  require  automatic  reversal  and  a  new  trial.                        We  apply  


the    general    framework    established   by   the    Supreme    Court,                         although   Alaska's  

constitutional  protections  are  not  limited  by  the  reach  of  their  federal  counterparts.24  

                    The  Fifth  Amendment of the  United  States  Constitution  provides  that  no  


person  "shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  himself."                           And  

article   I,   section   9   of   the   Alaska   Constitution   provides   that   "[n]o   person   shall   be  

compelled in  any  criminal  proceeding  to  be  a  witness  against  himself."26  We have not  

yet   decided  whether   compelling   a   criminal   defendant  to  testify   at  trial   is   a   structural  


                    Alvarez-Perdomo  argues  that  it  is.   In  the  alternative,  he  argues  that the  

court  of  appeals  erred  when  it  determined  that  the  error  in  his  case  was  harmless  beyond  

a  reasonable  doubt.   

          A.	       The  Superior  Court  Committed  Structural  Error  When  It  Compelled   

                    Alvarez-Perdomo  To  Take  The  Stand.    

                    The Supreme Court  recently  clarified  its  structural  error  doctrine  in  Weaver  

v.  Massachusetts,  explaining  that  although  "at  least  three  broad  rationales"  animate  the  

structural  error  case  law,  the  underlying  "purpose  of  the  structural  error doctrine  is t  o  

ensure   insistence   on   certain   basic,   constitutional   guarantees   that   should   define   the  

          21       Jordan,  420  P.3d  at   1153.

          22       Id.  at   1148.

          23       Id.

          24       Id.  at   1153.  

          25        U.S.  Const.  amend.  V.  

          26        Alaska  Const.  art.   1,  §  9.   

                                                             -12-	                                                      7424

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


framework  of  any  criminal  trial."                  Reviewing  its  precedents,  the  Court  determined  that  

an   error  has  been   deemed   structural  when:    (1)   "the  right   at   issue   is  not   designed  to  

protect   the   defendant   from   erroneous   conviction   but   instead   protects   some   other  

interest";  (2) the effects  "are  simply  too  hard  to  measure";  and  (3)  it  "always  results in  


fundamental  unfairness."                  The  Court  further  explained:  

                     These  categories  are  not  rigid.   In  a  particular  case,  more  than  

                     one  of  these  rationales  may  be  part  of  the  explanation  for  why  

                     an   error   is   deemed   to   be   structural.    For   these   purposes,  

                    however,   one   point   is   critical:     An   error   can   count   as  

                     structural   even   if   the   error   does   not   lead   to   fundamental  

                    unfairness  in  every  case.[29]  

                     In  contrast,  constitutional  violations  found  subject  to  harmless-error  


analysis have "each involved 'trialerror' - error which occurred during the presentation  


of the case to the jury, and which may therefore be quantitatively assessed in the context  


of other evidence presented in order to determine whether its admission was harmless  


beyond a reasonable doubt."30  



                    Alvarez-Perdomo  argues  that  each  of  the  three  rationales  identified  in  


 Weaver is applicable to his case, and that it was therefore error for the court of appeals  


to  hold  that  the  violation  of his  right  against  self-incrimination was  "amenable to  a  


harmless error analysis."31               We conclude that the error was structural based on the first  





          27         137  S.  Ct.   1899,   1907-08  (2017).  

          28        Id.  at   1908.   

          29        Id.  (internal  citations  omitted).   

          30        Arizona  v.  Fulminante,  499  U.S.  279,  307-08  (1991).   

          31        Alvarez-Perdomo  v.  State,  425  P.3d  221,  226  (Alaska  App.  2018).  

                                                               -13-                                                          7424

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

                   In   Weaver  the  Supreme  Court  explained  that  "an  error  has  been  deemed  

structural  in  some  instances  if  the  right  at  issue  is  not  designed  to  protect  the  defendant  


from erroneous  conviction  but  instead  protects  some  other  interest."                         As  an  example  the  

Court   discussed  the   right   to   conduct   one's   own   defense,   "which,   when   exercised,  


'usually  increases the  likelihood  of  a  trial  outcome  unfavorable  to  the  defendant.'  "                               

The  Court  explained  that  this  right  "is  based  on the  fundamental  legal p                       rinciple  that  a  

defendant  must  be  allowed  to  make  his  own  choices  about  the  proper  way  to  protect  his  

own  liberty"  and  that  its  violation  is  a  structural  error  because  "harm  is  irrelevant  to  the  

basis  underlying  the  right."34  

                   The  Fifth  Amendment  provides  that  no  person  "shall  be  compelled  in  any  

criminal case to  be a witness against himself."35  This portion of the Fifth Amendment  

                                                                                                         36  "[S]ince the  

has traditionally been described as the privilege against self-incrimination.                                             


most fundamental part of that protection is the right of an accused in a criminal trial not  


to be compelled to be a witness for the prosecution, it is appropriate to continue to regard  


          32        Weaver,   137  S.  Ct.  at   1908.   

          33       Id.  (quoting  McKaskle  v.   Wiggins,  465  U.S.   168,   177  n.8  (1984)).  

          34       Id.  (first  citing  Faretta  v.  California,  422  U.S.  806,  834  (1975);  then  citing  

United  States  v.  Gonzalez-Lopez,  548  U.S.   140,   149  n.4  (2006)).  

          35       U.S.  Const.  amend.  V.  

          36       As  the   Supreme   Court  has   observed,  "[t]he  term   'privilege   against   self- 

incrimination' is not an entirely accurate  description of a person's [Fifth Amendment]  

constitutional  protection  against being 'compelled in any  criminal  case  to  be  a  witness  

against   himself.'   "     United   States   v.   Hubbell,   530   U.S.   27,   34   (2000).     The   word  

"witness"  limits  the  application  of  the  privilege to testimonial communications.   See  id.  at  


                                                            -14-                                                      7424

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

the   right   as   a   privilege   albeit   with   implications   beyond   those   of   other   evidentiary  



                   Concerns   about  the  use   of   compelled   self-incriminatory  testimony   span  

centuries   of   legal   history.    Although   the   exact   origins   of   the   privilege   against   self- 

incrimination   are   debated,   legal   scholarship   suggests  that   "its   development   was  

intimately intertwined with the political and religious disputes of early England."38  In  

many  common  law   criminal  trials  prior  to  the   seventeenth   century,  the   accused   "was  

expected  to  take  an  active  part  in  the  proceedings,  often  to  his  own  detriment."39  


trial,  and  often  prior  to  the  presentment  of  charges,  the  accused  was  examined  by  justices  

of  the  peace,  "and  the  results  of  this  examination  were  preserved  for  use  by  the  judge  at  

trial."40   Puritans protested the use of coercive oaths and compelled self-incrimination as  


                    41  After 1641 the common law courts began to apply restrictions to the use  

early as 1604.                                                                                                          


          37        1  KENNETH  S.  BROUN  ET  AL.,  MCCORMICK  ON  EVIDENCE  §  114,  at  686  (7th  

ed.  2013).   

          38       Id.  at  687.   In  the  early  thirteenth  century,  "[u]nder  the  'inquisitorial  oath,'  

there  was  active  interrogation of  the  accused  by  the  judge"  after  the  accused  had  been  

forced to take a religious oath  to answer truthfully.   Id.   Two  controversial  courts  later  

adopted  the  inquisitorial  oath  procedure  and  used  it  for  political  and  religious  purposes:   

 the  Star  Chamber  and  Court  of  the  High  Commission  in  Causes  Ecclesiastical.   Id.   

          39       Id.  (citing E.  M.  Morgan,  The Privilege Against  Self-Incrimination, 34  


MINN.  L.  REV.  1,  12-23  (1949);  8  WIGMORE,  EVIDENCE  §  2250,  at  285-86  (McNaughton  

rev.   1961)).   

          40       Id.  (citing  WIGMORE,  supra  note  39,  at  285).   

          41       R.  Carter  Pittman,  The  Colonial  and  Constitutional  History  of  the  Privilege  

Against  Self-Incrimination  in  America ,  21  VA.  L.  REV.  763,  at  770  (1934-35).   As  noted  

by  Pittman's  historical  analysis,  the  abusive practices  of these courts  drove  many  to  leave  

for  New  England.   Id.  at  770-71.   

                                                           -15-                                                      7424

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


of  the  inquisitorial  oath.            

                    There   is  no   single   scholarly   consensus   on  the  historical  narrative   of  the  


privilege against  self-incrimination  in  America.                        Historical  evidence from early colonial  

America  suggests  that  the  judicial  process,  especially  in  New  England,  was  inquisitorial  


and   heavily   influenced  by   the   clergy.                  However,   the  privilege   was   included   in   the  


constitutions  or  bills  of  rights  of  seven  states  before 1789,                      and the privilege  has  been  

included  in  the  constitutions  of  all  but  two  states.46  

                    Although   different   conclusions   may   reasonably   be   drawn   about   the  

motivations  for  including  the  privilege  against  self-incrimination  in  the  Bills  of  Rights,47  

          42        BROUN ET AL.,  supra  note  37,  §   114,  at  688.   

          43        Id.   at   688-89;   see   also   Pittman,   supra   note   41,   at   764-65   (presenting  

historical  analysis  contradicting  Wigmore's  analysis).  

          44        Pittman, supra note 41, at 767-68.  The colonists insisted on protection  


from abusive practices  such as protection  against  compulsion to  confess  one's own  


delinquency as evidenced by the  1641 Body of Liberties.  Id. at 775-76.  The Puritan  


opposition to testamentary compulsion made it "apparent that the Puritan mind placed  


the ecclesiastical oath in the category of 'tortures' just as it did the rack, the boot and the  


thumbscrew."  Id. at 778-79.  


          45        These  states  were  Maryland,  Massachusetts,  New  Hampshire,  North  


Carolina, Pennsylvania, Vermont, and Virginia.  Id. at 765.  


          46        New Jersey and Iowa did not include the privilege in their constitutions, but  


rather their courts have held it part of the existing state law.  See id. at 763 n.1 (citing  


State v. Height, 91 N.W. 935 (Iowa 1902) (concluding state constitutional guarantee of  


due process includes protection from compelled self-incrimination); State v. White, 142  


A.2d  65 (N.J.  1958) (determining there  is no  state constitutional prohibition  against  


compelled  self-incrimination,  but   statutory  provisions   are  "no  less  urgent  and  




          47        BROUN   ET   AL.,   supra   note   37,   §   114,  at   688   (describing   Bentham   as  


                                                              -16-                                                         7424

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

one of the underlying rationales  is animated by concerns about protecting the defendant's  

personal  dignity:   

                   [T]his  policy  suggests  at  least  limited  objection  to  the  use  of  

                   information  extracted  from  the  mouth  of  the  accused  as  the  

                   basis   for   a   criminal  prosecution.     This   early   suspicion   of  

                   compulsory  self-incrimination  .  .  .  seems  to  be  based  upon  a  

                   perception  that  compelling  an  individual  to  provide  the  basis  

                   for  his  own  penal  liability  should be  limited  because  of  the  

                   position  in  which  it  places  the  individual,  making   a   choice  

                   between  violating  a  solemn  oath  and  incurring  penal  liability,  

                   weighs  against  important  policies  of  individual  freedom  and  



                   Alvarez-Perdomo   argues  that   the   state   and   federal   rights   against   self- 

incrimination   protect   "the   underlying   values   of   dignity,   integrity,   and   privacy of   an  

individual."     Alaska   and   federal   precedents   support   his   argument   that   the   criminal  

defendant's  right  not  to  take  the  stand  protects  personal  dignity.   

                   The  Alaska  Court  of  Appeals  has  explained  that  "[t]he  privilege  .  .  .  ha[s]  

special  meaning  in  a  criminal  trial  as  it  relates  to  the  defendant"  because,  in  contrast  to  

an  ordinary witness, "[t]he  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."49  Thus, "there is a  

          47       (...continued)  

suggesting  privilege  was   overreaction  to  historical  use  of  oath  procedure  without  proper  

presentment   of   charges)   (citing   WIGMORE,  supra  note   39,   at   292); see   also   Pittman,  

supra   note   41,   at   763   (discussing   difficulty   of   ascertaining   insistence   on   including  

privilege  against  self-incrimination  with  certainty).   

          48       BROUN ET AL., supra note 37, § 114, at 688.  


          49       Diggs v. State, 274 P.3d 504, 506 (Alaska App. 2012) (quoting 6 WAYNE  


R.  LAFAVE ET AL.,  CRIMINAL  PROCEDURE  §  24.5(a),  at  424  (3rd  ed.  2007)).  

                                                           -17-                                                      7424

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

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."50  This implicates  

defendants'   dignity;  the  right does  not   simply  govern  the   admission   of   evidence,  but  

rather  gives  defendants  control  over  whether  to  present  themselves  as  witnesses  at  trial.51  

                    In  response  the  State  argues  that  the  privilege  against  self-incrimination  is  

fundamentally  a  procedural  trial  right;  that  it  "is  specifically  linked  to  the  admission  of  

evidence  against  the  defendant  to  show  his  guilt  in  a  criminal  case."   But  the  fact  that  a  

violation  can  occur  only  during  criminal  proceedings  does  not  necessarily  mean  that  the  

sole  purpose  of  a  defendant's  right  not  to take the  stand is to protect against erroneous  

conviction.   There  are  structural  errors  that  are  tied  to  the  trial  process.   For  example,  the  

right  to  conduct one's  own  defense  is  tied  to  the  trial  process  and  is  a  structural  error  


when  violated.           

                    There are few cases addressing the issue of a criminal defendant being  


compelled to take the stand.  The State cites several cases to support its argument that  


this  error is  amenable to harmless  error  analysis.   The  facts of most  of those  cases,  


however, do not involve a defendant being compelled to take the stand.53  



          50        Id.   

          51        In  Murphy  v.   Waterfront  Commission  of  New York  Harbor,  the  Supreme  

Court described compelling a  defendant  to  choose among "self-accusation,  perjury, or  

contempt"  as  a  "cruel  trilemma."  378  U.S.  52,  55  (1964),  abrogated  by  United  States  v.  

Balsys,  524  U.S.  666  (1998).   

          52        See  Weaver  v.  Massachusetts,  137  S.  Ct.  1899,  1908  (2017)  (citing  


McKaskle v. Wiggins, 465 U.S.  168, 177 n.8 (1984)).  


          53        For example, in discussing UnitedStates v. Goodwin,the State explains that  


"the judge  caused the defendant to testify by telling her that  she had little chance of  


success unless she testified." 770 F.2d 631, 636-38 (7th Cir. 1985).  In dicta, the court  



                                                             -18-                                                       7424

----------------------- Page 19-----------------------

                    Alvarez-Perdomo's  primary  support  is  State  v.  Sierra,  a  case  directly  on  


point  from  the  Connecticut  Supreme  Court.                      In  Sierra  a  trial  court  compelled  a  criminal  

defendant  to  take  the   stand  when  called  by  his   co-defendant  by  threatening  him  with  


contempt if  he  refused.              The  State  unsuccessfully  attempts to distinguish  the  facts  of  

Sierra,  arguing  that  the  defendant  in  Sierra  testified  under  the  threat  of  contempt,  while  

Alvarez-Perdomo   "wanted  to  testify,   and  that   finding  has  not  been overruled."    This  

assertion  by  the  State  is  a  misstatement,  as  the  court  of  appeals  held  that  "the  trial  judge  


committed  constitutional  error  by  coercing  Alvarez-Perdomo  to  take  the  stand."                                      

                    We  also  reject  the  notion  that  the  only way to compel a  defendant  to  be  a  

witness at  trial  is  to threaten him  with  contempt:   The  Fifth  Amendment  of  the  United  

States   Constitution   and   article   1,   section   9   of   the  Alaska   Constitution  both  protect   a  

          53        (...continued)  

added, though,  that even if a constitutional violation had  occurred, it would  have been  

harmless  because  the  defendant  had  been  prepared  to  testify  and  because  her  testimony  

was   "not   garbled   or   confused -   she   seemed   to   know   exactly   what   she   was   talking  

about."   Id.   It  is  noteworthy  that  in  Goodwin  the  Seventh  Circuit  held  that  the  trial  court  

had  improperly  influenced  the  defendant's  decision  to  testify  but  that  this  did  not  rise  to  

the  level  of  a  Fifth  Amendment  violation.   Id.  at  637.    

          54        568 A.2d 448 (Conn. 1990).  


          55        Id . at 456.  


          56        Alvarez-Perdomo  v. State, 425 P.3d 221, 229 (Alaska App. 2018).  The  


court of appeals also stated that "a judge must not badger or coerce a defendant to take  


the  stand. That  is what  happened  in this  case."   Id.                         In addition  to  concluding that  


Alvarez-Perdomo was compelled to take the stand, the court also described the superior  


court's actions as forcing him to take the stand: "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."  Id. at 228.  


                                                              -19-                                                        7424

----------------------- Page 20-----------------------


defendant   from  being   "compelled"   to  be   a  witness   at   trial,                     and it would  be  unduly  

narrow  to  read  "compelled"  as   only encompassing   situations  in  which  a  defendant  is  

threatened   with   contempt.     As   the   Connecticut   Supreme   Court   noted   in   its   Sierra  

analysis,  through  the  language  of  the  Fifth  Amendment   

                    a  criminal  defendant  is  afforded  "the right  not  only  to  avoid  

                    giving   incriminating   responses   to   inquiries   put   to   him   but  

                    also   to   be   free   from   the   inquiries   themselves.     Thus   the  

                    privilege   of   an   accused   allows   him   not   only   to   refuse   to  

                    respond to  questions  directed  at  his  alleged  participation  in  

                    the   offense  but   also   entitles  him  not   even  to  be   called   as   a  


                    witness  at  his  own  trial."              

                    The  Sierra  court reasoned  that  "the  violation  of a  defendant's  absolute right  

not   to   testify   at   [his]   own   trial"   is  a   fundamental   constitutional   error.59  

                                                                                                                    The   court  

concluded   that   this violation   of   a   defendant's   absolute   right   was   incompatible   with  


harmless  error  analysis            because  this  error  implicated  the  integrity  of  the  judicial  system  

as  well  as  individual  dignity:  

                    [W]e  find  that  to  compel  a  criminal  defendant  to  testify  at  his  

                    own  trial  in  violation  of  his  fifth  amendment  right  not  to  take  

                    the  stand  derogates  from  the  integrity  of  the  constitution  and  

          57        U.S.  Const.  amend.  V.;  Alaska  Const.  art.   1,  §  9.      

          58        Sierra,  568  A.2d  at  456  (quoting  C.  MCCORMICK,  EVIDENCE  §  130  (4th  ed.  


          59        Id.  at  456-57.   

          60        Id.   ("[H]armless error   analysis   has   not   been   applied   to   rights   that   .   .   .  

promote systematic  integrity  and  individual  dignity."  (quoting  Johnstone v. Kelly, 808  

F.2d  214,  218  (2d  Cir.1986),  cert.  denied,  482  U.S.  928  (1987))).   

                                                              -20-                                                        7424

----------------------- Page 21-----------------------

                    the  judicial  system  and  affects  an  individual's  dignity  in  such  

                    a  way  that  cannot  be  tolerated.[61]  


The court  concluded  that  "compelling  a  criminal  defendant  to  take  the  stand  and  to  testify  

in  a  criminal  prosecution  against  him  is  so  fundamental  an  error  that  automatic  reversal  


is  required  and  may  not  be  disregarded."                    

                    The  State  counters  that  certain  limits  of  the  privilege  against  self- 


incrimination demonstrate that it is not designed to protect individual dignity, namely  


that defendants may be compelled to provide blood samples63  and that individuals may  



be compelled to testify if granted immunity from future prosecution.64  We disagree: the  



State's examples are not analogous to a criminal defendant being compelled to testify at  




          61        Id.  at  457.   

          62        Id.  at  456.   

          63        See  Schmerber  v.  California,  384  U.S.  757,  760-65  (1966).  

          64        See  Kastigar  v.   United  States,  406  U.S.  441,  448  (1972).  

          65        The  Supreme  Court  has  held  that t  he  privilege  against  self-incrimination  

applies  to  testimonial  communications,  but  not  evidence  of  physical  characteristics  such  

as  blood  samples  or  handwriting  samples.   United  States  v.  Hubbell,  530  U.S.  27,  34-35  

(2000) (discussing   limited applicability of privilege to testimonial communications);  see  

also  DAVID  S. RUDSTEIN ET AL.,  2  CRIMINAL  CONSTITUTIONAL  LAW  § 6.02(1)(b) (2019)  

(citing  Schmerber v. California,  348  U.S.  757  (1966)  (addressing blood samples);  United  

States  v. Mara, 410 U.S. 19  (1973)  (addressing handwriting samples)).  Thus, the fact  

that  the privilege against  self-incrimination  fails  to  reach  involuntary  blood  samples  does  

not   mean   that   it   does   not   protect   a   defendant's   dignity.    Nor   does   the   fact   that   the  

privilege  against  self-incrimination  does  not  reach  a  witness  who  does  not  face  a  risk  of  

self-incrimination   because   the   witness   has   been   granted  immunity    from    future  

prosecution.   Kastigar,  406  U.S.  441;  State  v.  Gonzalez,  853  P.2d  526  (Alaska   1983).   

                                                              -21-                                                        7424

----------------------- Page 22-----------------------

                    We  agree  with  the  Sierra  court:   Compelling  a  criminal  defendant  to  testify  

at  trial  derogates  from  the  integrity  of  the  judicial  system  and  unacceptably  encroaches  

on   individual   dignity.     A   criminal   defendant's   right   not   to   take   the   stand   is   a   core  

protection   of   the   Fifth  Amendment   of   the   United   States   Constitution   and   article   1,  

section  9 of the Alaska  Constitution.66  "The freedom of a defendant in a criminal trial  

to remain silent 'unless  he  chooses to  speak  in the unfettered exercise of his own will'  

is  guaranteed  by  the  Fifth  Amendment."67  

                    We  conclude  that  compelling  Alvarez-Perdomo  to  take  the  stand  to  testify  

in the case against  him  was a structural error requiring  automatic reversal.  A criminal  

defendant's   right   not   to   take   the   stand   does   not   simply   protect   against   the   risk   of  

erroneous  conviction:   It  protects  the  criminal  defendant  from  suffering  the  indignity  of  

being   compelled   to   take   the   stand   to   provide   information   that  is   against   their   own  



          66        See,   e.g.,   United   States   v.  Patane,   542   U.S.   630,   637   (2004)   (plurality  

opinion)   ("[T]he   core   protection   afforded   by   the   Self-Incrimination   Clause   is   a  

prohibition  on  compelling  a  criminal  defendant  to  testify  against  himself  at  trial."  (citing  

Chavez  v.  Martinez,  538  U.S.  760,  764-68  (2003)  (plurality  opinion)));  Munson  v.  State,  

123   P.3d   1042,   1047   (Alaska   2005)   ("[T]he   core   protection   is   a   prohibition   on  

compelling  a  defendant  to  testify  against  himself  at  trial").   

          67        Carter v. Kentucky, 450 U.S. 288, 305 (1981) (quoting Malloy v. Hogan,  


378 U.S.  1, 8 (1964)).  


          68        As Justice Stevens observed, a defendant's decision to testify implicates  


interests outside of preventing erroneous conviction:  


                    The  Constitution  wisely  commits  the  critical  decision  of  


                    whether the defendant shall take the stand to the defendant  


                    and his lawyer, rather than the judge, for at least two reasons.  


                    First, they have greater access to information bearing on the  


                    decision than the judge can normally have.  Second, they are  



                                                             -22-                                                       7424

----------------------- Page 23-----------------------

         B.	       Trial Courts Must Take Care When Conducting The  LaVigne  Inquiry.  

                   The   purpose   of   the   LaVigne   inquiry  is   to   ensure   that   defendants   are  

informed  of  their right to testify  and  that  the  decision  whether  to  testify  is  ultimately  


theirs.      Although  some  defendants  will  clearly  express  their  desire  not  to  testify,  other  

defendants, like Alvarez-Perdomo, will struggle with this decision.   When defendants are  

unwilling or unable  to  clearly  assert  that  they  want to waive the right to testify, judges  

are  not  required  to  continue  questioning  defendants  until  they  provide  a  definite  answer.   

Importantly,  as  emphasized  by  the  court  of  appeals,  judges  must  not  compel  defendants  

to  take  the  stand  if  they  provide  equivocal  responses  to  the  LaVigne  inquiry:   

                   [T]he  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  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 defendant  to  

         68	       (...continued)  

                   motivated  solely  by  concern  for  the  defendant's  interests;  the  

                  judge   inevitably   is   concerned   with   society's  interest   in  

                   convicting  the  guilty  as  well  as  protecting  the  innocent.   

Lakeside  v.  Oregon,  435  U.S.  333,  344  (1978)  (Stevens,  J.,  dissenting);  see  also  Carter,  

450  U.S.  at  299-300,  300  n.15  (1981)  (discussing  reasons  unrelated  to  guilt  or  innocence  

defendant  might  refuse to take stand such as  rough  questioning,  personal  embarrassment,  

and  potential  incrimination  of  others).  

         69        LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991).  


                                                          -23-	                                                   7424

----------------------- Page 24-----------------------

                  take   the   stand.    Rather,   the  judge   should   order the   trial   to  

                  proceed  without  the  defendant's  testimony.[70]  


                   During  the  LaVigne  inquiry  the  court  should  confirm  that  the  defendant  is  

informed  that  "[t]he  ultimate  decision  whether  to  exercise  the  right  [to  testify]  .  .  .  rests  


with  the  defendant,  not  with  defendant's  counsel."                  When  safeguarding  a  defendant's  

right  to  testify  through  the  LaVigne  inquiry,  we  caution  trial  courts  against  going  to  the  

opposite extreme of  compelling  defendants  to take the  stand.  The decision whether to   

testify  belongs  to  the  defendant,  not  the  trial  court.   

V.       CONCLUSION   

                   We REVERSE the court of appeals' decision regarding harmless error.   We  

REVERSE  the  judgment  of  conviction  and  REMAND  to  the  superior  court f  or  a  new  


         70       Alvarez-Perdomo  v.  State ,   425   P.3d   221,   226   (Alaska   App.   2018)  

(emphasis  in  original)  (internal  citations  omitted).   

         71       LaVigne,   812  P.2d   at  219   (citing  Hughes  v.  State,   513  P.2d   1115,   1119  

(Alaska   1973)).   

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