by Douglas Ankney

In a case of first impression, the Supreme Court of Alaska announced that when a trial court forces a defendant to testify at his or her trial, it is a structural error not subject to harmless error analysis but always requires reversal.

Paino Manuel Alvarez-Perdomo was tried by a jury on a charge of first-degree assault stemming from his alleged shooting of his mother in the abdomen. After the prosecution rested, Alvarez-Perdomo’s attorney stated the defense would not call any witnesses. The superior court, in conformity with LaVigne v. State, 812 P.2d 217 (Alaska 2017), then attempted to confirm with Alvarez-Perdomo that he voluntarily waived his right to testify. But Alvarez-Perdomo’s answers to the court’s questions were equivocal:

Judge: And your attorney, ... has advised me that you have chosen not to testify. Is that correct?

Alvarez-Perdomo: I think so.

Judge: Do you know so?

Alvarez-Perdomo: I don’t know.

The court recessed to allow Alvarez-Perdomo time to consult with his attorney. When the court again resumed questioning, Alvarez-Perdomo again gave equivocal answers, which were followed by another recess, so Alvarez-Perdomo could again consult with his attorney.

After the second recess, Alvarez-Perdomo indicated he couldn’t speak English and gave unclear answers as to whether he was voluntarily waiving his right to testify.

Unable to obtain a definite answer from Alvarez-Perdomo that he was waiving his right to testify, the court ordered the judicial officer to escort Alvarez-Perdomo to the stand. On direct examination, Alvarez-Perdomo testified that he didn’t know basic information, such as his own address or his mother’s name. He also testified that he was not an assassin. On cross-examination, he testified he neither knew his mother nor recognized her.

The jury convicted Alvarez-Perdomo of first-degree assault. On appeal, he argued that the trial judge forced him to testify, violating his right not to incriminate himself. The court of appeals ruled that the superior court committed constitutional error by forcing Alvarez-Perdomo to testify but ruled that the error was harmless. The Alaska Supreme Court granted Alvarez-Perdomo’s petition for a hearing.

The Court observed that “[t]he United States Supreme Court has established two categories of constitutional errors: structural errors and trial errors.” A constitutional trial error requires reversal and a new trial unless it can be shown the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). But a constitutional structural error is not subject to the harmless error analysis and always requires reversal and a new trial. Jordan v. State, 420 P.3d 1143 (Alaska 2018). An error is structural when: (1) the right at issue protects some issue other than protecting the defendant from an erroneous conviction, (2) the effects of violating the right are too hard to measure, and (3) it results in fundamental unfairness. Weaver v. Massachusetts, 137 S. Ct. 1899 (2017).

The Court concluded that forcing a defendant to testify is a structural error based on the first factor of Weaver because it violates the privilege against compelled self-incrimination. The Court then conducted an extensive examination of the history of the privilege to demonstrate that the purpose of the privilege is to protect a defendant’s personal dignity. The Fifth Amendment right that no person “shall be compelled in any criminal case to be a witness against himself” protects a defendant from the “cruel trilemma” of choosing among “self-accusation, perjury, or contempt.” Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

The Alaska Supreme Court was also persuaded by the Connecticut Supreme Court’s decision in State v. Sierra, 569 A.2d 448 (Conn. 1990). In that case, the trial court compelled a criminal defendant to take the stand when called by his codefendant by threatening him with contempt if he refused. The Sierra Court ruled that not only does a defendant have a right to avoid giving incriminating responses to questions put before him, he also has the right to be free from being questioned at all. 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 and concluded the error was incompatible with harmless error analysis because the error implicated the integrity of the judicial system and individual integrity.

The Alaska Supreme Court concluded that forcing Alvarez-Perdomo to testify violated the Fifth Amendment, and the error was structural and not subject to harmless error analysis.

Accordingly, the Court reversed the decision of the court of appeals regarding harmless error, reversed the judgment of conviction, and remanded to the superior court for a new trial. See: Alvarez-Perdomo v. State, 454 P.3d 998 (Alaska 2019). 

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